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The Material-Witness Charade

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Last September, a federal appeals court ruled that former Attorney General John Ashcroft could be personally sued for the unjustified incarceration of innocent people as “material witnesses” in the wake of 9/11.

The case involved a former college football star — Lavoni T. Kidd — who converted to Islam, changed his name to Abdullah al-Kidd, and was seized at Dulles Airport as he was preparing to travel to Saudi Arabia to pursue Islamic studies. Even though the feds had no evidence that al-Kidd — an American citizen — had done anything wrong, they locked him away for weeks as a “material witness.” TheWashington Post noted,

He was detained for some two weeks, during which he was transferred to facilities in three states, subjected to multiple strip searches and held in cells that were lighted 24 hours a day. After his release, Mr. Kidd was required for more than a year to live with his wife and in-laws in Nevada while his travel was restricted to three adjacent states, and he had to report his whereabouts to a probation officer and consent to in-home visits.

The feds never charged al-Kidd or brought him forward as a witness for any trial. He sued in 2005, asserting that the detention violated his constitutional rights and that it had cost him both his marriage and his job.

The appeals court slammed the government hard:

The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them….

We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

Not surprisingly, the Washington establishment is vigorously opposed to permitting courts to hold high-ranking government officials liable for trampling Americans’ constitutional rights. A Washington Post editorial fretted, “Officials should not have to fear personal lawsuits for performing their duties in good faith and in violation of no established legal precedent.”

In reality, the Bush-Ashcroft policy on material witnesses was brazenly unconstitutional from the start, as anyone who was not hopelessly kowtowing would have recognized.

After 9/11 the Justice Department locked up many people as material witnesses for potential testimony at some future date before a grand jury. On April 30, 2002, federal judge Shira Scheindlin ruled that policy to be unconstitutional: “Since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation.” Scheindlin warned that the Bush administration’s interpretation of federal law could make “detention the norm and liberty the exception.”

The Bush administration appealed the case and ignored the ruling. Federal Judge Michael Mukasey, whom Bush would later select as his final Attorney General, upheld the Bush administration’s policy.
Secrecy

Scheindlin’s decision, unlike most of the Bush Justice Department’s post–9/11 actions, was not reached behind closed doors and then hidden from the world. But the Bush team strutted forward, ignoring any judge who did not kowtow to its power grabs.

The Justice Department refused to disclose the number of people jailed under the federal witness statute. The Washington Post reported in November 2002 that “nearly half ” of the 44 people the Post confirmed jailed under this provision “have never been called to testify before a grand jury” and that “at least seven of the witnesses were U.S. citizens.”

Nationally acclaimed Miami defense attorney and former federal prosecutor Neal Sonnett noted that the fact that some material witnesses never testified “would tend to indicate that the use of the material witness statute was more of a ruse than an honest desire to record the testimony of that person.” The Post noted, “The material witness cases have been adjudicated in unusual secrecy. Most, if not all, are subject to judicial sealing orders, and there is confusion among defense attorneys across the nation about what information they can make public.” A Loyola of Los Angeles Law Review analysis concluded, “The government uses these [material witness] laws to round up people because of what it expects them to do, rather than what it can prove they have done.”

Steven Brill, author of After: How America Confronted the September 12 Era,noted that the material-witness hook was used in cases in which “not even minor crimes could be established, or where the government was worried that these people were so important that they did not want them to get lawyers quickly (as they would be entitled to if charged with any crime)…. Ashcroft’s team … would control when, if ever, that person might be asked to testify — meaning they would seek to hold the person indefinitely so as to coerce him to talk.” He also notes that detaining people as material witnesses meant that they “could be questioned without lawyers present because they were not being charged with any crime.”
High-profile cases

Mohamed Kamel Bellahouel was locked up for five months as a material witness largely because he might have served food to two of the 9/11 hijackers at the Delray Beach, Florida, restaurant where he worked. An FBI agent also asserted that a movie-theater ticket agent claimed to have seen Bellahouel go to the movies in the company of the hijackers. But as the Miami Daily Business Review noted, “The FBI didn’t identify the theater employee. Nor did government lawyers produce her for cross-examination at the bond hearing” where Bellahouel was finally set free. Bellahouel denied ever having gone to the movie theater. During his detention Justice Department prosecutors sought “to strip Bellahouel of the court-appointed lawyer to which he became entitled when the material witness warrant was issued at the end of December 2001,” according to immigration attorney David Silk, who explained that the feds “quashed the [material witness] warrant to keep him from being represented when the FBI talked to him.” Bellahouel, who was a veterinarian in Algeria before coming to America, was released on a $10,000 bond on March 1, 2002.

Even though Bellahouel is married to an American citizen, the Justice Department sought to deport him because he entered the United States on a student visa in 1996 and completed only one year at Florida Atlantic University. His case became public knowledge only because of an error by a clerk at the federal appeals court in Atlanta.

One of the best-known material-witness cases involved Brandon Mayfield, an Oregon lawyer, whom the FBI arrested in 2004 for his alleged involvement in the Madrid train bombings that killed 191 and left 2,000 wounded. A U.S. counterterrorism official told Newsweek that Mayfield’s fingerprint was an “absolutely incontrovertible match” to a copy of the fingerprint found on a bag of bomb detonators near the scene of the Madrid attack. News of Mayfield’s arrest provided alarming evidence that Americans were involved in international conspiracies to slaughter civilians around the globe, and he was informed that he could face the death penalty for his crimes.

Employing USA PATRIOT Act powers, the feds, prior to the arrest, conducted secret searches of Mayfield’s home and tapped his phone and email. After the arrest, they froze his bank accounts. The FBI’s arrest affidavit revealed that its agents had “observed Mayfield drive to the Bilal Mosque located at 415 160th Ave., Beaverton, Oregon, on several different occasions.” Another incriminating detail in the arrest warrant: he had advertised his legal service in the Muslim Yellow Pages. (Mayfield, a former Army lieutenant, converted to Islam and has an Egyptian wife.) In early April, the Spanish police described Mayfield “as a U.S. military veteran who was already under investigation by U.S. authorities for alleged ties to Islamic terrorism,” according to the Los Angeles Times.

Yet the key to the case — the fingerprint — was as bogus as a politician’s campaign promise. The FBI quickly claimed to have achieved a match on the partial print, but, on April 13, Spanish government officials warned the FBI that their experts were “conclusively negative” that Mayfield’s print matched the print on the bomb detonator bag.

Mayfield was arrested as a “material witness,” thereby permitting the feds to hold him as long as they pleased without charging him with a specific crime. After he was arrested, FBI agents raided his home and office and carted off boxes of his papers and his family’s belongings. Among the items seized were “miscellaneous Spanish documents,” according to an FBI statement to the federal court. These supposedly incriminating papers turned out to be the Spanish homework of Mayfield’s son. Perhaps elite FBI investigators suspected that “Hola, Paco. Como estas?” was a secret code.

Though the FBI never possessed anything on Mayfield aside from a misidentified fingerprint, it did not hesitate to paint him in sinister colors. The FBI informed a federal judge, “It is believed that Mayfield may have traveled under a false or fictitious name.” But Mayfield, whose passport expired the previous year, insisted he had not left the country. The FBI apparently never bothered to check whether he had been absent from the United States before making one of the most high-profile terrorism arrests of the year.

The FBI’s evidence was a heap of unsubstantiated hokum and ludicrous inferences. But the Justice Department refused to release Mayfield until after the Spanish government announced that they had found a clean match to the fingerprints on the bomb-detonator bag.

America is still in the dark regarding many of the legal atrocities that occurred since 2001. It will be a bright day for American liberty if John Ashcroft is placed on the witness stand and forced to testify under oath, hour after hour, day after day, about the crimes that he and others committed against the Constitution.

This article originally appeared in the December 2009 edition of Freedom DailySubscribe to the print or email version of Freedom Daily.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.