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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."

Arresting 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.15 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 witness detentions have balanced these rules against the "presumptively public"" determination to jail a witness. The secrecy surrounding the post-September 11 grand jury material witness arrests also departed from past practice; for 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 to the 1996 Oklahoma City bombing."

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 confinement 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 detainees" faced at MDC Brooklyn, documented by the Inspector General of the Justice Department.

During interrogations of material witnesses, FBI agents and U.S. attorneys made direct and veiled threats to 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, often 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 witnesses that they faced long jail sentences or capital punishment. In other cases, the Justice Department roadblocked witnesses efforts for release by seeking continuances to delay witnesses testimony 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 to 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

The May 2004 arrest of Oregon attorney and Islam-conver. Brandon Mayicic as a mama Wiacss 10 a graad 12y IvesugaJon

the March.. Madrad bombing blustars the governments pattern of using the matema witness Lew it boid suspects In scaled proccodings. J. FBi onamod a warrant to arros: Mr. Mayfield a US cruzen and a father of three, or the basis of proof suggesting that Mr. Mayfield was involved with the bombing--ba: 1 had made a "100 % poslove idealication” o. Mr. Mayão.d's Engerprin with a print found on a bag of detonators found near the Madrid bombing The FBI further informed the court that it believed ha. M: May acid was in Spain even though he did not have a valid passport or records indicating he had left the country in ten years, the government argued that Mr Mayfield was a ght risk because his fingerprin, was found in Spain, making it likely that he "raveled under a false or fictitious name, with faise or fictitious documents In justifying the arrest of Mr Mayfield, it did not connect him with anyone who was under investigation for the bombing and had not yet convened a grand jury investigation. To the contrary, the Justice Department identified Mr. Mayfield in court filings as a "potential target.***

Based on this evidence, armed FBI agents arrested Mr. Mayfield as a material witness at his law office and jailed him in solitary confinement, restricting contact with his family. The FBI searched his law offices, his home and seized his legal files. During his detention, U.S. attomeys suggested that he could face capital punishment if criminally charged and refused to grant him immunity in exchange

By using is maE «EAN ALM te doit suspects like Mr. Machielt without probah e cause, the i. S goveTIMENT NIS við.8.oć „he basic guaratube ha. 32 2hòa ms be previous v Buchorized by SONNI VAî of the late, abdal Covenant or ĈA, UNË Po, tica. R gris gua antess thi" "he one she be deprived c ́has therry on such gands as it estabushocć bi jaw The UN Hum Agis Commuce delines this nigh,ac mon dài - 23 violation (of Arcticie 97j it an inesidua is arrested or detained on grounds which are not clearly established by domestic legis,adda”

Congress has made clear by the language of the statute that it only authorizes tie government to detain winesses for the pape of obtaining their testimony and that detention of winesses is permissible in very laned circumstances." There is no other legislatively authorized purpose for using the matena. witness law within the text of the statute, or within the legislative history, that suggests that the government may hold a material witness for any purpose other than securing his testimony." To the contrary, when Congress enacted the current version of the material witness law, it emphasized that a witness should be deposed in

order to limit the prolonged detention of a witness. 28

Courts have also underscored that "it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.""""

As illustrated by arrest and detention of Brandon Mayfield, the government has arrested "material witnesses" 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 guarantee to duc process.

The arrest of Mr. Mayfield also demonstrates the governments' pattern of impermissibly using religion to arrest and detain material witnesses. In addition to the fingerprint 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. Mayfield, 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 weeks before his arrest. The affidavit 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 affirmative 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,

INTERNATIONAL CIVIL LIBERTIES REPORT

property, birth or other status."32 The U.S. has agreed to the same principles under other treaties it has ratified, including the United Nations Charter, the UDHR, and the International 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."4

Out of the 70 post-September 11 counter-terrorism material witness arrests that we documented, only one witness was not Muslim, and Brandon Mayfield was among the two material 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 international principles to argue that material witnesses had material information or were flight risks, in violation of these basic protections against international discrimination.

INTERNATIONAL CIVIL LIBERTIES REPORT

'S. Rep. No 98-225, 1984 I ́.SC.CAN 3182 (Aug. 4. 1983) (“[T]he committee stresses that whenever possible, the depositions of such witnesses should be obtamed so that they may be released from custody.")

*Bureau of Justice Statistics. US Dep't of Justice, Compendium of Federal Justice Statistics 2000. http://www.ojp usdo, gov bjs abstract cfjs00.htm (last visited November 22, 2004).

See, eg Torres-Ruiz & US Dist Courtjor Southern Dist Of California, 120 F 3d 933 (9th Cir. 1997)

8 See eg. Arnsberg Umted States. 757 F.2d 971, 976 (9th Cir 1984) (holding government did not establish mpracticabilry where witness informed government he would not attend a grand jury unless persona ly served because the govemment could not show Arnsberg was a fugitive or inkely to flee the jurisdiction)

United States & Anada..an, 349 F 3d 42, 81 (2d Cir. 2003) The Court reversed the District Court and held that the government sufficiently proved that it would be impracticable to obtain Mr Awadallah's testimony by a subpcem, even where the FBI agents testified he had been "very, very cooperative" agreed to voluntary interviews before his arrest, and that he lived in the same city as he U.S. citizen father, and three brothers, one of whom was a US izen because M: Awadallah "did not step forward” and go to the FBI offices afe: September vi to voilmeer information. As of this writing the Supreme Court is considering whetter to grant certurari in Awadalah

of eight material witnesses in Evansville, Indiana); In re Application of United States for Material Witness Warrant, 214 F.Supp. 2d 356, 364 (S.D.N.Y. 2002) (ordering investigation into false confession and detention of material witness Abdallah Iligazy).

21 Affidavit of Federal Bureau of Investigation officer Richard Werder in support of the U.S. Government's application for a material witness warrant for the Arrest of Brandon Mayfield, In re Federal Grand Jury 03-01, No. 04-MC-9071 (D. Or. Filed May 6, 2004).

22 Affidavit of Federal Bureau of Investigation officer Richard Werder in support of the U.S. Government's application for a material witness warrant for the Arrest of Brandon Mayfield, In re Federal Grand Jury 03-01, No. 04-MC-9071 (D. Or. Filed May 6, 2004).

23 Government's Response to Witness' motions for return of materials seized pursuant to search warrants, for disclosure of search warrant affidavits and for access to seized material, dated May 17, 2003, p 2. No. 04-MC-9071 (D. Or. 2004).

24 U.S. Justice Department, Federal Bureau of Investigation, Statement on Brandon Mayfield Case, issued May 24, 2001. Available at (http://www.fbi.gov/pressrel/pressre 104/mayfield0524 04.htm) (last visited September 20, 2004). Weeks later, in response to a Congressional inquiry, Attorney General Ashcroft characterized the wrongful arrest of Mr. Mayfield as "an unfortunate situation which I regret." June 8, 2004 Senate Judiciary Committee Hearing held by U.S. Senator Orrin G. on the Federal Government's counterterrorism efforts."

25

Communication No. 702/1996, C. McLawrence v. Jamiacu (Views adopted on 18 July 1997), in UN doc. GAOR, A/52/40 (vol. II). pp. 230-231, para 5.5. Article 2 of the American Convention on Human Rights similarly provides that "no one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto." The InterAmerican Court on Human Rights interprets this prohibition to mean that "no person may be deprived of his or her personal freedom except for reasons,

31 The government argued that his business listing in the directory was suspect because the directory was registered to a Muslim man who four years ago admitted to the FBI that he knew a convicted terrorist. Affidavit of FBI agent Richard Werder in support of the United State's Application for Material witness order and warrant regarding witness: Brandon Mayfield, P 13-14, In re Federal Grand Jury 03-01. No. 04-MC-9071 (D. Or. filed May 6, 2004). The government also described at lengths the beliefs of one of his Muslim chents in a family court case. Jeffrey Leon Battle, Mr. Mayfield to establish probable cause that Mr. Mayfield may have material information to the Madrid bombing. Mr. Mayfield represented Mr. Battle, who pleaded guilty with seven