St. Petersburg Times
October 14, 2001

FBI Abuses Witness Detention

by Robyn Blumner

Attorney General John Ashcroft has been giving the public a weekly count of the number of people detained or charged in connection with the Sept. 11 terrorist attacks.

We are up to 614, with 165 held on immigration status violations. The ever-climbing number gives the impression that the FBI is really on top of this. But when Ashcroft and his department spokesmen refuse to go any further and give us the names of the people held, on what grounds, and whether they have been charged, the large number raises as much concern as reassurance.

Why all the secrecy surrounding these detentions? People aren't supposed to just disappear into our justice system. Arrest records and court proceedings are normally open, as a way to keep government accountable. You know, "public trials," it's in the Constitution.

Then there is the department's seemingly prodigious use of its power to detain people as "material witnesses." We don't know just how many of the 614 are being held as material witnesses. That's another thing the department is being mum about.

But the detention of material witnesses is intended to be a rarely used tool. It is defined as someone with unique information about a crime, either benefiting the prosecution or defense, who may be held only if there is a good reason to believe that he or she will try to avoid testifying. Under federal law, these witnesses are entitled to counsel and a bond hearing.

What we know of the department's recent use of its material witness powers is from personal accounts, from the men who have been arrested and later freed. Their experiences tell us the department isn't bothering to follow the rules.

One situation we've all heard of by now is the celebrated case of Dr. Al-Badr Al-Hazmi, the 34-year-old Saudi Arabian doctor living in San Antonio, who had FBI agents show up at his door at 5 a.m. on Sept. 12. He was incarcerated for nearly two weeks as a material witness. He was first taken to a local jail, then flown to a federal jail in Manhattan and later transferred to a Brooklyn facility.

Al-Hazmi's story is a frightening reminder of what happens when law enforcement believes its cause is so just that it claims the right to operate outside the bounds of due process.

Cynthia Orr, Al-Hazmi's San Antonio-based attorney, said that other than a few-minute phone call to her client when he was first picked up, Al-Hazmi was denied access to a lawyer for six days. During that time, Orr said, she literally couldn't find him. The government refused to tell her where it had taken him. (Is this sounding vaguely like a dirty war in Argentina?) Meanwhile, the FBI repeatedly tried to question Al-Hazmi outside her presence.

After 13 days in jail, 13 days of a disrupted life, 13 days of humiliation and 13 days of fear that guards might attack him because of his appearance, he was released. It came with no apology and no explanation, just with a Justice Department statement that "he's been cleared."

Cleared? Cleared of what? This man wasn't a suspect, he was a witness. And what are we doing putting witnesses in jail? There are plenty of less intrusive options, from attaching an ankle bracelet to holding people in secured hotel rooms, that would serve to keep track of people with special information without the punishing element of jail.

Also, one would think that before someone could be arrested as a reluctant witness, he or she would have to show, you know, some reluctance. Al-Hazmi's actions suggested just the opposite. He was completely cooperative, having allowed the FBI, without a warrant, to search his house for five hours and to speak with him at length.

And there are more like him. In Florida, Ahmed Badawi, a business man from Egypt who became an American citizen 18 years ago, was also arrested as a material witness after fully cooperating with the FBI. Also without asking for a warrant, Badawi gave agents his business records and three computers, and spoke with them for hours. Badawi was luckier than Al-Hazmi, though. He was allowed to contact an attorney the morning after his arrest and as a result, only spent three fear-filled nights in jail.

It is far easier to arrest someone as a material witness than to take someone in as a suspect, since you don't have to show probable cause of criminal wrongdoing. In the past, the FBI has been known to misuse this authority in order to hold someone until authorities could build a case against him. For example, Oklahoma City bombing co-conspirator Terry Nichols was arrested as a material witness, then held until he was charged. But there was no reason to think Nichols was a reluctant witness in the bombing case. When he heard he was being sought, he voluntarily turned himself over to authorities.

With this terrorism investigation, the agency is back to its old tricks, operating outside the legal bounds of the material witness statute and compounding the harm by holding people secretly, sometimes without access to a lawyer.

Attorney General Ashcroft has spent the weeks since the attack bullying Congress to give him and the FBI even broader authority to detain people, with less judicial oversight. Maybe federal authorities should show they can responsibly exercise the powers they already have, first.

Copyright 2001, St. Petersburg Times. All rights reserved.

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