Scores of Muslim Men Jailed Without Charge

Justice Department misused material-witness law in counterterrorism efforts

from the ACLU

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, Human Rights Watch and the American Civil Liberties Union said in a report released today.

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, it 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.

"On the domestic front, the Justice Department's unlawful use of the material witness statute is perhaps the most extreme but least well-known of the government's post-September 11 abuses," said Lee Gelernt, a senior staff attorney with the ACLU Immigrants' Rights Project. "The material witness abuses are a prime example of what happens when there is no public scrutiny of the government's actions."

The 101-page report, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11," documents how the Justice Department denied the witnesses fundamental due process safeguards. Many were not informed of the reason for their arrest, allowed immediate access to a lawyer, nor permitted to see the evidence used against them. The Justice Department evaded fundamental protections for the suspects and the legal requirements for arrested witnesses. Their court proceedings were conducted behind closed doors, and all the court documents were sealed.

"Haste, incompetence and prejudice played a role in these detentions," said Anjana Malhotra, the report's author and Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union. "Muslim men were arrested for little more than attending the same mosque as a September 11 hijacker or owning a box-cutter."

The Justice Department has refused to reveal how many material witnesses it has detained in connection with its counterterrorism investigations and has largely ignored repeated Congressional inquiries. After a year of extensive research, Human Rights Watch and the ACLU have confirmed 70 such material witnesses. Sixty-four were of Middle Eastern or South Asian descent; 17 were U.S. citizens, and all but one was Muslim.

The report details how the Justice Department relied on false, flimsy or irrelevant evidence to secure arrest warrants for the men and to persuade courts that they were flight risks who had to be incarcerated. Almost all the men, in fact, had cooperated with federal authorities before their arrest. Many proved to have no information relevant to a criminal proceeding.

"These men were victims of a Justice Department that was willing to do an end-run around the law," said Jamie Fellner, director of Human Rights Watch's U.S. Program. "Criminal suspects are treated better than these material witnesses were."

Witnesses were typically arrested at gunpoint, held round the clock in solitary confinement, and subjected to the harsh and degrading high-security conditions usually reserved for prisoners accused or convicted of the most dangerous crimes. Corrections staff verbally harassed the detainees and, in some cases, physically abused them.

The report found that one-third of the 70 confirmed material witnesses were incarcerated for at least two months. Some were imprisoned for more than six months, and one actually spent more than a year behind bars. According to the report, the Justice Department apparently used the material witness statute to buy time to conduct fishing expeditions for evidence to justify arrests on criminal or immigration charges. When there was no such evidence, the Justice Department simply held the men under the material witness law until it concluded that it had no further use for them or until a judge finally ordered their release.

The report also documents the long-term effects of the Justice Department's material witness policy on witnesses and their families. While recovering from the trauma of being jailed in harsh conditions, witnesses often continued to live under a specter of suspicion. They faced lingering questions in the community about their ties to terrorism, even in cases when the government apologized. Many lost businesses and job opportunities, and some had to move to new communities to restart their lives.

The full report, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11" is available at www.aclu.org/SafeandFree/SafeandFree.cfm?ID=18585&c=280