Witness to Abuse - Human Rights Watch

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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.” 42 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.” 43 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.” 44 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.” 45 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. 46 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 42 “Ashcroft Outlines Foreign Terrorist Tracking Force.” 43 Alberto R. Gonzales, counsel to the President, “Statement to the American Bar Association,” Washington, D.C., Feb. 24, 2004, available online at: http://usinfo.state.gov/dhr/Archive/2004/Mar/17-834301.html, accessed on April 13, 2005. 44 Ibid. 45 Robert S. Mueller, III, director, FBI, “Speech at the Commonwealth Club of California,” San Francisco, California, April 19, 2002, available online at: http://www.fbi.gov/pressrel/speeches/speech041902.htm, accessed on June 19, 2005. 46 DOJ, OIG, The September 11 Detainees, p. 38-39 (“The Department of Justice . . . is utilizing several tools to ensure that we maintain in custody all individuals suspected of being involved in the September 11 attacks without violating the rights of any person. If a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant.”). HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 18
testimony—you get fingerprints, you get hair samples—so there’s all kinds of evidence you can get from a witness.” 47 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.” 48 According to White, holding someone as a material witness has given the government the time it needed “to get important information.” 49 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. 50 In enacting the material witness law, however, Congress did not authorize its use to detain criminal suspects for whom probable cause is lacking. Rather, the law allows detention only to obtain the testimony of witnesses. As the Court of Appeals for the Second Circuit admonished in 2003: “[I]t would be improper for the government to use [the material witness law] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.” 51 Yet that is exactly what the Department of Justice has done since September 11. 47 Steve Fainaru and Margot Williams, “Material Witness Law Has Many in Limbo,” Washington Post, Nov. 24, 2002, p. A1. 48 HRW/ACLU interview with Mary Jo White, New York, New York, August 3, 2004 (Interview with Mary Jo White). 49 Ibid. 50 Former U.S. Attorney General Janet Reno also recently recognized the government’s practice of holding suspects as witnesses, stating that because of “the broad scope of grand jury investigations, [the government] can detain a suspected terrorist as a material witness before it has evidence sufficient to support a criminal arrest or indictment.” Brief of Janet Reno, et. al., Amici Curiae in Support of Respondents, Rumsfeld v. Padilla, No. 03-1027, April 12, 2004, p. 17-18. In the brief, Reno also noted that the government could detain material witnesses with “relative ease,” and the material witness law “can help prevent terrorist acts by incapacitating terrorists.” Ibid. 51 United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003). Congress makes clear that the purpose of detaining a witness is for securing her testimony by authorizing the detention of a material witness if “the testimony of a person is material in a criminal proceeding” and if “it may become impracticable to secure the presence of the person by subpoena.” 18 U.S.C. § 3144. Congress also indicates that the law is intended only to secure the witness’s testimony by requiring that a material witness generally should not be detained if the government can secure the witness’s testimony by deposition. Ibid. (“No material witness may be detained 19 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)
Page 1 and 2: Human Rights Watch June 2005 Vol. 1
Page 3 and 4: Summary After I got in the cell I w
Page 5 and 6: were almost all the witnesses Musli
Page 7 and 8: combination with having worked in t
Page 9 and 10: Recommendations The recommendations
Page 11 and 12: o requiring the government to infor
Page 13 and 14: eflects a compromise between an ind
Page 15 and 16: the witness for immigration or prob
Page 17 and 18: those suspected of committing a cri
Page 19: Arizona, and Florida, where the nin
Page 23 and 24: The FBI appeared to believe that Ma
Page 25 and 26: interrogating him, without counsel,
Page 27 and 28: Jose Padilla On May 8, 2002, the Ju
Page 29 and 30: The Justice Department has often st
Page 31 and 32: criticism on the conduct of Assista
Page 33 and 34: government failed to take Diab’s
Page 35 and 36: Eric Sears, a former federal prosec
Page 37 and 38: sentencing. The judge finally got a
Page 39 and 40: accompanied by extensive searches c
Page 41 and 42: and young children. 121 He was deta
Page 43 and 44: High Security Conditions of Detenti
Page 45 and 46: Harassment and Abuse in Jail Many m
Page 47 and 48: uised. See id. In the elevator, the
Page 49 and 50: In practice, then, court approval o
Page 51 and 52: I kept asking what am I being charg
Page 53 and 54: As Mark Foster, the lawyer for one
Page 55 and 56: Federal marshals transferred the ei
Page 57 and 58: [T]he government filed all their pa
Page 59 and 60: Federal agents have also refused to
Page 61 and 62: In many cases, the trauma of forcef
Page 63 and 64: In January 2002, another hotel gues
Page 65 and 66: abuse, international human rights 2
Page 67 and 68: It is not clear why the courts have
Page 69 and 70: Things go on behind those doors tha
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providing interviews, submitting to
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Detaining Witnesses Who Cooperate w
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stayed with the FBI agents for eigh
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government, “I’m not coming.”
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armed forces for several years and
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Congress included the deposition re
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X. Haste, Incompetence, Prejudice:
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government’s basis was weak. Thes
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target, 272 the state police ordere
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Khan and Azmath were deported in Ja
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told them I told them I had no idea
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y subletting their apartment. Altho
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The post-scripts to the stories of
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I could not ask questions. What’s
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Ayub Ali Khan and Mohammad Azmath A
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get all these kinds of questions—
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Human Rights Watch and the American
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Witness to Abuse - Human Rights Watch

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