Material witness label keeps detainees in, media out

From the Fall 2002 issue of The News Media & The Law, page 8.

By Jennifer LaFleur

As journalists reported on the arrests and detention of hundreds of people around the nation in the United States’ War on Terrorism, they ran up against government efforts to keep hearings and court documents secret.

One particularly sensitive and confusing area of terrorism-related detentions centers around those people held as “material witnesses.” Under the material witness statute, any person may be detained indefinitely if their testimony is “material in a criminal proceeding” and it would be “impracticable” to expect them to respond to a subpoena.

One such detainee, James Ujaama, a U.S. citizen, originally was held as a material witness to terrorist activities. Ujaama, 36, remains in custody at a federal detention center outside of Seattle, on charges of conspiring to provide material support to terrorists and with possessing and discharging a firearm in furtherance of a crime.

While Ujaama was held as a material witness, news media around the country wanted to tell the public why he was being held. Particularly interested were media in Denver, where he was arrested in July, and in Seattle, where he was a Muslim activist. But media efforts to gain access to Ujaama’s hearings and proceedings were thwarted by the courts.

“The story here was whether detention including American citizens as material witnesses — in some cases for long periods of time — is legal, constitutional or is a good policy,” said Seth Berlin, an attorney for The Denver Post. “It’s very difficult to tell that story if you can’t have access to the proceedings.”

Charlie Brennan, a Rocky Mountain News reporter who covered the Ujaama case, called the process “a nightmare.”

“It just made it extremely frustrating, really, impossible to write anything intelligent about what was happening to this person and why,” Brennan said. “To be in a situation where people who are holding a citizen in custody cannot even acknowledge that they are holding that person is frankly scary. I’ve been a reporter for 22 years and I’ve never seen anything like that.”

Reporters were denied access to an initial hearing that was held in Denver on July 26 to determine the legality of detaining Ujaama as a material witness, not as a criminal.

Magistrate Craig B. Shaffer ruled that The Denver Post and the Rocky Mountain News were not entitled to attend the hearing for Ujaama because he is the subject of a pending grand jury investigation in Virginia.

Steve Zansberg, the Denver attorney for the Post, had argued that the public should know why Ujaama was detained. He argued that there was no need for secrecy because the matter to be addressed (whether detaining Ujaama was legal) had nothing to do with the Virginia grand jury investigation.

The Denver magistrate, however, said a federal judge in Alexandria, Va., issued an order closing all hearings involving Ujaama. But he noted that the newspaper could not have known about the order because it was sealed.

The newspapers then asked Judge Gerald Bruce Lee in Alexandria for redacted records of the proceedings from the Denver hearing. Lee refused to grant the request, and also said the court could not even identify a witness in grand jury proceedings. (United States v. Ujaama)

“I don’t think that it would be appropriate to try to set the precedent here that is sought, and that is that of the Court structuring arguments of a case in a way to afford the media access at the risk of jeopardizing the sensitive nature of the grand jury proceedings,” Lee said.

“The fact of identification of a witness has severe implications to the witness and has severe implications, I think, to the law enforcement function of identifying future witnesses,” Lee further ruled.

Berlin finds this unsettling. “It seems to me there is a notion that in a case in which a federal judge and a magistrate had referred to the witness by name, [this decision] has a little bit of a quality of unwriting history, which is troublesome to people who worry about the First Amendment.”

Because there was no proof that Ujaama would ever testify before the grand jury, media lawyers argued that future proceedings should be bifurcated and the legal arguments open to the public.

“In our case, holding the portion of the hearing having to do with legal basis for holding this witness could not have in any way disclosed secret grand jury material that would have interfered with the government’s terrorist investigation,” Berlin said.

During his arguments Berlin also pointed to the Aug. 2 opinion of U.S. District Judge Gladys Kessler in Washington, D.C., compelling the Justice Department to release the names of detainees.

“She points out the fact that it is publicly known that at least eight and possibly more material witnesses who were apprehended as possible grand jury witnesses were released and never testified before a grand jury,” Berlin told the court.

Like Ujaama, several people detained by the U.S. government were initially held as material witnesses and later charged with crimes or immigration violations or in some cases, released.

Evansville, Ind., restaurant owner Tarek Abdelhamid Albasti was arrested Oct. 11, 2001, as a material witness along with several other area Muslim men. They were released a week later, according to testimony by Kate Martin, director of the Center for National Security Studies, a watchdog organization, before the House Judiciary Committee on Jan. 24.

Jose Padilla, the alleged “dirty bomb” plotter, originally was held as a material witness, but was later designated as an “enemy combatant”and held at a military base in South Carolina without charges or access to legal counsel.

Some legal experts say that the material witness statute is not being used as it was intended.

“The Justice Department has taken the view that material witness holds or detentions of individuals is a part of the prosecution process,” said Ronald Carlson, a law professor at the University of Georgia and a leading authority on material-witness laws. “That is to say to investigate a person for a crime, you can first arrest him as a material witness, hold him as a material witness, then, if and when enough evidence develops, go ahead and convert the material witness hold into a criminal charge.”

Carlson said to imagine that Mr. B is a witness to a crime committed by Mr. A. “It would be inconceivable to the original framers that we would lock up Mr. B while we’re developing evidence of a crime about him. No, it was Mr. A we’re after.”

Grand jury proceedings normally are closed to the public, so witnesses’ testimony to the grand jury would be closed. However, other court proceedings, such as the hearing to determine whether the witness should be detained, are ordinary court proceedings and should be presumed open to the public, Carlson said.

“It seems to be there are sometimes national security needs that would call for a closed hearing — perhaps,” Carlson said. “On the other hand, there is the right to open public trials and hearings. Couple that with the fact that in theory, the material witness is not charged with a crime, that seems to me to cut in the direction of openness of the hearings.”

But in the case of Ujaama and others, those preliminary hearings also were closed.

Such secrecy around material witnesses concerned more than just the media.

“In a handful of cases, the department is using the authority of the material witness statute to detain people. The circumstances of those detentions, now shrouded in secrecy, nevertheless raise serious questions about the dangerous ramifications of using the material witness statute not to secure testimony but to authorize preventive detention,” Martin told the House Judiciary Committee.