On June 27, 2003, Bellahouel filed a petition for writ of certiorari with the U.S. Supreme Court. M.K.B. v. Warden, No. 03-6747 (U.S. Jun. 27, 2003). The petition was filed under seal, with a redacted version made public. See "Petition for Writ of Certiorari," No. 03-6747, at: http://news.findlaw.com/hdocs/docs/scotus/mkbwarden62703cpet.pdf Bellahouel argues that the sealing of the record by the U.S. District Court for the Southern District of Florida and the U.S. Court of Appeals for the Eleventh Circuit is contrary to Supreme Court precedents under both the common-law and the First Amendment governing the right of public access to court filings and judicial proceedings. Critically, the lower courts could have allowed partial redactions limited to factual matters as opposed to legal arguments. According to the Supreme Court's online docket, the respondents, who are represented by the Solicitor General, initially waived their right to file a response to the petition for certiorari. However, on November 4, 2003, the Supreme Court ordered the Administration to file a response to Bellahouel's petition for certiorari. See C. Lane, "White House Told to Justify Secrecy," Washington Post, Nov. 5, 2003, at A-6. The Reporters Committee for Freedom of the Press, on behalf of numerous other media organizations filed its amicus brief in support of the petition for certiorari. See Amicus Brief, http://www.rcfp.org/news/documents/20031103-mkbvwarden.pdf (Nov. 3, 2003); Motion to Intervene, http://www.refp.org/news/documents/20040102-mkbvwarden.pdf (Jan. 5, 2004) see also L. Greenhouse, "News Groups Seek to Open Secret Case," N. Y. Times, Jan. 5, 2004, at A12. Notably, when the government filed its opposition to Bellahouel's petition for certiorari, its entire submission was filed under seal. See "U.S. Requests Secrecy in 9/11 Detainee's Case," Washington Post, Jan. 6, 2004, at A-10. On February 23, 2004, the Supreme Court denied certiorari, and denied the motion to intervene. M.K.B. v. Warden, No. 03-6747, 2004 WL 324470 (2004); see also C. Lane, “Court Denies Review of Post-9/11 Secrecy," Washington Post, Feb. 24, 2004, at A-6; D. Christensen, “Still a Secret,” Miami Daily Business Review, Feb. 24, 2004; D. Christensen, "Feds Defend Secret Docketing of Post-9/11 Detainee's Case, Miami Daily Business Review, Mar. 5, 2004. The United States' announcement of its plans in 2002 to invade Iraq, and its subsequent preemptive invasion of Iraq in March 2003, touched off a wave of mass anti-war rallies and demonstrations all across this nation. Unfortunately, many police departments met peaceful protesters with hostility and force. Moreover, according to a leaked confidential memorandum, the FBI has been investigating these protesters in the guise of investigating terrorism. Although the FBI recognized the existence of "traditional demonstration tactics," the FBI believed that "activists" and "extremist elements" might “engage in more aggressive tactics," and concluded that "[1]aw enforcement agencies should be alert to these possible indicators of protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism Task Force." See FBI Intelligence Bulletin No. 89, "Tactics Used During Protests and Demonstrations" (Oct. 15, 2003) (online at: http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=14452&c=207). Civil libertarians have expressed concern that the FBI has selectively targeted protesters based on the content of their message, in violation of the First Amendment and the procedures that were put in place in the 1970s to halt the types of intelligence abuses that occurred under the FBI's Cointelpro investigations. See E. Lichtblau, "F.B.I. Scrutinizes Antiwar Rallies," N.Y. Times, Nov. 23, 2003, at A-1, A-18. The District of Columbia, as the seat of the government and home to many international institutions, including the World Bank and the International Monetary Fund (IMF), has hosted a disproportionate number of these protests. A number of lawsuits have been filed by protesters who have challenged the conduct of the police who arrested or otherwise restricted their protest activities. One set of lawsuits filed in the U.S. District Court for the District of Columbia arose from the September 2002 protests that took place in front of the World Bank and the IMF The plaintiffs in these suits are several hundred protesters who were arrested and detained for between one and two days without being charged. Raymond Chang, et al. v. United States, No 02-CV-2010 (D.D.C.); Jeffrey Barham, et al. v. Ramsey, No. 02-CV-2283 (D.D C.); Franklin Jones, et al. v. District of Columbia, No. 02-CV-2310 (D.D.C.), Julie Abbate, et al. v. Ramsey, No. 03-CV-767 (D.D.C.). The plaintiffs variously brought First, Fourth, and Fourteenth Amendment claims and common law claims of false arrest and false imprisonment against the District of Columbia. The Barham plaintiffs also brought an equal protection challenge to the District's failure to offer the detainees an opportunity to obtain release while preserving their right to go to trial, as the District customarily does for other offenses. Some plaintiffs also asserted conversion of property claims, and others sought injunctive relief against the federal law enforcement agencies who participated in the challenged actions. On September 12, 2003, Judge Sullivan ordered that the District of Columbia's internal investigative reports of the police actions be publicly released. Chang v. United States, 2003 WL 22118347 (D.D.C. Sept. 12, 2003) (http://www.dcd.uscourts.gov/02-2010.pdf); see also C. Leonnig, "IMF Arrests Improper, Police Found," Washington Post, Sept. 13, 2003, at B-1; C. Leonnig, "D.C. Told to Release Report on Protests," Washington Post, Sept. 12, 2003, at B-1. On September 19, 2003, Judge Sullivan ruled that class certification of these claims was warranted, and that the individual claims would be consolidated. Chang v. United States, 203 F.R.D. 262 (D.D.C. 2003) (http://www.dcd.uscourts.gov/02-2010a.pdf); see also “Class-Action Case," Washington Post, Sept. 25, 2003, at B-2. Subsequently, the District of Columbia settled, for $7,000 to $10,000 each, the claims brought by three students who were bystanders and were merely photographing the protest. Settlement discussions on the other cases (involving those of active protesters) remain pending. See C. Leonnig, "District Reaches Settlement over Mass Arrests," Washington Post, Jan. 1, 2004, at B-1, B-4; see also A. Santana, "Ramsey Defends Surveilling Protesters," Washington Post, Dec. 19, 2003, at B-5. Protesters have filed lawsuits in a number of other cities. On July 24, 2003, ACORN (Association for Community Organizations for Reform Now), and four other plaintiffs, all represented by the ACLU, filed a lawsuit in Philadelphia against the Secret Service, and several local police departments, seeking injunctive relief to prohibit these law enforcement agencies from keeping anti-Bush protesters further away from the President than the supporters of the President. ACORN, et al. v. City of Philadelphia, et al., No. 03-CV-4312 (E.D. Pa.) (Philadelphia). The other two defendants were the Police Department of the City of Philadelphia (subsequently dismissed by consent) and the U.S. Secret Service. The plaintiffs filed an amended complaint on September 23, 2003, and the defendants' response was due by November 24, 2003. See also C. Leonnig, “Lawsuit Criticizes Secret Service; Anti-Bush Protesters Are Kept at Bay, Advocacy Groups Say," Washington Post, Sept. 24, 2003, at A-27. In California, at least one lawsuit arose from the actions of the Oakland police in breaking up an anti-war protest on April 7, 2003, which included firing rubber and wooden bullets directly at protesters, and other improper use of lethal force against the protesters. Several months later, misdemeanor charges were filed against 25 demonstrators, notwithstanding the fact that they had not been charged with any offenses at the time they were arrested. On June 26, 2003, the ACLU and the National Lawyers Guild filed a civil class action lawsuit against Oakland on behalf of numerous demonstrators and community groups. Local 10, Int'l Longshore & Warehouse Union v. City of Oakland, No. 03-CV-02962 (N.D. Cal.) (San Francisco). The plaintiffs alleged violation of their First Amendment rights to free speech and association, their Fourth Amendment rights to be free of unreasonable seizure and excess force, their Fourteenth Amendment rights to due process and equal protection, and violations of various Califomia constitutional, statutory and common-law rights. On August 18, 2003, this case was referred to Magistrate Judge Larson for settlement purposes. In early February 2004, a grand jury convened by the U.S. Attorney's Office for the Southern District of Iowa issued subpoenas for records relating to an anti-war gathering that took place at the Drake University School of Law on November 15, 2003. See In re Ongoing Grand Jury Investigation, No. M-1-39 (S.D. Iowa), see also "University Records on Antiwar Meeting Sought," Washington Post, Feb. 8, 2004, at A-10; M. Davey, “An Antiwar Forum in Iowa Brings Federal Subpoenas," N. Y. Times, Feb. 10, 2004, at A-12. In the face of strong public opposition, and a motion to quash filed by the National Lawyers Guild – the organization that sponsored the gathering - on the grounds that these subpoenas infringed on the First Amendment rights of the organization and the attendees at this gathering, the subpoenas were withdrawn. The government failed to explain why the grand jury subpoena was so broad in scope; it has simply claimed that it was investigating an alleged incident of trespassing at Camp Dodge, an lowa National Guard facility, which occurred the day after the Drake University gathering. See M. Davey, "Subpoenas on Antiwar Protest are Dropped," N.Y. Times, Feb. 11, 2004, at A-16, "Subpoenas Tied to Trespassing Case," Washington Post, Feb. 15, 2004, at A-13, L. Post, “A Furor over lowa Subpoenas," National Law Journal, Feb. 16, 2004, at 4. REPORT, ANJANA MALHOTRA, “OVERLOOKING INNOCENCE: REFASHIONING THE MATERIAL WITNESS LAW TO INDEFINITELY DETAIN MUSLIMS WITHOUT CHARGES" One of the most basic rights in international law is the safeguard against arbitrary detention. This protection of the right to liberty has been defined by international tribunals to mean, at a minimum, that the detention of any individual must be in accordance with previously established law and based on objectively reasonable criteria, defined without regard to race, religion, gender, or national origin. The architects of these international legal principles drew from the central tenets in the Magna Carta prohibiting arbitrary detention: the importance of curbing the power of the monarch to jail its subjects with unchecked authority. A principle drafter and proponent of the international rules prohibiting arbitrary detention, the U.S. since September 11 has joined many countries in abrogating these rules in its counterterrorism investigations. implementing new policies and refashioning existing authority to indiscriminately hold Muslims, Arabs and South Asians without probable cause. Following September 11, FBI agents swept through Muslim communities to pick up suspects often based on leads that, according to the Justice Department, "were often quite general in nature, such as a landlord reporting suspicious activity by an Arab tenant.' Under the systematic programs the Justice Department implemented over the past three years, it has detained over 5,000 Muslims Anjana Malhotra is the Aryeh Neier Fellow with the ACLU and Human Rights Watch. INTERNATIONAL CIVIL LIBERTIES REPORT since September 11 and registered more than 80,000 immigrants from Muslim communities, though yielding not one conviction of an individual involved in the attacks of September 11.2 One key tool the government has used to detain Muslim men without charges is the material witness law. Congress enacted the material witness statute to authorize the government to briefly hold a person who has witnessed a crime when it appears he may flee. Before September 11, this law was only to hold witnesses who were scared to testify, such as witnesses to a mafia or alien smuggling trial. Since September 11, however, the government has used this law to circumvent probable cause requirements to hold Muslim "witnesses" it believes to be suspects, indefinitely without charges. The Justice Department has succeeded in using the material witnesses law to preventatively detain Muslim men since September 11 because it held witnesses to testify in terrorism-related grand jury proceedings, where the executive branch is given broad authority to investigate a crime. Also, relying on grand jury secrecy rules, the government has held witnesses pursuant to closed detention proceedings without any public accountability. Even on requests from Congress, the Justice Department has refused to disclose the names or number of witnesses it has held, where or for how long witnesses were detained, or the details surrounding material witness arrests. The Justice Department released general statistical information, including that half of the witnesses it has arrested in the September 11 investigation were held for more than 30 days. Concerned with these secret detentions, the ACLU, with Human Rights Watch, undertook a study this year to document how the government has used the material witness law in its counterterrorism investigation since September 11. Based on interviews with witnesses, their family members, lawyers and INTERNATIONAL CIVIL LIBERTIES REPORT government officials, we documented the detention of more than 70 material witnesses held in connection with counterterrorism investigations. In documenting these cases, we learned how the government has systematically abused its material witness authority to hold Muslim men in violation of basic international protections against arbitrary detention. We will release the full findings of our research in a forthcoming report in January 2005. In this essay we describe the material witness law and how the government systematically used the law in a manner unauthorized by Congress to detain and investigate suspects and impermissibly used witnesses' race, national origin and religion as a basis for detaining witnesses. Enacted in its current form in 1984, the material witness statute authorizes the government to arrest and detain individuals to secure their testimony for a criminal proceeding. To arrest a material witness, the government must show (1) that a witness can provide information material to a criminal proceeding, and (2) that it would be impracticable to secure a witness's testimony without a subpoena. The material witness law favors ordering a deposition of a material witness in lieu of his detention, reflecting Congressional concern that witnesses should be detained only in narrow circumstances.' Before September 11, the government generally used the material witness law to arrest individuals who had witnessed a crime and who had a legal reason or had made clear to the government that he or she would not comply with a subpoena to testify at a criminal trial. The former INS made the most material witness arrests, most commonly to hold immigrants who were smuggled into the country in order to obtain their testimony for trials against alien smugglers and courts were careful to release witnesses if they faced continued detention. Before September 11, courts were reluctant to jail a witness absent proof that the witness was a "fugitive" or had resisted government attempts to call witnesses to testify." Following September 11, however, the government used the material witness law in a manner that reduced judicial oversight protecting these standards for holding a witness, detaining witnesses who had cooperated with the government, demonstrated no risk of flight, and had little or no relevant information to a crime. According to lawyers who represented witnesses since September 11, one reason for this change is that courts have deferred to the governments' arguments that witnesses need be detained because of national security concerns. The Second Circuit's recent decision in U.S. v. Awadallah, the only appellate case to resolve the government's post 9/11 use of the material witness law, reflects this deference; the Second Circuit substantially lowered the burden on the government to prove a witness is not likely to comply with a subpoena, holding that the material witness in that case was a flight risk largely because he did not step forward to the FBI to volunteer information that he may have." In crafting this standard, the Second Circuit not only made "several significant inferential leaps" in presuming that an individual has relevant knowledge to the investigation, but also broke with pre-September 11 case law that required the government to prove the witness was a flight risk because she had previously evaded service or was a fugitive from justice." The second reason the government has been able to detain witnesses without judicial oversight is that it held material witnesses more frequently for grand jury proceedings, where courts are largely restricted in reviewing the Justice Departments' subpoena powers. Unlike a trial, where there is a defendant and a concrete crime, the Justice Department "has exceedingly broad powers of investigation" in grand jury investigations to determine "whether a crime has been committed and whether criminal proceedings should be instituted against any |