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Ore. man's release raises questions for war on terror


CHICAGO - The release last week of an Oregon lawyer held two weeks by federal authorities without being charged with a crime has raised new questions about the controversial statute used to detain him.

The Justice Department has portrayed the material witness statute as a powerful tool in the war against terrorism, giving authorities the right to jail suspects who they say might otherwise flee the country and allowing investigators valuable time to gather evidence.

But civil rights groups say authorities have abused the statute, jailing people without evidence, violating civil liberties and bending the statute in ways it was never intended.

The case of Brandon Mayfield, who was arrested in connection with the Madrid bombing and freed Thursday after a fingerprint attributed to him was matched to another suspect, is a classic example, civil rights advocates say.

In part, the significance of Mayfield's case is that civil liberties advocates believe similar cases have remained secret under federal grand jury proceedings, making it difficult to know how many people have been or are being held.

"You have a statute being used to jail people where there is no evidence of wrongdoing," said Robert Precht, assistant dean for public service at the University of Michigan Law School.

"The fundamental principle in American law is that we don't jail people on the basis of mere suspicion," he said. "This statute allows prosecutors to make an end run around the Constitution."

Justice Department officials would not comment on the Mayfield case, citing a gag order. But they defended the material witness statute, saying it remains a critical tool against terror and includes safeguards.

"We cannot randomly detain someone," said Bryan Sierra, a spokesman for the Justice Department. A judge must review evidence to approve a warrant, and the defendant is entitled to a court-appointed attorney, he said. "There may be times where we don't have any alternative or alternative methods of securing testimony that could be critical to a terrorism investigation."

It is unclear how many people have been held under the material witness statute. In a report to the House Judiciary Committee last year, Justice Department officials said that as of January 2003, nearly 50 defendants had been detained as material witnesses in connection with the investigation of the Sept. 11 attacks.

The number held since then has not been released. The Justice Department will not comment on the cases, saying they are covered by secrecy rules protecting grand jury investigations.

The 1984 material witness statute was crafted to help ensure defendants' right to have witnesses testify on their behalf. Legal experts said it was originally used in drug and organized crime investigations to compel testimony from uncooperative witnesses. It is one of the few provisions in U.S. law that allow authorities to lock up someone not accused of a crime.

The statute was seldom employed until the aftermath of Sept. 11, when prosecutors began using it to hold suspects for grand jury proceedings,

Mayfield, 37, a U.S. citizen and Muslim convert, was detained May 6 under a material witness warrant in connection with the March 11 train bombings in Madrid that killed 191 people and injured more than 1,800 others.

FBI officials said they had matched Mayfield's fingerprint records to a print found in a stolen van outside Madrid that was tied to the attacks, according to a U.S. official in Washington. But early in the investigation, some questioned the strength of the evidence. Spanish officials said their analysis of the print was inconclusive.

Mayfield was freed Thursday after 14 days of detention after Spanish officials said the fingerprints were those of an Algerian.

After Sept. 11, critics complained that federal authorities began using the material witness statute to hold suspects while investigators gathered evidence against them. Because the statute does not set limits on how long the government can hold a witness, some people were jailed for weeks without being charged.

Mayfield was not charged with a crime; he and his family insisted on his innocence, pointing out that he had not left the country in a decade. On the day of his arrest, investigators searched his home and office and questioned family and friends.

His only publicly known tie to terrorism was his relationship with Jeffrey Leon Battle, a Portland man who pleaded guilty in November to conspiracy to wage war against the United States. Mayfield had represented Battle in a custody battle. Mayfield also attended the same mosque where several members of the so-called Portland Seven cell had worshiped.

The Chicago Tribune is a Tribune Publishing newspaper.

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