Witness to Abuse - Human Rights Watch

I kept asking what am I being charged. They would respond you’re not
being charged with anything. I asked why am I here. They said I was a
witness. I said a witness to what? They said they couldn’t tell me. It was
like playing “Who’s on First?” [an Abbott and Costello routine] for two
hours. 154
The Justice Department has also sought to block the witnesses’ lawyers from being able
to get information, sometimes leaving them as much in the dark as their clients. Even
when lawyers have had access to documents, many have been subjected to restrictions
that severely limited their ability to mount a successful case for their clients.
Most of the seventy witnesses held in connection with September 11 counterterrorism
investigations were not presented with an arrest warrant at the time of their arrest. Indeed,
in at least thirty-six cases, the Justice Department failed to give the witnesses any reason
for their arrest at the time they were initially detained. This violates international 155 and
U.S. law; 156 both provide that persons have the right to be informed of the reasons for
their arrest or detention.
Ultimately, most of the witnesses have learned the basic allegations underlying their
arrest and detention as material witnesses, but throughout their detention, the
government has refused to provide them with the affidavit or underlying evidence used
to detain the witness. Even criminal suspects eventually get to see the government’s
evidence suggesting guilt or innocence, and there are clearly defined procedures for
when and how that evidence is to be transmitted to the suspect. By contrast, post-
September 11 material witnesses often had no idea when, if ever, they might get to know
the evidence underlying their detention. Indeed in many cases, they never did receive the
exculpatory or damming evidence the government had to justify their arrest.
154
HRW/ACLU interview with Mujahid Menepta, St. Louis, Missouri, July 22, 2004.
155
The ICCPR, article 9(2) provides that “anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed of any charges against him.” The Human Rights
Committee has noted that article 9(2) “requires that anyone who is arrested shall be informed sufficiently of the
reasons for his arrest to enable him to take immediate steps to secure his release if he believes that the
reasons given are invalid or unfounded.” Drescher Caldas v. Uruguay (43/1979), July 21, 1983.
156
United States constitutional guarantees of due process establish the right of anyone detained to be informed
of the grounds for his or her arrest. United States v. Hamdi, 124 S.Ct. 2633, 2648-49 (2004) (“For more than a
century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected
are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally
fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in
a meaningful manner.”) (internal citations and footnotes excluded).
49 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)