Courts & Crime

Audit OKs Justice Department’s use of ‘material witness’ detention powers

Justice Department investigators have largely given a thumbs-up to the department’s use of its powerful ‘material witness’ detention powers.

In a 106-page report, the department’s Office of Inspector General closely examined 10 cases in which 12 individuals were held under the statute that allows arrest and detention of a person whose “testimony is material in a criminal proceeding.”

Despite some controversy over the detention proceedings, the OIG auditors concluded officials used the statute in international terrorism proceedings “relatively rarely,” with a “stark decline” since 2004.

The review “did not find sufficient evidence to conclude that the department misused the statute in international terrorism investigations.” The review also failed to find proof that officials used the material witness detention as a pretext to hold individuals around whom there was suspicion but no proof.

“Although officials sometimes had mixed motives for detaining a witness,” the OIG auditors stated, “a genuine and significant interest in securing his testimony appeared to be present in each case.”

A far more critical view of the material witness detention practice, which came into public view following the 9/11 terrorist attacks, was previously authored by Human Rights Watch.

ACLU attorney Lee Gelernt, who represents Abdullah al-Kidd, who in 2003 was arrested and imprisoned under harsh conditions for more than two weeks, called the OIG report a “whitewash.”

“Although the report finds fault with the FBI in its handling of the al-Kidd case, it overall is a complete whitewash of the government’s serious abuse of the material witness statute. This powerful tool should only be used to secure testimony in rare cases, not as a backdoor to profiling and preventively detaining innocent people,” Gelernt said in a statement.

The conditions of confinement were appropriate and lawful, the OIG auditors concluded, and procedural safeguards “worked as intended to limit a material witness’s time in detention.” The auditors further concluded officials were “selective” in their use of the tool that “carries the potential for abuse,” and that officials were “credible” in how they characterized the material witnesses.