This was pretty much what Nelson would have advised Brandon Mayfield on the morning of May 6, when federal authorities swooped down on the Aloha lawyer and arrested him in connection with the March 11 train bombings in Madrid, on the basis of what turned out to be a bad fingerprint identification. Say nothing, Nelson would have counseled his fellow Muslim, because even if you've done nothing, the government may be able to get you into a "perjury trap." And once you're in the trap, as the cliché goes, they have ways of making you talk.
When U.S. authorities asked Mayfield who he wanted for a lawyer, he named Nelson. As it happened, Mayfield didn't need Nelson's advice, because he'd already clammed up. As Mayfield put it later, he wasn't about to talk his way into something he'd never had any part of.
Nelson's "keep quiet" counsel may drive the feds crazy, but he's hardly some sort of left-leaning, wacko lawyer who sees government plots everywhere. Formerly a partner at this city's most establishment law firm, Stoel Rives, Nelson is a Yale-educated, highly regarded specialist in utility law whose corporate clients have included Pacific Power. He used to live in Lake Oswego and was for years a stalwart Republican. In the 2000 election, he even voted for George Bush.
Nonetheless since Sept. 11, 2001, the 59-year-old Nelson has become the go-to guy for Portland-area Muslims who have drawn the attention of the G-Men and aren't certain of where to turn.
Nelson has an interesting perspective on the federal government's war on terror. As a humanist, he strongly opposes the terrorist activities being waged by al Qaeda. As a convert to Islam, he says he is acutely aware of how uncomfortable it can be for a member of a religious minority. As a lawyer who prizes the value of careful analysis, he shudders at the way the prosecution of the war on terror has alienated, rather than embraced, the very people who might be of most help to the federal government. And as a native Northwesterner, he worries that the region is becoming more intolerant of cultural and religious differences.
In addition to advising Mayfield, Nelson or his firm have represented Adel Belazi, a U.S. citizen who had his passports seized at the Portland airport after he'd made a trip to Libya to see his ailing mother; the destitute family of Ali Steitiye, a Palestinian arrested on federal weapons charges in the weeks after Sept. 11; and Hossam Shaltout, a Canadian citizen from Los Angeles who claims to have been trying to broker a peace settlement with Saddam Hussein in the days just before the invasion of Iraq, and who was subsequently arrested. (Shaltout claims he was robbed and tortured by the U.S. military, because of his contacts with Uday Hussein, son of the deposed dictator.) Recently, Nelson has joined a consortium of U.S. lawyers suing Titan, the San Diego-based defense contractor involved in prisoner interrogations in Iraq, contending that the firm violated the human rights of people it questioned.
Although he is not a criminal-defense lawyer, Nelson has directed Portland-area Muslims under the eye of the government toward more appropriately qualified legal counsel, and he has directly helped a number of others--many of them on a pro bono basis--with civil matters that have grown out of the government's investigative focus. He has also begun to develop a clientele among Muslims in other parts of the country and in the Middle East, advising them mostly on business matters. Over the past decade, Nelson has made more than a dozen trips to the Middle East; he just returned from a business trip to Jordan and Yemen, where he has a client enmeshed in a legal dispute with a Canadian firm over some construction equipment. He has also represented parties in matters related to U.S. Indian Law, including the Yakima Nation and individual Nez Perce tribal members. All of this is a long way from his button-down days with Stoel Rives. But, as Nelson acknowledges, his legal practice has been steadily "morphing" since 9/11.
Tom Nelson was born in Utah and grew up near Soap Lake, Wash., the son of a U.S. Army colonel who later became an title-insurance executive. Raised as a Unitarian. Nelson graduated from the University of Washington in 1966, then served four years in Iran as a member of the Peace Corps.
After leaving the Peace Corps, Nelson graduated from law school at Valparaiso University in Indiana, then earned an advanced law degree from Yale. He taught law for four years before returning to the Northwest to join Stoel Rives as an associate in 1978, where he primarily worked on utility matters for what was then known as Pacific Power and Light. He is married--his wife, Esther, is a devout Lutheran and the daughter of a Lutheran minister--with two grown children. All in all, Nelson comes across as a sincere person, even something of an idealist. "My son Mathew just told my wife, 'Dad's always been a romantic, and he's still a romantic,'" Nelson says. "He's right."
Nelson decided to convert to Islam around 1994, primarily because the theology appealed to him. "The Islamic concept of God resonated with me," he says. "It's an intensely personal thing.... In Islam, religion is a much more integrated part of life." He tries to follow the precepts of Islam as rigorously as he can but admits it's not always possible to pray five times a day. He attends a mosque in Northeast Portland.
In 1996, Nelson had just turned 50. His children were mostly grown, and he decided to take a step back from Stoel Rives to see where he was headed in his life. "It was sort of a midlife crisis," he says. "I went to Borneo for 10 days just to think things over." When he came back, he decided to leave the large firm and start his own practice.
"It wasn't a flash of lightning, or anything like that," he says. "It was a realization that if I didn't move on then, I'd be doing it for the rest of my life." He just wasn't sure he wanted to practice utility law at a large firm until he was ready to retire. He left Stoel Rives "under friendly, amiable circumstances," he says, and the Stoel partners agree. "It was just time for a change."
The new firm was known as Nelson Lovinger Norling Kaufmann and Associates until July 1, when Nelson embarked on his own as Thomas Nelson and Associates. He continues to share well-appointed offices with Lovinger Norling Kaufmann in a high-rise near Lloyd Center.
Although his conversion to Islam was a personal decision, Nelson became more active in defense of Muslim rights as a result of his contact with an associate in his new firm. The associate, a Palestinian woman married to a Portland anesthesiologist, acquainted him with the conditions in Palestinian refugee camps in Lebanon and Jordan, which Nelson describes as abominable. "You can't understand what it's like to be a Palestinian living in one of the camps until you see it," Nelson says.
In August 2001, Nelson did just that, traveling to the occupied territory on the West Bank to participate in a series of nonviolent demonstrations against the Israeli government. Since then, Nelson has made three other trips to the territories to participate in demonstrations. A thick, luxuriously illustrated coffee-table book, The Spirit of Palestine, can be found in the plushly carpeted waiting room of Nelson's law office.
The plight of the Palestinian refugees is the primary cause of Islamic dissatisfaction with the West, as well as the attendant terrorism, Nelson contends. The lack of hope for a just solution inflames "hotheads," as Nelson calls them, who conclude that fighting by any means, even targeting innocent civilians, is acceptable, even if it is un-Islamic.
In Portland, Nelson has served on the Portland Police Bureau's Arab/Muslim Citizen Advisory Board and vigorously defended the rights of Muslims. At one point, he sued The Oregonian for defamation, as a result of an intemperate, anti-Muslim letter to the editor about the seizure of his client Belazi's passports at the airport. Nelson demanded a retraction, and when the retraction was not forthcoming, he sued on Belazi's behalf. The case was settled out of court, after two members of The Oregonian's editorial board met with Nelson and Belazi to hear the pair's complaints about the way the paper has covered the Muslim community.
Nelson dealt with a former colleague at Stoel Rives, Charles Hinkle, who serves as The Oregonian's libel lawyer. "These kinds of articles are having a terrible impact on the community," Nelson says he told Hinkle and the representatives of the daily's board, contending that the paper's war-on-terror coverage has had the side effect, perhaps unintended, of suggesting that all Muslims are potential terrorists. "I just wanted them to show a bit more sensitivity," he says.
For his part, Hinkle says, "I admire and respect Tom Nelson very much. We've had differing political views over the years, but he is a very fine lawyer." Others at the large Portland firm recall Nelson for his easygoing demeanor and his sense of humor. His conversion to Islam and his advocacy for the rights of Muslims hasn't alienated any of his former friends and acquaintances from his Stoel Rives days, Nelson says. "Some people may not call as often as they used to," he quips, but no one has crossed the street to avoid him. He acknowledges that some corporate clients may shy away from his law practice because of his advocacy for Muslims, but he says that doesn't bother him. "If a thing is right, it's right," he says.
Nelson says he also developed a fairly collegial relationship with Charles Gorder, the assistant United States Attorney who has been the principal government lawyer advising the Portland Joint Terrorism Task Force, the FBI collaboration with local law enforcement that erroneously targeted Mayfield last March in the wake of the Madrid bombing. Gorder would not comment for this story.
In Nelson's view, the treatment of Mayfield represents just about everything that's wrong with the way the federal government is waging the war on terror, at least domestically. "If you're going to have a war on terrorism, I can't imagine a worse strategy for fighting it than this government has taken," he observes. "It has treated all Muslims as enemies, and it has browbeaten and it has investigated and it is bringing pressure on people who have absolutely nothing to do with terrorism, just because they're Muslims, or it's suspected that they might know somebody who might know something about terrorism."
The affidavits federal authorities filed in the Mayfield case were larded with references to "jihad," as if that were an incriminating word. Nelson points out that "jihad" in Arabic doesn't necessarily entail violence--it generally connotes spiritual struggle, not unlike Christians might refer to a "crusade," as in Campus Crusade for Christ, or a "war" against smoking.
Nelson says the references infuriated him, because he thought they were intended to inflame the grand jury, the judge and, eventually, the public against Mayfield. The use of the word illustrates the government's penchant for cultural guilt by association, Nelson contends.
Karin Immergut, who as U.S. Attorney for Oregon is responsible for federal prosecutions in the state, disputes Nelson's claim that the government treats all Muslims as enemies, but she acknowledges the government could do a better job of cultivating cooperative relations with U.S. Muslims. She also notes that FBI Director Robert Mueller has said getting help from U.S. Muslims in combating terrorism remains a high priority.
Even if Mayfield had been a terrorist, Nelson argues, the arrest was misconceived from an intelligence-gathering perspective, because it essentially cut off any further avenue of investigation--any suspicious contacts Mayfield may have had (but didn't, as it turned out). Nelson wonders why the government didn't low-key its investigation and simply ask Mayfield about the fingerprint--as they would any other person presumed innocent--to see what would happen. "That would have been a better way of handling it than what they did here," Nelson says.
In any event, even Immergut agrees the Mayfield affair has cast a harsh light on the state of relations between the U.S. government and U.S. Muslims.
While most people now know the basic facts of what happened--how Mayfield's fingerprint was erroneously matched with a print (labeled "No. 17" by the FBI's Latent Print Unit) on a plastic bag containing detonators and explosive residue found after the bombings, a sack he had never touched; how he was placed under covert surveillance and subjected to secret investigation beginning on March 19; and how six weeks later he was arrested, jailed for two weeks on a material-witness warrant, then released with embarrassed apologies--the backstory on the fiasco is still emerging.
There are now three separate Mayfield investigations underway into how things went so wrong, so quickly and so badly. In one, the Justice Department's inspector general, Glenn Fine, has agreed to a request from the Democrats on the U.S. House Judiciary Committee to look into how the bogus identification was made, how information about the identification was leaked to the news media, and whether "senior officials at the FBI, the Department of Justice, and the White House" had any role in deciding to make the arrest. (Immergut has said the decision to arrest Mayfield on the material witness warrant was made by federal authorities in Oregon, not Washington, D.C.)
The question here is whether the Justice Department and the White House had Mayfield arrested, and then leaked that development so as to be seen as doing something about terrorism at a time when the Bush administration was getting hammered in the public-opinion polls because of abuses at Abu Ghraib prison and continued difficulties in Iraq. The Mayfield side gets ammunition for this belief from that fact that the Newsweek reporter who broke the Mayfield story, Michael Isikoff, knew of Nelson's involvement in the case within minutes of Gorder's call to Nelson to inform him of Mayfield's arrest. Isikoff's initial story on the Newsweek website implied very strongly that Mayfield was a terrorist, and the piece failed to acknowledge that there were severe doubts, at least in Spain, about the accuracy of the fingerprint identification as early as April 13. The Democrats on the House committee want the Inspector General to report on just who knew what, and when they knew it.
In a second investigation--one Immergut promised on May 10 to U.S. District Judge Robert Jones, the man who approved the warrant for Mayfield's arrest--the FBI has been asked to ferret out the sources of leaks about the case. Given that some of the leaks appear to have come from the Department of Justice itself, the efficacy of this proposed leak-hunt is not without skeptics, but since the disclosures involved federal grand-jury matters that are supposed to be kept secret by law, there's every reason to believe that Jones--who seems to be the U.S. District Court's designated hitter on alleged terrorism cases--may insist on results.
And in a third probe, the office of U.S. Sen. Ron Wyden is trying to assemble all the facts with an eye toward possibly amending the Foreign Intelligence Surveillance Act, which gave authority to the FBI to put Mayfield under covert surveillance as early as March 19, two days after the bogus identification was made.
In due course, there may be a fourth investigation as well: Mayfield could decide to sue the federal government for its abuse of his rights as a citizen. If he chooses to do so, Nelson will certainly advise him and would probably encourage Mayfield to depose government officials, possibly including Attorney General John Ashcroft himself, and to obtain documents shedding light on what actually happened.
Mayfield thus represents what might be a test case of the constitutionality of the Patriot Act and FISA. Under FISA, Mayfield, as "an aggrieved person," has the right to sue the government for redress, while the government has the right to continue to keep its actions against Mayfield secret. The contradiction in the law may need to be addressed by legislation.
Nelson believes that the government abused its authority when it seized Mayfield's client files, which contained information about a number of Portland-area Muslims, and when it attempted to coerce Mayfield into talking about those clients. One of Mayfield's former clients is Jeffrey Battle, who as one of the so-called "Portland Seven" was targeted by the FBI and is now serving an 18-year sentence for conspiring to fight against U.S. troops in Afghanistan. Mayfield represented Battle in an unrelated child-custody case in 2002.
Mayfield, Nelson and the federal public defender assigned to Mayfield's case, Steven Wax, all argued that Mayfield could not waive the attorney-client privilege just because the government wanted him to. Immergut acknowledges that the feds seized Mayfield's files, but she notes that the government gave the files back. This didn't happen, however, until they had been copied and distributed to an alphabet soup of federal security agencies, and not until Jones ordered them returned to Mayfield.
Just why the government thought it could persuade--"intimidate" is the word Nelson uses--Mayfield to ignore his ethical obligations not to talk about his clients remains a puzzle, unless the government only intended all along merely to get publicity for the arrest, rather than actual information. Immergut rejects this as a motivating factor and asserts that arresting Mayfield only for the publicity value would have been a violation of her oath and an abuse of her power.
"This was a case where we didn't know anything about Mr. Mayfield until we got information from Washington that Mr. Mayfield's fingerprint was on a bag of detonators related to the March 11 Madrid bombing," Immergut contends.
She insists the federal government only wanted to find out what Mayfield knew about the bombings--if anything. The feds were prepared to believe that Mayfield may have provided unwitting assistance to the bombers, she says, but they wanted to question him without revealing everything they knew--or thought they knew--in order to test Mayfield's credibility.
As Nelson points out, however, "They can ask you anything they want, and if you make a mistake, they can say you're lying. Or maybe they might ask you something that's personally embarrassing. That's how they got the Muslim chaplain at Guantanamo, Capt. [James] Yee. They charged him with spying, but in the end, got him for admitting to adultery."
This, says Nelson, is how the government is losing the war on terror, and as long as the government persists in trying to use the criminal-justice system to extort information from U.S. Muslims, he will continue to advice his clients to be very careful.
There are approximately 20,000 Muslims in the greater Portland area, and six major mosques.
There are more than 2 million Muslims in the United States.
There are about 1.3 billion Muslims worldwide, compared with about 2 billion Christians, 13 million Jews, 1 billion Hindus, and about 350 million Buddhists.
The Foreign Intelligence Surveillance Act, as amended by the Patriot Act, permits the U.S. attorney general to authorize a warrantless search or electronic surveillance of any individual, including a U.S. citizen, if the AG has reason to believe a person may be assisting a "foreign power," including a terrorist group.
After an unwarranted FISA search or surveillance, the AG must notify the special FISA court in Washington, D.C., of his action and "certify" to the court that the action was necessary.
The Attorney General must report "all physical searches" conducted under FISA to the U.S. Senate Select Committee on Intelligence twice each year.
FISA defines "international terrorism" as violent acts that would break U.S. laws "that appear to be intended" to "intimidate or coerce a civilian population," including the use of sabotage.
If such violent acts "transcend national boundaries in terms of the means by which they are accomplished," they would qualify for surreptitious government investigation under FISA. To the extent that so-called "domestic terror" groups, such as the Earth Liberation Front or Animal Liberation Front, cross a national border--such as in a telephone call--the use of FISA against suspected conspirators would be authorized.