Because I have a friend that works for Human Rights Watch, I have for months been following along as she examines the abuses of the federal material witness statute. What is the material witness statute? Here is a brief explanation from a Christian Science Monitor article about alleged “dirty bomb” plotter Jose Padilla:

…rather than obtaining an arrest warrant by demonstrating to a judge that federal authorities had probable cause to believe Padilla was planning mass murder, they instead relied on an obscure federal law designed to guarantee the presence of a key witness at a criminal proceeding.

By labeling Padilla a “material witness” in an ongoing grand jury investigation of terrorism, US officials were able to whisk him off the streets and into a high-security prison cell with minimal law-enforcement effort.

Since the terror attacks on Sept. 11, the so-called material-witness statute has emerged as a key-and highly controversial-weapon in the legal arsenal being used to wage the Bush administration’s war against terrorism in America’s homeland.

So what’s the problem? The government got a potential mass murderer off the street. Why am I sweating them? Am I a left wing appeaser who is trying to prevent the government from doing its job and then complaining when something goes wrong? The problem is that using this legal maneuver destroys innocent lives in the process with only suspicion instead of evidence. From yesterday’s NYTimes:

Abdullah al Kidd was on his way to Saudi Arabia to work on his doctorate in Islamic studies in March 2003 when he was arrested as a material witness in a terrorism investigation. An F.B.I. agent marched him across Dulles Airport in Washington in handcuffs.

“It was the most horrible, disgraceful, degrading moment in my life,” said Mr. Kidd, an American citizen who was known as Lavoni T. Kidd when he led his college football team, the Vandals of the University of Idaho, in rushing in 1995.

The two weeks that followed his arrest, he said, were a terrifying and humiliating ordeal.

“I was made to sit in a small cell for hours and hours and hours buck naked,” he said. “I was treated worse than murderers.”

Okay. To make an omelet you have to crack a few eggs right? The Feds aren’t really spitting on the Constitution are they? Let’s continue:

Mr. Kidd, who described himself as “anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism,” was never charged with a crime and never asked to testify as a witness. In June, 16 months after his arrest, the court said he was free to resume his life.

But at the kitchen table of his dumpy little bachelor flat here, with a television on the floor and incense in the air, Mr. Kidd said the experience had cost him dearly. He lost his scholarship, he now moves furniture for a living, and his marriage has fallen apart. About 60 other men have been held in terrorism investigations under the federal material witness law since the Sept. 11 attacks, according to a coming report by Human Rights Watch and the American Civil Liberties Union. Such laws, meant to ensure that people with important information do not disappear before testifying, have been used to hold people briefly since the early days of the republic.

But scholars and critics say the government has radically reinterpreted what it means to be a material witness in recent years. These days, people held as material witnesses in terrorism investigations are often not called to testify against others; instead, frequently they are charged with crimes themselves. They lack constitutional protections like the requirement that criminal suspects in custody be informed of their Miranda rights. Moreover, they are often held for long periods in the same harsh conditions as those suspected of very serious crimes.

Is the government illegally casting a wide net and hoping to catch some criminals in the processes? If so, what type of people get caught in the net?

“Now everyone who has any conceivable Middle Eastern tie is considered to be a flight risk,” said Randall Hamud, a lawyer who has represented three material witnesses. “That’s never been the case before. It’s become a very popular device for rounding people up. It’s a systemic weapon used against an ethnically identifiable group. It’s a holding device.”

With many of the material witnesses that are here on work visas or such, after being held in obscurity for a long time, they are simply deported as a way to deflect any embarrassment to the government for holding them unjustly.

Last year the Material Witness Statute was upheld:

On November 7 [2003], a three-judge panel of the Second Circuit Court of Appeals upheld the Bush administration’s practice of arresting people not suspected of any crime, based on their designation as “material witnesses” whose testimony might assist a grand jury.

The more long-term impact of the ruling is to give the Bush administration a free hand to round up and interrogate citizens and other people living in the United States legally, regardless of whether they are suspected of criminal conduct. There need not be a criminal case pending, or even a specific criminal investigation. It is sufficient that an FBI agent file an affidavit claiming that someone might have information relevant to an ongoing grand jury investigation and that the person might not report to testify in response to a subpoena. The person can then be picked up and booked into jail, questioned without an attorney or the benefit of Miranda rights (because he or she is not a criminal suspect), and then held for weeks without bail.

For those of you who, like me, love legal theory here is an article you can read to learn more of the legal arguments against this statute. I personally feel that the ACLU and Human Rights Watch will eventually take apart this statute in court. When they do I shall send away for my card, so that I can become a card-carrying member.