During interviews with Homeland Security Secretary Michael Chertoff and Attorney General Alberto R. Gonzales, media outlets, such as The New York Times, The Wall Street Journal, ABC, and CNN, have uncritically reported or suggested that the administration is constrained because, within 48 hours of arresting a suspected terrorist, the U.S. government generally must charge that person with a crime. During their interviews and appearances, Chertoff and Gonzales highlighted British laws that allow the United Kingdom to detain a suspected terrorist for up to 28 days without charges and suggested that the U.S. government's lack of such a capability hinders its ability to prevent future terrorist attacks. However, none of the media outlets noted the administration's expanded use of material witness warrants to detain people for indefinite periods. According to the former top federal prosecutor for Manhattan, this practice “gives the [U.S.] government effectively the same power” as would a law that specifically allows detentions without charges. These media outlets also did not mention that the administration has asserted -- including before the U.S. Supreme Court -- that it has the authority to arrest and detain, indefinitely, U.S. citizens and non-citizens who, the government asserts, are “enemy combatants” -- a purported authority that far exceeds the ability to detain a suspect for 28 days without charges.

In 2000, the U.K. enacted a law allowing its police officers to arrest and detain anyone they “reasonably suspect to be a terrorist” for up to 48 hours, and, with the approval of a judge, for up to 28 days (as of 2006) without being charged with a specific crime. A 2005 law also gave British authorities the ability to impose so-called “control orders,” which may require a suspect to live in a specific place, require them to stay in that place for a significant portion of any given day, forbid them from contacting certain people, or mandate that they allow their location and communications to be electronically monitored. Generally, these orders are subject to a deferential standard of review by a judge.

By contrast, in the United States, generally speaking, a person arrested by the federal government must be charged with a specific offense within 48 hours, with no extension possible by court approval. However, the Bush administration has repeatedly claimed since September 11, 2001, that current law already permits the government to detain suspected terrorists for an unlimited amount of time without filing any charges.

For example, the administration has used the federal material witness statute to hold people without charges, in many cases for significantly longer than 28 days -- one person was held for four months. Under this statute, federal law enforcement can arrest and detain a person as a “material witness” if authorities can convince a federal judge that it “appears” the person has testimony relevant to a “criminal proceeding,” such as a federal grand jury, and that it is likely the prospective witness will flee rather than testify. While a material witness is supposed to be released if he or she can give testimony by deposition, the release can be delayed, either for a reasonable amount of time to arrange for the deposition, or until “further detention is not necessary to prevent a failure of justice.”

In 2003, in United States v. Awadallah, the United States Court of Appeals for the Second Circuit stated that “it would be improper for the government to use Sec. 3144 [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.” Nevertheless, the court in that case upheld the detention of Osama Awadallah as a material witness. Awadallah's phone number, which had been out-of-date for 18 months, was found in the car of Nawaf Al-Hazmi, one of the suspected 9-11 hijackers. The court unanimously found that this fact was sufficient enough to show that Awadallah might have information material to the grand jury investigating the 9-11 attacks, but split, 2-1, on whether enough cognizable evidence existed in the FBI affidavit -- some of the evidence used in the material witness warrant application was improperly obtained -- to support the contention that Awadallah might flee.

A June 2005 report by the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW) documented how, post-9-11, the Department of Justice (DOJ) had used the material witness law to detain suspected terrorists without charge. According to the two organizations' research, the government “arrested at least seventy material witnesses in connection with its post-September 11 counter-terrorism investigation”:

Many of the material witnesses held in connection with counterterrorism investigations since September 11 have been the key or sole suspect in criminal investigations. In court filings to support the arrest of material witnesses, the FBI has submitted affidavits replete with statements that the witness was potentially a major player or a coconspirator in a terrorism-related crime. In a number of these cases, the government has sought the witness's testimony in a grand jury proceeding it initiated solely to investigate the witness himself.

Ultimately, of the witnesses the report identified, criminal charges were eventually filed against 29 of them, including seven who were charged with terrorism-related offenses. At least 28 of the 70 also eventually faced immigration charges. Often, the report stated, the evidence for these charges was obtained after the witness was detained:

From our review of court documents, it appears that in many of these cases, the charges have been based on evidence and statements the government has obtained after the material witness was arrested -- either from interrogations of the witness himself or from investigations into other sources. The Justice Department has also used evidence it obtained from interviewing the witnesses before their arrest and when agents searched their property. In at least fifteen of these cases, the witness never testified before a grand jury, and the government filed the criminal charges only when a court indicated it would release the witness because of the government's delays in bringing the witness before the grand jury.

The ACLU/HRW report stated that 42 of the more than 70 material witnesses identified were ultimately “released without any charges filed against them,” and the DOJ has apologized to at least 13 people after wrongfully detaining them. One example is Oregon attorney Brandon Mayfield, who was arrested as a material witness and held for two weeks after the FBI mistakenly matched his fingerprint with one found on a bag of bomb detonators recovered in Spain during the investigation of the March 11, 2004, Madrid train bombings.

The ACLU/HRW report also said that the legal safeguards against improper use of the statute had failed in the post-9-11 environment. Those safeguards included judicial approval and supervision, notice of the reason for arrest, and the right to access to counsel. Regarding the latter, the report stated:

Despite these clear requirements [regarding a detained material witness' right to counsel], federal authorities have sometimes failed to inform material witnesses they were interrogating about their right to counsel. Moreover, even when witnesses have requested counsel, government agents have sometimes delayed for days in providing counsel, or they have discouraged witnesses from obtaining counsel, suggesting that the presence of counsel would simply delay the witnesses' release. Federal agents have also refused to allow a number of witnesses to call lawyers or their family after their arrest. Some witnesses have reported being held for days or weeks before they were permitted to contact anyone.

As noted in the report, many administration officials, including Gonzales and Chertoff, have suggested that the administration was using the material witness law to detain those whom it suspected of terrorism-related crimes. Former U.S. attorney for the Southern District of New York Mary Jo White -- the top federal prosecutor in Manhattan at the time of the 9-11 attacks -- stated that “the material witness statute gives the [U.S.] government effectively the same power” to hold detainees indefinitely as a law designed for that effect would have done:

From the beginning of the September 11 investigation, U.S. government officials have made clear that they used the material witness law to detain suspects in the war on terror. Then Attorney General John Ashcroft explained: “Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks.” Then White House Counsel Alberto Gonzales (now Attorney General) stated that as a matter of course the executive branch routinely considers whether to detain al-Qaeda suspects as material witnesses: “In any case where it appears that a U.S. citizen captured within the United States may be an al-Qaeda operative and thus may qualify as an enemy combatant, information on the individual is developed and numerous options are considered by the various relevant agencies (the Department of Defense, [Central Intelligence Agency] and [Department of Justice]), including the potential for a criminal prosecution, detention as a material witness, and detention as an enemy combatant.” Gonzales emphasized that the choice of law used to detain a suspected al-Qaeda operative was an exercise of presidential power of discretion and that there was “no rigid process for making such determinations -- certainly no particular mechanism required by law.”

Robert Mueller, who headed the FBI during the September 11 investigation, acknowledged that material witnesses were suspects in the counter-terrorism investigation: “In the United States, a number of suspects were detained on federal, state, or local charges; on immigration violations; or on material witness warrants.” The Inspector General of the Department of Justice confirmed the policy of using the material witness law to jail suspects while investigating them in the September 11 investigation. According to then Assistant Attorney General Michael Chertoff, the Justice Department has considered material witness warrants to be “an important investigative tool in the war on terrorism ... Bear in mind that you get not only testimony -- you get fingerprints, you get hair samples -- so there's all kinds of evidence you can get from a witness.”

In an interview with HRW/ACLU, former chief U.S. Attorney for the Southern District of New York Mary Jo White, a key architect of the post-September 11 material witness policy, strongly defended the use of the material witness law to detain possible terrorist suspects. While pointing out that the United States does not have laws permitting detention of criminal suspects without charges, she noted that “the material witness statute gives the [U.S.] government effectively the same power ... To the extent that it is a suspect involved in terror, you hold them on a material witness warrant, and you get the information until you find out what's going on.” According to White, holding someone as a material witness has given the government the time it needed “to get important information.” She dismissed as simply not feasible the suggestion that the government could have conducted surveillance on the suspects to ensure they did not engage in criminal activity or abscond, while it continued to gather evidence about them.

Furthermore, the administration has also claimed since September 11, 2001, that the president has the unilateral authority to indefinitely detain U.S. citizens captured domestically by designating such people “enemy combatants” and placing them in military custody. No court has yet definitively decided this issue, although a plurality of the Supreme Court ruled in 2004 that a U.S. citizen captured in Afghanistan and designated an “enemy combatant” must be allowed to challenge the factual basis of his designation before a “neutral decisionmaker.”

As Media Matters for America has noted, Jose Padilla, a U.S. citizen, was arrested in Chicago in May 2002 on a material witness warrant; the administration claimed he had been plotting to set off a “dirty bomb” in the United States. Bush designated him an “enemy combatant” in June 2002; Bush then directed that the Defense Department hold Padilla without charges. In June 2004, the Supreme Court dismissed Padilla's first challenge to his detention for technical reasons. In February 2005, after Padilla re-filed his challenge, a federal district judge in South Carolina ruled that Padilla could not be indefinitely detained and ordered the United States to either charge or release him. After the U.S. Circuit Court of Appeals for the 4th Circuit overturned the lower court in September 2005, Padilla appealed to the Supreme Court. On November 22, 2005, Gonzales announced at a press conference that a federal grand jury in Florida had indicted Padilla on terrorism-related charges unconnected to the original allegations of a “dirty bomb” plot. As a result, Gonzales argued that Padilla's appeal should be denied, telling reporters that “since he has now been charged in a grand jury in Florida, we believe that the petition is moot and that the petition should not be granted” and asked the 4th Circuit to vacate its opinion upholding Padilla's detention.

The 4th Circuit refused, stating that doing so “would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid [Supreme Court] consideration of our decision.” However, in January 2006, the Supreme Court allowed the government to transfer Padilla to civilian custody; currently, he is on trial in Florida. In April, the Supreme Court declined to review the case, and, on June 21, urged by the government, the 4th Circuit declined to vacate its opinion upholding President Bush's ability to domestically detain “enemy combatants.”

Notwithstanding its November 2005 request of the judiciary that Padilla's case be vacated, the Bush administration appears to be standing by its claim that it may arrest and detain a U.S. citizen in the United States without charges by designating that person an enemy combatant. On March 14, in a hearing of the House Appropriations Subcommittee on Science, State, Justice and Related Agencies, Gonzales asserted that "[w]e do have the authority to detain an enemy combatant without bringing charges, even if that person is an American citizen." As evidence, Gonzales cited the 4th Circuit's Padilla decision:

REP. JOSE SERRANO (D-NY): And lastly, perhaps the most dangerous thing I want to say today -- no one is a friend of Jose Padilla. We don't know the gentleman. Nobody knows him. But everybody's a friend of the Constitution, and that's why we made a fuss about his detention.

Now, we understand he's going to be tried in Miami. Could you tell me how that decision was made? Or is that just, you pick into a bag and pull out a city to try somebody in?

GONZALES: Thank you, Congressman.

With respect to Mr. Padilla, I would simply remind the committee that the Supreme Court, in the decision Hamdi v. Rumsfeld, acknowledged, through [retired] Justice [Sandra Day] O'Connor's writing for a plurality, that the United States government does have the authority to detain an enemy combatant, even when that enemy combatant is an American citizen, for the duration of the hostilities, without charges. That's what the court recognized. And that's always been the case.

SERRANO: But didn't the court in Richmond tell you, or tell somebody, “Charge this man or let him see a lawyer or let him go”?

GONZALES: And, in fact, the last decision about the government's decision to detain him as an enemy combatant was affirmed by the 4th Circuit.

A decision was made that charges should be brought against Mr. Padilla. You asked me a specific question about why you didn't charge him for this and that. Because this is a matter that is currently pending, I cannot and will not get into discussions about facts that are outside the indictment.

Career prosecutors looked at the facts of this particular case and decided these were the charges that would be brought. And I can't say anything beyond that.

SERRANO: All right. Then I'll say something beyond that and I'll close with this.

An American citizen was held for over three years without a lawyer, without charges, without a visit from his family, without a visit from a reporter, without a member of Congress being able to visit him, with no one allowing this American citizen the right to say, “What did I do?” or at least have us know -- forget him -- have us know what it was that he did.

And finally, when he is charged -- although you can't comment on it -- the indictment looks nothing like the original comments to the press, which made it sound like it was all right to keep him for three years.

GONZALES: Let me just say, without commenting specifically on the case, that in the war on terror we utilize all the tools that we can to deal with threats to America.

We utilize our criminal justice system, we utilize our military legal system, we utilize all the tools that we can.

We do have the authority to detain an enemy combatant without bringing charges, even if that person is an American citizen.

There may be reasons why we bring charges against an individual or why we don't bring charges against an individual. It may be that, in assessing the evidence, we conclude that we would have to make a witness available to the defense in a criminal proceeding that, for national security reasons, we don't want to do. And so that may influence the government's decision not to pursue certain charges.

And so there are a series of factors that are weighed in deciding, for the national security of this country, what charges are to be brought against an individual.

The controlling plurality opinion in Hamdi v. Rumsfeld (2004) ruled that a citizen captured “on the battlefield” -- Hamdi was captured in Afghanistan -- could be detained as an “enemy combatant,” but also said that he or she “must receive ... a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker,” although under much-reduced standards of proof and evidentiary requirements.

Despite the administration's record, many news reports and interviewers omitted the administration's actual position. When Chertoff appeared on the August 13 editions of ABC's This Week and Fox Broadcasting Co.'s Fox News Sunday, neither This Week host George Stephanopoulos nor Fox News Sunday host Chris Wallace challenged Chertoff when he suggested that the administration might seek legal authority to detain suspected terrorists without charge for a significant amount of time. Gonzales made similar statements at an August 14 appearance before the 2006 Disabled American Veterans National Convention, stating that changing U.S. law to allow authorities to detain suspects for longer periods without charge “may be something we might want to look at.” Later, August 14 news articles in The Wall Street Journal and The Boston Globe and an August 15 article in The New York Times that reported Gonzales's or Chertoff's comments did not mention the administration's material witness or enemy combatant arguments; instead, they reported that, generally, a person arrested in the United States must be charged within 48 hours. None of the reports asked whether -- by asserting that a relaxation of the law on detentions might be helpful -- the administration was now acknowledging that its practices of detaining “material witnesses” and so-called “enemy combatants” were illegal. Similarly, CNN host Wolf Blitzer, interviewing Gonzales on the August 16 edition of The Situation Room, asked whether Gonzales supported “changing the current rules of the game” because, Blitzer asserted, "[r]ight now, 48 hours, you can hold someone without filing formal charges." Blitzer did not mention that, under the Bush administration's “current rules of the game,” such limitations do not appear to apply.

By contrast, an August 14 Associated Press report on Chertoff's comments noted that the administration has “pushed for greater executive authority in the war on terror, leading it to ... hold suspects who are deemed as 'enemy combatants' for long periods.” Likewise, another August 15 AP report on Gonzales's comments, reported, “In the United States, suspects must be charged a lot sooner, typically within 48 hours, though suspects deemed as 'enemy combatants' have been held far longer.”

From the August 16 edition of CNN's The Situation Room:

BLITZER: If it were constitutional in the United States to hold a suspect, a U.S. citizen, for 28 days -- which is the law, as you know, in the United Kingdom -- would you support changing the current -- the current rules of the game? Right now, 48 hours, you can hold someone without filing formal charges. Would you like to change those laws?

GONZALES: Wolf, I think that there are serious questions as to whether or not that would be constitutional. And, obviously, as to whether or not a particular tool or enforcement mechanism would be something that we would want, we'd have to answer the question: Is it constitutional? Is it effective? Is it something that we absolutely need?

And, as we do with respect to every plot that's uncovered, as with respect to every response to a plot, we evaluate the changing nature of the threat and the ways -- the mechanism and tools that are currently in place to defeat that threat.

And that's what we're doing in this particular case, as we've done in response to the London bombings, to the arrests in Canada. We're always evaluating: OK, what is the enemy doing? And do we have the tools to adequately address this -- to adequately address the emerging threat?

BLITZER: But, if it were constitutional, you'd be open-minded about changing the rules to emulate the British rules?

GONZALES: Well, of course, the British, there's a different legal system, that -- there are additional tools that they have. We have additional tools that they don't have.

And, so, whether or not that -- that is something that we should pursue, assuming it's constitutional -- and, again, I think that there are serious questions that we have -- that would have to be addressed with respect to that.

You know, we'd have to make a determination: Is this something that we really need?

BLITZER: The whole issue of changing the rules of the game, as far as racial and ethnic profiling, is it a good idea?

From the August 15 New York Times article, headlined, "In Wake of Plot, Justice Dept. Will Study Britain's Terror Laws":

Attorney General Alberto R. Gonzales on Monday ordered a side-by-side review of American and British counterterrorism laws as a first step toward determining whether further changes in American law are warranted.

The plot to blow up airliners bound from Britain to the United States has highlighted differences in legal policies between the two allies, with American officials suggesting that their British counterparts have greater flexibility to prevent attacks.

Newly revised British counterterrorism laws, for instance, allow the authorities to hold a suspect for 28 days without charges, where American law generally requires that a suspect held in the civilian court system be charged or released within 48 hours.

Homeland Security Secretary Michael Chertoff said in appearances on the Sunday morning news programs that he thought bringing American laws more closely into line with Britain's, particularly regarding the detention of terror suspects without charges, could help deter threats at home.

“I think certainly making sure that we have the ability to be as nimble as possible with our surveillance, it's very important,” Mr. Chertoff said on “Fox News Sunday.”

“And frankly,” Mr. Chertoff added, “their ability to hold people for a period of time gives them a tremendous advantage.”

Mr. Gonzales echoed those remarks Monday in an appearance before a veterans group in Chicago. Asked about Britain's 28-day policy, he said, “That may be something we want to look at,” according to an account by The Associated Press. But he also said: “Is it consistent with our Constitution? We have to look at that.”

From the August 14 Wall Street Journal article, headlined, "Republicans Weigh Push for Tougher Terror Laws" (subscription required):

The differences in how Britain and the U.S. approach counterterrorism strategies reflect a distinction between the two countries' legal systems and their definitions of civil liberties. British police and security agencies have greater authority and latitude than their American counterparts to conduct domestic surveillance and detain terrorism suspects.

Britain's newly revised terrorism laws permit the detention of suspects for 28 days without charge. In the U.S., suspects must be brought before a judge as soon as possible, which courts have interpreted to mean within 48 hours.

Nevertheless, the U.S. has been able to use existing laws to thwart what it said were terrorist plots in the making. During the weekend, three men from the Dallas area were arraigned in Michigan on terrorism-related charges.

From an August 14 Boston Globe article, headlined, "Chertoff wants US to review antiterror laws":

Homeland security chief Michael Chertoff called yesterday for a review of domestic antiterrorism laws, saying the United States might benefit from the more aggressive surveillance and arrest powers used by British authorities last week to thwart an alleged plot to bomb airliners.

[...]

At a time when Congress is questioning the scope of the Bush administration's executive powers -- including a highly controversial program to listen to domestic phone calls without a warrant -- Chertoff said more powers to track potential terrorists inside the United States may be needed.

He cited some of Britain's broader investigative powers that helped foil an alleged plan by British Muslims believed linked to Al Qaeda to smuggle liquid explosives aboard flights bound to the United States from London's Heathrow Airport. British police have the ability to hold suspects without charges for nearly a month and a greater flexibility to eavesdrop on citizens.

The British “have an easier time getting electronic surveillance, and they also can detain people for up to, I think, 28 days without charging them,” Chertoff said on “Fox News Sunday.” “And those are very useful tools when you're trying to intercept an ongoing and very dynamic plot when you may not have collected all the evidence.”

[...]

Chertoff, a former federal prosecutor, said yesterday that the massive crackdown on suspected militants across England was a reminder of the importance of giving law enforcement authorities more effective investigative tools.

“What helped the British in this case is the ability to be nimble, to be fast, to be flexible, to operate based on fast-moving information,” Chertoff said on ABC's “This Week.” He added: “We have to make sure our legal system allows us to do that. ”

Senator Pat Roberts of Kansas , a Republican and chairman of the Intelligence Committee, agreed yesterday that the British have “better tools.” But, speaking on CBS's “Face the Nation,” he also acknowledged the political opposition in Washington to any further expansion of executive powers.

From the August 13 edition of Fox Broadcasting Co.'s Fox News Sunday:

WALLACE: British laws give their authorities more latitude to pursue these terror plots than we have here in the U.S. It's easier for them to get search warrants. They can go further than we can on arrests and detention. They have MI-5 devoted exclusively to domestic surveillance.

In fact, do the Brits have more weapons to fight the war on terror than we do?

CHERTOFF: In some respects, they do. They have an easier time getting electronic surveillance and they also can detain people for up to, I think, 28 days, without charging them, and those are very useful tools when you're trying to intercept an ongoing and very dynamic plot when you may not have collected all the evidence.

I do have to say they have actually a little bit more of a challenge when it comes to bringing the cases in court because there are legal restrictions on their using evidence that we do not have. So, in that respect, we have a little bit of advantage when we actually prosecute the case.

WALLACE: Is there anything that they have that you'd like to get and, in fact, are going to call for?

CHERTOFF: Well, I think, certainly, making sure that we have the ability to be as nimble as possible with our surveillance. It's very important. And frankly, their ability to hold people for a period of time gives them a tremendous advantage.

Now, there are some legal restrictions here under the Constitution that they don't have, but their nimbleness and their flexibility are important tools we want to have here as well.

WALLACE: So, you'd like to see some changes in our laws?

CHERTOFF: I think we should always review the law to see whether there are some things that would help us intercept these plots more readily.

From the August 13 edition of ABC's This Week:

CHERTOFF: What I have to say again and again, though, is what helped the British in this case is the ability to be nimble, to be fast, to be flexible, to operate based on fast-moving information. We have to make sure our legal system allows us to do that. It's not like the 20th century, where you had time to get warrants and you had a lot of time to do things.

STEPHANOPOULOS: Are you suggesting that if we had the looser rules that the Brits have, including being able to arrest people for up to 28 days, we would be safer here at home?

CHERTOFF: I'm suggesting that these rules helped the British in terms of their ability to prevent plots rather than responding after a plot occurs. Now, we've done a lot in our legal system in the last few years to move in the direction of that kind of efficiency, that was with the Patriot Act, with information-sharing, which was a huge piece of this and some of the other measures we've taken, but we ought to constantly review our legal rules to make sure they're helping us not hindering us.

STEPHANOPOULOS: So, do you need new authority?

CHERTOFF: Again, I'm not -- I don't think there's any specific authority I would suggest we need now, but I certainly think preserving the maximum flexibility in surveillance of transactions and communications is -- continue to be a critical element if we're going to prevent these attacks.