Witness to Abuse - Human Rights Watch

government failed to take Diab’s deposition for almost three months, the judge removed
the electronic monitoring and curfew. 101
Abdullah al-Kidd
Similarly, the government restricted the movement of Abdullah al-Kidd for almost
fifteen months. Al-Kidd was arrested as a material witness on March 16, 2003 in
connection with the trial of Sami al-Hussayen, who was facing criminal visa fraud and
terrorism-related charges. After spending fifteen days jailed in high-security conditions,
al-Kidd was released on the conditions that he live with his wife at his in-laws’ home,
confine his travel to four states, surrender his passport, and meet regularly with
probation officers. He was never, however, called to testify at the trial. Indeed, even after
al-Hussayen’s trial ended (al-Hussayen was found not guilty on most counts; the jury was
hung on others), the Justice Department failed to move to dismiss the material witness
warrant for al-Kidd. 102 Upon a motion of al-Kidd, the court dismissed the material
witness warrant after the close of the al-Hussayen trial.
Reluctance to Grant Immunity to Material Witnesses
The Justice Department’s reluctance to grant immunity to material witnesses for their
testimony further demonstrates that it has been interested in the witnesses held in
connection with the September 11 counterterrorism investigation as possible criminal
suspects, not as mere witnesses to a crime. When the Department of Justice is interested
in eliciting testimony from a witness who it does not consider a suspect, it can grant the
witness immunity, i.e., it will provide a guarantee that the witness will not be prosecuted
based on the testimony. Granting immunity to a witness allows him or her testify freely,
without fear that the testimony will be used against the witness. Granting immunity also
allows the government to compel testimony if a grand jury witness invokes the Fifth
Amendment privilege against self-incrimination. 103 On the other hand, prosecutors do
not want to grant immunity when seeking testimony from targets of the grand jury
investigation, because the prosecution wants to make full use of the information gained
from the testimony to later prosecute the suspect.
In post-September 11 material witness cases, witnesses have frequently invoked their
Fifth Amendment right against self-incrimination and have been reluctant to testify
before a grand jury absent immunity, because the government has had a pattern of
101
Docket No. 172, 173, United States v. Dhafir, Crim. No. 03-64 (N.D.N.Y. 2003).
102
HRW/ACLU interview with Abdullah al-Kidd, Las Vegas, Nevada, June 2004.
103
18 U.S.C. § 6002. The government may grant witnesses partial or full immunity from prosecution based on
the statements they make during their testimony.
31 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)