Witness to Abuse - Human Rights Watch

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)