Oregon Democrat Sen. Ron Wyden is warning that prosecutors may be taking advantage of a powerful law enforcement tool that allows them to detain people as "material witnesses" in federal investigations by holding them indefinitely, sometimes alongside convicted criminals or in solitary confinement.
Wyden is urging the Justice Department to issue new guidelines, making clear that prosecutors should question witnesses and release them quickly "whenever possible." In instances where a witness can't be released promptly, Wyden says, authorities should conduct periodic reviews as to the witness's detention and impose a time limit on it.
"To detain a witness in worse conditions than those in which many criminals are held is shocking and contrary to the intent of the statute and basic concepts of liberty and justice," Wyden wrote Tuesday in a letter to Attorney General Loretta Lynch obtained by NPR.
The lawmaker said courts across the country have applied the law differently so that, in some cases, witnesses are locked up even though they may not have demonstrated an attempt to flee before facing an interrogation or testifying before a grand jury.
Justice watchdogs have investigated how national security prosecutors use the material witness statute, which allows authorities to arrest and detain people if their testimony "is material in a criminal proceeding and if it is shown that it may become impracticable to secure the presence of the person by subpoena." Ultimately, in a September 2014 report, Inspector General Michael Horowitz concluded U.S. prosecutors used the law "relatively rarely" in international terrorism cases, and more often in prosecutions involving human trafficking and smuggling of undocumented workers.
The inspector general examined treatment of a dozen material witnesses in national security cases and said he "did not find sufficient evidence to conclude the Department misused the statute."
According to records from the Justice Department's National Security Division, Horowitz said, no material witnesses were detained in international terrorism cases between 2004 and 2012.
That's not enough for Naureen Shah, director of the Security with Human Rights program at Amnesty International USA.
"The concern we have is the way the statute was used after 9/11 and how it may be used again by another administration," Shah says. "We should think about what happens in the next moment of crisis when the government could use unrestricted discretion to further its agenda."
Shah points out that it's not clear how often prosecutors use the material witness tool to detain people in a wide swath of other federal investigations. In 2009, men from Afghanistan were lured into the United States and detained for more than a year to get their testimony in a bribery case.
"We're concerned any time the government seeks to use national security or the threat of terrorism to get a permission slip to bend the rules of criminal justice procedure that would normally apply," Shah adds.
Senior officials in the Justice Department and the White House have been working this year to shore up some of their sensitive national security operations, in preparation for the transition to a new president in 2017. Earlier this week, White House adviser Lisa Monaco said authorities soon would share more information about civilian casualties from drone strikes and other weapons used outside war zones in the course of the Obama presidency.
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