Post-Sept. 11 Arrests Face New Scrutiny

At least 70 men, most of them Muslim and a quarter of them U.S. citizens, have been detained improperly as material witnesses since the Sept. 11 terrorist attacks and were denied their due process rights, according to a report by Human Rights Watch and the American Civil Liberties Union.

Of the individuals detained, seven were charged with providing material support to terrorists, said the advocacy groups’ report, made public Sunday.

In most cases, detentions resulted in criminal charges unrelated to terrorism or the release of individuals. In many cases, detainees never testified before a grand jury.

The detainees “couldn’t get straight answers,” said Jamie Fellner, director of the U.S. program for Human Rights Watch. “They couldn’t see the evidence. The hearings were held behind closed doors. It was a mockery of safeguards.”

The material witness law, passed in 1984, allows prosecutors to seek arrest warrants for people who may have relevant and critical information about a case but who are considered likely to flee rather than participate in an investigation. The witness has the right to a lawyer.

Justice Department officials have repeatedly maintained that they used the law properly as a tool in the terrorist investigations that followed the Sept. 11 attacks, as well as in a range of other matters. They also point out that the arrest warrants cannot be issued without a judge’s supervision.

“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,” Kevin Madden, a Justice Department spokesman, said in a statement Sunday.

The Justice Department has declined to release complete details of its experience with the material witness statute, including the number of times it sought such warrants as part of the terrorist investigation.

The 101-page report is the advocacy groups’ attempt to put together a broader picture of the government’s use of the statute, though they concede the effort may not be complete.

The report contends that after Sept. 11, the Justice Department used the law to lock up people it wanted to investigate as possible terrorists, rather than to hold witnesses whose testimony could not otherwise be ensured.

Ultimately, the report said, the government apologized to 13 individuals, including Brandon Mayfield, an Oregon lawyer held when a misidentified partial fingerprint wrongly linked him to the 2004 terrorist train bombings in Madrid.

“On the domestic front, the Justice Department’s unlawful use of the material witness statute is perhaps the most extreme but least well-known of the government’s post-Sept. 11 abuses,” said Lee Gelernt, senior staff counsel with the ACLU Immigrants’ Rights Project. “The material witness abuses are a prime example of what happens when there is no public scrutiny of the government’s actions.”

The report said witnesses were denied basic due process rights, such as being told the reason for their arrests, informed of the charges against them or given immediate access to a lawyer. They were held in federal prison facilities in the United States.

Of the 70 individuals detained, 64 were of Middle Eastern or South Asian descent and 17 were U.S. citizens, the report said. All but one were Muslim.

One-third were held for at least two months, and an uncertain number for more than six months. One witness was detained for more than a year.

On May 26, Chuck Rosenberg, chief of staff in the deputy attorney general’s office, told a congressional hearing that law enforcement was using the material witness law properly. He described the statute as “an important constitutional tool to secure the testimony of a witness whose testimony might otherwise not be available. It has a long historical pedigree and has been used repeatedly in terrorism and nonterrorism investigations alike.”

Federal rules require that a government lawyer must make biweekly reports to the court, identifying anyone held longer than 10 days and providing an explanation for the detention, Rosenberg told the House panel.

Helmut Sonnenfeldt, a foreign policy expert at the Brookings Institution, said Sunday that the Sept. 11 attacks were such a “shocking event” that law enforcement officials felt compelled to make aggressive use of the tools at their disposal.

The advocacy groups’ report contained personal accounts and reactions of individualswho were caught up in the post-Sept. 11 dragnet.

“After I got in the cell I went kind of crazy,” Tarek Albasti, a U.S. citizen detained on Oct. 11, 2001, told the groups. “I was calling the guards to find out exactly what was my crime. Where’s my lawyer if I have a lawyer?”

Tarek Omar, an Egyptian national who was arrested in October 2001 with seven friends and relatives, said in the report: “They put us in cars and had big guns -- as if they were going to shoot people, as if we were Osama bin Laden.”

Omar and his associates were later released with an apology.