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V. Bypassing Judicial Review

Judicial review is the paramount protection against arbitrary detention and is recognized as such by international human rights law138 as well as U.S. domestic law.139 Judicial review in the material witness context should offer an important safeguard against arbitrary arrest and prolonged detention. However, after extensive investigation, we are not aware of a single instance in which a court has denied a government application for a material witness warrant related to the post-September 11 investigation.

There are likely a number of factors that have contributed to the government’s success in securing material witness warrants. One significant reason has been a general reluctance by some courts to scrutinize closely the government’s proffered reasons for needing to arrest and detain witnesses. An additional reason has likely been the fact that the government sought arrest warrants for almost all of the seventy material witnesses we document in this report in connection with grand jury proceedings, which are preliminary investigatory proceedings controlled by the prosecution and conducted largely in secret. The grand jury context has made it extremely difficult for courts to conduct meaningful scrutiny of whether a witness has material information.

In grand jury investigations there is not necessarily a set crime or established set of issues against which to assess materiality.140 A grand jury investigation is convened and run by the Department of Justice to “determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.”141 To accomplish its task, the grand jury must “inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred.”142 The Justice Department “has exceedingly broad powers of investigation”143 and has wide latitude in defining both the scope of the grand jury investigation and who has information that might be useful to it.

Because grand jury investigations are broad in scope and are run largely by the prosecution, some federal courts have established an extremely low threshold to determine whether the government has met its burden in proving a witness has material information. For example, the Second Circuit Court of Appeals has noted that in grand jury material witness arrests, “The judge [must] rely largely on the prosecutor’s representations about the scope of the investigation and the materiality of the testimony.”144 Thus, some federal courts have held that “a mere statement by a responsible official, such as a United States Attorney, is sufficient to satisfy” the requirement of materiality.145

In practice, then, court approval of material witness arrests in the context of grand jury proceedings has often been no more than a formality. Indeed, Mary Joe White, former United States Attorney in the Southern District of New York (until January 7, 2002),told HRW/ACLU that she could not recall a judge ever denying the government’s request for a material witness warrant in connection with the September 11 investigation.146 HRW/ACLU reviewed over a dozen affidavits submitted by the government to support material witness arrests and obtained information on numerous others. The government has frequently used conclusory statements and weak inferences to connect witnesses to a grand jury investigation of terrorism-related crimes, asserting that individuals had information relevant to terrorism investigations based on their possession of commonly read New York Times and Time articles on al-Qaeda suspects, similar last names to hijackers, and attendance of the same mosque or college club as suspects in the investigation.147 Furthermore, the government has referred to evidence obtained from unnamed “sources” and from sources whom the FBI agents did not know personally.148



[138]Under international law, anyone who is deprived of his or her liberty has the right to appear before a court without delay and to ask the court to determine the legality of the detention. ICCPR, article 9(4). The ICCPR in article 2(3) requires that all persons whose rights have been violated “have an effective remedy” determined by a competent authority. The Human Rights Committee, in its General Comment 31 on Nature of the General Legal Obligation on States Parties to the Covenant (2004), said that states must “ensure that individuals also have accessible and effective remedies to vindicate those rights.” Moreover, “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” ICCPR, article 9(5).

[139]See, e.g., Hamdi v. Rumsfeld, 124 S.Ct. 2633, (2004) (recognizing “citizen[s] core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator); Matthews v. Eldridge, 424 U.S. 319, 333 (1976) ("The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”).

[140]Materiality is the requirement that a witness has material information.

[141]United States v. Calandra, 414 U.S. 338, 343-44 (1974).

[142]Ibid.

[143]Bacon v. United States, 499 F.2d 933, 943 (9th Cir. 1971).

[144]Awadallah, 349 F.3d at 55-56.

[145]Bacon, 449 F.2d., p. 943. See also Awadallah, 349 F.3d, p. 70; United States v. Oliver, 638 F.2d (7th Cir. 1982), p. 224, 231. The Bacon “take the government at its word” probable cause standard raises Fourth Amendment concerns. The Supreme Court “repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown that the suspect has committed, is committing, or is to commit an offense.” Michigan v. DeFillippo, 433 U.S. 31, 37 (1979). Put differently, the Court has interpreted the Fourth Amendment to require that courts examine the government’s evidence to review whether a reasonable or prudent person would believe that there are sufficient facts to believe that the person to be arrested has committed an offense. In contrast, the Bacon sworn statement standard does not require courts to test whether a reasonable person would agree with the government’s assertion that a witness’s testimony is material. Also, courts have required more judicial scrutiny for grand jury subpoena requests than applications for the detention of grand jury material witnesses. In considering whether to grant a grand jury subpoena, courts are required to check for relevancy, specificity and whether the government is going on a “fishing expedition” or requesting irrelevant information. In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1302 (4th Cir. 1987). Grand jury subpoenas are designed only for the purpose of obtaining testimony and are “not meant to be the private tool of the prosecutor,” United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir.1972). “[P]ractices which do not aid the grand jury in its quest for information bearing on the decision to indict are forbidden.” United States v. [Under Seal], 714 F.2d 347, 349 (4th Cir. 1983), cert. dismissed, 464 U.S. 978 (1983).

[146]Interview with Mary Jo White.

[147]For example, see the cases of Tajammul Bhatti (in the “Suspects Held as Witnesses” section of Chapter III), Albader al-Hazmi (in the “Excessive Force in Arresting Witnesses” section of Chapter IV), and Abdullah Tuwalah (in the “Prolonged Incarceration and Undue Delays in Presenting Witnesses to Grand Juries” section of Chapter III).

[148]In criminal arrests, the Supreme Court has carved out constitutional limits to the government’s use of unverified and unreliable tips. Spinelli v. United States, 393 U.S. 410 (1969) (rejecting arrest warrant of criminal suspect as invalid because of absence of sufficient reliability and corroboration of informer’s tip).


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