The case of Brandon Mayfield, the Oregon lawyer who was a suspect in the March 11 train bombings in Madrid because his fingerprint ostensibly matched one found on a bag of explosive detonators, raises a host of troubling questions that someone in Congress should be asking.
* How is it possible for a fingerprint match to be inaccurate after being confirmed as a "100 percent identification" by three FBI experts as well as a defense-hired expert? What does that say about the dependability of fingerprint analyses?
* Why was Mayfield detained under the material witness statute when that law was designed to address the problem of witnesses - not perpetrators of crimes - who are a flight risk?
* Why did the FBI have Mayfield's Army fingerprints on file and why could they be searched at will?
Mayfield was detained on May 6 and held for two weeks as a material witness in the terrorist attack that killed nearly 200 people and injured about 2,000. He was released with an apology from the FBI.
We now know that Mayfield's fingerprint was not the one on the incriminating bag. Instead, the FBI says the print belongs to Ouhnane Daoud, an Algerian national. Yet, according to the FBI, Mayfield's fingerprints matched the print lifted by Spanish authorities at 15 particular ridge points. This is far more than what is often required in criminal court to assert an absolute match. In the Washington Post last month, Jennifer Mnookin, law professor at the University of Virginia, wrote "experts have declared positive fingerprint matches in court after finding even fewer than eight points."
What the Mayfield case suggests is that fingerprint matches may not be the gold standard of proof that law enforcement has held it out to be. Mnookin said serious concerns about the reliability of fingerprint analysis have been roundly ignored. First, she said, we really don't know whether each fingerprint is unique, since valid statistics don't exist. It could be that many people have fingerprints so similar as to be virtually indistinguishable.
Another concern identified by Mnookin is the growth of databases holding fingerprints. The FBI's Integrated Automated Fingerprint Identification System contains more than 45-million prints. The more prints, the more likely there will be false positive matches implicating someone innocent with what is put forth as unassailable proof.
The FBI says the mistake was made because of the poor quality of the digital image of the Madrid fingerprint. But it also appears there was a rush to judgment against Mayfield whose "match" was one of a number spit out by the computer. Mayfield became the prime suspect because he had represented a terrorism defendant in a custody matter and he advertised in a Muslim telephone book that was run by a former assistant of Osama bin Laden's - the kinds of associations that many in the Muslim community could easily have. Here is religious profiling at work. The consequences can be highly destructive to innocent lives.
Then there is the most distressing aspect of this case, which is the way due process was bypassed with use of the material witness statute.
The law was designed to hold witnesses who were likely to leave the country to avoid testifying, but it has been transformed by John Ashcroft's Justice Department as a tool of preventive detention. Since 9/11 at least 50 individuals have been locked up first and investigated later with many released without being called as "witnesses" at all. In Mayfield's case there was insufficient cause to charge him with a crime, so the Justice Department used what was handy.
It is worth noting that weeks prior to Mayfield's arrest Spanish authorities had raised questions over the accuracy of the FBI's fingerprint match. But FBI officials didn't wipe the arrogance from their eyes until a more logical suspect emerged.
Mayfield's prints were available to the FBI because he had been arrested once as a juvenile and had been in the U.S. Army. According to Paul Bresson, FBI spokesman, in addition to fingerprints of known criminals and arrestees, the agency maintains the prints of everyone who has held a federal government job or has been in the armed forces since 1924. The prints are collected so the FBI may conduct a criminal background check. But after the check is complete, the prints are not destroyed. They are kept nearly indefinitely for use when the FBI is looking for suspects.
I bet the men and women of the armed services have little idea that years after they have completed their service, their fingerprints are scanned for any potential criminals and terrorists among them.
Congress has taken some interest in Mayfield's case. Members have sent the Justice Department letters raising questions; and the topic is expected to come up when Ashcroft appears before the Senate Judiciary Committee this week. They should keep on it. It is up to lawmakers to set limits on how this "war on terrorism" is fought - either with respect for due process rights and privacy, or not.