Material Witness Law Is Being Abused

By Anjana Malhotra

Operating under a cloak of secrecy, the Department of Justice has locked up at least 50 Muslim men it has considered terrorist suspects even though there was no probable cause to arrest them. The government has gotten around that bedrock requirement of the criminal justice system by claiming the men were “material witnesses” to a crime.

The “mistaken arrest” of Oregon resident Brandon Mayfield as a material witness is the most recent example.

Federal legislation permits the detention of witnesses for the narrow purpose of ensuring that reluctant witnesses could not skip town and fail to appear at trial—people such as Mafia witnesses fearful for their lives.

But since Sept. 11, 2001, the Justice Department has misused the law to incarcerate those, like Mayfield, whom it thinks are criminal suspects but against whom it lacks sufficient evidence for a criminal arrest. In Mayfield’s case, the Justice Department erroneously concluded that his fingerprint had been found on evidence from the March 11 Madrid bombing. By arresting him as a material witness, it was able to bypass constitutional guarantees afforded to criminal defendants that protect against abuses of state power.

Mayfield, however, is luckier than most material witnesses.

The Justice Department has avoided accountability for the arbitrary detention of so-called “material witnesses” by trying to keep them secret. Mayfield’s case is typical. The government obtained strict gag orders, closed courtroom hearings and sealed records and would not officially comment on the case or disclose Mayfield’s location. Nonetheless it leaked to the press its view that Mayfield’s fingerprint was an “absolutely incontrovertible match” to the fingerprint found in connection with the Madrid bombing investigation. We now know better.

Mayfield, however, is luckier than most material witnesses: He was released after 16 days of incarceration, the FBI has issued an apology to him and the court has since released his records. Others have been held for months without ever even appearing before a grand jury, let alone receiving an apology.

The Department of Justice has jailed witnesses in highly punitive conditions, keeping them shackled and in solitary confinement. FBI agents have interrogated witnesses for hours and made threats in their “interviews.” In December 2001, for example, investigators subjected material witness Abdallah Higazy to so many threats against him and his family that he falsely confessed. Higazy, an Egyptian-born student, was arrested Dec. 17, 2001, as a material witness after a pilot’s radio was found in his Sept. 11 hotel room overlooking the World Trade Center. Charges were dropped when it was later found the radio belonged to someone else and a hotel security guard had lied.

But federal officials still refuse to answer basic questions about other material witnesses detained since 9/11. The records justifying the witnesses’ arrests remain closed to the public, and many of the witnesses’ lawyers remain gagged.

The Justice Department should release this information immediately. And it should stop flouting constitutional and international law by using the material witness law to avoid due process protections for criminal suspects.

The Bush administration cannot continue to act outside the law, whether overseas or right here at home. It is essential that we not allow the fight against terrorism to become a justification for lawlessness in the United States, or anywhere in the world.

Anjana Malhotra of New York is the Aryeh Neier ACLU/Human Rights Watch Fellow. She is researching the use of material witness warrants for a report that will be issued later this summer by ACLU and Human Rights Watch. This commentary first appeared in the May 27 edition of the Oregonian. Reprinted with permission.