Justice Abused Terror-Fighting Tools, Report Says

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Justice Abused Terror-Fighting Tools, Report Says

Shannon McCaffrey
Knight-Ridder
June 27, 2005

Washington - The Justice Department imprisoned dozens of Muslim men for months in the wake of the Sept. 11 attacks based on secret evidence and often flimsy links to terrorism, two civil liberties groups charge in a new report to be made public on Monday.

The report by the American Civil Liberties Union and Human Rights Watch accuses the Justice Department of plunging at least 70 men "into a Kafkaesque world of indefinite detention."

Four of the 70 have been convicted of crimes related to terrorism and three are awaiting trial, and the report said 13 of the men have received apologies from the government.

In one case, a 68-year-old physician and U.S. citizen was hauled away in handcuffs after his suspicious neighbors broke into his apartment and discovered literature on flying. Another man, also a U.S. citizen, was locked up after his wife was seen videotaping boats on Chesapeake Bay by other drivers who thought she might be scouting the Chesapeake Bay Bridge as a target.

At issue is the government's use of material witness warrants, which are intended to let prosecutors prevent uncooperative would-be witnesses from skipping town before testifying at trial or before a grand jury. Since Sept. 11, the Justice Department has used such warrants to hold people in terrorism probes.

The ACLU and Human Rights Watch identified 70 men - all but one of them Muslims - who've been held as material witnesses in terrorism-related cases. The groups conceded that the true number could be higher.

The Justice Department defended its actions, saying the warrants are constitutional and have been used with great care for years in cases ranging from organized crime to human trafficking.

"The material witness statute may not be used as a broad preventative detention law to hold suspects indefinitely while investigating them without filing charges," Chuck Rosenberg, the chief of staff to the deputy attorney general told a House of Representatives panel last month.

But since the Sept. 11 attacks, the process has been cloaked in unprecedented secrecy, with cases kept off court dockets and records sealed. The Justice Department has told Congress very little, including how many people have been held.

The new report is the first detailed and systemic look at how the government has been using its power to hold material witnesses as part of its counterterrorism campaign.

It concludes that the Justice Department has been using the law for a purpose for which it was never intended: holding suspects as witnesses to buy more time to investigate them. While criminal charges must be brought within a set period, there's no limit on how long a material witness can be held. More than half the men were held for more than 30 days, and one was imprisoned for more than a year.

"The material witness law has been twisted beyond recognition," the report said.

As evidence that the men were considered targets - not witnesses - the report notes that almost half of them were never brought before a grand jury or a court to testify, although some of them told authorities they wanted to.

Twenty-eight of the men were charged with immigration violations and 29 with crimes unrelated to terrorism, although the report held that some of those crimes - such as making false statements to the FBI - came only as a result of the interrogations.

Sixty-four were of Middle Eastern or South Asian descent, and 17 were American citizens.

A few cases have become high profile, notably that of Oregon lawyer Brandon Mayfield, who received an FBI apology after he was falsely linked to the train bombings in Madrid, Spain, through a faulty fingerprint match.

Saudi national Abdullah Tuwalah, a scholarship student at Marymount University in Arlington, Va., was taken into custody because he knew another terrorism suspect through an Arab social club on campus. His lawyer, Denise Sabagh, said Tuwalah was cooperative from the beginning.

Yet according to Sabagh: "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."

Tuwalah was released after six weeks without ever being called to testify.

Some of the men were arrested by phalanxes of federal agents with guns drawn, even though they'd voluntarily talked with the FBI days earlier. Federal prosecutors also showed little interest in offering the men immunity, something commonly done for witnesses who are being sought solely for their testimony.

Lee Gelernt, a senior staff attorney with the ACLU's Immigrants' Rights Project, called the use of material witness warrants "perhaps the most extreme but least well-known of the government's post-September 11 abuses."

Justice Department spokesman Kevin Madden said, "critics of law enforcement fail to recognize that material witness statutes are designed with judicial oversight safeguards."

But the report contends that judicial oversight has been little more than a formality since the al-Qaida attacks.

Mary Jo White, who was the U.S. attorney in Manhattan when the Sept. 11 attacks occurred, told the authors of the report that she couldn't recall a judge ever denying a government request for a material witness warrant in connection with the investigation. The report's authors said they also couldn't find a single denial.

The report recommends a number of safeguards and asks the Justice Department inspector general to investigate.

The report will be available on Monday at: http://www.hrw.org

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