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 to 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 44 cases reviewed by 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 Qaeda terrorist network, and Zacarias Moussaoui, who was detained as a material witness before being indicted as a conspirator in the attacks on the World Trade Center and Pentagon.
Another material witness, Jose Padilla, who allegedly was plotting to explode a radioactive "dirty bomb" in the United States, was held for a month in jail before President Bush declared him an enemy combatant. The government transferred Padilla to a naval brig in Charleston, S.C., where he is today.
It is unknown whether these 44 cases represent all material witnesses taken into custody since Sept. 11, 2001, or some fraction of them. Law enforcement officials previously estimated that about two dozen material witnesses were arrested in connection with the probe. The Justice Department declined to 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.
This 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 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 terrorism 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 A. Meyer, said he believes the government sought the new material witness warrant to head off Almarabh's pending deportation.
Michael Chertoff, assistant attorney general in charge of the Justice Department's criminal division, declined to talk about specific 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. "It's an important investigative tool in the war on terrorism," Chertoff 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 R. Sonnett, a defense attorney and former chief of the criminal division with the U.S. attorney's office in Miami, said it is "unusual" that some material witnesses never testified, which he said shows how the government has misapplied the statute.
"It would tend to indicate that the use of the material witness statute was more of a ruse than an honest desire to record the testimony of that person," Sonnett said.
The government employed the statute immediately after the Sept. 11 attacks. In some of the first arrests, authorities detained eight men from Evansville, Ind., on material witness warrants. The wife of one of the men, all of Egyptian origin, had alerted authorities.
At the bail hearing, federal prosecutors initially balked at allowing defense lawyers to view the evidence used to obtain the arrest warrants. "After much discussion with the U.S. magistrate, it was finally determined that the lawyers could read the applications for the warrants but could not reveal to our clients any of the details," said Michael C. Keating, an Evansville attorney. "It was the strangest thing I have ever participated in."
The men were flown to Chicago, but prosecutors made no move to bring them before a grand jury. "If these are material witnesses, the government is supposed to take them before a grand jury to find out what they know and release them," said Kenneth L. Cunniff, who represented one of the men, Tarek Albasti, in Chicago. "That was clearly not being done."
Cunniff suggested that his client provide a "proffer" in which Albasti would tell prosecutors everything he knew without immunity from prosecution. Albasti and the others were soon released.
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, 2001. The government also has detained more than 1,200 foreign nationals on immigration violations, and has deported the vast majority.
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 terrorism suspects for grand jury proceedings. In a separate decision, Chief Judge Michael B. Mukasey upheld the use of the statute in the terrorism probe. The Justice Department has appealed Scheindlin's decision.
The material witness cases have been adjudicated in unusual secrecy. Most, if not all, are subject to judicial sealing orders, and there is confusion among defense attorneys across the nation about what information they can make public. In five cases, attorneys confirmed that detainees were material witnesses but refused to release their names, citing judicial orders and privacy concerns. Other lawyers refused even to confirm or deny that they represented material witnesses.
In a June address to Brooklyn Law School graduates, Mukasey, who has overseen several material witness cases, asserted that the detainees "were not, as has been suggested, held incommunicado.
"Although the court proceedings were sealed because they related to grand jury matters, the lawyers for the witnesses were free to talk about the cases or not, as they chose," Mukasey said. "Some chose to speak publicly, and others didn't. That is the unremarkable truth behind the breathless half-truths and outright falsehoods you may have heard."
Informed of Mukasey's comments, the federal public defender in San Francisco, Barry J. Portman, said: "All I can do is smile listening to Judge Mukasey's remarks. There's nothing much I can do." Portman, citing a sealing order, refused to confirm or deny whether he had represented a material witness.
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 counterterrorism 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 compel the witness to testify.
Chertoff said the statute has built-in safeguards.
"This is always supervised by a federal judge," he said. "It doesn't happen in the back room of a stationhouse somewhere. . . . That's the bedrock point: The judge always supervises. If the judge has a problem, then he can order the removal of the witness."
Others note that the legal landscape changed forever on Sept. 11, 2001, forcing the government to look for creative ways to prevent another terrorist attack.
"Prevention has to be factored into our enforcement," said Victoria Toensing, a Washington attorney who served as assistant deputy attorney general in the Reagan administration. "So when you factor in prevention, you have to see what tools you have to utilize."
Laurie Levenson, a former prosecutor in Los Angeles who is now a professor at Loyola Law School in that city, acknowledged that material witnesses can appeal their detentions, but said judges offer little supervision in such matters.
"The statute was not created as an alternative detention device for people whom you are suspicious of," Levenson said.
In another case, Ahmed Abou El-Kheir, an Egyptian, was taken into custody in College Park on a material witness warrant shortly after the attacks. El-Kheir was initially charged with trespassing after a motel clerk told authorities that he looked suspicious.
"They just wanted to hold him," said his lawyer, Martin R. Stolar. El-Kheir was transferred to the Metropolitan Correctional Center in Manhattan and placed in solitary confinement in 9 South, a high-security wing.
El-Kheir was never brought before the grand jury, Stolar said, and within two weeks the material witness warrant had been dropped. After El-Kheir was deported back to Egypt, Stolar reviewed the U.S. code and discovered a law requiring that material witnesses be paid $40 compensation for each day that they are incarcerated and do not appear in court.
He filed an application and received a check from the government for El-Kheir in excess of $700, then forwarded the check to the former terrorism suspect.
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