New Scrutiny for Law on Detaining Witnesses

The New York Times
New Scrutiny for Law on Detaining Witnesses
By ADAM LIPTAK

A 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress and within the Justice Department after reports that it has been abused in terrorism investigations.

The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for people detained as material witnesses say the law has been used to hold people who the government fears will commit terrorist acts in the future but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws.

A bill introduced by Senator Patrick J. Leahy, Democrat of Vermont, would curtail the use of the material witness law to hold people suspected of plotting terrorist acts. Representative Jeff Flake, Republican of Arizona, said he would introduce similar legislation in the House.

"It's being stretched beyond its original purpose," Mr. Flake said of the material witness law. "Individuals are being indefinitely detained who might be suspects. If that's the case, they need to be charged."

But Mr. Flake added that he might be receptive to arguments that federal prosecutors need tools to hold some people they consider dangerous. "If you need something else," he said, "come to us."

Recent prosecutions, lawsuits and internal investigations by the government have all focused attention on the potential misuse of the material witness law in terrorism investigations. The Justice Department, for instance, recently opened an inquiry into 21 instances of possible misuses of the law, its Office of the Inspector General said. A Justice Department spokesman would not elaborate on the inquiry, by the department's Office of Professional Responsibility, or name the detainees involved.

But in recent court filings in a case brought by a former detainee, the government argued that courts were powerless to second-guess whether the prosecutors had acted on improper motives as long as they complied with the formal requirements of the material witness law.

David Cole, a law professor at Georgetown University and a prominent critic of the Bush administration's approach to civil liberties, said that the government had routinely misused the law. But Professor Cole added that there might be a place for a law that would allow the government to hold dangerous people when it lacked evidence to charge them.

"One of the problems we saw everywhere after 9/11," he said, "was, in the absence of any rational, narrowly tailored preventive detention authority, the administration reached out to exploit a number of other legal and illegal methods to detain people — immigration, material witness, enemy combatant. They were creating preventive detention authority out of statutes that were not meant to serve as that or out of whole cloth."

The use of material witness warrants in terrorism investigations continues to be shrouded in secrecy. In May 2003, the Justice Department told Congress that fewer than 50 people had been detained as material witnesses "in the course of the Sept. 11 investigation." About half were held for more than 30 days, the department said.

A department spokesman did not respond to requests for more current numbers. The department has for three years refused to give Congress fresher data on material witness detentions in terrorism investigations.

"They claim that they can't even tell us how many people they have detained" because of court sealing orders and grand jury secrecy rules, said Julie Katzman, a lawyer on Senator Leahy's staff.

Even the lawyers who represent material witnesses are often barred from talking about their clients.

"The Justice Department routinely gets sealing orders," said Ricardo J. Bascuas, a law professor at the University of Miami who has represented material witnesses. "These court orders never expire. For instance, I'm perpetually under court order from the Eastern District of Virginia, a place I've never been to, not to talk about" one material witness case.

People who have been arrested as material witnesses say the experience forever changed their lives, even when they were never called to testify or charged with a crime.

One of them, Abdullah al Kidd, who was born in Kansas and was a star running back at the University of Idaho, filed suit last year for what he says was "a gross abuse of the government's power" in arresting him.

Mr. al Kidd, who was known as Lavoni T. Kidd before he converted to Islam, spent 16 days in detention in three states in 2003, some of it shackled hand and foot. That was followed by 14 months under court supervision. Mr. al Kidd was not charged with a crime, and he was not called to testify, though a government affidavit said he had information "crucial to the prosecution" of another man. Mr. al Kidd said in a recent interview that his arrest and detention shattered his marriage and destroyed his career. He now drives a cab in Las Vegas.

"I call it social assassination, really," Mr. al Kidd said. "It's just basically taken me out of a lot of opportunities and placed me into a small box. I'm not doing anything my heart actually desires."

Mr. al Kidd, who had apparently attracted the government's attention after pursuing religious studies in Yemen, was interviewed repeatedly by the F.B.I. in 2002. He never missed an appointment, his lawsuit says. Yet, after a six-month lull and with no warning, he was arrested at Dulles International Airport in Northern Virginia on March 16, 2003, as he tried to board a flight to Saudi Arabia to pursue a doctorate in Islamic studies.

Magistrate Judge Mikel H. Williams of the Federal District Court in Boise, Idaho, authorized the arrest, based on an affidavit from Special Agent Scott Mace of the F.B.I. "Kidd is scheduled to take a one-way, first-class flight (costing about $5,000)," the affidavit said.

That statement was false in every particular: the ticket was for a round trip, in coach, costing $1,700.

"If I had submitted an affidavit under penalty of perjury that contained false information," said Scott McKay, who represented the man Mr. al Kidd was said to have evidence about, "I would have been prosecuted." Mr. Mace, his lawyer and F.B.I. officials referred questions to a Justice Department spokesman, who declined to comment beyond referring a reporter to the court papers in the case.

In those papers, the government said the false statements in the affidavit were immaterial. "Either way," government lawyers wrote in a brief asking that Mr. al Kidd's case be dismissed, "there is no dispute that plaintiff purchased an expensive airline ticket to a foreign country with which the United States did not have an extradition treaty."

The government has apologized to 13 of the 70 material witnesses located by the American Civil Liberties Union and Human Rights Watch, according to a report the groups issued last year. Mr. al Kidd was not one of them.

"Absolutely no apologies," he said.

The proposed legislation would place strict time limits on detentions — 10 days for grand jury investigations and 30 days for trials — and allow them only where there is clear and convincing evidence that the witness is a flight risk.

Curtailing the authorities' ability to hold potentially dangerous people could be a devastating mistake, said Andrew C. McCarthy, a former federal prosecutor who took part in terrorism investigations in New York after the Sept. 11 attacks.

"Terrorism cases present, obviously, the least margin for error that you could conceivably have," Mr. McCarthy, now a senior fellow at the Foundation for the Defense of Democracies, said. "If you lose control of people who come up on the radar screen, you could have massive death."

Lee Gelernt, a lawyer with the A.C.L.U.'s Immigrants' Rights Project, which represents Mr. al Kidd, said his client's case "crystallizes the question of whether we as a nation are going to allow preventive detention."

The idea has support, and some view it as inevitable.

"The most confident prediction you can make," Professor Cole said, "is that after the next attack, a preventive detention statute will be proposed."