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Human Rights Watch has put out a new report on the abuse of the material witness law since September 11, 2001:

Congress enacted the current material witness law in 1984 to enable the government, in narrow circumstances, to secure the testimony of witnesses who might otherwise flee to avoid testifying in a criminal proceeding. If a court agrees that an individual has information “material” to a criminal proceeding and will likely flee if subpoenaed, the witness can be locked up—but, in theory, only for as long as is necessary to have him testify or be deposed.

Since September 11, however, the U.S. Department of Justice has deliberately used the law for a very different purpose: to secure the indefinite incarceration of those it has wanted to investigate as possible terrorist suspects. It has used the law to cast men into prison without any showing of probable cause that they had committed crimes. The Justice Department has also refused to respect fundamental constitutional and human rights of detainees, including the rights to be notified of charges, to have prompt access to an attorney, to view exculpatory evidence, and to know and be able to challenge the basis for arrest and detention.

All in all, at least 70 men—all Muslims but one—have been detained under this law. They are kept in federal prisons, they haven’t been charged, the evidence against them has been kept secret, and the government doesn’t even need to have probable cause of criminal conduct. They just disappear into a black hole. And it’s wrong to argue that the government can do whatever it wants to these “terrorists” because the whole point is that no one knows whether they’re terrorists or terrorist sympathizers or people with information about terrorism or just plain innocent. Presumably many are just plain innocent: At least thirty of these men have never even brought before a grand court of jury to testify. HRW calls it “Kafkaesque”; that’s perfectly apt.

Anyway, cue the legion of conservatives who don’t trust our government to send out Social Security checks but think it’s perfectly reasonable for the Justice Department to be able to wave its magic wand and “guess” without evidence or cause at who, exactly, is a threat to national security.


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