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U.S. News
'Material witnesses' of terrorism languish without testifying

Sunday, November 24, 2002

By Steve Fainaru and Margot Williams, The Washington Post

Authorities have arrested and jailed at least 44 people as potential grand jury witnesses in the 14 months of the nationwide terrorism investigation, but nearly half have never been called to testify before a grand jury, according to defense lawyers and others involved in the cases.

Although they had not been charged with any crimes, these "material witnesses" were often held under maximum security conditions, in detentions ranging from a few days to several months or longer. At least seven of the witnesses were U.S. citizens.

The accounts offer the clearest indication to date of how the government has used an obscure federal statute, the material witness law, to detain and investigate a wide range of terrorism suspects without having to charge them with a crime.

Under the 1984 statute, prosecutors may seek an arrest warrant if a potential witness's testimony is "material" to a criminal proceeding and the individual is likely to flee. A judge must approve the warrant, and the witness is entitled to a bond hearing and a court-appointed attorney.

The Justice Department has refused to say how many material witnesses have been taken into custody since the Sept. 11, 2001, attacks, or reveal any information about them, including their names or which courts are supervising the cases. Officials said the detentions are related to grand jury proceedings, which are secret under federal law.

In 20 of the 44 cases reviewed by the The Washington Post, material witnesses were never brought before a grand jury, their attorneys said.

The only known material witnesses to face terrorism charges are James Ujaama, who was detained July 22, then indicted Aug. 28 on charges he provided material support to the al-Qaida terrorist network, and Zacarias Moussaoui, who was detained as a material witness before being indicted as a conspirator in the attacks on New York and Washington.

Another material witness, Jose Padilla, who allegedly was plotting to explode a radioactive "dirty bomb" in the United States, was held for 32 days in a Manhattan jail before President Bush declared him an enemy combatant and the government transferred him to a naval brig in Charleston, S.C., where he is still being held.

It is unknown whether these 44 cases represent all the material witnesses taken into custody since Sept. 11, 2001, or some fraction of them. Law enforcement officials have previously estimated that about two dozen material witnesses were arrested in connection with the probe. The Justice Department declined comment on the figures, citing court orders and grand jury secrecy rules.

Criminal defense attorneys and civil liberties advocates argue that the cases show how the government has bent the material witness statute -- originally designed to compel testimony from frightened or recalcitrant witnesses -- into a tool to detain suspects indefinitely while investigating them for possible links to terrorism.

Last week, for example, prosecutors in Chicago obtained a material witness warrant for Nabil Almarabh, a former Boston cab driver from Kuwait who was arrested one week after the attacks. Almarabh has been in custody for 432 days on a variety of charges but has not appeared before a grand jury, even though law enforcement sources had previously identified him as a material witness and a terrorism suspect.

Almarabh presents authorities with a classic dilemma. They have found members of an alleged terror cell living in his former apartment in Detroit, and Almarabh has admitted taking advanced weapons training in Afghanistan in the early 1990s. But officials have acknowledged in court that they lack evidence to charge him with terrorism.

He was held in solitary confinement in New York's Metropolitan Detention Center for more than eight months before he was assigned a lawyer or taken before a judge. His current lawyer, John Meyer, said he believed the government sought the new material witness warrant to head off Almarabh's pending deportation. "Obviously, this will prolong his detention," said Meyer.

Michael Chertoff, assistant attorney general in charge of the Justice Department's criminal division, declined to talk about specific material witness cases. However, he said it was not uncommon for an individual taken into custody as a material witness to provide information in ways other than testifying, including interviews with federal investigators.

The law does not require that a material witness be brought before a grand jury. Chertoff said it enables the government to obtain not only testimony from an individual who is a flight risk, but critical information as well. "It's an important investigative tool in the war on terrorism," he said. "Bear in mind that you get not only testimony, you get fingerprints, you get hair samples, so there's all kinds of evidence you can get from a witness."

However, Neal Sonnett, a defense attorney and former chief of the criminal division with the U.S. attorney's office in Miami, said the fact that some material witnesses never testified was "unusual" and shows how the government has misapplied the statute.

The government employed the statute immediately after the Sept. 11 attacks.

In all, 29 of the material witnesses have been released. Nine are still in custody -- as material witnesses, criminal suspects, convicted felons or immigration violators -- and it is unclear what has happened to six more.

The material witnesses are a subset of the Bush administration's overall detention strategy since Sept. 11. The government also has detained more than 1,200 foreign nationals on immigration violations, deporting the vast majority of them.

The detentions have touched off legal battles in courts across the nation between civil liberties advocates and government officials concerned about the preservation of national security. Many believe the U.S. Supreme Court will ultimately decide the legality of much of the domestic war on terror.

Two federal judges from New York's Southern District issued conflicting rulings earlier this year on whether the government has legally applied the material witness statute to grand juries investigating terrorism. In the first ruling, Judge Shira A. Scheindlin said authorities cannot legally use the statute to detain terror suspects for grand jury proceedings. But in a separate decision, Chief Judge Michael Mukasey upheld the use of the statute in the terror probe. The Justice Department has appealed Scheindlin's decision.

In another decision not directly related, Judge Gladys Kessler of the U.S. District Court in Washington called the government's use of the material witness statute "deeply troubling." And said: "The public has no idea whether there are 40, 400 or possibly more people in detention on material witness warrants."

Legal experts said the material witness statute is an attractive tool to investigators for several reasons. The statute, which runs a paragraph in length, says that a judicial officer may order a witness's arrest if the testimony is critical and it "may become impracticable" to ensure the person's presence by subpoena. No material witness may be detained if the testimony can be obtained by deposition, the statute says.

Before Sept. 11, the statute was most commonly used by prosecutors seeking to hold illegal immigrants to testify in smuggling cases. Its transformation into a counter-terrorism weapon appears to stem largely from its ambiguity. The statute does not set limits on how long the government can hold a witness, or whether it must ultimately compel the witness to testify.

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