Witness to Abuse - Human Rights Watch

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court must assess whether the witness poses a risk of flight and determine whether there are any conditions of release that would reasonably assure his appearance to testify. Incarceration is not the only option; indeed, such complete deprivation of liberty is the least preferred option. There are numerous alternatives, including requiring personal recognizance or bail, reporting requirements, and travel restrictions. 225 The material witness law also includes a preference that a witness be deposed in lieu of confinement. To protect an individual’s liberty interests, international and U.S. law establish a presumption against incarceration. 226 Before September 11, courts generally placed a high burden on the government to prove that material witnesses would not comply with a subpoena. They generally required the government to make a strong case that a witness should be arrested, 227 because “the arrest and detention of a potential witness is just as much an invasion of the person’s security as if she had been arrested on a criminal charge.” 228 The courts frowned on arrests of witnesses unless they had engaged in specific conduct indicating they would not testify. When the government was able to secure an arrest warrant, detention was still far from assured, as the government had the burden of establishing that no conditions of release would reasonably assure the witness’s appearance. 229 In the post-September 11 world, however, the standards that the government has had to meet to arrest and detain witnesses connected to terrorism investigation have been eviscerated. In every material witness case we reviewed, the court has accepted the government’s assertion that it could not obtain the testimony of the witnesses through a subpoena. The Justice Department has secured the arrest and incarceration of individuals with strong family and community ties in the United States, gainful employment, U.S. military service, and, in over a quarter of the cases, U.S. citizenship. Further, most material witnesses, who have been arrested for the asserted purpose of being brought to testify in counter-terrorism proceedings, had previously cooperated voluntarily with the FBI by 225 18 U.S.C. § 3142. 226 For example, art. 14(3) of the ICCPR states: “It shall not be the general rule that persons awaiting trial shall be detained in custody;” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 227 Arnsberg v. United States, 757 F.2d 971, 976 (9th Cir. 1984). 228 Perkins v. Click, 148 F. Supp. 2d 1177, 1183 (D.N.M. 2001). 229 18 U.S.C. § 3142. HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 68
providing interviews, submitting to polygraph examinations, and consenting to have their computers and houses searched. The Justice Department has typically argued that the risk of flight was established by a combination of the witness’s religion, the presence of family overseas (regardless of whether he also had family in the United States), and the seriousness of the crime to which he was allegedly connected. With respect to the last factor, the government has typically intimated or stated outright that the source of the witness’s knowledge was actual involvement in the criminal matter under investigation. Then, the government has argued that the witness was a flight risk precisely because he in fact was a suspect who, according to the government, would run from the prosecution. The trump card, however, has been the claim of national security. Lawyers for many of the material witnesses said that when the government has asserted that national security required incarceration, the courts have been unwilling to probe further and instead ordered incarceration. The case of United States v. Awadallah reflects the post-September 11 willingness to subject witnesses to incarceration. 230 In that case, the United States Court of Appeals for the Second Circuit held that material witness Osama Awadallah was a flight risk despite the fact that he had cooperated with the government, had strong family ties in the United States, and had no record of any criminal wrongdoing. Over a vigorous dissent by Judge Straub, the court ruled there was probable cause that Awadallah was a flight risk because he did not affirmatively step forward to inform the FBI he had known one of the hijackers. 231 230 349 F.3d 42, 53 (2d Cir. 2003). 231 Ibid., p. 70. In his partial dissent and partial concurrence, Judge Straub noted: Once the evidence that was unlawfully obtained from Awadallah on September 20 and 21 is excised from Agent Plunkett's affidavit, the few strands of factual information that would have remained—while sufficient to satisfy the materiality prong of the federal material witness statute—would not have established probable cause to believe that it may have "become impracticable" to secure Awadallah's presence before the grand jury by subpoena. See 18 U.S.C. § 3144. To conclude otherwise, as the majority does, impermissibly fuses the separate statutory materiality and impracticability requirements and has significant implications for Fourth Amendment jurisprudence. I fear that the majority opinion may have the effect of weakening the impracticability requirement—traditionally the more difficult of the two § 3144 prongs to satisfy—by resting its impracticability finding entirely on a slender materiality showing and a number of suppositions (not supported by any facts in the redacted affidavit) about the significance of Awadallah's failure to come forward. Other courts have rejected much stronger impracticability showings. Awadallah, 349 F.2d at 78 (Straub, J. concurring in part and dissenting in part) (internal footnote omitted). 69 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)
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Human Rights Watch June 2005 Vol. 1
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Summary After I got in the cell I w
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were almost all the witnesses Musli
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combination with having worked in t
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Recommendations The recommendations
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o requiring the government to infor
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eflects a compromise between an ind
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the witness for immigration or prob
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those suspected of committing a cri
Page 19 and 20: Arizona, and Florida, where the nin
Page 21 and 22: testimony—you get fingerprints, y
Page 23 and 24: The FBI appeared to believe that Ma
Page 25 and 26: interrogating him, without counsel,
Page 27 and 28: Jose Padilla On May 8, 2002, the Ju
Page 29 and 30: The Justice Department has often st
Page 31 and 32: criticism on the conduct of Assista
Page 33 and 34: government failed to take Diab’s
Page 35 and 36: Eric Sears, a former federal prosec
Page 37 and 38: sentencing. The judge finally got a
Page 39 and 40: accompanied by extensive searches c
Page 41 and 42: and young children. 121 He was deta
Page 43 and 44: High Security Conditions of Detenti
Page 45 and 46: Harassment and Abuse in Jail Many m
Page 47 and 48: uised. See id. In the elevator, the
Page 49 and 50: In practice, then, court approval o
Page 51 and 52: I kept asking what am I being charg
Page 53 and 54: As Mark Foster, the lawyer for one
Page 55 and 56: Federal marshals transferred the ei
Page 57 and 58: [T]he government filed all their pa
Page 59 and 60: Federal agents have also refused to
Page 61 and 62: In many cases, the trauma of forcef
Page 63 and 64: In January 2002, another hotel gues
Page 65 and 66: abuse, international human rights 2
Page 67 and 68: It is not clear why the courts have
Page 69: Things go on behind those doors tha
Page 73 and 74: Detaining Witnesses Who Cooperate w
Page 75 and 76: stayed with the FBI agents for eigh
Page 77 and 78: government, “I’m not coming.”
Page 79 and 80: armed forces for several years and
Page 81 and 82: Congress included the deposition re
Page 83 and 84: X. Haste, Incompetence, Prejudice:
Page 85 and 86: government’s basis was weak. Thes
Page 87 and 88: target, 272 the state police ordere
Page 89 and 90: Khan and Azmath were deported in Ja
Page 91 and 92: told them I told them I had no idea
Page 93 and 94: y subletting their apartment. Altho
Page 95 and 96: The post-scripts to the stories of
Page 97 and 98: I could not ask questions. What’s
Page 99 and 100: Ayub Ali Khan and Mohammad Azmath A
Page 101 and 102: get all these kinds of questions—
Page 103: Human Rights Watch and the American
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Witness to Abuse - Human Rights Watch

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