<<previous  |  index  |  next>>


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 Justice Department

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 Congress

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.

To the Judiciary

  • 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.

<<previous  |  index  |  next>>June 2005