Report says Justice Dept. misused law in 70 cases

WASHINGTON — At least 70 men, all but one of them Muslim and one-quarter of them U.S. citizens, have been detained improperly as "material witnesses" since the Sept. 11 attacks and were denied due-process rights, according to a report by Human Rights Watch and the American Civil Liberties Union (ACLU).

Of the individuals detained, only seven were charged with providing material support to terrorists, said the advocacy groups' report, which is to be made public today. In most cases, detentions resulted in a release, often without testimony before a grand jury, or in criminal charges unrelated to terrorism.

The detainees "couldn't get straight answers. They couldn't see the evidence. The hearings were held behind closed doors. It was a mockery of safeguards," said Jamie Fellner, director of the U.S. program for Human Rights Watch.

The report also said the witnesses "were typically arrested at gunpoint, held round the clock in solitary confinement and subjected to ... harsh and degrading ... conditions" usually reserved for more dangerous criminal suspects. It also said the Justice Department used the special warrants primarily "to buy time to conduct fishing expeditions."

The material-witness law, which was passed in 1984, allows prosecutors to seek arrest warrants for people who have relevant and critical information but are likely to flee rather than participate in an investigation.

Justice Department officials have repeatedly maintained that they used the law properly as a tool in the terrorist investigations that followed the attacks. They also point out that the arrest warrants cannot be issued without a judge's supervision.

"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," Kevin Madden, a Justice Department spokesman, said in a statement yesterday.

The Justice Department has declined to release complete details of its use of the material-witness statute, including the number of times it sought such warrants as part of the terrorist investigations.

The report is the activists' attempt to put together a broader picture, although they concede that the effort might not be complete.

"The major finding is that the Justice Department was indeed misusing the material-witness law to arrest people it viewed as suspicious but didn't have enough evidence to arrest under normal charges," said Anjana Malhotra, author of the new study.

"The government was able to use little threads of evidence and convince judges that witnesses had connections to terrorism and needed to be jailed in secret. ... It was like being thrown into a hole."

Ultimately, the report said, the government apologized to 13 such individuals, including Brandon Mayfield, an Oregon lawyer held when a misidentified partial fingerprint allegedly linked him to the 2004 terrorist train bombings in Madrid, Spain.

"On the domestic front, 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-Sept. 11 abuses," said Lee Gelernt, senior staff counsel with the ACLU's Immigrants' Rights Project. "The material-witness abuses are a prime example of what happens when there is no public scrutiny of the government's actions."

According to the report, witnesses were denied basic due process, such as being told the reason for their arrest, informed of the charges against them or given immediate access to a lawyer.

Of the 70 individuals, 64 were of Middle Eastern or South Asian background and 17 were U.S. citizens, according to the report.

One-third were held for at least two months, and an uncertain number for more than six months. One was detained for more than a year.

On May 26, Chuck Rosenberg, chief of staff in the office of the deputy attorney general, told a congressional hearing that law enforcement was using the material-witness law properly. He described the statute as "an important constitutional tool to secure the testimony of a witness whose testimony might otherwise not be available."

Material from The Washington Post

is included in this report