Witness to Abuse - Human Rights Watch

Prolonged Incarceration and Undue Delays in Presenting Witnesses
to Grand Juries
The material witness law does not state a specific limitation on the length of time a
witness may be detained before testifying. However, such detentions should not extend
beyond the time needed to present the witness or secure his testimony through
deposition.
Under international law, administrative detention 78 may not be indefinite, and under U.S.
law, any detention, especially non-punitive detention, must be narrowly tailored. 79 If the
government has held the post-September 11 material witnesses solely to secure their
testimony before grand juries, as it has claimed, the detentions should have been quite
short. But according to the Justice Department itself, over half of the witnesses it has
arrested in the September 11 investigation have been held for more than thirty days. 80
Our research indicates that more than one-third of the material witnesses held in
connection with post-September 11 terrorism investigations have been held for two
months or more, often in solitary confinement. Our research also indicates that the
government has unnecessarily prolonged the detention of the witnesses in order to
question them as well as conduct other investigations about them.
For example, Abdullah Tuwalah was held for six weeks without testifying, Nabil Al-
Marabh for three months, Eyad Alrababah for four months. Even when witnesses were
eventually brought before a grand jury, they frequently spent months in detention first—
e.g., Uzair Paracha spent five months in detention; Zuheir Rouissi, six months.
78
Administrative detention is defined as the executive branch of the state detaining an individual on its own
authority, when no judicial arrest warrant or criminal charges have been brought against the detainee.
79
Article 3 of the Universal Declaration of Human Rights provides that “everyone has the right to life, liberty and
security of person." Article 9 of the ICCPR, which similarly provides that “everyone has the right to liberty and
security of person,” is “applicable to all deprivations of liberty,” Human Rights Committee, General Comment
No. 8. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on
Civil and Political Rights, which provide authoritative guidance on the ICCPR, state that even during a state of
emergency, “no person shall be detained for an indefinite period of time, whether detained pending judicial
investigation or trial or detained without charge.” Principle 70(b), available online at:
http://www1.umn.edu/humanrts/instree/siracusaprinciples.html, accessed on June 19, 2005. The Due Process
clause of the Fifth Amendment authorizes civil, non-punitive detention in narrow and limited circumstances.
There must be a specific justification that is “sufficiently weighty” to outweigh the individual liberty interest, and
the least restrictive means available must be used, means that are not “excessive in relation to the non-punitive
purpose for which the individual is detained.” Salerno, 481 U.S. 739, 747 (1987). See also Zadvydas v. Davis,
533 U.S. 678, 690 (2001) (construing immigration detention law to have a time limitation because allowing
indefinite detention would raise a serious constitutional question).
80
DOJ Response I.
HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 26