Report: U.S. abusing material witness statute
Justice Department says powers not used recklessly

CNN | June 27, 2005
By Kevin Bohn

WASHINGTON (CNN) -- Civil liberties groups will release a report Monday that accuses the Justice Department of violating individual rights under material witness statutes.

In their report, the American Civil Liberties Union and Human Rights Watch said that after a yearlong investigation they have found at least 70 men -- all but one Muslim -- were arrested using such material witness warrants as part of terrorism investigations after the attacks on September 11, 2001.

Sixty-four of the witnesses were of Middle Eastern or South Asian descent, and 17 were U.S. citizens, the groups said.

The material witness law, enacted in 1984, allows the government to arrest persons who are needed as witnesses in ongoing cases and who it argues might not comply with a conventional subpoena.

The two groups claim that almost half of the witnesses were never brought before a grand jury or a court to testify, and that many were not told the reason for their arrest or allowed immediate access to a lawyer.

The groups found that only 28 people were eventually charged with a crime, according to The Associated Press -- most of them unrelated to terrorism. Seven faced charges of giving material support to terrorist groups.

The government has apologized to 13 people for using the law to detain them, the groups said.

Among them is Brandon Mayfield, a lawyer in Oregon who sued the Justice Department and FBI after he was wrongly detained in connection with the investigation of the March 2004 train bombing in Madrid, Spain. (Full story)

"The Justice Department's unlawful use of the material witness statute is perhaps the most extreme but least well-known of the government's post-September 11 abuses," said Lee Gelernt, a senior ACLU staff attorney.

Justice Department officials did not offer specific comment on the allegations or the numbers cited in the report. A spokesman said the statutes are not used recklessly.

"Critics of law enforcement fail to recognize that material witness statutes are designed with judicial oversight safeguards and are critical to aiding criminal investigations ranging from organized crime rackets to human trafficking," Justice Department spokesman Kevin Madden said.

In the past, officials have refused to discuss in any depth the department's use of material witness warrants, including the number of persons arrested under them, citing the fact they are part of grand jury proceedings which are under seal. The department has defended the tactic saying those arrested do have rights, including access to an attorney, and contend the authority has not been abused.

"This is an ordinary tool as used throughout the country but always in adherence to the Constitution and always -- and this is so important -- always with the oversight of a federal judge who has to determine that ... probable cause exists in the first place," Chuck Rosenberg, chief of staff to the deputy attorney general, testified on May 26 of this year to a House Judiciary Subcommittee.

The report alleges that about one third of the 70 material witnesses mentioned in the document were held for at least two months and one was imprisoned for a year. The groups claim these men were held in solitary confinement around-the-clock and subjected to "harsh and degrading high-security conditions usually reserved for prisoners accused or convicted of the most dangerous crimes," according to a news release issued by the groups. The report also says detainees described both verbal and -- in some cases -- physical abuse.

"These men were victims of a Justice Department that was willing to do an end-run around the law," said Jamie Fellner of Human Rights Watch. "Criminal suspects are treated better than these material witnesses were."

Previous studies by other groups and the media have put the number of material witnesses after the September 11 attacks at 25 and 44.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said he is considering action to scale back use of the statute.

"I am troubled by reports that this narrow law has been twisted from one of a specific statute to secure testimony, into a broad detention authority that has resulted in some notorious abuses," Leahy told AP.

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