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IX. Every Witness a Flight Risk

In deciding whether to detain a material witness, there are at least two points at which a court must assess the likelihood that a person whose testimony is sought for a criminal proceeding might not appear to testify. First, in determining whether to issue an arrest warrant the court must decide whether a witness’s appearance can be secured by a subpoena.²²⁴ If the court issues the warrant, at the initial hearing following arrest, the 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 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

On September 21, 2001, the FBI arrested Awadallah, a permanent resident and Jordanian national attending Grossman College in San Diego, alleging that he had information relevant to the September 11 investigation. The FBI located Awadallah after the government linked him to a telephone number found in a car abandoned by one of the suspected hijackers. As the government quickly determined, Awadallah had not used that telephone number for seventeen months.

The day before his arrest, eight government agents visited Awadallah at his house and requested that he join them for questioning. According to the government, Awadallah “was very, very cooperative,” consented to eight hours of voluntarily questioning, and allowed the government to search his car.²³² The next day, while Awadallah was voluntarily at FBI headquarters, the FBI applied for a material witness warrant to arrest him. The government argued that “if [Awadallah] is not detained, there is no assurance that he would appear in the grand jury as directed,” because he “maintain[s] substantial family ties in Jordan and elsewhere overseas,” and because he had beena co-worker with two of the hijackers.

Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York reviewed Awadallah’s material witness warrant in a collateral proceeding and ruled it was invalid. She found, among other things, that the government failed to establish that there was probable cause to believe that Awadallah would not comply with a subpoena to testify.The court pointed to Awadallah’s family ties (his U.S. citizen father and three brothers in San Diego, one of whom is also U.S. citizen), his previous cooperation with the FBI, and the absence of any prior conduct that would subject him to prosecution.

The Second Circuit reversed Judge Scheindlin’s decision and held that the material witness warrant was valid. The court ruled there was probable cause that Awadallah was a flight risk because “in the wake of a mass atrocity and in the midst of an investigation that galvanized the nation, Awadallah did not step forward to share information he had about one or more of the hijackers, whose names and faces had been widely publicized across the country.”²³³ The court made no mention of his voluntary interviews with the FBI, government admissions that he was “cooperative,” his legal immigration status, or his family ties.

Detaining Witnesses Who Cooperate with the Government

Before their arrest, more than two-thirds of the material witnesses arrested in connection with post-September 11 counterterrorism investigations had either initiated contact with the FBI or, when asked, had readily agreed to be interviewed. Awadallah is one of numerous witnesses who, prior to their arrests, had agreed to multiple interviews that lasted hours and consented to the government’s requests to search their property. They have been taken by surprise by their arrests, because the officers who arrested them had been friendly and thankful for their cooperation just hours earlier. Although most of the documents remain under seal, the accounts of witnesses and their lawyers suggest that the government has largely been relying on the magnitude of the crimes to which the witnesses were allegedly connected in order to detain them.

Eyad Mustafa Alrababah

Eyad Mustafa Alrababah went to the FBI office in Bridgeport, Connecticut on September 29, 2001, to inform authorities that he had recognized four of the alleged hijackers whose pictures were shown on television. He told the FBI agents that in March 2001 he had met the men at his Connecticut mosque, hosted them at his home, and in June 2001, drove them from Virginia to Connecticut. He had not seen them since then and had no prior knowledge of the attacks. After two FBI agents questioned Alrababah at an FBI office, they arrested him as a material witness later the same day, shackling him and taking him to the Hartford Correctional Center, where he was held for about twenty days. At the detention facility, Alrababah was placed in isolation and was strip - and cavity-searched at least once a week. Alrababah was not brought before a judge until a month after his arrest. ²³⁴ He was never called to testify in any criminal proceeding.

Mujahid Menepta

Mujahid Menepta, who attended the same mosque as Zaccarias Moussaoui in Norman, Oklahoma, voluntarily met and talked with the government three times in September and October 2001 before the government arrested him as a material witness on October 10, 2001. Menepta, a sixty-year-old U.S. citizen and convert to Islam with two U.S. citizen sons, had stepped forward to talk to the press that had gathered outside his mosque after September 11 because he wanted to protect the younger Muslims, many of whom were immigrants, from the suspicion that was being cast upon them in the wake of September 11. According to Menepta:

After the press talk, the FBI approached me. They told me: “We’d like to ask you a couple of questions. Will you meet us?” I told them sure.

I met them outside the subway with [my son]. They told me: “It is in your best interest that you cooperate.” I said I’d be happy to. … They ended the interview by telling me: “We will get back to you with questions and thank you for cooperating.”

The agents were really friendly. I went voluntarily. They asked whether I had any travel plans. I told them I don’t have any now. I was working. They asked to meet again.²³⁵

Menepta met with the agents for three more interviews before more than twenty agents arrested him at his workplace.²³⁶ In court, the Justice Department argued that Menepta was not likely to respond to a subpoena because the government had already arrested him and executed a search warrant on his premises. Then, U.S. attorneys argued that because their actions may have upset Menepta, he would not appear in court. His lawyer, Susan Otto, characterized the government’s arguments as an illogical “round robin bootstrap.” ²³⁷ The federal prosecutors further argued that there was additional national security evidence that it could not disclose that showed Menepta was a flight risk.

Otto said the court, somewhat reluctantly, deferred to the government’s flight risk assessment given the national security argument. The government held Menepta as a material witness for five weeks. He was later charged with unauthorized possession of firearms found during the search of his home.

Faisal al Salmi

The Justice Department acknowledged how cooperative Faisal al Salmi, a Saudi national and legal immigrant, was before he was arrested as a material witness. According to the FBI, when agents approached al Salmi on September 18, 2001, he voluntarily invited the agents into his home. He later went to the FBI offices and agreed to be interviewed. He stayed with the FBI agents for eight hours. In addition, al Salmi agreed to be polygraphed without the presence of a lawyer. Special Agent for the FBI, George Piro, testified in court to al Salmi’s helpful demeanor:

Q:        And as you approached the apartment, how is it that you had access to the apartment?

A:         Agent Williams and I knocked on the front door.

Q:        And were you invited in or not?

A:         Yes we were.

Q:        Did you introduce yourself?

A:         Yes I did.

Q:        What else did you do after you introduced yourself?

A:         I showed al Salmi my credentials identifying myself as an agent of the FBI, as did Special Agent Ken Williams.

Q:        And did you in any way inform al Salmi as to the purpose of your visit?

A:         Yes, we did.

Q:        What did you tell him?

A:         We told him we were there to talk to him in regards to his enrollment at Sawyer Aviation and to the September 11^th attacks

…

Q:        When you entered the apartment and identified the purpose for your visit, how would you describe al Salmi’s demeanor when you notified him you were with the FBI?

A:         He was calm and friendly.

Q:        Did he appear nervous?

A:         No, not at all.

…

Q:        And the polygraph interview continued until almost 2 o’clock that morning, following morning?

A:         I believe the interview went till approximately 1:30, and at that point I made arrangements to take al Salmi home, and I think we left around 2:00 and got him home by 2:30.

Q:        Did you discuss with al Salmi the possibility of speaking with him again?

A:         Yes.

Q:        Did he agree to speak with you again?

A:         Yes.²³⁸

Two days later, on September 20, 2001, federal agents arrested al Salmi as a material witness.²³⁹ He was dismissed as a witness on October 10, 2001 after being held in solitary confinement in New York and Arizona prisons.

Mohammad Warsame

Material witness Mohammad Warsame met willingly with the FBI at its request prior to his arrest. In its own court filings, the Justice Department confirmed that:

On or about December 8, 2003, FBI agents in Minneapolis, Minnesota, approached an individual whom they had previously identified as Mohammed Abdullah Warsame. After being approached, Warsame voluntarily agreed to speak with the FBI agents, and was subsequently interviewed by them.²⁴⁰

The FBI nonetheless maintained at his detention hearing that he was a flight risk. In court, the prosecution gave no weight to the fact that Warsame was a Canadian citizen and a U.S. legal permanent resident and had lived with his wife and small child in Minneapolis, Minnesota for several years. According to the lawyer who represented Warsame:

There was absolutely no indication he would not appear in front of a grand jury voluntarily. The government has admitted that he talked with the government voluntarily. A subpoena would have been good enough. Never to this day do I know why the government considered him a flight risk. …

I worked on a number of material witness cases before. In the other cases, the government always presented clear evidence that the witness would flee—that he missed a court appearance or literally said to the government, “I’m not coming.” Never before had I seen a material witness thrown in jail like this with no criminal charge and with no real risk of flight.²⁴¹

Ignoring Material Witnesses’ Strong Community and Family Ties to the United States

The Justice Department has sought material witness warrants for people who have strong ties in the United States, jailing witnesses who were the primary caretakers for their wives, children, and parents in the United States and who had deep roots in their communities. Prior to September 11, and in the context of non-terrorist investigations, such factors would weigh heavily against the contention that a witness was a flight risk. Almost all the material witnesses held in post-September 11 counterterrorism investigations had valid visas, and one-quarter of them were U.S. citizens; these factors historically would also have weighed against the suggestion of flight risk. Lawyers for material witnesses consistently said courts overlooked these factors because of national security arguments.

Abdalmuhssin el-Yacoubi, Mohammad Hassan el-Yacoubi, and Mohammed Osman Idris

In December 2001, the government detained U.S. citizens Abdalmuhssin el-Yacoubi, Mohammad Hassan el-Yacoubi, and Mohammed Osman Idris as material witnesses. All three were born and raised in the United States, lived in Virginia, and had their entire immediate families there. The Justice Department arrested Virginia residents Mohammad el-Yacoubi and Idris at the airport en route to Israel. The arrest followed the discovery by airport authorities of a note in Arabic in Mohammad el-Yacoubi’s luggage that led federal officials to believe that the two may have been planning a suicide mission.²⁴² The government then arrested Mohammad el-Yacoubi’s brother, Abdalmuhssin el-Yacoubi, a student at the University of Virginia, who had written the note. After six weeks in detention, the el-Yacoubi brothers were released without charges and without ever having been brought before a grand jury. Idris was also held as a material witness for six weeks. The government subsequently charged Idris with making false statements on a passport application.

According to the lawyer for Idris, the Justice Department never offered any specific reasons to believe either of the brothers or Idris would be a flight risk: “The government argues his appearance can’t be assured: Why? He’s a US citizen! He had no criminal history. They said it was in the interest of national security.”²⁴³ All documents and transcripts in the case are sealed.

As a result of the detention and terrorism allegations, students at the University of Virginia were suspicious and hostile to el-Yacoubi when he returned to school.He tried to explain how the government mischaracterized and mistranslated his letter,²⁴⁴ but students did not relent in their suspicions of him.²⁴⁵ Shortly after his release from detention, he left the school.²⁴⁶

Magnitude of the Crime

As discussed above, the case of Brandon Mayfield is a stark example of the use of the material witness statute to incarcerate criminal suspects. Given its suspicions about Mayfield, the government ignored factors that should have militated against his arrest and detention.

The government’s argument that Brandon Mayfield would not comply with a subpoena and was a flight risk confounded his attorneys. Mayfield was a U.S. citizen, married to a U.S. citizen, and a father of three U.S. citizen children. He was an officer of the court and had practiced law in Oregon for almost four years. Mayfield had served in the U.S. armed forces for several years and had no criminal record. He had not left the country in almost ten years and possessed only an expired passport.

In Mayfield’s case, the lack of evidence that he had traveled outside the United States became the basis for the government’s argument that he was a flight risk. Having asserted that it had positively matched Mayfield to a fingerprint found in Spain, the government contended that the absence of a valid passport or record of travel had to mean that Mayfield possessed false documents (though none had been found in searches of his home, office, and safe deposit box). As to why Mayfield would flee, the government baldly pointed to his status as a suspected terrorist:

Since no record of travel or travel documents have been found in the name of BRANDON BIERI MAYFIELD, it is believed that MAYFIELD may have traveled under a false or fictitious name, with false or fictitious documents … I believe that based upon the likelihood of false travel documents in existence, and the serious nature of the potential charges, MAYFIELD may attempt to flee the country if served with a subpoena to appear before the federal grand jury. Affiant believes that if a material witness arrest warrant is not issued at this time, MAYFIELD’s testimony will probably be lost to the Grand Jury and will probably not be available in any subsequent criminal proceeding in the United States.²⁴⁷

The court accepted the government’s allegations. According to the transcripts, Mayfield, and his attorneys, the presiding judge also appeared to rely on the magnitude of the alleged crime to determine that Mayfield was a flight risk. When Brandon Mayfield challenged his detention in his first court appearance and assured the judge that he would testify, the judge refused his requests for release stating, “We are looking at [a] very serious situation. I will have to hold you.”²⁴⁸ At the conclusion of the hearing, the court elaborated:

My finding is, because of the gravity of the matter, there is no way that I can ensure the appearance, in spite of good words, and the situation of this material witness at this time, if that is his fingerprint with the 200-plus dead people and 1,500 injured and potential call on the witness to Spain, I’m not going to release this material witness until the testimony is complete.²⁴⁹

Former U.S. Attorney Mary Jo White told HRW/ACLU that the magnitude of the crime was an important factor to consider in a flight risk determination: “Part of what makes you a flight risk is that with the magnitude of the crime you have fear that you will be charged.”²⁵⁰

The magnitude of the crime may be a valid consideration in determining the conditions under which a criminal suspect might be released. But the nature of the crime at issue is an impermissible factor to consider when considering the detention of a witness.²⁵¹ What remains a mystery is why, given the strong evidence it thought it had against Mayfield, the government did not arrest him on criminal charges. In most of the other material witness cases, the government had hardly any evidence to support its suspicions which may explain why it chose to circumvent the requirement of probable cause by using the material witness statute. The government could appropriately have taken the magnitude of the alleged crime into account by setting bail terms for Mayfield rather than using it as a basis for incarceration as a material witness.

Failure to Depose Witnesses

Consistent with its intent that material witnesses be incarcerated only as a last resort, Congress included in the material witness law a prohibition on detention if a deposition would suffice to secure the witness’s testimony. The law provides in relevant part: “No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.”²⁵² Such a provision, of course, is rendered all but meaningless when the law is used to hold suspects rather than witnesses. And this is what has happened when the law has been applied in the terrorism context since September 11.

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 the government to provide deposition testimony, the government moved him to Eastern District of Virginia … The post September 11 context is drastically different. Before, the government takes an individual’s deposition, and releases him or her, unless required by trial. The government, in non-September 11 cases, had no reticence in taking a deposition.²⁵⁵

Material witness Ali Ahmed languished in jail for months while the government refused to take his deposition. His lawyer, Steve Swift, who had also represented several material witnesses before September 11, contrasted the government’s treatment of Ahmed with his other non-terrorism-related material witness clients:

Ahmed dragged out more. No one wanted to take his deposition. There were rumors, thoughts, and suspicions about his involvement in terrorism. He never got a deposition—it was just dragged out.

But before September 11 the government was quick to let go of those witnesses. Some of those were released real quick. They would appear at the courthouse for a deposition within two weeks of their arrest. ²⁵⁶

Susan Otto, who represented material witness Mujahid Menepta, also told HRW/ACLU the deposition alternative was not even on the table. A few days after Menepta was arrested, Otto raised the possibility of a deposition to the Oklahoma-based federal prosecutors. But the “government made clear that it was not an option in this case.” According to Otto, the U.S. attorneys in New York called the shots and flatly refused to depose Menepta.²⁵⁷