Material witnesses in custody have few rights

Federal authorities use law to hold dozens, like Elbarasse, in terror cases

August 26, 2004|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

Ismail Selim Elbarasse is scheduled to go before a federal judge in Baltimore tomorrow and argue why he should not be imprisoned as a "material witness" in a Chicago racketeering case involving members of the militant group Hamas.

He has not been charged with a crime, and despite assertions by federal investigators that he might have been surveying the Bay Bridge for a possible terrorist attack, his lawyers say they know of no investigation into his activities in Maryland.

But federal prosecutors have said that it's necessary to detain Elbarasse - he is confined to a prison cell 23 hours a day - and they are expected to ask U.S. Magistrate Judge Paul W. Grimm to keep him in custody.

The government has not disclosed why Elbarasse, a U.S. citizen and Virginia resident, cannot be trusted to show up in court when subpoenaed to appear.

Most documents pertaining to his status are sealed. The U.S. attorney's office in Chicago will not even confirm that he has been arrested.

Since the Sept. 11 attacks, dozens of material witnesses have been held in terrorism cases - a trend criticized by many civil rights activists and defense lawyers.

Material witnesses have fewer rights than criminal defendants - they don't have to be given the reasons for their arrest, and typically their cases proceed in secrecy.

While the law says witnesses can be detained if they are essential to a continuing criminal investigation and are likely to flee, critics say prosecutors have abused the statute by arresting people without probable cause, particularly those of Middle Eastern descent.

"Federal rules of criminal procedure largely don't apply," said Anjana Malhotra, a fellow at the American Civil Liberties Union who has researched recent use of the material witness law. "It gives the government a lot of room to interrogate without reading Miranda rights; they can hold witnesses indefinitely. All they have to say is, `It's a terrorism-related crime.'"

The ACLU and Human Rights Watch say they have verified 57 arrests of material witnesses in terrorism investigations since the Sept. 11 attacks. Of those, 25 were later charged with crimes, the vast majority of which were unrelated to terrorism, according to the advocacy groups.

The Department of Justice declined to comment yesterday, but it has previously defended its use of the law.

In statements to the House Judiciary Committee in 2003, the Justice Department said that every material witness detained "as part of Sept. 11 investigations" had information material to grand jury investigations.

According to Ronald L. Carlson, a law professor at the University of Georgia, the material witness law allows for speedy handling of such witnesses. But authorities recently have "been accorded a great deal of liberty in terms of how long they can detain people," he said.

John Meyer, a Chicago lawyer, represented Nabil Al-Marabh, a material witness who spent about seven months in jail, only to be released without ever testifying before the grand jury - the stated purpose of his incarceration.

"It was a sham to begin with," Meyer said. "The government never intended to put him in front of the grand jury. They were just trying to collect enough information to charge him."

Neither Meyer nor Al-Marabh was able to obtain the government's complaint outlining the reasons for the incarceration.

"It's an impossible situation," Meyer said.

In order to hold someone as a material witness, the government is supposed to show that that person would not comply with a subpoena to testify. Elbarasse's lawyers have said he would have gone to Chicago voluntarily had he known that prosecutors wanted him to do so. Instead, he was detained Friday after officers stopped his family near the Bay Bridge to investigate what Elbarasse's wife was videotaping from their car.

"If they wanted him in Chicago," said Stanley L. Cohen, Elbarasse's longtime New York attorney, "all they had to do was pick up the phone and call."

In court papers, federal authorities said they suspected Elbarasse of having terrorist intentions. Elbarasse's family says they were simply videotaping the drive home from a beach vacation.

"Even though Elbarasse may have key information, the government has to prove that he won't comply with the subpoena to justify his arrest as a material witness," said Malhotra.

"Videotaping while being Muslim is not enough to show that he has material information and would not comply with a subpoena."

Sun staff writer Dan Fesperman contributed to this article.

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