Witness to Abuse - Human Rights Watch

than two dozen of the seventy cases we uncovered, the government did not provide a
detention hearing for three or more days following arrest. In ten of these cases,
witnesses never received any kind of judicial detention hearing at which they could
contest their detention.
U.S. law also requires that a court issue a written statement explaining the reasons why a
material witness was ordered detained. 150 Yet our research indicated that judges routinely
failed to issue such written findings. For example, Albader al-Hazmi was not taken to a
court for seven days after his arrest. During this time, he was held in solitary
confinement in New York. When he finally appeared in court, he was kept in restraints.
The court proceeding lasted less than five minutes, and the court never issued a written
statement. 151
One of the most egregious delays we uncovered was that of material witness Ayub Ali
Khan. He was not taken before a judge for fifty-seven days following his arrest, nor was
he provided an attorney, despite his requests. During this period, the government
interviewed him at least six times without counsel. Khan was never found to have any
terrorist connections nor was he criminally charged with terrorism-related crimes. 152
In addition to the delays in presenting witnesses to judges, the requirement that material
witnesses be present when federal officials made status reports to the court was routinely
ignored. 153
Failing to Provide Witnesses with Warrants or Reasons for Arrest
In almost all of the material witness cases investigated by HRW/ACLU, the Department
of Justice has sought at every opportunity, from the moment of arrest through release,
to prevent him from obtaining information about the government’s suspicions or
reasons for arrest that might allow him to respond and possibly secure his release. For
example, as one witness described:
deprived of a liberty interest, the Fifth Amendment right to Due Process guarantees a prompt hearing,
conducted at a meaningful time and in a meaningful manner. Barry v. Barchi, 443 U.S. 55 (1979).
150
18 U.S.C. § 3142(i)(1), In re Grand Jury Material Witness Detention, 271 F. Supp. 2d 1266 (D. Or. 2003).
151
Interview with Dr. Albader al-Hazmi. See also Pierce, “Coming Home.”
152
Interview with Ayub Ali Khan; HRW/ACLU telephone interview with Mohammad Azmath, Hyderabad, India,
April 2, 2004 (Interview with Mohammad Azmath).
153
Federal Rules of Criminal Procedure 46(h).
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