Thursday, March 09, 2006

Material Witnesses—DOJ Internal Probe

One of the minor controversies in the immediate aftermath of 9/11 was the use of the material witness statute to detain individuals indefinitely.[1] More than 1100 individuals were “swept up” in a “global dragnet” in the first few months following 9/11, but only a handful of individuals were criminally charged—mostly on immigration violations; “an undetermined number of detainees [were] held in virtual secrecy as material witnesses.”[2] When the decision to detain individuals as material witnesses on a wholesale basis, then-Attorney General John Ashcroft told CNN that the individuals
have been arrested and held because a judge has made a determination that they may have information that would be material to this case. And they are susceptible to being held to provide that information.

There are people who have violated state and local laws. And when they've been apprehended, they have also been detected as being on a list of individuals that have had associations with the terrorist network or with the specific group of terrorists.

These are the categories of individuals being held. Except for those on material-witness warrants, the rest of them have all been violators of one kind or another. And they have violated the law in another respect and, having been apprehended for those violations, we have noted their identity as consistent with those who had been associated.

And we seek to hold them as suspected terrorists. They are obviously being—their cases are being processed on the other grounds.[3]
This policy, however, has proven to have been more trouble than it was worth. “The Justice Department is investigating its lawyers’ conduct in sending terrorism suspects to jail when there was insufficient evidence to charge them with a crime.”[4] The investigation into the policy “began after a report by two civil liberties groups said the Bush administration had used the law to detain at least 70 people since the Sept. 11 attacks.”[5] At least 30 of the 70 individuals were never called to testify before a court or grand jury, according to the ACLU and Human Rights Watch, and only 28 were eventually charged with anything and “most of those charges were unrelated to terrorism”; 7 were charged with providing material support to terrorist organizations.[6] The DOJ’s Department of Professional Responsibility is looking specifically at the cases “of 13 individuals and one group of eight people who were detained together”; no person was identified, but it is believed that the group of eight refers to eight Egyptian men who were detained for nearly a week “when one of their wives falsely accused them of planning a suicide attack.”[7]

The material witness statute is , which states that “[i]f it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding,” and that it may be “impracticable” to secure that person’s presence by subpoena, a court can order the arrest of the person. The material witness may not be detained “because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition,” and if further detention is not necessary “to prevent a failure of justice.”

The DOJ’s report also pointed out yet more violations by the FBI in its investigations. There were 108 instances in the past two years in which the wrong telephone number was tapped, the wrong email was intercepted, or communications were intercepted even though the warrant had expired.[8] We previously discussed FBI violations back on .


[1] See, e.g., Josh Meyer, A1, L.A. Times , Nov. 28, 2001 (abstract only); Matthew Purdy, 1A, N.Y. Times, Nov. 25, 2001 (preview only).
[2] Meyer, supra note 1.
[3] Transcript # 093000CN.V47: Ashcroft Discusses Latest Developments, CNN Late Edition with Wolf Blitzer, Sep. 30, 2001. (Video of interview available on this )
[4] Mark Sherman, , Associated Press (via Duluth News Tribune), Mar. 9, 2006.
[5] Id.
[6] Id.
[7] Id.
[8] Sherman, supra note 4.

posted by McNabb Associates, P.C. @ 3:31 PM