Witness to Abuse - Human Rights Watch

those suspected of committing a crime under the Fourth Amendment.” 32 Absent a
strong showing by the government, courts would quash the warrant, as, for example, the
U.S. Court of Appeals for the Ninth Circuit did in 1984 when it ruled that a material
witness warrant was not valid, even where the witness informed the government he
would not testify unless subpoenaed and agents attempted service on the witness
multiple times to no avail:
The facts do not show that [the material witness] was a fugitive or that
he would be likely to flee the jurisdiction; rather, they only show a man
somewhat obstinately insisting upon his right to refuse to appear before
a grand jury until personally served. Those facts are insufficient to
provide probable cause for believing that [the witness’s] attendance
could not be secured by subpoena. 33
II. Post-September 11 Material Witness Detention Policy
The Department of Justice has refused to reveal publicly how many persons it has
arrested as material witnesses in connection with its post-September 11 investigation or
any details about the witnesses, including the specific reasons for their arrests or why
they were considered flight risks. 34 The information is not readily available publicly
because the Justice Department has obtained court orders precluding the public from
attending the material witness hearings, sealing virtually all court documents, and
imposing gag orders 35 on all present at almost all of the hearings. Even in response to
Congressional inquiries, the Justice Department has provided only vague, general
information about detained material witnesses. In May 2003, in response to a request for
information from Congress, the Justice Department stated that as of January 2003 it had
detained fewer than fifty material witnesses in connection with the September 11
investigation. It also indicated that approximately half of the material witnesses were
held for more than thirty days. 36
32
Orozco v. County of Yolo, 814 F. Supp. 885, 893 (E.D.Cal.1993).
33
Arnsberg v. United States, 757 F.2d 971, 976 (9th Cir. 1984). See also, Bacon v. United States, 449 F.2d 933.
938-939 (9th Cir. 1971); Perkins v. Click, 148 F. Supp. 2d 1177, 1183 (D.N.M. 2001).
34
In this report, unless otherwise indicated, we use the term material witnesses to refer to those arrested in
connection with the post-September 11 terrorist-related investigation.
35
A gag order is a court order forbidding public commentary on a matter currently before the court.
36
Letter from James E. Brown, acting assistant attorney general, Office of Legislative Affairs, to Rep. F. James
Sensenbrenner, Jr., Chairman, House Judiciary Committee, May 13, 2003, p. 49 (DOJ Response I).
15 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)