Taking Liberties: The War on Terror and the Erosion of American Democracy

By Susan N. Herman | Go to book overview
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6.
Gutting the Fourth Amendment

We think that the Fourth Amendment should be no more relevant
than it would be in cases of invasion or insurrection.1
—John Yoo,
Office of Legal Counsel memo (2001)

When legislation is written that waters down the standard of
the Fourth Amendment, it is not the guilty who suffer, but the
innocent
.—Brandon Mayfield (2007)

How do you file a brief in a secret court?—Ann Beeson, ACLU lawyer
(2003)

BRANDON MAYFIELD, the Oregon lawyer who was the innocent victim of a stupendous FBI mistake, came to understand the significance of what might look like the Patriot Act’s tiniest change to previous law: replacing the word “the” in a statute about foreign intelligence surveillance with the words “a significant.” This deceptively trivial rewording was part of a sea change that has increasingly allowed American citizens to be treated the same way we treated the Soviet Union during the Cold War. Brandon’s story is a disturbing example of how our right to be free from unreasonable searches and seizures is being chipped away, chunk by chunk, and how the courts have failed to intervene.

Brandon thinks that FBI agents were inclined to believe that he was involved in the March 2004 bombing of several commuter trains in Madrid, Spain, because he is a Muslim. He converted to Islam shortly after meeting his Egyptian immigrant wife, Mona. Brandon is an American citizen, born in Oregon and reared in Kansas, and a former Army officer with an honorable discharge. At the age of thirty-eight, he had never been convicted of any crime and had not traveled outside the United States since 1994 when he completed his military duty in Germany. He did not even have a current passport.

-105-

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