A legal tool emerges in terror war

When alleged "dirty bomb" plotter Jose Padilla arrived in the US, federal agents took him into custody with all the precision of a Swiss watch.

It was not a last-minute operation. Mr. Padilla, a US citizen, had been a prime target of investigators for weeks as he crisscrossed Europe and the Middle East.

But rather than obtaining an arrest warrant by demonstrating to a judge that federal authorities had probable cause to believe Padilla was planning mass murder, they instead relied on an obscure federal law designed to guarantee the presence of a key witness at a criminal proceeding.

By labeling Padilla a "material witness" in an ongoing grand jury investigation of terrorism, US officials were able to whisk him off the streets and into a high-security prison cell with minimal law-enforcement effort.

Since the terror attacks on Sept. 11, the so-called material-witness statute has emerged as a key – and highly controversial – weapon in the legal arsenal being used to wage the Bush administration's war against terrorism in America's homeland.

Supporters of this approach say it is justified by the continuing threat of massive civilian casualties posed by Al Qaeda and its operatives.

Critics see it as a direct assault on fundamental American freedoms. In the Padilla case and others, federal agents and prosecutors were able with the stroke of a pen to bypass many of the constitutional and statutory safeguards carefully enacted by Congress to protect citizens from the dangers of an overzealous national police force.

Just as a presidential designation of someone as an "enemy combatant" can trigger indefinite military detention without any formal charge, federal prosecutors are accomplishing that same result of indefinite detention without charge by relying on the material-witness statute, legal experts say.

Ronald Carlson, a law professor at the University of Georgia and a leading authority on material-witness law, says the Bush administration has adopted a flawed approach to the federal statute. "Material- witness laws came into being for one purpose and one purpose only – to ensure that a witness who saw or knew something would be around for testimony at a criminal proceeding against a defendant," Mr. Carlson says.

"The problem is the Bush administration views these laws as part of a continuum in how you investigate defendants," he says. He adds that there is potential for abuse. "Sometimes these laws are used by the authorities to coerce information."

The advantages in fighting terrorism are obvious, experts say. Rather than having to prove probable cause of criminal involvement, all the government must show to authorize the open-ended detention of any individual is that prosecutors believe the "witness" possesses critical information related to the government's investigation and that he or she is unlikely to comply with a subpoena to testify.

Some legal experts say the witness law offers the government an effective means of disrupting ongoing terror plots without having to exert the time and effort to develop solid evidence of illegal conduct. There is no risk of disclosing intelligence sources and methods. And some experts say the witness law can be used to pressure detainees into providing timely intelligence, regardless of whether the resulting information results in a solid criminal case later.

"We are using criminal laws like the material-witness statute in a whole new context of terrorism prevention," says Paul Rosenzweig, a former federal prosecutor and legal research fellow at the Heritage Foundation in Washington. "Our criminal laws are not designed to fight a war on terrorism," he says. "The government is using the tools that are presently on its books and available, and the fit isn't perfect."

But Mr. Rosenzweig says the administration's approach is appropriate given the exigencies of the war on terror. "I'm not one to cheer about everything the government does, but those who think things haven't changed since Sept. 11 are putting their head in the sand."

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