June 27, 2005

Summary

After I got in the cell I went kind of crazy. I was calling the guards to find out exactly what was my crime. Where's my lawyer if I have a lawyer. Because nobody told us anything. What's going to happen or what's going on. Nobody answered me so I kept banging on the door. Of course I start crying. The guard came, the supervisor or something. He starts yelling at me. I yelled back and I said [I] need to know why I am here. I need to talk to somebody. He said we don't know, once we know, we will let you know. I felt he didn't know why we were being held. I had nothing to do but sit and cry. That's technically all we did. Sit and pray and cry. Sit and pray and cry.

-Tarek Albasti, a U.S. citizen detained in October 2001 by the U.S. Department of Justice as a material witness and held in solitary confinement in a federal prison in Chicago. The Department of Justice later apologized to him.

Americans are a free people, who know that freedom is the right of every person and the future of every nation.

-President George W. Bush, State of the Union Address, January 2003

Since the attacks of September 11, 2001, at least seventy men living in the United States-all Muslim but one-have been thrust into a Kafkaesque world of indefinite detention without charges, secret evidence, and baseless accusations of terrorist links. They have found themselves not at GuantnamoBay 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 cast men into prison without any showing of probable cause that they had committed crimes. The Justice Department has also refused to respect fundamental constitutional and human rights of detainees, including the rights to be notified of charges, to have prompt access to an attorney, to view exculpatory evidence, and to know and be able to challenge the basis for arrest and detention.

The misuse of the material witness law has been harmful for those who have been wrongly held and damaging to the law itself. 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. In evading the requirement of probable cause of criminal conduct, the government bypassed checks on the reasonableness of its suspicion. As a result, men were imprisoned who had little or no information about, much less links, to terrorism. The Justice Department claimed each of the post-September 11 material witnesses had information relevant to grand jury terrorism investigations or to the trials of defendants alleged to support terrorist organizations. Yet at least thirty witnesses we know about were never brought before a grand jury or court to testify. Although our research suggests federal authorities suspected most if not all of the witnesses of terrorist-related conduct, only seven were ever arrested on terrorism-related charges.

The material witness law has been twisted beyond recognition. Procedures designed for the temporary detention of witnesses who might otherwise skip town have been misused to hold men who were in fact criminal suspects. Holding as "witnesses" people who are in fact suspects sets a disturbing precedent for future use of this extraordinary government power to deprive citizens and others of their liberty. The rule of law itself suffers when a law is used as a pretext to sidestep longstanding checks on the arbitrary exercise of executive power.

The Justice Department has tried to hide its use of the material witness law, refusing to respond to congressional inquiries and keeping courtroom doors closed, records sealed, and material witness cases off court dockets. Nevertheless, through a year of intensive research, Human Rights Watch and the American Civil Liberties Union (HRW/ACLU) have been able to identify seventy men whom the department has arrested as material witnesses in connection with its anti-terrorism investigations. We do not know how many others there have been. U.S. citizenship was no bar to the misuse of the material witness law: at least one-quarter of the known material witnesses are U.S. citizens.

Many of the seventy material witnesses we have identified suffered imprisonment because federal investigators and attorneys relied on false, flimsy, or irrelevant information and jumped to the wrong conclusions. Their judgment about evidence also appears to have been colored by ignorance about and perhaps even prejudice. Not only were almost all the witnesses Muslim, sixty-four of the seventy were of Middle Eastern or South Asian descent.

The 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 we identified 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. In almost every case, there is evidence that the Justice Department used the material witness statute to buy itself time to go on a "fishing expedition" for evidence showing the witnesses were in some way involved with terrorism. In most cases no such evidence existed. The investigations, however, did sometimes turn up evidence of non-terrorism related criminal misconduct or immigration violations, which became the basis for subsequent arrests and continued detentions. When there was no evidence of any wrongdoing, the Justice Department simply held witnesses until it concluded that it had no further use for them, or until a judge finally ordered their release.

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.

In the United States, court hearings on arrests and detentions, including hearings on material witness cases, are usually public under the long-standing principle that secret proceedings are odious in a democratic society. Yet 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. Almost allthecases have been kept off the public court dockets altogether. 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.

The Department of Justice has contended that grand jury rules require such secrecy. However, prior to September 11, the Justice Department did not make such a contention-detention hearings for federal material witnesses in grand jury proceedings were typically public. The Justice Department also has insisted that national security can only be protected by keeping from the public everything about the material witness arrests and detentions. But this sweeping and unprecedented argument cannot be squared with longstanding principles of justice and democratic accountability.

The government's deprivation of witnesses' rights has extended to limits on access to attorneys and information. While the government must inform arrested criminal suspects that they have the right to an attorney, to have an attorney provided, and to remain silent (so-called Miranda warnings), the government has taken the position that material witnesses are not guaranteed this protection by law. Not one witness whom HRW/ACLU interviewed was provided with such information upon arrest. Most reported to us that they were interrogated during their detention without a lawyer present. They also reported that officials often failed to honor their requests for an attorney or to stop interrogations when they did ask for counsel.

Criminal suspects have the right to be informed of the basis for their arrest. Yet the Department of Justice has frequently taken the position that it does not have to provide the material witnesses any information at all. In some cases we have researched, it went so far as to deny the witnesses access to its application for the arrest warrants. Indeed, the government usually 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.

Many of the seventy material witnesses whose cases are addressed in this report were arrested and incarcerated on the basis of evidence that would never have sufficed for criminal arrest and pre-trial detention. The evidence often consisted of little more than the fact that the person was a Muslim of Middle Eastern or South Asian descent, in combination with having worked in the same place or attended the same mosque as a September 11 hijacker, gone to college parties with an accused terrorism suspect, possessed a copy of Time magazine with Osama bin Laden on the cover, or had the same common last name as a September 11 hijacker. In some cases, the government's argument for flight risk even acknowledged that the witnesses were in fact criminal suspects-prosecutors contended that witnesses must be incarcerated because of the magnitude of the crime to which they were connected, or because they presented a "danger to the community."

Faced with prosecutors invoking grand jury powers and national security concerns, federal courts have done little to protect the material witnesses. We are not aware of a single case in which a court rejected a request for a material witness arrest warrant in a terrorism-related case since September 11. Indeed, our research suggests the courts rarely even probed the government's grounds for believing a witness would not comply with a subpoena to testify. The courts approved arrest warrants even for witnesses with strong family ties in the U.S. and who had met with the Federal Bureau of Investigation (FBI) voluntarily, consented to searches and polygraphs-even gone to the FBI with a tip. With little scrutiny of the government's claims, the courts also routinely ordered the incarceration of witnesses as flight risks and rarely asked whether alternatives to imprisonment might suffice.

Forty-two of the seventy material witnesses identified during the research for this report were ultimately released without any charges filed against them. Seven were charged with providing material support to terrorist organizations; as of May 2005, four had been convicted, and the other three were awaiting trial. Another twenty witnesses were charged with non-terrorist-related crimes, such as bank or credit card fraud or making false statements to the FBI. Twenty-four were deported. Two of the seventy were designated "enemy combatants"; they were removed from the criminal justice system, turned over to the Department of Defense, and, as of this writing, remain held without charges in solitary confinement in military brigs.

The U.S. government apologized to at least thirteen material witnesses for wrongfully detaining them. It should apologize to many more. But apologies are poor compensation for loss of liberty, as well as the emotional toll that incarceration has had on the detainees and their families. Witnesses were traumatized by being held in solitary confinement with no understanding of why they were there; they were allowed limited, if any, contact with their wives and children; and they often were subjected to taunts and sometimes even physical abuse by their guards. Their families were traumatized as well-fearful for the fate of their husbands, sons, and fathers, and hounded by the media. The witnesses' highly public arrests and the government's suggestions that they were linked to terrorism damaged their businesses and community reputations. The damage has continued long after their release because the government rarely issued statements publicly exonerating them.

The needless incarceration of these men also has aggravated distrust towards the government in Muslim communities in the United States that have been repeatedly targeted by sweeping, ill-advised, and at times illegal post-September 11 investigation, arrest, and detention policies. Beyond the Muslim community, the misuse of the material witness law threatens U.S. citizens and non-citizens alike, because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention.

To date, no Department of Justice official has been held accountable for abusing the limited authority that Congress conferred on them with the material witness law. Indeed, the Justice Department has refused to answer Congress's request for further information on its use of the law. Some Department of Justice officials believe that detaining possible terrorist suspects as material witnesses is a creative and clever strategy. But their self-satisfaction reflects a disconcerting willingness to abandon adherence to the rule of law and to extend the boundaries of executive power past constitutional limits.

History has shown that in times of perceived national peril, governments often succumb to the temptation to abuse their powers of arrest and incarceration. Human Rights Watch and the American Civil Liberties Union recognize the critical importance of protecting lives from terrorist attacks and bringing to justice those responsible for them. But the fight against terrorism must include a vigorous affirmation of fundamental rights. We hope this report will encourage U.S. officials, legislators, and the public to insist that U.S. domestic counterterrorism efforts be conducted without running roughshod over the principles of liberty and due process that the United States has long recognized as the foundation of its strength.