June 27, 2005,
What the intrepid Norman Podhoretz so perspicuously calls "the War Against World War IV" continues apace. Its latest cause célèbre (to borrow the language of The Resistance or is it The Insurgency?) is material-witness detentions, the target sited by (of course) the American Civil Liberties Union and Human Rights Watch, dutifully sketched by (of course) the New York Times...and timed (hilariously) to emerge just as our ears are ringing from the plaintive wails of prominent Democrats demanding an apology from Karl Rove for having the audacity to suggest that the Left does not take the terrorist threat seriously enough. (See Byron York's required reading here.)
The ACLU, HRW, and the Times are upset because dozens of people they put the number at 70 predominantly Muslim men, but it's not a certain figure were detained after the 9/11 attacks as "material witnesses," and thus "thrust into a Kafkaesque world of indefinite detention without charges, secret evidence, and baseless accusations." Some were held for weeks, and even months, and the majority were never even charged with a crime. Thus, the Times seethes, did "the Bush administration ... twist the American system of due process 'beyond recognition.'" Mind you, only the last two words quote from the ACLU/HRW study; the rest is what passes for "reporting" from the Gray Lady's Eric Lichtblau.
The studious hyperbole here signals the emptiness of this latest broadside.
In point of fact, material-witness detentions have been with us for decades, pursuant to a duly enacted law (Section 3144 of Title 18, U.S. Code). They were used countless times prior to 9/11. Hysteria aside, it should come as no surprise that these detentions are "without charges" since, by definition, the person is being detained as a witness, not being charged with a crime. What would require "baseless accusations" would be to hold such a person as a defendant which is precisely what the government refrains from doing in detaining under the material-witness law. The proceedings, moreover, involve "secret evidence" only in the sense that all proceedings before the grand jury whether they involve terrorism, unlawful gambling, or anything in between are secret under federal law (specifically, Rule 6(e) of the Federal Rules of Criminal Procedure). The Left, of course, well knows this since when investigative information about its champions seeps into the public domain, it routinely complains about the reprehensible violation of grand-jury secrecy rules a useful diversion from dealing with the substance of any suspicions.
In any event, here is what happened after 9/11. Law enforcement as the American people demanded conducted the broadest investigation in the history of the United States (maybe of the world). This was at a time when, according to what prominent Democrats like Senator Jon Corzine insisted last week, "There were no liberals, progressives . . . saying that we did not have a need to respond."
There were many, many people who were identified in that investigation as having had some connection or another to the nineteen suicide hijackers and their al Qaeda support network. Some of those connections seemed intimate, some attenuated; but all of them had to be run down. (Just imagine what the 9/11 Commission would have said if they hadn't been!)
Perhaps the ACLU and HRW do not recall this it certainly seems to have escaped the Times's convenient memory but we had no idea at the time whether the attack was over or if we were going to be hit with multiple offensives (which, as one might remember, the later missions of convicted "shoe bomber" Richard Reid and alleged "dirty bomber" Jose Padilla not to mention the unapologetic in-court braying of Zacarias Moussaoui indicate was exactly what al Qaeda was planning).
So here is the problem: You identify a large number of people who, at a minimum, have information that might be vital to protecting against terrorist attacks, and who might in fact be terrorists or at least facilitators. It is very early in your investigation, so you do not have sufficient evidence to charge them with a crime or to say conclusively either that they are not dangerous or that they will willingly tell you what they know rather than flee. What do you do? It would be irresponsible to do nothing, but you also can't watch people 24/7. There aren't anywhere close to enough agents for that and when they even try to shadow people, the ACLU and HRW can always be relied on to thunder, through their mouthpiece, the New York Times, that the civil rights of uncharged innocents are under attack, that the Constitution is in tatters, that John Ashcroft is poised to pounce on their local library, etc.
Well, the law does not require you to do nothing. It permits the government to detain people for a brief time in order to compel their information, either in the grand jury or in other court proceedings.
Contrary to what you might think from the latest spate of "coverage," the government may not sweep innocent people up and hold them in secret. While grand-jury proceedings are supposed to be kept secret from the Times, they are not kept secret from the court. A prosecutor has to go to court and get a material-witness arrest warrant. This means the arrest does not happen unless the government satisfies a federal judge (you know, those public officials from whom the ACLU says the Patriot Act needs more supervision) that there is a reasonable basis to believe that (a) the person at issue has information that would be important to an ongoing investigation, and (b) the person might flee without providing that information to the grand jury or the court (as all Americans are obligated by law to do) unless the person is detained until his testimony can be secured.
That's not all. The arrested witness, even though he is not being charged with a crime, is given the same kinds of protections that are afforded to actual defendants. The witness must promptly be presented upon arrest to a judge, so that a neutral official can advise him of why he is being held. More significantly, counsel is immediately appointed for him at public expense if he cannot afford an attorney. Indeed, if he is a foreign national, the United States is obligated by law to advise him that he has a right to have his consulate advised of the arrest, and frequently the consulate will not only obtain counsel on behalf of its citizen, but will also closely monitor the case including by demands for information from the U.S. State Department.
The lawyer for each such witness is provided with information about why the witness is being detained. Counsel is permitted to be present at any interview of the witness by the government and although counsel is not permitted to accompany a witness inside the federal grand jury (no witness, material or otherwise, has that right), the government is not permitted to interview the witness outside the grand jury unless counsel allows it.
In addition, at any time during the course of the detention, counsel is permitted to make a bail application to the court and if the judge is satisfied that the bail offered vitiates the risk of flight, the witness is freed on the promise to appear for his testimony. Furthermore, if at any point the length of detention or the conditions of the witness's confinement actually offend the witness's fundamental rights, counsel may submit a habeas corpus petition seeking the witness's immediate release.
The ACLU, HRW, and the Times complain that many of the witnesses were held for weeks or more. But what they don't tell you is that this was done under court supervision, with regular status conferences so that judges could be apprised of when the grand jury testimony would take place and satisfy themselves that the witnesses' rights were not being abused.
What they also don't tell you is that much of the delay in many cases was due to requests from the witnesses' own lawyers. That's because lying to government agents during an investigation is a felony, and, similarly, lying to a federal grand jury is perjury also a felony.
Perhaps the most important job of a lawyer representing a witness is to understand the facts being investigated and make certain that the witness grasps that his best options are either to tell the truth or to refuse to testify if truthful answers could incriminate him. Lying can result in serious jail time, as well as deportation and other difficulties. Thus, a good lawyer will often want to delay matters in order to conduct his own investigation, go carefully through the facts with his client, and make certain that client is adequately prepared to testify. Yes, it may mean a few weeks of detention. That, however, is a lot better than a few years of detention after a false statements conviction, or worse.
It is always a grave matter to deprive an innocent person of his freedom. That is why it is not done lightly and it most assuredly was not done lightly in the weeks and months after 9/11. To suggest otherwise is a slander.
So we were told last week, with much indignation, that everyone was on the same page after our nation was attacked there were no "liberals" and "conservatives," only Americans standing shoulder-to-shoulder, demanding an aggressive response against our enemies. But all the while, the ACLU, HRW, the Times, and rest of the Left's shock troops assiduously put the Justice Department on trial for every sensible maneuver, even those undertaken with the protection of counsel and exacting judicial oversight. The Times, meanwhile, reports that "[a]ides to Senator Patrick J. Leahy, ranking Democrat on the judiciary committee, said he would introduce legislation aimed at limiting the government's ability to detain a material witness indefinitely."
What could that crazy Karl Rove have been thinking?
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.