Justice Department Misused Material Witness Law in Counterterrorism Efforts
(New York)—Operating behind a wall of secrecy, the U.S. Department of Justice thrust scores of Muslim men living in the United States into a Kafkaesque world of indefinite detention without charge and baseless accusations of terrorist links, Human Rights Watch and the American Civil Liberties Union said in a report released today.
Following the September 11 attacks, the Justice Department held the 70 men—all but one Muslim—under a narrow federal law that permits the arrest and brief detention of “material witnesses” who have important information about a crime, if they might otherwise flee to avoid testifying before a grand jury or in court. Although federal officials suspected the men of involvement in terrorism, they held them as material witnesses, not criminal suspects.
Almost half of the witnesses were never brought before a grand jury or court to testify. The U.S. government has apologized to 13 for wrongfully detaining them. Only a handful were ever charged with crimes related to terrorism.
“These men were victims of a Justice Department that was willing to do an end run around the law,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program. “Criminal suspects are treated better than these material witnesses were.”
The 101-page report, “Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11,” documents how the Justice Department denied the witnesses fundamental due process safeguards. Many were not informed of the reason for their arrest, allowed immediate access to a lawyer, nor permitted to see the evidence used against them. The Justice Department evaded fundamental protections for the suspects and the legal requirements for arrested witnesses. Their court proceedings were conducted behind closed doors, and all the court documents were sealed.
“Haste, incompetence and prejudice played a role in these detentions,” said Anjana Malhotra, the report’s author and Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union. “Muslim men were arrested for little more than attending the same mosque as a September 11 hijacker or owning a box-cutter.”
The Justice Department has refused to reveal how many material witnesses it has detained in connection with its counterterrorism investigations and has largely ignored repeated Congressional inquiries. After a year of extensive research, Human Rights Watch and the ACLU have confirmed 70 such material witnesses. Sixty-four were of Middle Eastern or South Asian descent; 17 were U.S. citizens, and all but one was Muslim.
The report details how the Justice Department relied on false, flimsy or irrelevant evidence to secure arrest warrants for the men and to persuade courts that they were flight risks who had to be incarcerated. Almost all the men, in fact, had cooperated with federal authorities before their arrest. Many proved to have no information relevant to a criminal proceeding.
“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-September 11 abuses,” said Lee Gelernt, a senior staff attorney with the ACLU 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.”
Witnesses were typically arrested at gunpoint, held around the clock in solitary confinement, and subjected to the harsh and degrading high-security conditions usually reserved for prisoners accused or convicted of the most dangerous crimes. Corrections staff verbally harassed the detainees and, in some cases, physically abused them.
The report found that one-third of the 70 confirmed material witnesses were incarcerated for at least two months. Some were imprisoned for more than six months, and one actually spent more than a year behind bars. According to the report, the Justice Department apparently used the material witness statute to buy time to conduct fishing expeditions for evidence to justify arrests on criminal or immigration charges. When there was no such evidence, the Justice Department simply held the men under the material witness law until it concluded that it had no further use for them or until a judge finally ordered their release.
The report also documents the long-term effects of the Justice Department’s material witness policy on witnesses and their families. While recovering from the trauma of being jailed in harsh conditions, witnesses often continued to live under a specter of suspicion. They faced lingering questions in the community about their ties to terrorism, even in cases when the government apologized. Many lost businesses and job opportunities, and some had to move to new communities to restart their lives.
Testimony from Material Witnesses and Attorneys:
“They treated us like professional terrorists. They put us in cars and had big guns—as if they were going to shoot people, as if we were Osama bin Laden. They didn’t let us speak, they didn’t let us ask why we were in detention. I never knew for how long we would stay in jail. It felt like we would stay forever … I didn’t even know why I was in jail.”
—Tarek Omar, an Egyptian national arrested as a material witness in October 2001 with seven friends and relatives who had immigrated together from Egypt. The eight men later received an apology from the FBI for wrongful arrest.
“Five to six cars surrounded my car. The agents pulled out shotguns and told me to get out of the car or they will shoot me. They told me they were about to shoot me. … I asked what’s going on? I’ve been so helpful. But three guys told me to put my hands on the car, they patted me down and shackled me. I asked what am I arrested for? Am I charged with something? … I got no answer. They shoved me against the car and handcuffed me. … They didn’t tell me why I was arrested—they said they’d explain in the main office. They didn’t read me Miranda rights. … I got in the car. They were so disrespectful and so rude. They told me to ‘shut the fuck up.’”
—Mohdar Abdullah, a Yemeni national arrested as a material witness on September 21, 2001 in San Diego, California.
“It’s hard to argue about a national security argument. Anytime I ask[ed] what the basis was it would be a canned national security argument. I would ask: ‘What’s the justification?’ The government responds: ‘National security.’ I would say, ‘What does that mean?’ The government would say: ‘I can’t tell you.’”
—Susan Otto, an attorney who represented material witness Mujahid Menepta in Oklahoma.
“I was transferred … to solitary confinement in the Special Housing Unit, or the ‘ninth floor hole.’ The room was maybe six-by-five feet. I was in a small cell for twenty-four hours a day with the lights on. Guards came every ten to fifteen minutes and banged on the door. They look through the hole and stare and looked at me. For two months, I left the cell only for interrogations. Later I was allowed outside after two months but they would leave me out in the freezing cold. I didn’t sleep for one or two months. The guards would bang on the door all night. They would say, ‘This is the guy—the Taliban guy,’ or call me ‘Khan Taliban.’ The guards said so many bad things. They told me: ‘You won’t ever see your family. You’re going to die here. Do you smell the WTC [World Trade Center] smoke? You’re gone. How would you like to die? With the electric chair?’ ... [Whenever I was taken out of my cell] they would twist my hands. My feet were shackled and guards would step on chains. I got a deep cut on my feet. I was stripped too many times to remember and hit on the back. I would be pushed against the wall. Whenever they took me to the FBI, guards would twist my hands and fingers and tell me to ‘Just shut up.’”
—Ayub Ali Khan, an Indian national arrested as a material witness on September 12, 2001 in San Antonio, Texas and held in the Special Housing Unit at the Metropolitan Detention Center in Brooklyn, New York
“They were threatening me with capital charges. … They believed it was me. They pretty much told us, ‘We have enough to indict you but not enough to prosecute.’”
—Brandon Mayfield, a U.S. citizen arrested in May 2004 as a material witness after federal officials believed they matched his fingerprint to one found near the site of the March 2004 bombing in Madrid. He later received an apology from the Justice Department for a wrongful arrest.
“[A]fter we were released we were in hell, you tell yourself, okay, well they released us so everyone should understand we are innocent, but that was not the case. Because I mean there are some people who support you and stuff like this but everyone is curious: did you snitch on somebody else, or did you make a deal with the government, or why were you released, or did you really do something or not. … It’s just like all this doubt in people’s mind. … At the time we lost about 30 to 40 percent of our business and then it kept getting worse and worse. And even when we got the apology and the newspaper wrote about it we thought we were going to be slammed because it’s an apology on the first page of the newspaper. And [business] is slow. But people remember we were caught and this kind of thing and [business got even] slower. Then the Evansville Courier made a poll on the internet where they asked people did [they] talk enough about the apology enough in the newspaper to give these people their dignity back. It was so funny to get the response because most of the response from people was, yes, they had enough, okay, they are innocent, [but] let’s go back to our life, if they don’t like it let’s tell them to go back to their home, we are trying to make the country safer.”
—Tarek Albasti, an Egyptian national arrested as a material witness in October 2001 as one of the “Evansville Eight” to whom the federal government ultimately apologized for the wrongful arrests.