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Recommendations
The recommendations below are intended to address the
violations of international human rights law and U.S. constitutional law
identified in this report. They are directed primarily to the Department of
Justice, including the Federal Bureau of Investigation (FBI). We also urge
Congress to exercise its legislative and oversight authority to ensure that the
necessary changes in current policies and practices are made. If detention of
witnesses is permissible at all, the U.S. government must ensure that
investigations and arrests of persons suspected of having information material
to a terrorism investigation are conducted with regard for the rights of all
persons in the United States to be free of arbitrary, pretextual, or
unnecessarily prolonged detention; mistreatment in confinement, and
discrimination.
To the FBI and U.S. Attorneys
- The Justice Department should use the material witness law
only for the purpose of obtaining testimony and not for the purpose of
detaining criminal suspects without charges.
- National origin, race, religion, or gender should not be
the basis for suspicion of unlawful conduct, possession of material
information, or flight risk.
- Federal law enforcement officials should strictly limit
the detention of a material witness to the shortest time necessary to
secure his testimony by appearance before a court or grand jury or by
deposition. The government’s interest in further investigation of the
witness should not delay the witness’s testimony and release.
- The Department of Justice should seek the cooperation of
potential witnesses before arresting them as material witnesses. The
Justice Department should apply for a material witness warrant only when
the witness has explicitly refused to testify or done something
affirmative to show that he would not comply with a subpoena.
- U.S. Attorneys should provide material witnesses and their
lawyers with full access to the application, affidavits, and any other
materials necessary for the witness and lawyer to adequately respond to
the government’s contentions.
- On arresting material witnesses, federal law enforcement
officers should promptly inform them, in a language they can understand,
of the basis for their arrest, provide them with a copy of the warrant,
and inform them that they have a right to counsel. Before interrogating
material witnesses, federal officers must again inform them of their
rights, including the right to counsel.
- Court hearings and records in material witness cases
should be presumptively open. The Justice Department shouldnot
seek to close hearings or seal records except to the limited extent that
closure is the least restrictive means to further some other compelling
government interest.
To the Department of Justice Office of Professional Responsibility
- Ensure that the FBI and U.S. Attorneys are not using the material
witness law to circumvent probable cause and other requirements governing
the arrest of criminal suspects.
To the Inspector General
- Initiate a review of the Department of Justice’s use of
the material witness law in connection with terrorism investigations since
September 11.
To the Judiciary Committee
- Request that the Justice Department update Congress on the
status of all material witnesses arrested in connection with the September
11 terrorism investigations and provide their names, length of and basis
for their detention and whether they testified.
- Urge the Department of Justice Inspector General to
investigate the misuse of the material witness law since September 11 to
detain criminal suspects without charges.
- Hold public hearings on the Department of Justice’s misuse
of the material witness law to hold criminal suspects.
To the House and Senate
- Amend the material witness law to incorporate measures to
prevent its misuse and to increase protections of the right to liberty, including:
- strengthening the burden of proof that the government
must meet to arrest and detain material witnesses;
- establishing a specific time limit on the government’s
ability to hold a material witness;
- requiring the government to inform witnesses of the basis
of their detention upon their arrest and to provide them with a copy of
the warrant and relevant evidence to support the request for a warrant;
- requiring that material witnesses be detained in the
least restrictive conditions possible.
- Ensure that the Department of Justice is not using the
material witness law as a pretext to hold criminal suspects.
- Refuse government requests to close hearings and seal
court documents regarding material witness arrests or detentions.
Proceedings should be public except where partial or full closure is the
least restrictive means to furthering some compelling government interest.
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