Preventing Abuse of Material Witness Detentions

S.1739 and Companion Legislation in the House of Representatives

Since the attacks of September 11, 2001, at least seventy men living in the United States have been thrust into a world of indefinite detention without charges, secret evidence, and baseless accusations of terrorist links. They have found themselves not at Guantánamo Bay or Abu Ghraib but in America’s own federal prison system, victims of the misuse of the federal material witness law in the U.S. government’s fight against terrorism.

Congress enacted the current material witness law in 1984 to enable the government, in narrow circumstances, to secure the testimony of witnesses who might otherwise flee to avoid testifying in a criminal proceeding. If a court agrees that an individual has information “material” to a criminal proceeding and will likely flee if subpoenaed, the witness can be locked up – but, in theory, only for as long as is necessary to have him testify or be deposed.  
Since September 11, however, the U.S. Department of Justice has deliberately used the law for a very different purpose: to secure the indefinite incarceration of those it has wanted to investigate as possible terrorist suspects. It has used the law to throw men into prison without any showing of probable cause that they had committed crimes. Innocent people have become the hapless victims of the government’s zeal, because neither the Justice Department nor the courts have honored the letter and spirit of the material witness rules that protect everyone’s right to freedom.  
Legislation pending in Congress would remedy this problem. It would place limits on when individuals could be held as material witnesses and require that the relevant grand jury or criminal proceeding is already pending, thereby ensuring that the material witness law is sued for the narrow purpose that Congress originally intended – to obtain testimony – and not to hold criminal suspects without charge when probable cause is lacking. It would also mandate that anyone detained under the statute be notified of the basis for their arrest and be given a chance to defend against the government’s claim that their detention is the only means of securing their testimony.  
The misuse of the material witness law has been harmful for those who have been wrongly held and damaging to the law itself. Holding as “witnesses” people who are in fact suspects sets a disturbing precedent for the future use of this extraordinary government power to deprive citizens and others of their liberty. This legislation would protect against future misuse by placing constraints on when, how long, and the conditions in which individuals are detained under this statute.  
Misuse of the Material Witness Law: The Facts and the Individuals  
The federal material witness law does not specify how long a witness may be incarcerated before being presented in a criminal proceeding or released. The Department of Justice took full advantage of this gap in the law. One-third of the seventy post-September 11 material witnesses detained for suspected terrorist activity were incarcerated for at least two months. Some endured imprisonment for more than six months, and one witness spent more than a year in prison.  
Many of the seventy material witnesses detained as suspects under this law suffered imprisonment because federal investigators and attorneys relied on false, flimsy, or irrelevant information and jumped to the wrong conclusions. Forty two were eventually released without any charges being filed against them. Another twenty were, after long periods of detention as material witnesses, ultimately charged with non-terrorism related criminal misconduct or immigration violations.  
Consistent with the Justice Department’s suspicions that the witnesses were dangerous men linked to terrorists, the witnesses were often arrested at gunpoint in front of families and neighbors and transported to jail in handcuffs. They typically were held around-the-clock in solitary confinement and subjected to the harsh and degrading high-security conditions typically reserved for prisoners accused or convicted of the most dangerous crimes. They were taken to court in shackles and chains. In at least one case, a material witness was made to testify in shackles.  
In some cases, the harsh treatment of material witnesses included verbal and even physical abuse by prison staff. The Department of Justice’s Inspector General issued a report detailing the abuse of material witnesses as well as other detainees in federal detention facilities.  
The government has done everything in its power to shroud these cases in secrecy. At the Justice Department’s insistence, courts have conducted virtually all the post-September 11 material witness proceedings behind closed doors and have sealed virtually all documents connected to the cases, including arrest warrants, affidavits, transcripts, legal briefs, and court rulings. The government’s quest for secrecy has extended to obtaining gag orders for witnesses’ attorneys and family members, so they could not reveal anything witnesses told them or what happened in the courtroom, while strictly limiting witnesses’ communication with the outside world, so they could not contact the media. While the Department of Justice often contended that grand jury rules required such secrecy, almost all detention hearings for federal material witnesses in grand jury proceedings were public prior to September 11.  
The veil of secrecy has even extended over those subject to arrest and detention under the statute. In many cases, the government refused to give the witnesses or their attorneys a copy of the affidavit supporting the arrest warrants. When it permitted attorneys to review the affidavits, it often subjected them to various constraints; e.g., they could read the affidavits only in front of government attorneys and were not allowed to take notes or make copies. Some attorneys were even restricted from revealing the contents of the affidavits to their clients, which made contesting the basis for the arrest and detention extremely difficult. Denying witnesses access to information and keeping the proceedings buried in secrecy meant that Justice Department mistakes were not rectified as quickly as they might have been.  
The government has also taken the position that the right to an attorney and the right to remain silent do not extend to material witnesses. Many reported that they were interrogated without an attorney and that officials often failed to honor their requests for an attorney or to stop interrogations when they did ask for counsel.  
Some of those affected:  
Brandon Mayfield: Mr. Mayfield, a United States citizen, was a practicing attorney in Portland, Oregon and a member of the Oregon bar. He lived with his United States citizen wife and three United States citizen children, had not traveled out of the country in ten years, and had no criminal record. Yet, in May 2004, he became a suspect in the March 2004 Madrid bombings and was arrested as a material witness. The government argued that that the fact that he did not have a valid passport meant that he must be using a fake one and was thereby a flight risk that needed to be arrested and detained.  
Mr. Mayfield was never brought before a grand jury to testify. In fact, no grand jury was even impaneled at the time of his arrest.  
He was imprisoned for three weeks before the government realized that that the fingerprint evidence that supposedly connected to him to a series of Madrid bombings was faulty. Because he was arrested as a witness, rather than a criminal suspect, he had never been given a chance to defend himself.  
At the time of his arrest, FBI officials raided his home, searching for material to link him to the bombing. His wife was made to sit at the kitchen table and prevented from picking up her children at school. Many of the files that were taken from his home – including files essential to his law practice – have still not been returned.  
Abdallah Higazy: Mr. Higazy, an Egyptian graduate student, was in the United States in September 2001 on a grant from the U.S. Agency for International Development (USAID) to pursue graduate studies at Brooklyn Polytechnic. On the recommendation of USAID, he stayed in the Millennium Hotel in New York City, located near the World Trade Center during his orientation. He happened to be there on September 11, 2001, while waiting for his permanent housing. When a hotel security guard claimed (falsely it turned out) that he had found a pilot’s air-land radio in a safe in the room where Higazy had stayed, Justice Department officials believed that Higazy might have sent transmissions to the hijackers who attacked the World Trade Center or received transmissions from them.  
In December 2001, the government arrested Mr. Higazy – not as a criminal suspect – but as a material witness. He was kept in solitary confinement for more than a month. After an extended interrogation period, the government extracted a false confession that the radio was his and he was then charged for lying to the FBI for initially denying ownership. When a pilot later returned to the hotel to claim the radio, Mr. Higazy was finally cleared of any wrongdoing and released. He had been held for 34 days.  
Abdullah Tuwalah: In 2001, the Department of Justice arrested Mr. Tuwalah, a scholarship student at Marymount University in Arlington, Virginia. on the allegation that he had information material to the grand jury investigation of Saleh Ali Almari, another student who had been briefly enrolled at Marymount. The FBI connected Tuwalah to Almari because Tuwalah had met Almari through the Arab social club on campus. Although counsel for Tuwalah repeatedly informed the federal attorneys handling the case that he was ready to testify, the government refused to present him to the grand jury. Instead, according to his attorney, “the government just kept interviewing him.” According to his lawyer:  
The FBI interrogated him seven times and it was clear from the beginning that he was cooperative. He said that he would come in voluntarily and would cooperate during interviews. I’ve never seen interview questions like this. The questions would go like this: the FBI would not even ask questions they would just say “well he knows something” and we’d respond “he knows what?” and then the FBI would come back and say “he knows.” The interviews were ridiculous.  
Tuwallah was eventually released after six weeks in detention. He was never brought before a grand jury to testify and never charged with a crime. He has since returned to Marymount to complete his studies.  
A Legislative Fix: S.1739 and Companion Legislation in the House  
Legislation pending in the Senate (S.1739) as well as legislation soon to be introduced in the House would remedy this situation – tightening the language of the statute to ensure that it is used solely for the purpose for which it is intended.  
First, the legislation would require the existence of a pending grand jury proceeding or criminal trial before such warrants could issue. This would help ensure that witnesses are detained solely for the purpose intended: to give testimony in a pending case.  
Second, the legislation would place time limits on the length of detention, thereby ensuring that individuals would not be held for extended periods of time.  
Third, it would require a heightened showing that the detained witness is in fact a flight risk. This would protect individuals who would voluntarily respond to a subpoena testify from being needlessly arrested and incarcerated.  
Fourth, it would import due process standards from the Federal Rules of Criminal Procedure to ensure that material witnesses are informed of the basis of their arrest and their right to counsel.  
Fifth, the legislation would requires that such witnesses be detained in the least restrictive conditions possible, preferably kept separate from those charged with criminal offenses. This reflects the fact that material witnesses are, as the name implies, witnesses. They are not suspected of any criminal wrongdoing, and should be treated accordingly.  
And sixth, the legislation would require the Justice Department to report annually on the number held under the material witness laws and average length of detention.  
These proposed changes to the federal material witness law will align the federal statute more closely with the majority of state statutes that already incorporate many of these protections. Notably, the Uniform Act on material witnesses, which governs when states are able to secure such witnesses from another state, and which all fifty states have adopted, requires that a criminal prosecution or grand jury proceeding has either commenced or is about to commence before the witness will be brought to the state. Moreover, the Act requires that the requesting state specify the number of days that the witness will be needed. Forty-three states have also adopted material witness statutes governing the state’s treatment of witnesses from within the state. Of those, thirty-six states require an ongoing criminal proceeding before a witness can be arrested and detained; and thirty-three require that the overseeing judge post bail and release the witness if he or she can pay the set bail amount.  
The misuse of the material witness warrant statute to indefinitely detain individuals without charge threatens all of our liberties. The pending legislation is a step forward – one that is critical to protecting our liberties against future abuse.  

Related Material

Appendix A: S. 1739 Pending Legislation
Special Focus, January 3, 2006

Appendix B: Uniform Act to Secure the Attendence of Witnesses in Criminal Proceedings 1936
Special Focus, January 3, 2006

Appendix C: List of State Codes
Special Focus, January 3, 2006

HRW's Work within the United States
Thematic Page, January 3, 2006

Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11
Report, January 1, 2006