Witness to Abuse - Human Rights Watch

I was not allowed to take a copy of the affidavit. I could only see it
in court and I had to write it out. Everything was secret-the warrant
was filed under seal. The courtroom was closed. It didn’t matter
whether they had agreed to cooperate. 177
• Susan Otto, representing material witness Mujahid Menepta in Oklahoma, only
was able to view the affidavit briefly in court in the presence of the government
and the judge. “I only was able to see the warrant and affidavit in open court. A
number of FBI and cops were sitting at the table with the government.”
Menepta was permitted to view the affidavit with Otto while she was in court
but was not given his own copy. 178
Denial of Right to Counsel
Everyone has the right to an attorney when subjected to “custodial” interrogation, i.e.,
when he or she is not free to leave, or when government agents seek to question him
about suspected criminal conduct. 179 Material witnesses are guaranteed the right to
counsel at their court appearance by statute and by the Fifth Amendment right to due
process. 180 If a material witness appears in court without counsel, the presiding judicial
officer is required to inform the witness that he or she has the right to counsel. If a
witness cannot afford an attorney, he or she has the right to court-appointed counsel.
In the material witness context: “Counsel is required so that the material witness may
know precisely what is happening, so that he is aware of the prospect of incarceration,
and so that he is treated fairly by the prosecution.” 181 Despite these clear requirements,
federal authorities have sometimes failed to inform material witnesses they were
interrogating about their right to counsel. Moreover, even when witnesses have
requested counsel, government agents have sometimes delayed for days in providing
counsel, or they have discouraged witnesses from obtaining counsel, suggesting that the
presence of counsel would simply delay the witnesses’ release.
177
HRW/ACLU telephone interview with J. Fredrick Sinclair, attorney for Mohammad al-Qudhaieen, Alexandria,
Virginia, August 17, 2004.
178
Interview with Susan Otto.
179
See, e.g., U.N. Body of Principles, principle 17(1): “A detained person shall be entitled to have the assistance
of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be
provided with reasonable facilities for exercising it.”
180
18 U.S.C. § 3006A(a)(1)(g); In re Class Action Application for Habeas Corpus ex rel. ll Material Witnesses,
612 F.Supp. 940, 943-44 (W.D. Tex. 1985).
181
Ibid.
HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 56