Witness to Abuse - Human Rights Watch

It is not clear why the courts have tended to give such short shrift to the principle of
public proceedings in the post-September 11 material witness cases. Grand jury
jurisprudence does not support the argument that all material witness records be sealed.
Grand jury rules only require secrecy for material witness records that pertain to
“matter[s] occurring before a grand jury.” 210 Courts have traditionally interpreted this
rule narrowly to cover only documents that reveal “the essence of what took place in the
grand jury room.” 211 Much of the information contained in the government’s
applications to arrest material witnesses has had nothing to do with the grand jury room
because the witness had not yet testified and, indeed, in a number of cases a grand jury
had not yet even been convened when the witness was arrested. In addition, records and
evidence concerning a witness’s potential flight risk are not necessarily relevant to
“matters occurring” before a grand jury. Moreover, courts are required to balance
arguments for secrecy against the right to a presumptively public detention hearing. 212
Nonetheless, most courts have acquiesced to the government’s insistence that all records
and information pertaining to the material witness arrests be kept under seal. Courts
have repeatedly rebuffed news organizations’ attempts to confirm whether witnesses
were jailed, much less allow them to cover federal court proceedings that are usually
open. 213 As one reporter who attempted to cover the detention of U.S. citizen James
Ujaama commented:
It just made it extremely frustrating, really, impossible to write anything
intelligent about what was happening to this [material witness] and why.
To be in a situation where people who are holding a citizen in custody
cannot even acknowledge that they are holding that person is frankly
scary. I’ve been a reporter for twenty-two years, and I’ve never seen
anything like that. 214
re Material Witness Warrant Nichols, 77 F.3d 1277, (10th Cir. 1996); United States v. McVeigh, 940 F.Supp.
1541, 1562 (D.Colo.1996).
210
Fed.R.Crim. P. 6(e)(6). The rule provides that records related to grand jury proceedings documents “must be
kept under seal to the extent and as long as necessary to prevent unauthorized disclosure of a matter occurring
before a grand jury.”
211
In re Grand Jury Subpoena (Under Seal), 920 F.2d 235, 242-43 (4th Cir. 1990).
212
In re Application of the United States for Material Witness Warrant for Material Witness No. 38, 214 F. Supp.
2d 356, 364 (S.D.N.Y. 2001).
213
Brett Zongker, “Hamas Suspects’ Case to Be Heard in Closed Session,” Washington Times, Aug. 27, 2004
(reporting on decision to close detention hearing of Islam Selim Elbarasse).
214
Jennifer LaFleur, “Material Witness Label Keeps Detainees in, Media out,” The News Media and the Law, Fall
2002.
65 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)