Witness to Abuse - Human Rights Watch

combination with having worked in the same place or attended the same mosque as a
September 11 hijacker, gone to college parties with an accused terrorism suspect,
possessed a copy of Time magazine with Osama bin Laden on the cover, or had the same
common last name as a September 11 hijacker. In some cases, the government’s
argument for flight risk even acknowledged that the witnesses were in fact criminal
suspects—prosecutors contended that witnesses must be incarcerated because of the
magnitude of the crime to which they were connected, or because they presented a
“danger to the community.”
Faced with prosecutors invoking grand jury powers and national security concerns,
federal courts have done little to protect the material witnesses. We are not aware of a
single case in which a court rejected a request for a material witness arrest warrant in a
terrorism-related case since September 11. Indeed, our research suggests the courts
rarely even probed the government’s grounds for believing a witness would not comply
with a subpoena to testify. The courts approved arrest warrants even for witnesses with
strong family ties in the U.S. and who had met with the Federal Bureau of Investigation
(FBI) voluntarily, consented to searches and polygraphs—even gone to the FBI with a
tip. With little scrutiny of the government’s claims, the courts also routinely ordered the
incarceration of witnesses as flight risks and rarely asked whether alternatives to
imprisonment might suffice.
Forty-two of the seventy material witnesses identified during the research for this report
were ultimately released without any charges filed against them. Seven were charged with
providing material support to terrorist organizations; as of May 2005, four had been
convicted, and the other three were awaiting trial. Another twenty witnesses were
charged with non-terrorist-related crimes, such as bank or credit card fraud or making
false statements to the FBI. Twenty-four were deported. Two of the seventy were
designated “enemy combatants”; they were removed from the criminal justice system,
turned over to the Department of Defense, and, as of this writing, remain held without
charges in solitary confinement in military brigs.
The U.S. government apologized to at least thirteen material witnesses for wrongfully
detaining them. It should apologize to many more. But apologies are poor compensation
for loss of liberty, as well as the emotional toll that incarceration has had on the
detainees and their families. Witnesses were traumatized by being held in solitary
confinement with no understanding of why they were there; they were allowed limited, if
any, contact with their wives and children; and they often were subjected to taunts and
sometimes even physical abuse by their guards. Their families were traumatized as
well—fearful for the fate of their husbands, sons, and fathers, and hounded by the
media. The witnesses’ highly public arrests and the government’s suggestions that they
5 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)