"It's being stretched beyond its original purpose," Mr. Flake said of the material witness law. "Individuals are being indefinitely detained who might be suspects. If that's the case, they need to be charged."
The proposed reform would be a welcome improvement.
The proposed legislation would place strict time limits on detentions -- 10 days for grand jury investigations and 30 days for trials -- and allow them only where there is clear and convincing evidence that the witness is a flight risk.
The scope of the problem is unclear, because the administration has refused to give Congress current information about the number of material witness detentions in terrorism investigations. Lawyers for material witnesses are often ordered not to tell the world what the administration has done.
"The Justice Department routinely gets sealing orders," said Ricardo J. Bascuas, a law professor at the University of Miami who has represented material witnesses. "These court orders never expire. For instance, I'm perpetually under court order from the Eastern District of Virginia, a place I've never been to, not to talk about" one material witness case.
TalkLeft has written about some of the victims of material witness detentions, including Abdullah al Kidd and Brandon Mayfield. The Times summarizes the government's egregious behavior in al Kidd's case:
Mr. al Kidd, who had apparently attracted the government's attention after pursuing religious studies in Yemen, was interviewed repeatedly by the F.B.I. in 2002. He never missed an appointment, his lawsuit says. Yet, after a six-month lull and with no warning, he was arrested at Dulles International Airport in Northern Virginia on March 16, 2003, as he tried to board a flight to Saudi Arabia to pursue a doctorate in Islamic studies.
Magistrate Judge Mikel H. Williams of the Federal District Court in Boise, Idaho, authorized the arrest, based on an affidavit from Special Agent Scott Mace of the F.B.I. "Kidd is scheduled to take a one-way, first-class flight (costing about $5,000)," the affidavit said.
That statement was false in every particular: the ticket was for a round trip, in coach, costing $1,700.
"If I had submitted an affidavit under penalty of perjury that contained false information," said Scott McKay, who represented the man Mr. al Kidd was said to have evidence about, "I would have been prosecuted." Mr. Mace, his lawyer and F.B.I. officials referred questions to a Justice Department spokesman, who declined to comment beyond referring a reporter to the court papers in the case.
If you lie to the government, you go to jail. If the government lies, even under oath, nothing happens. It's unfortunate that Leahy's bill doesn't include a mechanism that would assure punishment of those who use false information to obtain material witness warrants.
