Mukasey and the Material Witness Detentions

This weekend we reported on Attorney General Nominee Michael Mukasey's endorsement of enhanced interrogation techniques and opposition to closing Guantanamo and some of his rulings on federal sentencing guidelines and his promise to be independent of the White House.

Today, the New York Times has a very unflattering article about his conduct and treatment of material witnesses detained after 9/11.

Let's start with the material witness detentions:

The Justice Department’s widespread use of the 1984 federal material-witness law to detain dozens of young Arab men after the Sept. 11 attacks has been widely criticized by legal scholars as an abuse of the law, which was intended to prevent witnesses in criminal cases from fleeing before they could testify.

In a report in 2005, Amnesty International and Human Rights Watch said they had found evidence of at least 70 cases in which men living in the United States, all Muslims except one, had been “thrust into a Kafkaesque world of indefinite detention without charges” because they had been labeled material witnesses.

The ACLU's report is here. Background from TChris and me is here, here and here.

Yale Law Prof Jack Balkin at Balkinzation explained the problem back in 2003:

The federal material witness statute allows federal officials to detain people whose testimony is thought to be material to an ongoing criminal investigation for the purpose of testifying before a grand jury or in a criminal trial. The material witness statute, passed in 1984, was used rather infrequently before 9/11, mostly in drug smuggling and organized crime cases.

Following 9/11 the Justice Department has used the statute to round up an unspecified number of people and hold them indefinitely without trial.

Sometimes, as with the "Evansville 8" the F.B.I. just goofed, and those rounded up get a belated apology. As the Washington Post reported with respect to that case:

As part of a national roundup in the weeks after the terrorist attacks, the "Evansville 8" were among 50 people held as material witnesses in maximum security jails without being charged with a crime. Thousands of more men from Middle Eastern countries were questioned, some arrested and detained, allegedly for links to terrorism, only to be let go or deported on immigration violations. Civil liberties groups protested that the arrests amounted to racial stereotyping.

As for Osama Awadallah, the material witness and ultimate defendant who is a principal subject of today's NY Times article,

His odyssey in the federal court system ended last November, more than five years after his initial detention, when he was acquitted on charges that he lied to a grand jury when he denied that he knew one of the Sept. 11 hijackers.

After his acquittal, Mr. Awadallah returned home to California. As he awaited trial last year, he continued his studies and graduated with honors last year from San Diego State University.

TChris wrote about some of the unusual shenanigans in the Awadallah case here and here -- such as the Government's attempt to call a grand juror as a trial witness to testify to Awadallah's demeanor when he sat shackled before them.

Judge Mukasey's conduct and attitude towards those rounded up on material witness warrants is cause for concern. If he wasn't fair to them when it was his duty to be an impartial judicial officer, how far will he go in his partisan new role as chief law enforcement officer? Will he authorize prolonged detentions under the material witness statute and tolerate (such as by turning a blind eye to) physical or psychological abuse?

I hope Sen. Patrick Leahy and others will ask some tough questions.

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    The mitigating circumstance is (none / 0) (#1)
    by lilybart on Mon Sep 24, 2007 at 11:15:34 AM EST
    that this was immediately after 9/11 and I can see where everyone overreacted because we didn't know if there were follow-up attacks planned. The 9/11 plot was brilliant and it was normal to fear that they had even better and bigger plans.

    He might be the best we can do and Bush only has 16 months left, so just let this guy be confirmed and let's move on.