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Violins frantically playing for this one...Terrorism is tough on everyone. We should also remain on guard for similar anecdotal stories that the aclu and other bleeding heart groups will no doubt put forward soon.

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Material witness in a terrorism case says his life is ruined
Adam Liptak NYT
Friday, August 20, 2004

LAS VEGAS 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 FBI agent marched him across Dulles Airport in Washington in handcuffs.

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

The two weeks that followed his arrest, he said, were terrifying. "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."

After that, a federal judge ordered him to move in with his in-laws in Las Vegas, where his wife was to stay until she joined him in Saudi Arabia.

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 apartment in Las Vegas, 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 that in recent years the government has radically reinterpreted what it means to be a material witness.

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, beginning with the familiar refrain, "You have the right to remain silent." Moreover, they are often held for long periods of time in the same harsh conditions as those suspected of serious crimes.

Mary Jo White, who supervised several major terrorism investigations as the U.S. attorney in Manhattan until 2002, said the frequent and aggressive use of the material witness law in terrorism investigations was a recent development.

"It was really my idea to use the material witness warrant statute in appropriate cases to detain for reasonable periods of time people who might not appear for a grand jury with information related to the 9/11 attacks," she said. The law is, she said, an important tool, but one that must be used judiciously.

"Some of the criticism that has been leveled at it is not wholly unjustified," said White, who was appointed by President Bill Clinton in 1993. "Was enough done to clear the status of the person? Did you hold the person longer than you needed to? Does it really sort out to being in one sense preventive detention? Yes, it does, but with safeguards."

Ronald Carlson, a law professor at the University of Georgia and an expert on the material witness law, said White's account understates the magnitude of the change.

"The law was designed to hold Mr. A, the material witness, to testify about a crime committed by Mr. B, the suspect," he said.

"Now they are locking up Mr. A as a material witness to the crime of Mr. A. The notion is, 'We'll hold him until we develop probable cause to arrest him for a crime.'"

A senior Justice Department official, who declined to be quoted by name, citing the sensitivity of terrorism investigations, dismissed that analysis. "You would be really hard pressed," he said, "if you were able to lift the veil of secrecy on this - and you can't - to find that we've used a material witness warrant to get a solo actor for something he's done on his own."

The official acknowledged, though, that witnesses are frequently charged with crimes.

"If someone has material information," he said, and will not testify, "it tends not to be a nun who walks out of a monastery."

Defense lawyers said that many people willing to testify voluntarily had nonetheless been detained.

"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."

The distinction between criminal charges and material-witness detentions have blurred, critics say, and sometimes disappear entirely.

Two weeks after Kidd's arrest, Robert Mueller, the director of the FBI, briefed Congress on the government's recent counterterrorism successes.

"Let me give you a few recent examples," he said. The first was the capture of Khalid Shaikh Mohammed in Pakistan. Mueller called him "the mastermind of the Sept. 11th attack."

The second was the arrest of Kidd. Mueller did not mention that Kidd had not been charged with a crime.

"My reputation is destroyed," Kidd said recently. "I keep getting 'no's' from jobs as if I'm an ex-felon."

In defending the use of material-witness warrants in a letter to a congressional committee last year, Jamie Brown, a Justice Department official, described the safeguards established to prevent injustices.

"Every single person detained as a material witness as part of the Sept. 11 investigation," Brown wrote, "has been represented by counsel" and "was found by a federal judge to have information material to the grand jury's investigation."

Witnesses are free to speak about a case, Brown continued, though, "The fact that few have elected to do so suggests they wish their detentions to remain nonpublic."

Jamie Fellner, the director of the U.S. programs for Human Rights Watch, said some detainees faced the worst of two worlds. "Material witnesses have, ironically, fewer protections than people charged with a crime," Fellner said, using the examples of the omission of a Miranda warning and sometimes less-than-prompt access to lawyers.

Kidd, the former football star, was held in the case of Sami Omar al-Hussayen, tried in June in federal court in Idaho on charges of using his computer skills to support terrorists. The jury found Hussayen not guilty of the more serious charges and deadlocked on others. The restrictions on Kidd's travel were lifted and his passport returned.

Kidd, who converted to Islam in college, was held for three days at a Virginia detention center, in a cell known as the fishbowl. Its previous occupants included, he was told, Moussaoui and John Walker Lindh, who is serving a 20-year sentence for aiding the Taliban.

Of his marriage, he said: "This ordeal has dissolved our relationship. I lost a good wife. I'm not with my daughter anymore. How painful is that?"

The New York Times

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