updated 7/13/2005 11:13:32 PM ET 2005-07-14T03:13:32

The day before a Portland attorney was wrongly arrested on suspicion of involvement in the Madrid train bombings, an FBI official stated in an e-mail that the agency did not have enough evidence to arrest the man on criminal charges.

The recently declassified e-mail, written by Portland FBI spokeswoman Beth Anne Steele in May 2004, also noted that the attorney, Brandon Mayfield, was a Muslim convert. And it said the FBI had a plan to arrest Mayfield “if and when” his supposed link to the March 2004 terrorist attack “gets outed by the media.”

Mayfield was arrested a day later under the material witness law, which allows the arrest and detention of witnesses who might flee before testifying in criminal cases. The FBI said at the time that fingerprints found on a bag of detonators near the bombings had been matched to Mayfield.

Two weeks later, the FBI admitted the fingerprints belonged to someone else, freed Mayfield and apologized to him.

Mayfield, 38, has filed a lawsuit against the U.S. government, alleging he was singled out as a Muslim, and that the government violated his constitutional rights by wrongly arresting him, as well as by wiretapping his house prior to his arrest.

In a court document filed on Wednesday, his attorneys argue the e-mail supports their case by showing that the government “recognized it did not have probable cause to arrest Mr. Mayfield.”

Steele declined to comment on the court documents.

In her e-mail, Steele wrote to a colleague — whose name is blacked out — that Mayfield had been “tied” by a fingerprint to the Madrid attacks, which killed 191 people and injured more than 1,500.

“The problem is there is not enough other evidence to arrest him on a criminal charge. There is a plan to arrest him as a material witness if and when he gets outed by the media,” Steele wrote.

Michael Greenberger, a former Justice Department official who heads the University of Maryland’s Center for Health and Homeland Security, said: “This e-mail corroborates what is already widely known — that when the Justice Department does not have probable cause to make a criminal arrest, but they have a suspicion that someone is involved in terrorist activities, one tactic is to arrest them as a material witness.”

Such use of the material witness law “raises constitutional problems,” he said, because the person can be held for long periods without access to legal protections that come with a normal arrest — the right to a bail hearing, for instance.

Last month, two advocacy groups contended that the Bush administration has misused the material witness law to detain at least 70 terrorism suspects since the Sept. 11, 2001, attacks.

Only 28 of the suspects were eventually charged with a crime, according to the American Civil Liberties Union and Human Rights Watch, and most of those charges were not related to terrorism.

The government has apologized to 13 people for their detention under the law, including Mayfield.

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