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II. Post-September 11 Material Witness Detention Policy

The Department of Justice has refused to reveal publicly how many persons it has arrested as material witnesses in connection with its post-September 11 investigation or any details about the witnesses, including the specific reasons for their arrests or why they were considered flight risks.34 The information is not readily available publicly because the Justice Department has obtained court orders precluding the public from attending the material witness hearings, sealing virtually all court documents, and imposing gag orders35 on all present at almost all of the hearings.Even in response to Congressional inquiries, the Justice Department has provided only vague, general information about detained material witnesses. In May 2003, in response to a request for information from Congress, the Justice Department stated that as of January 2003 it had detained fewer than fifty material witnesses in connection with the September 11 investigation. It also indicated that approximately half of the material witnesses were held for more than thirty days.36

Our research indicates that the government has to date arrested at least seventy material witnesses in connection with its post-September 11 counter-terrorism investigation. There may well be more. Recently released statistics from the Department of Justice confirm that between 2000 and 2002, the FBI increased the number of material witnesses it arrested by 80 percent.37 The DOJ does not indicate, however, how many of the witnesses were held in connection with the post-September 11 counter-terrorism investigation.

All of the seventy material witnesses HRW/ACLU identified in connection with this report were men. All but one was Muslim, by birth or conversion. All but two were of Middle Eastern, African, or South Asian descent, or African-American. Seventeen were U.S. citizens. The rest were nationals of Algeria, Canada, Djibouti, Egypt, France, India, Ivory Coast, Jordan, Lebanon, Pakistan, Palestine, Quatar, Saudi Arabia, Sudan, Syria, Yemen. (See below for a chart of the breakdown of these nationalities as a percentage of the total identified material witnesses.)

About one-third of the material witnesses arrested in the post-September 11 counterterrorism investigation were living in the same towns in Oklahoma, California, Arizona, and Florida, where the nineteen September 11 hijackers and other terrorist suspects had lived or visited. These witnesses became suspect because they were believed to have worked, dined, or prayed at the same mosque with the suspected terrorists. The remaining material witnesses identified throughout this report were living throughout the country and came under suspicion for a variety of reasons: taking flight lessons, tips from neighbors, having news material on terrorist suspects, or even having a name similar to a suspect.



[34]In this report, unless otherwise indicated, we use the term material witnesses to refer to those arrested in connection with the post-September 11 terrorist-related investigation.

[35]A gag order is a court order forbidding public commentary on a matter currently before the court.

[36]Letter from James E. Brown, acting assistant attorney general, Office of Legislative Affairs, to Rep. F. James Sensenbrenner, Jr., Chairman, House Judiciary Committee, May 13, 2003, p. 49 (DOJ Response I).

[37]Compendium of Federal Justice Statistics 2000; Bureau of Justice Statistics, U.S. Department of Justice, Compendium of Federal Justice Statistics 2002, available online at: http://www.ojp.usdoj.gov/bjs/abstract/cfjs02.htm, last accessed on Sept. 1, 2004.


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