Witness to Abuse - Human Rights Watch

uised. See id. In the elevator, the marshals made his left foot bleed by
kicking it and the supervising marshal threatened to kill him. 136
In April 2003, the Inspector General of the Department of Justice issued a report
documenting physical abuse endured by detainees swept up in the government’s post-
September 11 investigation, including the abuse of material witness Ayub Ali Khan. 137
V. Bypassing Judicial Review
Judicial review is the paramount protection against arbitrary detention and is recognized
as such by international human rights law 138 as well as U.S. domestic law. 139 Judicial
review in the material witness context should offer an important safeguard against
arbitrary arrest and prolonged detention. However, after extensive investigation, we are
not aware of a single instance in which a court has denied a government application for a
material witness warrant related to the post-September 11 investigation.
There are likely a number of factors that have contributed to the government’s success
in securing material witness warrants. One significant reason has been a general
reluctance by some courts to scrutinize closely the government’s proffered reasons for
needing to arrest and detain witnesses. An additional reason has likely been the fact that
the government sought arrest warrants for almost all of the seventy material witnesses
we document in this report in connection with grand jury proceedings, which are
preliminary investigatory proceedings controlled by the prosecution and conducted
largely in secret. The grand jury context has made it extremely difficult for courts to
conduct meaningful scrutiny of whether a witness has material information.
136
United States v. Awadallah, 202 F.Supp.2d 17 (S.D.N.Y. 2002).
137
DOJ, OIG, The September 11 Detainees.
138
Under international law, anyone who is deprived of his or her liberty has the right to appear before a court
without delay and to ask the court to determine the legality of the detention. ICCPR, article 9(4). The ICCPR in
article 2(3) requires that all persons whose rights have been violated “have an effective remedy” determined by
a competent authority. The Human Rights Committee, in its General Comment 31 on Nature of the General
Legal Obligation on States Parties to the Covenant (2004), said that states must “ensure that individuals also
have accessible and effective remedies to vindicate those rights.” Moreover, “anyone who has been the victim
of unlawful arrest or detention shall have an enforceable right to compensation.” ICCPR, article 9(5).
139
See, e.g., Hamdi v. Rumsfeld, 124 S.Ct. 2633, (2004) (recognizing “citizen[s] core rights to challenge
meaningfully the Government's case and to be heard by an impartial adjudicator); Matthews v. Eldridge, 424
U.S. 319, 333 (1976) ("The right to be heard before being condemned to suffer grievous loss of any kind, even
though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”).
45 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)