Detaining Witnesses Who Are Not Criminals

Witnesses and Criminals is an editorial in today's Washington Post about holding detainees under the material witness statute.

We agree with the second half of this editorial, but not the first. It seems to change course in midstream. In fact, had we followed our instincts to tune out after the first two paragraphs, we would not have read the last two paragraphs, which we think are all too true.

The subject is the differing rulings of two federal judges in New York on the material witness statute as pertains to post-September 11 detainees.

We disagree with the Post and think Judge Scheindlein's view is correct that the material witness statute applies to trial witnesses, not grand jury witnesses. The Post maintains that the statute allows the government to "hold witnesses who might otherwise flee in order to secure their testimony," and that this is the way it should be, citing Terry Nichols' arrest on a material witness warrant when they didn't have enough to charge him with the Oklahoma bombing but wanted to secure his testimony.

The Post then criticizes the practical application of the law, "because it can be abused and should not be used indirectly as a punitive measure." We're beginning to agree.

The Post really engages our attention when it continues with, "What's troubling about the government's behavior in these cases is not that material witnesses have been detained but the circumstances and duration of the detentions." The Post is justly critical of the Government for holding Osama Awadallah in isolated detention for months, during which he sustained bruises and had limited access to counsel.

The Post opines, "If this is true, then it is unacceptable. More generally, the material witness statute authorizes holding people only for "a reasonable period of time" so that their testimony can be obtained. It's hard to see how this law could justify holding someone for months or after that person's grand jury testimony has been taken."

What happens when the witness does not want to talk? Under federal law, a witness who refuses to testify before a grand jury can be held in contempt and kept in jail for the remaining life of the grand jury. Grand jury terms are eighteen months. Sometimes a grand jury has not finished investigating a case when its term is up and a new grand jury is empanelled and the case transferred. The recalcitrant witness can be held for the life of that grand jury as well. So the "reasonable period of time" that the Post assumes will cause someone to intervene to prevent overly lengthy detentions doesn't really exist. There is no definition of "reasonable period of time," and with the detainees, reasonable time seems to be equated with "as long as it takes to make him talk."

We know that the Judge can release the person doing contempt time for refusal to testify before a grand jury if the Judge becomes convinced that the person won't talk no matter how long he or she remains in jail. Again, this is an arbitrary decision--hardly a uniform measuring stick of "reasonable time."

In the case of the detainees, where are the contempt hearings? Where are the contempt charges? Due to secrecy rules, we can't learn the truth. But even the Government says these witnesses have not been charged. They are not criminals, yet they have lost their jobs, their family life and their ability to partake of the ordinary pleasures in life.

The Post concludes with, "Still, the material witness law has clearly been used as a means of locking up people who have information relevant to the investigation and who themselves may be dangerous, yet against whom no case can immediately be made. This is pushing a line: The material witness law is not a means of preventive detention and should not be used as one."

So doesn't Judge Scheindlein's ruling make more sense?

P.S. We think Mr. Awadallah's wife has been a gutsy, intelligent and passionate advocate on his behalf.