A 22-year-old U.S. law that allows people to be held without charges if they have information about others’ crimes is coming under new scrutiny in the courts, in Congress, and within the Justice Department after reports that it has been abused in terrorism investigations, says the New York Times. The law allows so-called material witnesses to be held long enough to get their testimony if there is reason to think they will flee. Attorneys for people detained as material witnesses say the law has been used to hold people who the government fears will commit terrorist acts in the future but whom it lacks probable cause to charge with a crime.
The debate over the issue has raised the question of whether the U.S. should join several Western nations that have straightforward preventive detention laws. The Justice Department Office of Professional Reponsibility has opened an inquiry into 21 instances of possible misuses of the current. law. In court filings in a case brought by a former detainee, the government argued that courts were powerless to second-guess whether the prosecutors had acted on improper motives as long as they complied with the formal requirements of the material witness law. Law Prof. David Cole of Georgetown University says that since Sept. 11, 2001, “the administration reached out to exploit a number of other legal and illegal methods to detain people – immigration, material witness, enemy combatant. They were creating preventive detention authority out of statutes that were not meant to serve as that or out of whole cloth.”