The Justice Department is acknowledging for the first time that the FBI used a secret search warrant to copy and seize material -- including DNA samples -- from the home of Brandon Mayfield, a Portland, Ore., man who was wrongly arrested and jailed last year in connection with the March 2004 train bombings in Madrid.
In statements and testimony this week, Attorney General Alberto R. Gonzales and other Justice officials have also said that some of the special powers used to spy on Mayfield were strengthened by the USA Patriot Act, the anti-terrorism law facing fresh scrutiny from Congress.
In a background briefing with reporters Tuesday, two senior Justice Department officials maintained that the FBI could have taken Mayfield's belongings and conducted surveillance on him even without the Patriot Act because he was under suspicion in a prominent international terrorism case.
But Mayfield's attorney said that may not be true, and the disclosures prompted Rep. John Conyers Jr. (D-Mich.) to ask the Justice Department's inspector general to expand his ongoing investigation of the case.
Mayfield, a convert to Islam, was arrested May 6 after the FBI concluded that his fingerprint was on a bag of detonators connected to the bombings two months earlier in Madrid, which killed nearly 200 people. He was freed two weeks later, after the FBI admitted it had bungled the fingerprint analysis. Mayfield is suing the federal government.
The Justice Department previously declined to confirm Mayfield's contention that his house had been ransacked in a covert search.
But in a March 24 letter to Mayfield, sent as part of the ongoing lawsuit, the department acknowledged that during clandestine searches of his home the FBI made copies of computer drives and documents, and that "ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis." Authorities took approximately 355 digital photographs.
Finally, the letter said, "Mr. Mayfield is also hereby notified that he was the target of electronic surveillance and other physical searches authorized pursuant to FISA" -- the Foreign Intelligence Surveillance Act, which governs such warrants and was expanded under the Patriot law.
Conyers wrote to Inspector General Glenn A. Fine yesterday that "it is a frightening prospect that an innocent person can have his home secretly searched, his DNA secretly taken and stored and his computer files raided by the federal government. Now the Bush administration apparently believes that Mr. Mayfield is not even entitled to know the extent to which his privacy has been invaded."
Justice officials said Tuesday that although the Patriot Act made it easier for authorities to obtain and extend FISA warrants, they do not believe the law had any direct impact on the Mayfield case.
But Elden Rosenthal, one of Mayfield's attorneys, said yesterday that the assertion cannot be tested without seeing the application for a search warrant and the judge's order that allowed it, which the government has not released.