Witness to Abuse - Human Rights Watch

were almost all the witnesses Muslim, sixty-four of the seventy were of Middle Eastern
or South Asian descent.
The material witness law does not specify how long a witness may be incarcerated before
being presented in a criminal proceeding or released. The Department of Justice took
full advantage of this gap in the law. One-third of the seventy post-September 11
material witnesses we identified were incarcerated for at least two months. Some
endured imprisonment for more than six months, and one witness spent more than a
year in prison. In almost every case, there is evidence that the Justice Department used
the material witness statute to buy itself time to go on a “fishing expedition” for
evidence showing the witnesses were in some way involved with terrorism. In most cases
no such evidence existed. The investigations, however, did sometimes turn up evidence
of non-terrorism related criminal misconduct or immigration violations, which became
the basis for subsequent arrests and continued detentions. When there was no evidence
of any wrongdoing, the Justice Department simply held witnesses until it concluded that
it had no further use for them, or until a judge finally ordered their release.
Consistent with the Justice Department’s suspicions that the witnesses were dangerous
men linked to terrorists, the witnesses were often arrested at gunpoint in front of
families and neighbors and transported to jail in handcuffs. They typically were held
around-the-clock in solitary confinement and subjected to the harsh and degrading highsecurity
conditions typically reserved for prisoners accused or convicted of the most
dangerous crimes. They were taken to court in shackles and chains. In at least one case, a
material witness was made to testify in shackles.
In some cases, the harsh treatment of material witnesses included verbal and even
physical abuse by prison staff. The Department of Justice’s Inspector General issued a
report detailing the abuse of material witnesses as well as other detainees in federal
detention facilities.
In the United States, court hearings on arrests and detentions, including hearings on
material witness cases, are usually public under the long-standing principle that secret
proceedings are odious in a democratic society. Yet at the Justice Department’s
insistence, courts have conducted virtually all the post-September 11 material witness
proceedings behind closed doors and have sealed virtually all documents connected to
the cases, including arrest warrants, affidavits, transcripts, legal briefs, and court rulings.
Almost all the cases have been kept off the public court dockets altogether. The
government’s quest for secrecy has extended to obtaining gag orders for witnesses’
attorneys and family members, so they could not reveal anything witnesses told them or
3 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)