Witness to Abuse - Human Rights Watch

Congress included the deposition requirement in the material witness law because “it
puts much greater emphasis on release.” 253 As one court stated in a non-post-September
11 material witness case, depositions provide the “keys to the jailhouse door.” 254
In the post-September 11 counterterrorism context, the deposition option has not been
a key to opening the jailhouse door. The Justice Department has consistently opposed
depositions or stalled in taking them. This evasion of the basic requirements of the
material witness law is further evidence that the government’s primary goal has not been
to secure the witness’s testimony, but to ensure the witness remained incarcerated while
the government continued its investigations. When courts threatened to order a
deposition, the government has typically relied again on the sensitive nature of the case
and unspecified national security concerns to persuade the courts to keep the witness
detained. And when courts have ordered depositions, the government has sometimes
evaded the order (and the attendant obligation to release the witnesses) by transferring
the witnesses from one jurisdiction to another or by criminally charging them, which it
should have done in the first place if it had the requisite evidence.
When Daniel Sears, attorney for material witness James Ujaama, requested to have his
client deposed in Colorado he hit a wall both in court and with the Justice Department.
Sears, a former prosecutor who had represented a number of material witnesses before
September 11, described to HRW/ACLU the response of the government and court to
his request to have his client deposed:
The requirement that a material witness is only permitted to be detained
only when the government can’t get his testimony by deposition was
unavailable in this case. The court would barely hear my argument—it
[was] waived on the ground of national security. And when we offered
253
In enacting the current version of the material witness law, Congress made clear that “whenever possible, the
depositions of witnesses should be obtained so that they may be released from custody.” As one Congressman
explained when the deposition requirement was explicitly added to the material witness statute:
This, in effect, would say that the Congress feels that you should ordinarily not detain
material witnesses. They have committed no crime, except to have been at the wrong place
at the wrong time, and we have had some recent instances … where apparently material
witnesses were unhappily detained for several months to testify in connection with the
crime that [they] felt that [they] had any connection with except knowledge. … And the idea
here is that the Congress would feel that it should be the exceptional case where a material
witness should be detained, and that unless for some reason the testimony cannot be
adequately secured by deposition, the individual should be released.
Federal Bail Reform, Hearings before the Committee on the Judiciary, House of Representatives, 89th
Congress, Second Session, p. 29 (March 9-16, 1966).
254
United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D. Cal. 2003).
79 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)