Report: Witnesses Were Held Illegally

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By Dan Eggen
Washington Post Staff Writer
Monday, June 27, 2005

The federal government held 70 men as potential grand jury witnesses in terrorism investigations after the Sept. 11, 2001, attacks, but nearly half were never called to testify, according to a new study by two advocacy groups.

The report, released yesterday by Human Rights Watch and the American Civil Liberties Union, concluded that the government's use of "material witness" warrants in the months after the attacks was excessive and frequently unlawful because many of the detainees were never questioned by a grand jury or were denied access to attorneys for extended periods of time. Most were never charged with a crime.

The report also said the witnesses "were typically arrested at gunpoint, held round the clock in solitary confinement and subjected to the harsh and degrading . . . conditions" usually reserved for more dangerous criminal suspects. It also said the Justice Department used the special warrants primarily "to buy time to conduct fishing expeditions."

The study focuses on the government's aggressive use of a little-known 1984 statute that governs material witnesses, who may be arrested if they have information important to a criminal investigation and are deemed likely to flee. Such arrest warrants must be approved by a judge, but the threshold for an arrest is lower than it is for criminal suspects, and the rules surrounding such cases are murky.

The Justice Department declined to say whether the study's tally of 70 material witnesses in terrorism investigations was accurate. A Washington Post survey in November 2002 identified at least 44 such cases.

The 101-page study is the latest in a series of reports by advocacy groups and media organizations raising questions about many of the hundreds of people detained by the Justice Department or other law enforcement agencies after the attacks on the World Trade Center and Pentagon. Many detainees were held in secret, and only a few dozen ever faced terrorism-related charges.

Anjana Malhotra, author of the new study, said the report shows that the Justice Department misused the law in its zeal to pursue alleged terrorism suspects and frequently ensnared innocent immigrants in the process. All but one of the 70 detainees were Muslim men, the review found.

"The major finding is that the Justice Department was indeed misusing the material witness law to arrest people it viewed as suspicious but didn't have enough evidence to arrest under normal charges," Malhotra said. "The government was able to use little threads of evidence and convince judges that witnesses had connections to terrorism and needed to be jailed in secret. . . . It was like being thrown into a hole."

Justice Department officials have consistently defended their use of the material witness statute in terrorism investigations and have generally denied reports of abuse. Officials also say the power has been used successfully in many other types of investigations.

"Critics of law enforcement fail to recognize that material witness statutes are designed with judicial oversight safeguards and are critical to aiding criminal investigations ranging from organized crime rackets to human trafficking," said Justice Department spokesman Kevin Madden.

The report found that more than a third of the detainees were held for more than two months and that one was held for more than a year. Sixty-four of those arrested were of Middle Eastern or South Asian descent and 17 were U.S. citizens, according to the report.

The study identified 13 cases in which the Justice Department formally apologized to those arrested, including eight Egyptian men in Evansville, Ind., who were detained as the result of a bogus tip. Many of those detained are still haunted by the experience and often remain under suspicion because of the arrests, the report said.

"They treated us like professional terrorists," one of the men, Tarek Omar, said in an interview for the study. "They put us in big cars and had big guns -- as if they were going to shoot people, as if we were Osama bin Laden. . . . I never knew how long we would stay in jail. It felt like we would stay forever."


© 2005 The Washington Post Company

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