Overlooking Innocence: Refashioning the Material Witness Law to Indefinitely Detain Muslims Without Charges

Abstract

One of the most basic rights in international law is the safeguard against arbitrary detention. This protection of the right to liberty has been defined by international tribunals to mean, at a minimum, that the detention of any individual must be in accordance with previously established law and based on objectively reasonable criteria, defined without regard to race, religion, gender, or national origin. This piece explores how the U.S., a principle drafter and proponent of the international rules prohibiting arbitrary detention, has since September 11 has joined many countries in abrogating these rules in its counterterrorism investigations by implementing new policies and refashioning existing authority to indiscriminately hold Muslims, Arabs and South Asians without probable cause.

This piece focuses on the international human rights implications of one key tool the government has used to detain Muslim men without charges: the federal material witness law, which authorizes the government to briefly hold a person who has witnessed a crime when it appears he may flee. It details preliminary findings and international human rights implications on how since September 11, the government has used this law to circumvent probable cause requirements to hold Muslim “witnesses” it believes to be suspects, indefinitely without charges. Based on interviews with witnesses, their family members, lawyers and government officials, it documents the detention of more than 70 material witnesses held in connection with counterterrorism investigations, it documents how the U.S. government has systematically abused its material witness authority to hold Muslim men in violation of basic international protections against arbitrary detention. Specifically, it concludes that the U.S. government systematically used the law in a manner unauthorized by Congress to detain and investigate suspects and impermissibly used witnesses’ race, national origin and religion as a basis for detaining witnesses.

Keywords: International Human Rights Law, ICCPR, Constitutional Rights, Civil Rights, Civil Liberties, Material Witness, National Security, Detention