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III. Misuse of the Material Witness Law to Hold Suspects as Witnesses

After September 11, then Attorney General John Ashcroft insisted the Justice Department “think outside the box” to combat terrorism. The Justice Department has adopted a “prevent first, prosecute second”strategy, which has included efforts to detain through whatever means possible people who might be connected to terrorist organizations.38 Federal agents have swept through Muslim communities to pick up suspects often based on leads that, according to the Justice Department Inspector General’s subsequent report, “were often quite general in nature, such as a landlord reporting suspicious activity by an Arab tenant.”39

Lacking in most cases sufficient evidence to obtain criminal arrest warrants, the Justice Department has used other means to secure these detentions. Whenever possible, the Justice Department has used routine immigration violations, such as working on a student visa, to detain Muslim men suspected of links to or knowledge about terrorism.40 Through manipulation of procedure and abuse of its authority to use detention to carry out deportations, the Justice Department has held these “special interest” detainees until they have been “cleared” of ties to terrorism.41

From the beginning of the September 11 investigation, U.S. government officials have made clear that they used the material witness law to detain suspects in the war on terror. Then Attorney General John Ashcroft explained: “Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks.”42 Then White House Counsel Alberto Gonzales (now Attorney General) stated that as a matter of course the executive branch routinely considers whether to detain al-Qaeda suspects as material witnesses: “In any case where it appears that a U.S. citizen captured within the United States may be an al-Qaeda operative and thus may qualify as an enemy combatant, information on the individual is developed and numerous options are considered by the various relevant agencies (the Department of Defense, [Central Intelligence Agency] and [Department of Justice]), including the potential for a criminal prosecution, detention as a material witness, and detention as an enemy combatant.”43 Gonzales emphasized that the choice of law used to detain a suspected al-Qaeda operative was an exercise of presidential power of discretion and that there was “no rigid process for making such determinations—certainly no particular mechanism required by law.”44

Robert Mueller, who headed the FBI during the September 11 investigation, acknowledged that material witnesses were suspects in the counter-terrorism investigation: “In the United States, a number of suspects were detained on federal, state, or local charges; on immigration violations; or on material witness warrants.”45 The Inspector General of the Department of Justice confirmed the policy of using the material witness law to jail suspects while investigating them in the September 11 investigation.46 According to then Assistant Attorney General Michael Chertoff, the Justice Department has considered material witness warrants to be “an important investigative tool in the war on terrorism … Bear in mind that you get not only testimony—you get fingerprints, you get hair samples—so there’s all kinds of evidence you can get from a witness.”47

In an interview with HRW/ACLU, former chief U.S. Attorney for the Southern District of New York Mary Jo White, a key architect of the post-September 11 material witness policy, strongly defended the use of the material witness law to detain possible terrorist suspects. While pointing out that the United States does not have laws permitting detention of criminal suspects without charges, she noted that “the material witness statute gives the [U.S.] government effectively the same power … To the extent that it is a suspect involved in terror, you hold them on a material witness warrant, and you get the information until you find out what’s going on.”48 According to White, holding someone as a material witness has given the government the time it needed “to get important information.”49 She dismissed as simply not feasible the suggestion that the government could have conducted surveillance on the suspects to ensure they did not engage in criminal activity or abscond, while it continued to gather evidence about them.50

In enacting the material witness law, however, Congress did not authorize its use to detain criminal suspects for whom probable cause is lacking. Rather, the law allows detention only to obtain the testimony of witnesses. As the Court of Appeals for the Second Circuit admonished in 2003: “[I]t would be improper for the government to use [the material witness law] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.”51 Yet that is exactly what the Department of Justice has done since September 11.

Suspects Held as Witnesses

Many of the material witnesses held in connection with counterterrorism investigations since September 11 have been the key or sole suspect in criminal investigations. In court filings to support the arrest of material witnesses, the FBI has submitted affidavits replete with statements that the witness was potentially a major player or a co-conspirator in a terrorism-related crime. In a number of these cases, the government has sought the witness’s testimony in a grand jury proceeding it initiated solely to investigate the witness himself.

Prior to September 11, relatively few criminal defense lawyers had experience with the material witness law, because it was so rarely used by the FBI at all, let alone to hold criminal suspects. But those who had material witness clients both before and after September 11 were stunned by the transformation in the law’s use in the counter-terrorism context. As one attorney told HRW/ACLU:

I’ve represented a number of material witnesses before September 11 in regular crimes. None of them were ever alleged to have done the crimes. I’ve never seen the law used this way—in the Department of Homeland game we are in now. What’s changed is that before September 11 a witness is just a witness. He’s not a criminal. In what’s going on the government is treating the witness as a criminal—it’s presumed now that because they have information that they are somewhat involved.52

Brandon Mayfield

When the FBI took Oregon attorney and Muslim convert Brandon Mayfield into custody as a material witness in May 2004, Mayfield was the primary public U.S. suspect in the FBI’s investigation of the March 2004 Madrid train bombing. After more than a month of bugging the Mayfield family residence, conducting secret searches of Mayfield’s home and office, collecting his DNA, and keeping him under surveillance,53 the FBI obtained a material witness warrant to arrest him.

The FBI appeared to believe that Mayfield—a U.S. citizen, a veteran of the U.S. Army, and a father of three—was a perpetrator of the bombing because its experts had made a “100 percent positive identification” of Mayfield’s fingerprint with a print found on a bag of detonators found near the Madrid bombing site.54 In seekingsearchwarrantsfor Mayfield’s home, cars, safe deposit box, and law office, the Justice Department identified him as a “potential target;” the lead FBI agent in the case told the court that he expected to yield evidence of bombs and conspiracy to commit bombings through the search.55 At the time the Justice Department arrested Mayfield, it had not yet convened a grand jury investigation. It told the court it would select and convene a grand jury the following week.

After detaining Mayfield for more than two weeks in jail and holding him under house arrest for an additional week, the Justice Department on May 24, 2004, moved to have him dismissed as a material witness because Spanish authorities had apprehended an Algerian man whose print matched the Madrid print. The FBI subsequently admitted that it had mismatched Mayfield’s print, and it issued an “apolog[y] to Mr. Mayfield and his family for the hardships that this matter has caused.”56

A panel of international experts, convened by the FBI, has since rebuked the fingerprint experts for succumbing to institutional pressure to make a false identification.57 At the urging Congress, the Department of Justice’s Office of Inspector General and Office of Professional Responsibility began an investigation, still not completed as of mid-June 2005, of the conduct of the U.S. Attorneys and the FBI in the Mayfield case.

Tajammul Bhatti

On June 20, 2002, several FBI agents with guns drawn arrested as a material witness Dr. Tajammul Bhatti, a sixty-eight-year-old physician and a U.S. citizen since 1970.58 In sealed court documents the FBI alleged that Bhatti was connected to an investigation of “material support to terrorists.” Bhatti was arrested as the only suspect in a grand jury criminal proceeding that had not yet been instituted at the time of his arrest.59

Bhatti became the focus of an FBI investigation in May 2002 when several of his neighbors, considering him “suspicious,” convinced his landlord to break into his apartment in Abingdon, Virginia.60 Upon finding computer equipment and books on electronics and flying, his neighbors contacted the FBI. Without Bhatti’s knowledge, the FBI obtained secret warrants to search his apartment and computers. According to Bhatti and a newspaper reporter who reviewed the sealed warrant and affidavit, the Department of Justice used “evidence” they found from this search to apply for a material witness arrest warrant. The evidence included: a New York Times article in Bhatti’s computer describing in detail the “dirty bomb” allegations against terrorism suspect Jose Padilla, a phone number in Bhatti’s address book of an old college friend from Pakistan who now works for Pakistan’s nuclear commission, magazines on planes and electronics, his multiple computers, shotgun shells, and an antenna wire.61

Bhatti’s son, Munir Bhatti, told HRW/ACLU that “the FBI told me [my father] was the suspect, not a witness to anything. The FBI said he may have a link to al-Qaeda.”62 After taking Bhatti to FBI headquarters following his arrest, agents spent several hours interrogating him, without counsel, about his personal activities, travels, political beliefs, views on Israel, and attendance at a mosque. “The impression I got was that they thought I was part of a sleeper cell,” Bhatti told HRW/ACLU.63

Bhatti explained to the FBI that he had lived in the United States since the 1960s and had worked as a doctor in a veterans’ hospital for twenty years. He told the agents he had not practiced Islam for years and that his interest in planes dated back to his four-year service in the U.S. Air Force National Guard. Bhatti also told the FBI that he was college buddies with the Pakistan nuclear scientist in the late 1950s and had not been in touch with him since the 1980s.64

Bhatti was jailed as a witness for six days. He slept on the concrete floor because the jailhad no free beds.65 Following a local media and advocacy campaign waged by his son, the court finally released Bhatti on strict, supervised release conditions. Munir Bhatti described to HRW/ACLU the effort to free his father:

I was on the phone twenty-four hours a day. I wanted to make sure he was being represented. I realized that if they want to make a case, they probably can. It doesn’t take much to be a witness. So I wanted to make sure my dad was fully protected. My fear was that he would be designated an enemy combatant and shipped off to Cuba at anytime. Part of me felt helpless; there was nothing I could do to stop it though—because everything was under seal. It was stressful … And I did not know what was going on. My dad was not allowed to call me.66

Almost a month after his release, the government called Bhatti to testify in front of a grand jury. He invoked the Fifth Amendment right against self-incrimination after it became clear to him that the grand jury was investigating his conduct. The government never charged Bhatti with a crime nor called him to testify again.67

Abdallah Higazy

The government arrested Abdallah Higazy as a material witness in December 2001 because it believed it had evidence suggesting his involvement with the September 11 attacks. Higazy, an Egyptian graduate student, was in the United States on a grant from the U.S. Agency for International Development (USAID) to pursue graduate studies at Brooklyn Polytechnic.68 On the recommendation of USAID, during his orientation he stayed in the Millennium Hotel in New York City, located near the World Trade Center. He happened to be there on September 11, 2001, while waiting for his permanent housing. Following the attacks and evacuation of the hotel, a hotel security guard claimed (falsely it turned out) that he had found a pilot’s air-land radio in a safe in the room where Higazy had stayed. The Justice Department had received reports that the hijackers had received assistance from people in buildings close to the World Trade Center. In light of the radio purportedly found in Higazy’s room, Justice Department officials believed that Higazy might have sent transmissions to the hijackers who attacked the World Trade Center or received transmissions from them.69 In essence, the government suspected Higazy was a terrorist conspirator, not a mere witness.

A month later the real owner of the radio, an airline pilot, came forward to claim his radio from the hotel. It turned out the radio had been planted in Higazy’s room by a hotel security guard who was inventorying items hotel guests left in the hotel after they were evacuated on September 11; the guard found the transceiver in another room but claimed to have found it with Higazy’s belongings.70 After detaining Higazy in solitary confinement for more than a month; obtaining a coerced, false confession from him in an interrogation without counsel;71 and criminally charging him with making false statements to the FBI, the government released Higazy in January 2002, thirty-four days after his arrest.

Jose Padilla

On May 8, 2002, the Justice Department arrested U.S. citizen and Muslim convert Jose Padilla on a material witness warrant as he got off a commercial airliner at Chicago O’Hare International Airport after having traveled through Europe and the Middle East. Federal officials believed he had conferred with al-Qaeda leaders about plans to detonate a radiological “dirty bomb” within the United States.72 One month later, after extensive court litigation, and just as a federal court was going to consider a motion to release Padilla, President Bush designated him as an enemy combatant.73 Padilla was then transferred to a military brig in South Carolina, where he has been held ever since without charges or trial.74

The information used to support the designation of Padilla as an enemy combatant was “essentially the same information which had been provided to the judge who issued the material witness warrant.”75 The government believed that al-Qaeda members “directed Padilla to return to the United States to conduct reconnaissance and/or other attacks on behalf of Al Qaeda” and that he planned to “build and detonate a ‘radiological dispersal device’ … within the United States, possibly in D.C.”76 Secretary Donald Rumsfeld described Padilla as “an individual who unquestionably was involved in terrorist activities against the United States.”77

Prolonged Incarceration and Undue Delays in Presenting Witnesses to Grand Juries

The material witness law does not state a specific limitation on the length of time a witness may be detained before testifying. However, such detentions should not extend beyond the time needed to present the witness or secure his testimony through deposition.

Under international law, administrative detention78 may not be indefinite, and under U.S. law, any detention, especially non-punitive detention, must be narrowly tailored.79 If the government has held the post-September 11 material witnesses solely to secure their testimony before grand juries, as it has claimed, the detentions should have been quite short. But according to the Justice Department itself, over half of the witnesses it has arrested in the September 11 investigation have been held for more than thirty days.80 Our research indicates that more than one-third of the material witnesses held in connection with post-September 11 terrorism investigations have been held for two months or more, often in solitary confinement. Our research also indicates that the government has unnecessarily prolonged the detention of the witnesses in order to question them as well as conduct other investigations about them.

For example, Abdullah Tuwalah was held for six weeks without testifying, Nabil Al-Marabh for three months, Eyad Alrababah for four months. Even when witnesses were eventually brought before a grand jury, they frequently spent months in detention first—e.g., Uzair Paracha spent five months in detention; Zuheir Rouissi, six months.

The Justice Department has often stalled when courts pressed it to secure the witnesses’ testimony—it has sought continuances and looked for ways to delay the testimony. Meanwhile, it has continued to interrogate the witnesses and gather information about them from other sources, as if they were suspects. While the Justice Department has stalled for time, the witnesses have endured incarceration, as illustrated by the following examples.

Abdullah Tuwalah

 In 2001, Saudi national Abdullah Tuwalah was a scholarship student at Marymount University in Arlington, Virginia. The Department of Justice arrested Tuwalah on the allegation that he had information material to the grand jury investigation of Saleh Ali Almari, another student who had been briefly enrolled at Marymount. The FBI connected Tuwalah to Almari because Tuwalah had met Almari through the Arab social club on campus.81 Although counsel for Tuwalah repeatedly informed the federal attorneys handling the case that he was ready to testify, the government refused to present him to the grand jury. Instead, according to his attorney, “the government just kept interviewing him.”82 During the six weeks Tuwalah was incarcerated as a material witness, the FBI interviewed him multiple times; Tuwalah even agreed to a polygraph. According to his lawyer:

The FBI interrogated him seven times and it was clear from the beginning that he was cooperative. He said that he would come in voluntarily and would cooperate during interviews. I’ve never seen interview questions like this. The questions would go like this: the FBI would not even ask questions they would just say “well he knows something” and we’d respond “he knows what?” and then the FBI would come back and say “he knows.” The interviews were ridiculous.

Tuwalah never testified. The grand jury was convened but they never put him on the stand. His lawyer said, “They wanted to investigate him to see if he had anything or to say he had something. They were trying to put together a mosaic of information—trying to piece him together with anybody who knew anything.”83

Tuwalah was never charged with any crime and has since returned to Marymount to complete his studies. The government never brought terrorism-related criminal charges against Almari.84

Ali Ibrahim Ahmed

Ali Ibrahim Ahmed was one of the material witnesses jailed in connection with the controversial Detroit “sleeper cell” case, United States v. Karim Koubriti.85 In that case, the defendants were convicted of providing material support to terrorists by acting as a “sleeper cell”86—charges that were later thrown out because of prosecutorial misconduct.During the pre-trial proceedings, the government jailed Ahmed for three months.87 The material witness warrant did not specify whether the government was holding Ahmed for the trial or for grand jury proceedings. Ahmed’s attorney believes the only purpose of Ahmed’s incarceration as a material witness was to give the government time to investigate his possible involvement in the Sleeper Cell:

The biggest issue was the time period that he was being held while not being brought before a grand jury. It took the government two to three months to bring Ahmed before a grand jury. … The government was looking at these cases to see how big a deal he will be. They wanted to keep their options open-investigate a case against him before they make a decision.88

On September 1, 2004, the District Court dismissed the June 2003 convictions of Karim Koubriti and Abdel-Ilah Elmardoudi because a Justice Department report found widespread prosecutorial misconduct in the case, including misrepresentation of evidence and misleading of the court.89 The Justice Department’s report focused its criticism on the conduct of Assistant United States Attorney John Convertino, who authorized and signed the government’s application to arrest Ahmed and Rouissi as material witnesses.90

Nabil al-Marabh

Nabil al-Marabh was also ostensibly held as a material witness in the Koubriti case. Press accounts indicate that federal agents considered him a key terrorism suspect in the Detroit Sleeper Cell investigation, placing him high on the FBI’s most-wanted list.91 Al-Marabh was incarcerated as a material witness for threemonths; he was held in the high-security federal detention facility in Chicago.92His lawyer was not permitted to see any documents justifying the material witness arrest. He filed four motions with the court to release al-Marabh and to expedite his testimony. The government did not respond to any of these motions, and the court never ordered it to do so. According to al-Marabh’s lawyer:

The case was unusual in the sense that the government used the material witness law for a purpose for which it was not designed. The government never had the intent to put Nabil in front of a grand jury. There was no reason for the continuances. He said he was willing to testify, ready to testify, and would appear as a witness. I can’t see a legitimate reason for not having him appear in front of a grand jury. He was ready to give his testimony.93

After Meyer’s fourth motion to the court, the government transferred al-Marabh to Detroit, still holding him as a material witness.There is no record of him testifying and the government never charged him with any terrorism-related crime. He was then arrested on immigration charges and ultimately deported to Syria in 2004.94 While he was in jail, his mother died of a stroke.95 And after he was deported, he was soon arrested and detained by the Syrian police and disappeared; while his family had brief contact with him upon his deportation, they have had no contact with him at all in almost a year and do not know what has happened to him.96

Continued Restrictions on Liberty after Release

Some material witnesses were released from detention but continued to be subjected to conditions restricting their liberty. In these cases too, the restrictions lasted far longer than necessary to secure testimony in a criminal proceeding.

Ismail Diab

As of June 2005, the government still has not obtained the testimony of material witness and U.S. citizen Dr. Ismail Diab, although Diab has had his liberty restricted—by incarceration and then supervised release—for almost eighteen months.97

On March 1, 2003, the government arrested Diab, a researcher in animal genetics, in Syracuse, New York, where he lives with his wife and three children.98 The government alleged Diab had testimony relevant to the criminal case against four defendants facing trial for conspiring to violate U.S. economic sanctions against Iraq through their donations to and solicitations for Help the Needy, a charity that has supported orphans and poor children in Iraq since 1995.99

Within a week after his arrest as a material witness, the district court released fifty-two-year-old Diab on a $20,000 bond, under the conditions that he wear an electronic monitoring bracelet, be largely confined to his home, surrender his passport, and remain subject to a curfew until the government obtained his testimony.100 After the government failed to take Diab’s deposition for almost three months, the judge removed the electronic monitoring and curfew.101

Abdullah al-Kidd

Similarly, the government restricted the movement of Abdullah al-Kidd for almost fifteen months. Al-Kidd was arrested as a material witness on March 16, 2003 in connection with the trial of Sami al-Hussayen, who was facing criminal visa fraud and terrorism-related charges. After spending fifteen days jailed in high-security conditions, al-Kidd was released on the conditions that he live with his wife at his in-laws’ home, confine his travel to four states, surrender his passport, and meet regularly with probation officers. He was never, however, called to testify at the trial. Indeed, even after al-Hussayen’s trial ended (al-Hussayen was found not guilty on most counts; the jury was hung on others), the Justice Department failed to move to dismiss the material witness warrant for al-Kidd.102 Upon a motion of al-Kidd, the court dismissed the material witness warrant after the close of the al-Hussayen trial.

Reluctance to Grant Immunity to Material Witnesses

The Justice Department’s reluctance to grant immunity to material witnesses for their testimony further demonstrates that it has been interested in the witnesses held in connection with the September 11 counterterrorism investigation as possible criminal suspects, not as mere witnesses to a crime. When the Department of Justice is interested in eliciting testimony from a witness who it does not consider a suspect, it can grant the witness immunity, i.e., it will provide a guarantee that the witness will not be prosecuted based on the testimony. Granting immunity to a witness allows him or her testify freely, without fear that the testimony will be used against the witness. Granting immunity also allows the government to compel testimony if a grand jury witness invokes the Fifth Amendment privilege against self-incrimination.103 On the other hand, prosecutors do not want to grant immunity when seeking testimony from targets of the grand jury investigation, because the prosecution wants to make full use of the information gained from the testimony to later prosecute the suspect.

In post-September 11 material witness cases, witnesses have frequently invoked their Fifth Amendment right against self-incrimination and have been reluctant to testify before a grand jury absent immunity, because the government has had a pattern of subsequently seeking to implicate them in any crime—often based on information it obtained from grand jury testimony or informal interviews. The Justice Department consistently has refused to grant such immunity, undoubtedly because it viewed the witnesses first and foremost as suspects. Chris Schatz, federal public defender of Oregon, who was one of the lawyers who represented Brandon Mayfield in May 2004, described his attempts to secure immunity for Mayfield:

They had no intent to bring him in front of a grand jury. If you were never going to give him immunity then it was a questionable abuse of the process. … If their focus is not on prosecuting then what do you care about immunity in negotiations? If it’s your objective to get testimony, then the refusal to get immunity was an abuse of the law.104

Mayfield claims, and court documents confirm, that the government threatened him with capital punishment during his immunity negotiations:

They were threatening me with capital charges. In proffer discussions they said they were going to give me limited immunity. But they believed it was me. They pretty much told us, “We have enough to indict you but not enough to prosecute.”105

John Meyer, the attorney for material witness Nabil al-Marabh, also described the government’s refusal to negotiate over al-Marabh’s immunity:

From the day he arrived in Chicago, the government was not going to give him immunity and compel his testimony. Instead of calling Nabil, the government made continuances at every stage. It was clear they didn’t want to put him in front of the grand jury in hopes of charging him with other crimes.106

Eric Sears, a former federalprosecutor, similarly described the government’s reluctance to give immunity to his client Mohamad Kamal Elzahabi:

The government wanted him as a material witness so he would voluntarily talk and go before a grand jury. But they weren’t willing to give him immunity. And it’s a no-brainer—why would I let my client talk with the government as a witness if they’re not giving him immunity. If they want his testimony, they should give him immunity.107

Criminal Charges against Material Witnesses

[I]ndividuals detained as material witnesses are rarely charged with crimes.
—U.S. District Court for the Western District of Texas, 1985108

The Justice Department has ultimately brought criminal charges against twenty-nine of the material witnesses, accusing seven of terrorism-related crimes, and brought immigration charges against at least twenty-eight. From our review of court documents, it appears that in many of these cases, the charges have been based on evidence and statements the government has obtained after the material witness was arrested—either from interrogations of the witness himself or from investigations into other sources. The Justice Department has also used evidence it obtained from interviewing the witnesses before their arrest and when agents searched their property. In at least fifteen of these cases, the witness never testified before a grand jury, and the government filed the criminal charges only when a court indicated it would release the witness because of the government’s delays in bringing the witness before the grand jury.

By filing criminal or immigration charges, the Department of Justice has been able to continue to hold the former material witnesses in prison while it has continued its investigations. In some cases, the unrelenting pursuit of the witness suggests that the government has continued to believe the witness was involved with terrorism, even though it could not develop evidence sufficient for terrorism-related charges.

Soliman Biheiri

In June 2003, the FBI arrested as a material witness Soliman Biheiri, then a U.S. citizen with three U.S. citizen children. The Justice Department suspected Biheiri of doing financial work for Abu Marzook, a well-known leader of Hamas. It informed the court that it intended to bring Biheiri in front of a grand jury investigating terrorist financing networks in Chicago. For two months, the government never called Biheiri to testify in front of a grand jury but continued to argue in court that his detention was necessary because of his alleged connections to terrorist suspects.109

Just as the court was going to order Biheiri released, after he had been held without charges in high-security jails for more than two months, the government charged him with an obscure non-terrorist related crime: unlawful procurement of naturalization based on a false statement he had made in 1990 immigration applications.110 In 1990, Biheiri had listed himself as the vice president of his company on immigration documents, when in fact he was the president. The government used this misstatement to allege that Biheiri committed fraud on his 2000 naturalization application, when he answered “no” to the question of whether he had ever committed a crime for which he had not been convicted. According to his attorney:

It’s not a coincidence that they held him and never put him in front of a grand jury and then dismissed him as a material witness when they had built up charges against him. … My sense is that they had nothing on him to hold him as a material witness. They were just trying to buy time to find something. The irony is that he was completely innocent of any terrorist allegation. The government was never able to find a credible ground to bring terrorism charges—they never produced enough proof to even charge him. Instead, they charged him on a completely unrelated immigration charge, which they based on a visa application they dug up from 12 years ago. And even then, when the government couldn’t obtain an indictment on Biheiri for terrorism charges, the government sought a ten-year enhancement for terrorism associations during sentencing. The judge finally got angry with the prosecution and rebuked the government for alleging that Biheiri had terrorism connections without any basis.111

In January 2004, Biheiri was convicted of the criminal document fraud charges after a jury trial and given a one-year sentence, the mandatory minimum, with credit for time served. Days before Biheiri was scheduled to be released in June 2004, the Department of Justice brought new criminal charges against him. Using the same facts from his first conviction, the government charged Biheiri with one count of using his U.S. passport unlawfully because it was procured by a false statement.112 The government also charged Biheiri with two counts of making false official statements to government agents based on statements Biheiri made when he was first questioned by the FBI without an attorney. In October 2004, a jury convicted Biheiri of one count of fraud.

Mohamad Kamal Elzahabi

The Department of Justice arrested Mohamad Kamal Elzahabi as a material witness in Minneapolis, Minnesota, in May 2004. He was incarcerated in Minneapolis for about three weeks113 and then transferred to the Special Housing Unit of the Metropolitan Correctional Center in Manhattan, where he was held in solitary confinement for two weeks. During these five weeks of incarceration, Elzahabi was never brought before a grand jury.

When the presiding judge indicated that he would release Elzahabi if the government did not call him to testify in front of a grand jury, the government filed two charges against him for making false statements to the FBI. As his attorney described the situation:

We had a time deadline—the government had to do something in order to justify keeping him in detention as a witness; he hadn’t testified at all. Judge Castel told the government, “Look you’ve got to produce him to the grand jury; what are you doing?” The government basically hemmed and hawed. It was clear to me if the government didn’t do something Mohamad may be released; Judge Castel would lose his patience. The government understood this, and the day before we were supposed to go back to court, where push would come to shove, he suddenly got charged and sent back to Minnesota.114



[38] “Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force,” Opening Remarks of John Ashcroft, September 24, 2001 (“Ashcroft Outlines Foreign Terrorist Tracking Force”).

[39]U.S. Department of Justice, Office of the Inspector General (OIG), The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, April 2003, p. 16 (DOJ, OIG, The September 11 Detainees).

[40]According to Department of Justice Inspector General Glenn Fine, when the FBI arrested people in sweeps on immigration violations, “[T]he FBI in New York City made little attempt to distinguish between aliens who were subjects of the FBI terrorism investigation (called “PENTTBOM”) and those encountered coincidentally … [E]ven in the chaotic aftermath of the September 11 attacks, the FBI should have expended more effort attempting to distinguish between aliens who it actually suspected of having a connection to terrorism from those aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead.” Statement of Glenn A. Fine, inspector general, U.S. Department of Justice before the House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security concerning Section 1001 of the USA PATRIOT Act, May 10, 2005.

[41]Human Rights Watch, “Presumption of Guilt: Human Rights Abuses of Post-September11 Detainees,” Vol. 14, No. 4 (G), August 2002 (“Presumption of Guilt”).

[42]“Ashcroft Outlines Foreign Terrorist Tracking Force.”

[43]Alberto R. Gonzales, counsel to the President, “Statement to the American Bar Association,” Washington, D.C., Feb. 24, 2004, available online at: http://usinfo.state.gov/dhr/Archive/2004/Mar/17-834301.html, accessed on April 13, 2005.

[44]Ibid.

[45] Robert S. Mueller, III, director, FBI, “Speech at the Commonwealth Club of California,” San Francisco, California, April 19, 2002, available online at: http://www.fbi.gov/pressrel/speeches/speech041902.htm, accessed on June 19, 2005.

[46]DOJ, OIG, The September 11 Detainees, p. 38-39 (“The Department of Justice . . . is utilizing several tools to ensure that we maintain in custody all individuals suspected of being involved in the September 11 attacks without violating the rights of any person. If a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant.”).

[47]Steve Fainaru and Margot Williams, “Material Witness Law Has Many in Limbo,” Washington Post, Nov. 24, 2002, p. A1.

[48]HRW/ACLU interview with Mary Jo White, New York, New York, August 3, 2004 (Interview with Mary Jo White).

[49]Ibid.

[50]Former U.S. Attorney General Janet Reno also recently recognized the government’s practice of holding suspects as witnesses, stating that because of “the broad scope of grand jury investigations, [the government] can detain a suspected terrorist as a material witness before it has evidence sufficient to support a criminal arrest or indictment.” Brief of Janet Reno, et. al., Amici Curiae in Support of Respondents, Rumsfeld v. Padilla, No. 03-1027, April 12, 2004, p. 17-18.In the brief, Reno also noted that the government could detain material witnesses with “relative ease,” and the material witness law “can help prevent terrorist acts by incapacitating terrorists.” Ibid.

[51]United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003). Congress makes clear that the purpose of detaining a witness is for securing her testimony by authorizing the detention of a material witness if “the testimony of a person is material in a criminal proceeding” and if “it may become impracticable to secure the presence of the person by subpoena.” 18 U.S.C. § 3144. Congress also indicates that the law is intended only to secure the witness’s testimony by requiring that a material witness generally should not be detained if the government can secure the witness’s testimony by deposition. Ibid. (“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.”).

[52]HRW/ACLU telephone interview with Eric Sears, attorney for material witness Mohamad Elzahabi, New York, New York, August 24, 2004 (Interview with Eric Sears).

[53]Complaint, Mayfield v. United States, No.CV 04-1427 (D. Or. Filed Oct. 4, 2004), p. 19-20 (Mayfield Complaint); Noelle Crombie, “Mayfield Home Was Searched in Secret; Federal Authorities Admit They Entered the Lawyer's Home and Took DNA Samples while Investigating a Train Bombing,” The Oregonian, March 30, 2005.

[54]Affidavit of Federal Bureau of Investigation Officer Richard Werder in support of the U.S. Government’s application for a material witness warrant for the arrest of Brandon Mayfield, In re Federal Grand Jury 03-01, No. 04-MC-9071 (D. Or. Filed May 6, 2004) (Richard Werder Affidavit for material witness arrest warrant). The FBI reached this conclusion even though there was no evidence that Mayfield had traveled to Spain, or otherwise been out of the country for more than ten years. The government contended the lack of passport was evidence that indicated Mayfield probably “traveled under a false or fictitious name, with false or fictitious documents.” Ibid.

[55]FBI Agent Werder asserted that he “had probable cause to believe and does believe that evidence fruit and instrumentalities … of the crimes of bombings and conspiracy to commit bombings of places of public use, government facilities, public transportation systems and infrastructure facilities in violation of 18 U.S.C. § 2332(f)(a)(1) and (2), providing material support to terrorists in violation of 18 U.S.C. § 2339A, conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country in violation of 18 U.S.C. § 956(a) are presently located at [Mayfield’s Safe Deposit Box].” Affidavit of Federal Bureau of Investigation Officer Richard Werder in support of the U.S. Government’s application for a search warrant for the Safe Deposit Box of Brandon Mayfield, No. 04-MC-9071, p. 1 (D. Or. 2004 Filed May 10, 2004). See also Government’s Response to Witness’ motions for return of materials seized pursuant to search warrants, for disclosure of search warrant affidavits and for access to seized material, May 17, 2004, No. 04-MC-9071, p. 2 (D. Or. 2004). (“Given the fact that MAYFIELD is a sole practitioner who is himself both a material witness and potential target…”).

[56]U.S. Justice Department, Federal Bureau of Investigation, “Statement on Brandon Mayfield Case,” May 24, 2001, available online at: http://www.fbi.gov/pressrel/pressrel04/mayfield052404.htm, accessed on Sept. 20, 2004.

[57]The FBI was apparently under pressure to make a positive identification and a “catch” as a public rebuttal to a separate pending federal court case challenging the legitimacy of FBI fingerprint techniques. In addition, the FBI assigned fingerprint agents who were under pressure to preserve their individual jobs. Flynn McRoberts and Maurice Possley, “Report Blasts FBI Lab; Peer Pressure Led to False ID of Madrid Fingerprint,” Chicago Tribune, Nov. 14, 2004; Mayfield Complaint, p. 24-25.

[58]According to Tajammul Bhatti’s son, who was in constant contact with the FBI during his father’s detention, the “FBI presumed him armed and dangerous, arresting him with a handful of armed deputies under a seal[ed] material witness warrant.” HRW/ACLU e-mail interview with Munir Bhatti, son of material witness Tajammul Bhatti, Los Angeles, California, August 11, 2004.

[59]HRW/ACLU telephone interview with Tajammul Bhatti, Abingdon, Virginia, September 2004 (Interview with Tajammul Bhatti); HRW/ACLU e-mail interview with Munir Bhatti Los Angeles, California, August 11, 2004; HRW/ACLU telephone interview with Chris Dumond, Cleveland, Ohio, August 2004 (Interview with Chris Dumond).

[60]Bhatti had had a dispute with his landlord during the time of his break-in and was staying at his girlfriend’s house at the time.

[61]Interview with Tajammul Bhatti; Interview with Chris Dumond.

[62]Interview with Munir Bhatti.

[63]Interview with Tajammul Bhatti. Agents also inquired about the non-working number they found for the Pakistani commissioner and on Bhatti’s views on Israel. According to Bhatti: “They saw on my computer that I had read some articles critical of the United States policy in Israel and asked about my attitudes about politics in the Middle East. I told them it’s my views and they have nothing to do with them … One agent got very animated and told me it’s right in the Bible that Palestine belongs to the Jews.”

[64]Interview with Tajammul Bhatti.

[65]HRW/ACLU telephone interview with Munir Bhatti, son of material witness Tajammul Bhatti, Los Angeles, California, August 16, 2004 (Interview with Munir Bhatti). According to his son, “He didn’t have a bed. He had to sleep on a concrete floor … It was very stressful. He had many sleepless nights and accelerated aging.” Ibid.

[66]Ibid.

[67]Interview with Tajammul Bhatti.

[68]Before coming to the United States, he had worked for a company under contract for USAID for two years and had been granted national security clearance. Donna Bryson, “Egyptian Student Found with Pilot Radio Had Worked for U.S. Government Contractor,” Associated Press Wire, Jan. 12, 2002.

[69]HRW/ACLU interview with Robert Dunn, attorney for material witness Abdallah Higazy, New York, New York, May 18, 2004 (Interview with Robert Dunn, May 18, 2004).

[70]On May 31, 2002, Ronald Ferry, the former hotel security guard who produced the pilot's radio was sentenced to six months of weekends in prison for lying to the FBI. He admitted that he knew that the device was not in a safe belonging to Higazy. Ferry, who is a former police officer, said that he lied during a "time of patriotism, and I'm very, very sorry." The judge said that his conduct was "wrongly motivated by prejudicial stereotypes, misguided patriotism or false heroism." “Presumption of Guilt,” p. 38-39. Higazy has since filed suit against Ferry and the FBI, asserting in part that that the FBI agents failed to thoroughly investigate the tip, press Ferry for a sworn statement, or subject him to a lie detector.

[71]See Chapter VII, “Abusive Interrogations,” in this report for further information about Higazy’s false confession.

[72] Declaration of Michael Mobbs, special advisor to the Under Secretary of Defense for Policy, United States. v. Padilla, August 27, 2002 (Declaration of Michael Mobbs).

[73]Padilla v. Rumsfeld, 352 F.3d 695, 700 (2d Cir. 2003).

[74]Rumsfeld v. Padilla, 124 S.Ct. 2711, 2716-17 (2004).

[75]Petitioner’s Brief, Rumsfeld v. Padilla, No. 03-2235, p. 6 (2d. Cir. July 23, 2003).

[76]“Declaration of Michael Mobbs,” p. 8-9.

[77]“Remarks of Secretary of Defense Donald H. Rumsfeld,” June 11, 2002, Qatar, available online at: http://www.defense.gov/transcripts/2002/t06112002_t0611edq.html, accessed on March 31, 2005. The Justice Department also initially detained Ali Saleh Kalah al-Marri as a material witness before the President directed that he be detained as an enemy combatant. On December 12, 2001, FBI arrested Ali Saleh Kalah al-Marri in Peoria, Illinois pursuant to a material witness arrest warrant issued from the Southern District of New York. He was detained as a witness until January 28, 2002, when the Justice Department re-arrested him on criminal charges of fraudulent possession of credit cards. He was subsequently charged with making false statements to the FBI and other government agencies. Al-Marri v. Bush, 274 F. Supp. 2d 1003, 1004 (C.D. Ill. 2003). Counsel for al-Marri challenged his criminal charges on the grounds that the evidence for the charges was derived from unconstitutional interrogations and searches. “Exhibit 5,” Habeas Petition filed on behalf of Ali Saleh Kalah Al-Marri, copy on file at HRW/ACLU. Similar to Padilla’s case, when the court was scheduled to hear the challenges to his detention, the President ordered al-Marri detained as an enemy combatant. Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Al-Marri v. Bush, CV No. 03-1220, p. 9 (C.D. Ill. Filed July 8, 2004), copy on file at HRW/ACLU.

[78]Administrative detention is defined as the executive branch of the state detaining an individual on its own authority, when no judicial arrest warrant or criminal charges have been brought against the detainee.

[79]Article 3 of the Universal Declaration of Human Rights provides that “everyone has the right to life, liberty and security of person." Article 9 of the ICCPR, which similarly provides that “everyone has the right to liberty and security of person,” is “applicable to all deprivations of liberty,” Human Rights Committee, General Comment No. 8. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, which provide authoritative guidance on the ICCPR, state that even during a state of emergency, “no person shall be detained for an indefinite period of time, whether detained pending judicial investigation or trial or detained without charge.” Principle 70(b), available online at: http://www1.umn.edu/humanrts/instree/siracusaprinciples.html, accessed on June 19, 2005. The Due Process clause of the Fifth Amendment authorizes civil, non-punitive detention in narrow and limited circumstances. There must be a specific justification that is “sufficiently weighty” to outweigh the individual liberty interest, and the least restrictive means available must be used, means that are not “excessive in relation to the non-punitive purpose for which the individual is detained.” Salerno, 481 U.S. 739, 747 (1987). See also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (construing immigration detention law to have a time limitation because allowing indefinite detention would raise a serious constitutional question).

[80]DOJ Response I.

[81]HRW/ACLU telephone interview with Denise Sabagh, attorney for material witness Abdullah Tuwalah, Washington, D.C., August 18, 2004 (Interview with Denise Sabagh).

[82]Ibid. The FBI also arrested several other Muslim Marymount students and detained them as material witnesses because they had known Almari.

[83]Interview with Denise Sabagh.

[84]Tim McGlone, “Local Man Sentenced, Deported for Scam; Officials Found No Link to Terrorism,” The Virginian-Pilot and The Ledger-Star, May 16, 2003.

[85]Zuhaier Ben Mohammed Rouissi was also jailed as a material witness in the Detroit Sleeper Cell trial. He was held for six months. Order granting government’s request for detention of Zuhaier Ben Mohammed Rouissi, United States v. Rouissi, Misc. No. 02-71478 (E.D. Mich. Filed April 18, 2002); Order dismissing material witness warrant of Zuhaier Ben Mohammed Rouissi, 2002, United States v. Rouissi, Misc. No. 02-71478 (E.D. Mich. Filed November 6, 2002).

[86]A “sleeper cell” is a small group or subgroup of people affiliated with a terrorist organization but not involved in any active terrorist activities until it is alerted, when it begins its predetermined preparation for an attack.

[87]HRW/ACLU telephone interview with Stephen Swift, attorney for Ali Ahmed, Cedar Rapids , Iowa, August 2, 2004.

[88]Ibid.

[89]Because of the prosecutorial errors in Koubriti, including the withholding and mischaracterization of central evidence, the Justice Department filed a motion to dismiss the three terrorism-related convictions, acknowledging that had the prosecution acted lawfully, the jury may have reached a different verdict. In dismissing the convictions, the judge sharply criticized the government for misleading the court and acting outside constitutional parameters. “Government's Consolidated Response Concurring in Defendants' Motions for a New Trial” and “Government's Motion To Dismiss Count One Without Prejudice,” Aug. 31, 2004. As the Justice Department characterized its misconduct in its own motion to dismiss: "In its best light, the record would show that the prosecution committed a pattern of mistakes and oversights that deprived the defendants of discoverable evidence (including impeachment material) and created a record filled with misleading inferences that such material did not exist." Ibid.

[90]Ibid.

[91]Ann Mullen, “Conspiracy Theory,” Detroit Metro Times, April 9, 2003; David Ashenfelder, “U.S. Says Four Men Plotted Terror from Detroit,” Detroit Free Press,Aug. 29, 2002.

[92]Before his material witness detention, al-Marabh was held in detention on immigration charges for eight months without seeing a judge. HRW/ACLU telephone interview with John Meyer, attorney for Nabil al-Marabh, Chicago, Illinois, August 6, 2004 (Interview with John Meyer); Steve Fainaru, “Civil Liberties Advocates Decry Treatment; U.S. Says Man Forfeited Rights,” Washington Post, June 12, 2002.

[93]Interview with John Meyer.

[94]Human Rights Watch, “Empty Promises: Diplomatic Assurances No Safeguard against Torture,” Vol. 16, No. 4 (D), April 2004, p. 16-17 (discussing allegation of torture of Maher Arar in Syrian prisons).

[95]Ann Mullen, “Kuwaiti Waits,” Detroit Metro Times, June 4, 2003.

[96]HRW/ACLU e-mail correspondence with family members of Nabil al-Marabh, May 12, 2005.

[97]Docket, United States v. Dhafir, Crim. No. 03-64 (N.D.N.Y. 2003); William Kates, “Man Held as Witness in Probe of Charity,” Albany Times Union, March 5, 2003 (Kates, “Man Held as Witness”).

[98]Kates, “Man Held as Witness.”

[99]According to Diab, Help the Needy helped “the most needy people on Earth, the Iraqi children” during their suffering from the imposition of the United Nations economic embargo on the country. Sam Skolnik, Daikha Dridi, and Paul Shukovsky, “Inquiry Targets Muslim Charities in the Palouse,” Seattle Post-Intelligencer, Aug. 2, 2002.

[100]Docket, United States v. Dhafir, Crim. No. 03-64 (N.D.N.Y. 2003); Kates, “Man Held as Witness.”

[101]Docket No. 172, 173, United States v. Dhafir, Crim. No. 03-64 (N.D.N.Y. 2003).

[102]HRW/ACLU interview with Abdullah al-Kidd, Las Vegas, Nevada, June 2004.

[103]18 U.S.C. § 6002. The government may grant witnesses partial or full immunity from prosecution based on the statements they make during their testimony.

[104]HRW/ACLU interview with Chris Schatz, co-counsel for Brandon Mayfield, Portland, Oregon, June 23, 2004; HRW/ACLU telephone interview with Steven Wax, co-counsel for Brandon Mayfield, Portland, Oregon, June 2004. Federal Public Defenders Steve Wax and Chris Shatz have published a detailed account of the challenges of obtaining immunity in material witness proceedings. Steven T. Wax and Chris Shatz, “A Multitude of Errors: the Brandon Mayfield Case,” The Champion, Oct. 28 2004, Champ 6 (Sept./Oct. 2004).

[105]HRW/ACLU interview with Brandon Mayfield, Beaverton, Oregon, June 22, 2004.

[106]Interview with John Meyer.

[107]Interview with Eric Sears.

[108]In re Class Action Application for Habeas Corpus ex relatione ll Material Witnesses, 612 F.Supp. 940, 943-44 (W.D. Tex. 1985).

[109]HRW/ACLU telephone interview with James Clark, lead criminal defense attorney for Soliman Biheiri, Alexandria, Virginia, April 8, 2004 (Interview with James Clark).

[110]HRW/ACLU telephone interview with Nina Ginsberg, criminal defense attorney for Soliman Biheiri, Washington, D.C., April 8, 2004. According to Ginsberg:

During his material witness detention, the government did not put him on the witness stand or charge Soliman until the judge finally after two months told the government that he was going to release him unless the government charged him. The government then criminally charged him with immigration fraud—lying on his naturalization application.

Ibid.

[111]Interview with James Clark.

[112]May 2004 Indictment of Soliman S. Biheiri, United States v. Biheiri, Crim. No. 04-201 (E.D.V.A. Filed May 6, 2001) (charging him with two counts of false official statements and fraudulent procurement of passport).

[113] HRW/ACLU telephone interview with Dan Scott, federal public defender for the District of Minnesota, Minneapolis, Minnesota, August 11, 2004 (Interview with Dan Scott).

[114]Interview with Eric Sears.


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