Tuesday, June 28, 2005

A REPORT released today by the American Civil Liberties Union and Human Rights Watch is charging the Bush administration with "twist[ing] the American system of due process 'beyond recognition' " by using an obscure 20-year-old law to arrest Arab and Muslim men as material witnesses but treat them as criminal suspects, without the protections criminal suspects are supposed to receive.

Operating behind a wall of secrecy, the U.S. Department of Justice thrust scores of Muslim men living in the United States into a Kafkaesque world of indefinite detention without charge and baseless accusations of terrorist links. ...

Following the September 11 attacks, the Justice Department held the 70 men—all but one Muslim—under a narrow federal law that permits the arrest and brief detention of “material witnesses” who have important information about a crime, if they might otherwise flee to avoid testifying before a grand jury or in court. Although federal officials suspected the men of involvement in terrorism, they held them as material witnesses, not criminal suspects.

Almost half of the witnesses were never brought before a grand jury or court to testify. The U.S. government has apologized to 13 for wrongfully detaining them. Only a handful were ever charged with crimes related to terrorism.

In other words, the Bush administration has glommed onto a statute targeted for a very specific purpose -- to get testimony from witnesses who are likely to be too scared or for other reasons unwilling to give it; and is using that law to hold people -- all but one Arab and Muslim -- without criminal charges. They are using this law to treat material witnesses as criminal suspects, sans the due process protections the Constitution mandates for criminal suspects. The government is also taking advantage of the secrecy requirements around grand jury proceedings to keep information about these individuals out of public view -- even though almost half of those arrested never appeared or testified before a grand jury.

According to HRW and the ACLU, only 28 men, out of a total of at least 70 men, were charged with a crime. One of the 13 men who received a government apology -- Brandon Mayfield, a lawyer in Oregon -- is suing the Justice Department and the FBI for wrongful arrest in connection with the train bombings in Madrid, Spain.

Naturally, the Bush administration is defending the way they are using the material witness statute. The Justice Department says there is no requirement for witnesses to go before a grand jury. But detractors say, if the government was truly using the law to get testimony, it would be using the statute as it was intended to be used.

Michael Chertoff, assistant attorney general in charge of the Justice Department's criminal division, declined to talk about specific cases. However, he said it was not uncommon for an individual taken into custody as a material witness to provide information in ways other than testifying, including interviews with federal investigators.

The law does not require that a material witness be brought before a grand jury. "It's an important investigative tool in the war on terrorism," Chertoff said. "Bear in mind that you get not only testimony -- you get fingerprints, you get hair samples -- so there's all kinds of evidence you can get from a witness."

However, Neal R. Sonnett, a defense attorney and former chief of the criminal division with the U.S. attorney's office in Miami, said it is "unusual" that some material witnesses never testified, which he said shows how the government has misapplied the statute.

"It would tend to indicate that the use of the material witness statute was more of a ruse than an honest desire to record the testimony of that person," Sonnett said.
But then again, George W. Bush and his cronies have demonstrated over and over again that their opinion of the First Amendment and of due process protections run the gamut from distrust and suspicion to hostility and contempt.

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