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REPORT, ANJANA MALHOTRA, “OVERLOOKING INNOCENCE: REFASHIONING THE MATERIAL WITNESS LAW TO INDEFINITELY DETAIN MUSLIMS WITHOUT CHARGES"

INTERNATIONAL CIVIL LIBERTIES REPORT

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One of the most basic rights in international law is the safeguard against arbitrary detention. his protection of the right lo liberty has been desined by international tribunals to mcan, at a minimum, that the detention of any individual must be in accordance with previously established law and based on objectively reasonable criteria, desined without regard to race, religion, gender, or national origin. The architects of these international legal principles drew from the central lenets in the Magna Carla 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 Septeniber 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 oson 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 lenani."! Under the systematic programs the Justice Deparment implemented over the past three years, it has detained over 5,000 Muslims

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.

One kcy tool the government has used to detain Muslim men without charges is the material witness law. Congress enacted the material witness statute lo 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 wilnesses to a masia 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 delain Muslim men since September 11 because it held wilnesses 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 nanies or number of wilnesses 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

Aajana Malhotra is the Aryeh Neier Fellow with the ACLU and Human Rights Watch.

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The second reason the goverteien vas boca abic wo deiaan winesses withol jachcia. overs.. s than held materia, wiados amor frequency for grand jwy proceedings, where courts are iagety reszcied in reviewing the Jus.ice Depar.menis' subpoena power tale a rial, where ücre is a delendani ani a con10 crime, the Justice Department has exceedias y broad powers of investigazion“ - mgad vary invesugations to determine "whether a cine has been committed and whether criminal proceedings should be insululed against any

INTERNATIONAL CIVIL LIBERTIES REPORT

person.”

"!!! Thus, in Awadallah, the Circuit held that the government need only produce a "mere statement" from a government official that a witness has material information to establish that his testimony is necessary for a grand jury investigation.'

Artesting material witnesses for grand jury investigations has also allowed the government to hold material witnesses in complete secrecy. Grand jury proceedings and records have long been kept under seal because of the preliminary nature of the investigation.'' The government has applied these rules to detain grand jury material witnesses in closed proceedings and with sealed records, although some courts reviewing post-9/11 material wilness detentions have balanced thcsc rules against the “presumptively public''} determination to jail a witness. The secrecy surrounding the post-September 11 grand jury material wilness arrests also departed from past practice; sor example, the government read the material witness arrest warrant in an open bond proceeding for material witness Terry Lynn Nichols, arrested in connection with the grand jury investigation 10 the 1996 Oklahoma City

preventing, disrupting, or delaying new attacks Material witnesses consistently described to the ACLU and HRW that from the moment of their arrest, the Justice Department treated them as high profile terrorism suspects, arresting witnesses in their homes or in public with armed agents with their guns drawn, shackling witnesses and transferring them to maximum security prisons and holding them in solitary conlinement with the lights on 24 hours a day. Many witnesses report being subjected to the same or similar physical and verbal abuse and detention conditions that “high interest delainces” faced at MDC Brooklyn, documented by thc Inspector General of the Justico Department.'

During interrogations of material wilnesscs, FBI agents and U.S. allorcys made direct and veiled thrcals lo material witnesses and their families. In a number of cases, the Justice Department made clear that it arrested individuals as witness to his own criminal proceeding, ollen initiating a criminal proceeding only after arresting the witness, submitting evidence replete with admissions that the witness was a major suspect in a terrorismrelated crime, and telling wilnesses that they saced long jail sentences or capital punishment. In other cases, the Justice Department roadblocked witnesses efforts for release by seeking continuances lo delay wilnesses lestimony when they were prepared to testify and refusing to grant witnesses immunity in exchange for their testimony.

Almost half of the material witness detained in counterterrorism investigations since September 11 did not testify in any criminal proceeding. This pattern, however, also reflects the costs of the governments end-run around the constitutional requirement of proving that there is probable cause lo detain a suspect; in many cases, the government used flawed and unsubstantiated evidence to hold material witnesses who had no information about any crime. Government officials have issued statements acknowledging or apologizing for the

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was in Span cien bong da hau. have a vaid passport or records and canna be had jef she country in ea yeal ire guvernment argued that Mr Mayfield was a gansk becaise his ingerpria was found in Spain. making it icja, be savcied under a ia.se or fictitious name, w str. fasse or ficuous documents " In justifying the arrest of Mr Mayfield, 11 did not connect him with anyone who was under investigason íor the bombing and had not yet convened a grand jury invest gazon. To the contrary, the Justice Department identified Mr. Mayfield in court filiags as a “polentia largel."

Based on this evidence, and FBI agents arrested Mr Mayfieid as a material witness at his law office and jaled him in solitary consinemeni, resinicung contact with his family. The FBI scached his law offices, his home and seized his legal files. During his detention, C.S. attomeys suggested that he could face capital punishment of criminally charged and refused to grant him inmunity in exchange

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Cortes las 230 cicaron language of the Satute that can bring * gever men i deta.n anak sorppi of obtarung their tary and saken of winesses is porssbonne circumstancs * There is ac odha nga ana authorized purpose for usag tre muazena. witness law within the texi of the stante, or within the legis alive his.ony, w suggests thai the governmeni may bold a maicna, winess or any purpose other than securing his iestnony, To the contrary, when Congress enaced the current version of the material witness iaw, it cmphasized that a winess should be deposed in

INTERNATIONAL CIVIL LIBERTIES REPORT

order lo limil the prolonged detention of a witness. 28

Courts have also underscored that "it would be improper for the government to use $ 3144 (or other cnds, such as the dcicntion of persons suspected of criminal activity for which probable cause has not yet been established."**

As illustrated by arrest and detention of Brandon Maysield, the goverment has arrested "matcrial wilnesses" in a manner unsanctioned by Congress. In doing so, it has held such witnesses without previously established authority, in violation of ICCPR Art. 9(1) and the guarantec lo duc process.

property, birth or other slalus. 132 The U.S. has agreed to the same principles under other treaties it has ratified, including the United Nations Charter, the UDHR, and the Internalional Convention on the Elimination of All Forms of Discrimination." These nondiscrimination principles are based on promoting peace and security, on the view that discrimination “is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same.'

Out of the 70 post-Scpicmber 11 counter-terrorism material witness arrests that we documented only one witness was not Muslim, and Brandon Mayfield was among the lwo malcrial witnesses who were not of Middle Eastern or South Asian descent. Our review of material witness cases indicates that the government consistently used witnesses' race, religion, and national origin in violation of internalional principles to argue that matcrial witnesses had material information or were flight risks, in violation of these basic protections against international discrimination.

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The arrest of Mr. Mayfield also demonstrates the governments' pattern of impermissibly using religion lo arrest and detain material wilnesses. In addition to the lingerprint evidence, the government argued that Mr. Mayfield had links to terrorists based on insinuations tied to his religion. In its affidavit supporting the arrest of Mr. Maysield, the government detailed how Mr. Mayfield was a Muslim convert who was married to an Egyptian and that agents had observed Mr. Mayfield drive to his mosque on a number of occasions in the wecks before his artesi.'

20 The allidavit also pointed to his numerous professional associations with Muslims, including an advertisement he placed for his law firm in a widely used internet directory."

International human rights law forbids states from discriminating based on race, religion and national origin. ICCPR Art. 2(1), to which the US is a signatory, imposes an aflirmative duty to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,

'U.S. Department of Justice, Office of the Inspector General (OIG), The September 11 Detainees: A Review of the Treatment of Aliens lield on Immigration Charges in ('onnection with the Investigation of the September 11 Attacks, April 2003. p 16.

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