Witness to Abuse - Human Rights Watch

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)