Witness to Abuse - Human Rights Watch

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subsequently seeking to implicate them in any crime—often based on information it obtained from grand jury testimony or informal interviews. The Justice Department consistently has refused to grant such immunity, undoubtedly because it viewed the witnesses first and foremost as suspects. Chris Schatz, federal public defender of Oregon, who was one of the lawyers who represented Brandon Mayfield in May 2004, described his attempts to secure immunity for Mayfield: They had no intent to bring him in front of a grand jury. If you were never going to give him immunity then it was a questionable abuse of the process. … If their focus is not on prosecuting then what do you care about immunity in negotiations? If it’s your objective to get testimony, then the refusal to get immunity was an abuse of the law. 104 Mayfield claims, and court documents confirm, that the government threatened him with capital punishment during his immunity negotiations: They were threatening me with capital charges. In proffer discussions they said they were going to give me limited immunity. But they believed it was me. They pretty much told us, “We have enough to indict you but not enough to prosecute.” 105 John Meyer, the attorney for material witness Nabil al-Marabh, also described the government’s refusal to negotiate over al-Marabh’s immunity: From the day he arrived in Chicago, the government was not going to give him immunity and compel his testimony. Instead of calling Nabil, the government made continuances at every stage. It was clear they didn’t want to put him in front of the grand jury in hopes of charging him with other crimes. 106 104 HRW/ACLU interview with Chris Schatz, co-counsel for Brandon Mayfield, Portland, Oregon, June 23, 2004; HRW/ACLU telephone interview with Steven Wax, co-counsel for Brandon Mayfield, Portland, Oregon, June 2004. Federal Public Defenders Steve Wax and Chris Shatz have published a detailed account of the challenges of obtaining immunity in material witness proceedings. Steven T. Wax and Chris Shatz, “A Multitude of Errors: the Brandon Mayfield Case,” The Champion, Oct. 28 2004, Champ 6 (Sept./Oct. 2004). 105 HRW/ACLU interview with Brandon Mayfield, Beaverton, Oregon, June 22, 2004. 106 Interview with John Meyer. HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 32
Eric Sears, a former federal prosecutor, similarly described the government’s reluctance to give immunity to his client Mohamad Kamal Elzahabi: The government wanted him as a material witness so he would voluntarily talk and go before a grand jury. But they weren’t willing to give him immunity. And it’s a no-brainer—why would I let my client talk with the government as a witness if they’re not giving him immunity. If they want his testimony, they should give him immunity. 107 Criminal Charges against Material Witnesses [I]ndividuals detained as material witnesses are rarely charged with crimes. —U.S. District Court for the Western District of Texas, 1985 108 The Justice Department has ultimately brought criminal charges against twenty-nine of the material witnesses, accusing seven of terrorism-related crimes, and brought immigration charges against at least twenty-eight. From our review of court documents, it appears that in many of these cases, the charges have been based on evidence and statements the government has obtained after the material witness was arrested—either from interrogations of the witness himself or from investigations into other sources. The Justice Department has also used evidence it obtained from interviewing the witnesses before their arrest and when agents searched their property. In at least fifteen of these cases, the witness never testified before a grand jury, and the government filed the criminal charges only when a court indicated it would release the witness because of the government’s delays in bringing the witness before the grand jury. By filing criminal or immigration charges, the Department of Justice has been able to continue to hold the former material witnesses in prison while it has continued its investigations. In some cases, the unrelenting pursuit of the witness suggests that the government has continued to believe the witness was involved with terrorism, even though it could not develop evidence sufficient for terrorism-related charges. 107 Interview with Eric Sears. 108 In re Class Action Application for Habeas Corpus ex relatione ll Material Witnesses, 612 F.Supp. 940, 943-44 (W.D. Tex. 1985). 33 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 and 20: Arizona, and Florida, where the nin
Page 21 and 22: testimony—you get fingerprints, y
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: government failed to take Diab’s
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
Page 71 and 72: providing interviews, submitting to
Page 73 and 74: Detaining Witnesses Who Cooperate w
Page 75 and 76: stayed with the FBI agents for eigh
Page 77 and 78: government, “I’m not coming.”
Page 79 and 80: armed forces for several years and
Page 81 and 82: Congress included the deposition re
Page 83 and 84: 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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