I say why all this? For what? They treated us like
professional terrorists. They put us in cars and had big gunsas if they were
going to shoot people, as if we were Osama bin Laden. They didnt let us speak,
they didnt let us ask why we were in detention. I never knew for how long we
would stay in jail. It felt like we would stay forever
I didnt even know why
I was in jail.
In allowing the arrest and detention of material witnesses, Congress emphasized that such witnesses are not to be considered a danger to society.116 Yet from the moment of their arrest until the end of their detention, all of the material witnesses whose cases are described in this report have been treated as if they were high profile terrorist suspects and not merely individuals with important information. The U.S. government has used numerous agents with drawn weapons to arrest the witnesses, jailed them in solitary confinement, and subjected them to extraordinarily harsh security measures.
Arrests should only be made with the amount of force necessary for the circumstances. Yet material witnesses accused of no wrongdoing have described their arrests as violent and humiliating experiences. Most material witnesses have been arrested in their homes or in public by a squad of armed agents, often with their guns drawn. They have been thrown against police cars, searched, handcuffed, and often shackled. Government agents then have transported witnesses in high security vans and airplanes to jail facilities, where they have been strip searched. The arresting agents sometimes have used abusive language and usually refused to tell the witness why they were being arrested. The sudden and aggressive arrests, without explanation, frequently have made witnesses fear that they have done something grievously wrong. Such arrests have often been accompanied by extensive searches conducted by federal agents of the witnesses houses, cars, and businesses, as their wives, children, and colleagues watched.
On October 10, 2001, Mujahid Menepta stepped out of his workplace, in Norman, Oklahoma, where he worked as a rehabilitative therapist for disabled children. He was greeted by more than twenty agents, with their guns pulled.117 Menepta was taken aback; he had already voluntarily cooperated with the FBI in three interviews sharing his knowledge of a terrorist suspect whom he knew through the local mosque. With neighbors watching, the agents told him not to move and threatened to shoot him if he did. Menepta described his arrest as follows:
At around 8 a.m., I happened to walk out the front door and I was accosted by about twenty-two agents and four to five cars. They said We didnt have twenty to get John Gotti. Meaning, if I didnt surrender in twenty [seconds] theyd shoot. I was told: Take one more step [and well shoot]. The agents were on the perimeter. They came to the door. Two agents came up to me and said: Mujahid Menepta you are under arrest.
They did not read me my rights. They did not tell me I had the right to a lawyer. They took me down to the vehicle in the street and put their machine guns in the truck.118
On September 21, 2001, Mohdar Abdullah was driving a veiled female Muslim friend to work in San Diego, California, because she had recently been assaulted and was afraid to be alone in public. At an intersection, armed government agents surrounded his car. His friend fainted. Like Menepta, Abdullah was surprised by the atmosphere of violence surrounding his arrest, because he had previously met voluntarily with the FBI several times to provide information about two suspected hijackers with whom he had worked almost a year earlier. As Abdullah described the arrests:
Five to six cars surrounded my car. The agents pulled out shot guns and told me to get out of the car or they will shoot me. They told me they were about to shoot me. I was dropping off a coworker and she fainted. They had to call an ambulance. I was shackled, surprised.
I asked whats going on? Ive been so helpful. But three guys told me to put my hands on the car, they patted me down and shackled me. I asked what am I arrested for? Am I charged with something? I am supposed to meet [the FBI agent who was questioning him] at 10. I got no answer. They shoved me against the car and handcuffed me.
My friend in the car fainted-they had to call an ambulance. She was unconscious for awhile. She was so afraid in the car. I was taking her to work because there was so much hostility. After she had been harassed she was intimidated to go to her workplace.
They didnt tell me why I was arrestedthey said theyd explain in the main office. They didnt read me Miranda rights.
I got in the car. They were so disrespectful and so rude. They told me to shut the fuck up.119
On September 12, 2001, Dr. Albader al-Hazmi, who was living with his wife and young children, woke up in his house to five FBI agents with guns drawn. A medical doctor doing his residency in San Antonio, Texas, al-Hazmi had no previous criminal record or interaction with the FBI. The government based its arrest of al-Hazmi on the fact that he shared the last name of one of the hijackers and had been in phone contact with someone at the Saudi Arabian Embassy with the last name bin Laden (which is a common Arabic name).120 After the government arrested al-Hazmi, agents searched his house for twelve hours, turning his house upside down, with little regard for his wife and young children.121 He was detained for two weeks in jails in Texas and New York before being released. He never testified before a grand jury or court.
When FBI agents arrested Oregon immigration and family attorney Brandon Mayfield at his law office, a group of agents searched his cars, law office, and home. Although Mayfield tried to keep his client files confidential, federal agents seized almost all of his files. Meanwhile, Mayfields wife, Mona Mayfield, was at their house as dozens of agents searched it for more than five hours. FBI officials forced her to sit at the kitchen table and restricted her movement as they searched and seized items:
A half hour [after the federal agents entered], twelve other agents came in Two agents told me to sit at the table. The FBI said that we need to contain the situation, and I could not watch. They searched the house from 10:30 to 3 [p.m.]. I asked if I could make a phone call; they said no I told them I needed to go and pick up the kids. They told me if you leave that you cannot come back. So I stayed until I could.
They were everywhere, and they piled all of our stuff in the living room.
I asked to make phone calls. At first they would not let me. Eventually they let me call Brandons mom. I guess they were questioning her too and would not let her pick up the phone, so I left a message. So then the phone rings and I pick it up and its Mike Isikoff from Newsweek. He started asking all these questions. I asked the female agent whats going on? How did Isikoff know? She just said I dont know. They wouldnt let me pick up the phone again.122
The FBI frequently has transported witnesses to detention centers in a manner consistent with the assumption that they were criminal suspects who posed a serious threat to national security. For example, when the government transported eight material witnesses from Evansville, Indiana, to a federal detention facility in Chicago, Illinois, they were accompanied by armed marshals and kept in shackles throughout the flight. According to one of the Evansville Eight, the government closed down the Chicago OHare airport for their arrival. A fleet of government cars then transported the material witnesses from OHare to the Chicago Metropolitan Correctional Center.123 As one of the Evansville material witnesses described the experience:
On the second morning we are taken to the Evansville airport. There are around three cars and many people. All the security guards had a gun. It becomes serious. Lots of guards surrounding us, no one can go in to the airport. We wait for a plane. Then a huge plane came. The first time a plane like that ever come in yearsEvansville was just too small.
The guards were guarding the airport. Six plus guards were guarding the airport. Two lines of people, behind me and in front of mehuge, huge people.
Then we go to Chicago We landed in the El Al [Israeli airline] terminal. All the people went out. After this we are put in the van. So many cars in front of us, and so many behind us. The guns were pointed out of the window, and the sirens were on. All the traffic was stopped.
I think Im dying. Well go somewhere and die. For what, for nothing?124
The Justice Departments use of aggressive tactics to arrest persons who were supposedly only material witnesses highlights the authorities real intentions. Subjecting material witnessesa number of whom had already been providing information to the authoritiesto abusive arrests using unnecessary force is a dubious tactic if the authorities truly want cooperative witnesses. Such arrests are more likely to serve only to alienate witnesses and their families. Whether as a security precaution or to procure confessions, the aggressive tactics the government has employed to arrest and detain material witnesses are another indication that the authorities really have considered the material witnesses to be criminal suspects.
The government held them like they were criminals. They
treated them like thugs, threw them in high security as if they were felony
convicts. They had to wear orange jump suits. There were in the cells 24 hours
a day. They were not allowed to go anywhere unless they were chained at the
waist. They were physically pushed up against the wall. Guards would step on
their leg chains.
They were scared to death. When Awadallahwas being
questioned by the FBI, his chains were rattling.
The government has jailed almost all of the material witnesses held in connection with post-September 11 counterterrorism investigations under maximum security conditions, sometimes in the same special units holding the most dangerous prisoners in the facility. Many have been kept in solitary confinement twenty-four hours a day, with little time outside their cells for recreation. Some have been held in windowless cells.In some cells the lights have been kept on morning, noon, and night. Prison officials have handcuffed and shackled witnesses every time they have been removed from their cells, even during court appearances.126 Particularly in the early stages of their detention, they have not been allowed to call their families or friends. Some of the material witnesses have endured physical and verbal abuse by prison guards who accused them of being terrorists. Material witnesses have consistently described their time behind bars as harrowing.
According to the U.S. Attorneys office, the Justice Department had a general policy that all inmates, including material witnesses who were at the Metropolitan Detention Center in Brooklyn in connection with the investigation into the September 11th terrorist attacks were designated high-security inmates and handled in accordance with the procedures for such inmates.127 The presumption at the Metropolitan Detention Center (MDC) in Brooklyn, the main New York federal detention facility where many material witnesses have been held, has been that the witnesses were considered to be associated with terrorist groups until proven innocent:
The warden determined that until MDC officials had any concrete evidence from the FBI or other folks, that there was not a terrorist association or anything of that nature, that the MDC would have to keep the material witnesses separate and special precautions would apply.128
Mohdar Abdullah described his detention conditions as a material witness in the Metropolitan Correctional Center in Manhattanand the MDC in San Diego:
The first month was the worst month I ever experienced in my life. I was deprived of making any legal calls, any social calls. I was treated so badly. I was depicted as a terrorist. That was how I was being treated. As a result they disrespected me a lot.
When I was transferred, the U.S. marshals were beyond terrible. I cannot find any word to describe them. They have no sense of humanity at all. They dragged me with my shackles on. They physically and verbally harassed me and called me all kinds of names. They put me in humiliating situations.
They would say that youre a terrorist, call us fucking rats, and drag [us] with our shackles on. Every time theyd look at us theyd spit on the floor. Theyd say that they are going to hang you; they are going to kill you. That you dont belong here.
The cell was small and really dirty. They didnt give me any personal hygiene thingsone bar of soap and no tooth paste I saw no sunlight in Manhattan.
We were always being viewed as a terrorist. Theyd tell us that you are about to be prosecuted. Once a U.S. attorney told me if I dont talk now, I will talk laterthey would pass a recommendation onto Yemen or deport me to Algeria.129
Many material witnesses told HRW/ACLU that they were subjected to derogatory comments by prison guards. More troubling, several material witnesses claimed they were physically abused while in federal custody.130 They also felt humiliated by what they considered gratuitous strip searches by multiple guards, often in public places. Albader al-Hazmi, held as a material witness at MDC Brooklyn told HRW/ACLU:
I was searched naked many times sometimes twice daily in front of many guards. The guards, they were enjoying searching us naked. When they felt like it they would beat us. One of the guards said to me while beating me say thanks to Allah.131
Some witnesses told HRW/ACLU that many guards assumed they were convicted terrorists and insulted their race and religion. Ayub Ali Khan, who was also held in the Special Housing Unit in MDC Brooklyn, faced continuous hostility from the prison guards for over a year. He said:
I was transferred to a cell with six or seven guards to solitary confinement in the Special Housing Unit, or the ninth floor hole. The room was maybe six-by-five feet. I was in small cell for twenty-four hours a day with the lights on. Guards came every ten to fifteen minutes and banged on the door. They look through the hole and stare and looked at me. For two months, I left the cell only for interrogations. Later I was allowed outside after two months but they would leave me out in the freezing cold.
I didnt sleep for one or two months. The guards would bang on the door all night.
They would say, This is the guythe Taliban guy, or call me Khan Taliban. The guards said so many bad things. They told me: You wont ever see your family. Youre going to die here. Do you smell the WTC [World Trade Center] smoke? Youre gone. How would you like to die? With the electric chair?132
One of the material witnesses, Tony Oulai, a citizen of the Ivory Coast, claims interrogators beat him while he was detained in Baker County Detention Center, Florida.133 The other cases of physical abuse typically occurred at the hands of prison staff. For example, Khan told HRW/ACLU that:
When I arrived, the guards said these are the guys involved with the WTC. I had rough treatment, I was thrown on walls, there was pushing on either side as they hand and leg cuffed me. I was strip and cavity searched in front of four or five guards.134
[Whenever I was taken out of my cell] they would twist my hands. My feet were shackled and guards would step on chains. I got a deep cut on my feet. I was stripped too many times to remember and hit on the back. I would be pushed against the wall. Whenever they took me to the FBI, guards would twist my hands and fingers and tell me to Just shut up.135
In addition, Awadallah alleged physical abuse at Metropolitan Correctional Center in Manhattan:
After being examined, a guard caused his hand to bleed by pushing him into a door and a wall while he was handcuffed. The same guard also kicked his leg shackles and pulled him by the hair to force him to face an American flag.
The next day, October 2, 2001, the marshals transported Awadallah to this Court. With his hands cuffed behind his back and bound to his feet, the transporting marshals pinched his upper arms so hard that they were bruised. See id. In the elevator, the marshals made his left foot bleed by kicking it and the supervising marshal threatened to kill him.136
In April 2003, the Inspector General of the Department of Justice issued a report documenting physical abuse endured by detainees swept up in the governments post-September 11 investigation, including the abuse of material witness Ayub Ali Khan.137
HRW/ACLU interview with Tarek Omar, Evansville, Indiana, June 20, 2004 (Interview with Tarek Omar).
United States v. Awadallah, 349 F.3d 42, 63 n. 15 (2d Cir. 2003), citing S.Rep. No. 98-225, p. 26 n. 90 (1983); 1984 U.S.C.C.A.N. p. 3209 (Of course a material witness is not to be detained on the basis of dangerousness.).
HRW/ACLU interview with Mujahid Menepta, St. Louis, Missouri, July 22, 2004.
Ibid. Meneptas lawyer, Susan Otto, stated: The FBI bushwacked him on the street and arrested him. The police came in on a raid situation. HRW/ACLU telephone interview with Susan Otto, attorney for Mujahid Menepta, Oklahoma City, Oklahoma, April 20, 2004 (Interview with Susan Otto).
HRW/ACLU telephone interview with Mohdar Abdullah, Yemen, August 25, 2004 (Interview with Mohdar Abdullah).
Responses of Gerald H. Goldstein, attorney for former material witness Albader al-Hazmi to Senate Judiciary Committee, U.S. Senate Judiciary Committee Hearing on Department of Justice Oversight: Preserving our Freedoms While Defending Against Terrorism, Dec. 4, 2001.
HRW/ACLU e-mail interview with Dr. Albader al-Hazmi, Dharan, Saudi Arabia, April 22, 2004 (Interview with Dr. Albader al-Hazmi). See also Ellise Pierce, Coming Home, Newsweek Web Exclusive, available online at: http://www.msnbc.com/news/637609.asp?cp1=1, accessed on April 20, 2004 (Pierce, Coming Home) (There were six men with guns. They asked me if I knew Mohammed Atta and I said that Id never heard that name. They mentioned another name, Khalid-something, and I said I never heard that name.).
HRW/ACLU interview with Mona Mayfield, wife of material witness Brandon Mayfield, Beaverton, Oregon, July 22, 2004.
Interview with Tarek Omar; HRW/ACLU interview with Tarek Albasti, Philadelphia, Pennsylvania, July 16, 2004 (Interview with Tarek Albasti); HRW/ACLU interview with Adel Khalil, Evansville, Indiana, June 20, 2004 (Interview with Adel Khalil).
Interview with Adel Khalil.
HRW/ACLU telephone interview with Randy Hamud, attorney for Osama Awadallah, Omer Bakarbashat, Yazeed al-Salmi, August 16, 2004.
The Supreme Court, in holding that the Fifth Amendment bars courts from routinely visibly shackling defendants during the penalty phase of a capital proceeding, underscored that [v]isible shackling undermines the presumption of innocence and the related fairness of the fact finding process. Deck v. Missouri, 125 S.Ct. 2007, 2013 (2005).
United States v. Awadallah. 202 F. Supp. 2d 55. 61 (S.D.N.Y. 2002) (citing "Government's Post-Hearing Memorandum in Opposition to Defendant's Motions to Dismiss the Indictment and to Suppress the Evidence, Dec. 26, 2001, p. 28, 39, overturned on other grounds, 349 F.3d 42, 53 (2d Cir. 2003)) (internal quotes and brackets omitted).
Ibid. U.S. Deputy Marshal Scott Shepard also testified: "[M]y understanding is that our office treats anyone who is brought in as a material witness regarding the September 11 or any of the other embassy bombing trial[s], or anything like that, is treated as a security risk."). Ibid.
Interview with Mohdar Abdullah.
Physical and verbal abuse of some material witnesses is included in Presumption of Guilt; see the cases of Tony Oulai and Osama Awadallah, p. 73-75.
Interview with Dr. Albader al-Hazmi. See also Pierce, Coming Home.
HRW/ACLU telephone interview with Ayub Ali Khan, Hyderabad, India, April 2, 2004 (Interview with Ayub Ali Khan).
Presumption of Guilt, p. 74.
Interview with Ayub Ali Khan.
United States v. Awadallah, 202 F.Supp.2d 17 (S.D.N.Y. 2002).
DOJ, OIG, The September 11 Detainees.