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VI. Failure of Safeguards for Material Witnesses

When HRW/ACLU interviewed former U.S. Attorney Mary Jo White, she expressed her belief that the use of the material witness law to detain suspects has been acceptable because numerous safeguards exist to preclude wrongful or arbitrary detentions. Unfortunately, our review of the post-September 11 use of the material witness law suggests that existing safeguards have been inadequate and those that do exist have not been effectively enforced.

Right to Appear Promptly before a Judge

Under international and U.S. law, a person deprived of his or her liberty must be promptly brought before a judge or judicial officer.149 HRW/ACLU found that in more than two dozen of the seventy cases we uncovered, the government did not provide a detention hearing for three or more days following arrest. In ten of these cases, witnesses never received any kind of judicial detention hearing at which they could contest their detention.

U.S. law also requires that a court issue a written statement explaining the reasons why a material witness was ordered detained.150 Yet our research indicated that judges routinely failed to issue such written findings. For example, Albader al-Hazmi was not taken to a court for seven days after his arrest. During this time, he was held in solitary confinement in New York. When he finally appeared in court, he was kept in restraints. The court proceeding lasted less than five minutes, and the court never issued a written statement.151

One of the most egregious delays we uncovered was that of material witness Ayub Ali Khan. He was not taken before a judge for fifty-seven days following his arrest, nor was he provided an attorney, despite his requests. During this period, the government interviewed him at least six times without counsel. Khan was never found to have any terrorist connections nor was he criminally charged with terrorism-related crimes.152

In addition to the delays in presenting witnesses to judges, the requirement that material witnesses be present when federal officials made status reports to the court was routinely ignored.153

Failing to Provide Witnesses with Warrants or Reasons for Arrest

In almost allof the material witness cases investigated by HRW/ACLU, the Department of Justice has sought at every opportunity, from the moment of arrest through release, to prevent him from obtaining information about the government’s suspicions or reasons for arrest that might allow him to respond and possibly secure his release. For example, as one witness described:

I kept asking what am I being charged. They would respond you’re not being charged with anything. I asked why am I here. They said I was a witness. I said a witness to what? They said they couldn’t tell me. It was like playing “Who’s on First?” [an Abbott and Costello routine] for two hours.154

The Justice Department has also sought to block the witnesses’ lawyers from being able to get information, sometimes leaving them as much in the dark as their clients. Even when lawyers have had access to documents, many have been subjected to restrictions that severely limited their ability to mount a successful case for their clients.

Most of the seventy witnesses held in connection with September 11 counterterrorism investigations were not presented with an arrest warrant at the time of their arrest. Indeed, in at least thirty-six cases, the Justice Department failed to give the witnesses any reason for their arrest at the time they were initially detained. This violates international155 and U.S. law;156 both provide that persons have the right to be informed of the reasons for their arrest or detention.

Ultimately, most of the witnesses have learned the basic allegations underlying their arrest and detention as material witnesses, but throughout their detention, the government has refused to provide them with the affidavit or underlying evidence used to detain the witness. Even criminal suspects eventually get to see the government’s evidence suggesting guilt or innocence, and there are clearly defined procedures for when and how that evidence is to be transmitted to the suspect. By contrast, post-September 11 material witnesses often had no idea when, if ever, they might get to know the evidence underlying their detention. Indeed in many cases, they never did receive the exculpatory or damming evidence the government had to justify their arrest.

In more than a dozen cases, the government also barred witnesses’ lawyers from viewing the affidavit supporting the arrest, or when access was allowed, it secured orders barring the lawyers from disclosing the material to their clients.

Tajammul Bhatti

When FBI agents arrested Tajammul Bhatti,in Abingdon, Virginia in June 2002, they informed him only that he was a suspect (even though he was arrested as a material witness), but they initially did not disclose what he was suspected of doing. After his arrest, federal agents interrogated him without counsel about his religion and beliefs, barred public access to his court proceedings, and kept him in the dark about the basis of his detention. Bhatti became deeply concerned:

At first I felt initial shock and fear. I knew [several hundred] people had been in Guantánamo for almost two years and their families had no idea how they are. I didn’t do anything but I knew neither did many of those guys. I got a bit panicked. They didn’t tell me how long I’d be detained and no one could know what was going on.157

“Evansvillle Eight

When the Department of Justice arrested eight material witnesses from Evansville, Indiana in October 2001,158 none were informed of the evidentiary basis for their arrest. The men—all of whom were Muslim and of Middle Eastern descent—were also not informed of their right to an attorney nor permitted to contact an attorney. The day after the arrests, the federal court in Indiana appointed an attorney for each witness. The court then conducted an all-day session with the witnesses’ court-appointed counsel, the prosecutors, and FBI agents. The witnesses were not permitted to attend and had to wait in holding cells in the court jail. At first, the government attorneys persuaded the court to prohibit the witnesses and their court-appointed lawyers from seeing the warrants and supporting affidavits because of national security concerns. By the end of a full-day session, the witnesses’ lawyers, who had still not met their clients, succeeded in receiving permission to review the documents. But upon the strong urging of the Justice Department, the court ordered the attorneys not to disclose the contents of the warrant or affidavits to anyone, including their clients. The attorneys were, however, permitted to give their clients advice in response to their clients’ inquiries.159

As Mark Foster, the lawyer for one of the witnesses described:

I was only allowed to see the warrant and affidavit in the courtroom. We had to fight for permission to see the supporting materials. We couldn’t leave the room. The government just went on about national security. Finally, we viewed the affidavit in the presence of the government attorneys.

We were not permitted to discuss the facts of the affidavit with our client. The judge only allowed us to answer the client’s questions and give our clients advice. We were not allowed to share the basis of the warrant or the reason for the arrest with our clients. It was highly unusual. I don’t know how he expected us to honestly and ethically represent these guys. And when we did meet with them, there was no privacy … There were eight people held in two cells.160

By late afternoon, the eight lawyers were finally permitted to meet with their clients before the witnesses’ first court appearance. But the lawyers were not able to disclose or even intimate the basis of the material witness warrant. The only issue the lawyers discussed with the witnesses was whether they should agree to be transferred to another jurisdiction and to waive any objections during the court proceedings.161

During the hearing that afternoon, the lawyers for the material witnesses did not—and could not—challenge the warrants because they were not permitted to have substantive discussions with their clients. The closed court proceeding was limited to the judge asking each witness if he agreed to change venue to Virginia, where he would testify in front of a grand jury. Each witness, confused and scared by the process, agreed to waive any objection to being transferred.162

After the five-minute session, the government shackled the men and put them in a van to return them to the nearby Henderson County Jail. On their way back to the jail, the van turned around and took them back to the court. The government had made a last-minute decision to convene the grand jury in Chicago. During the second court hearing, the men went through the same routine again: the judge asked whether they waived objections to being transferred, and each said, “Yes.” The men found the experience to be confusing and harrowing:

No one said anything about why we are witnesses. The next day they took us from the Henderson [Detention Center] to the federal building. We saw the judge around 5 or 6 [p.m.]. We were waiting all the day in a cell—in jail. No one was telling us anything. We asked: “What is going on? We are material witness for what?” No one knew what was going on. It felt like we would not see our family ever again, we don’t know why we are here. We were thinking, who will send our families money? What’s going on? What happened?

Before we went into court, we saw the lawyer for myself and Tarek Albasti. Tarek asked what’s going on. The lawyer said, “I can’t tell you.” I said, “What do you mean you can’t tell us?” The lawyer says it’s something so so so big, and I can’t tell you. It made me crazy. Here is my lawyer, how can he not tell me what is going on?163

Another Evansville witness recounted:

This lawyer came to me, and he told me that we had to appear before a federal court and that we need to waive our rights; that’s why they are holding court. … And he told us that if we didn’t waive our rights, it’s going to take a long time, and they are still going to detain us for who knows how long. But if we waive our rights, the thing will be quick and we’ll go on.

I asked, “What are we accused of, what’s going on? What is this material witness thing?” He said: “I have a gag order; I can’t tell you anything.” That’s my lawyer telling me that. So of course I said: “[If] you can’t tell me, do whatever you want to do, why are you asking me anything.”

… It was just crazy. You feel useless and hopeless and just there is nothing you can do. There was nothing I can do. I didn’t understand what was going on. We had no idea.164

Federal marshals transferred the eight witnesses to Metropolitan Correctional Center in Chicago, where they were placed in solitary confinement. None of the eight material witnesses had another court appearance or detention hearing. For the next ten days, the witnesses sat in their cells wondering what was going on, why they had been detained, and what their crime was. The witnesses proved to have no material information, and they never testified. The FBI issued an apology to them following their release.165

Anwar al-Mirabi

Federal authorities arrested Anwar al-Mirabi on September 13, 2001 in his Arlington, Texas apartment complex after his neighbors called the FBI to report that he seemed “suspicious.”166 The government first held al-Mirabi for overstaying his visa.167 On November 13, 2001, it arrested him on a material witness warrant.Neither al-Mirabi nor his lawyer, Gerald Kleinschmidt, was permitted to see the affidavit supporting the warrant.

The U.S. District Court for the Northern District of Dallas initially denied the government’s request to seal the proceedings and records. The judge put the case on the docket and held that the government could not continue to detain al-Mirabi, because he was not a flight risk.168 In what may have been an effort to avoid complying with the court’s order, the Justice Department moved the proceedings, the records, and al-Mirabi to Chicago, outside the jurisdiction of the Dallas court. Although al-Mirabi remained on the public docket in Texas, all the records from Texas were transferred to Chicago. But there is no trace of al-Mirabi in the federal courts in the northern district of Illinois—no records, no appearance in any dockets, no notice of any public hearings.169 Gerald Kleinschmidt told a newspaper reporter that al-Mirabi’s material witness records were “all closed to the public, closed to the press, closed to his family. I guess these people have no rights at all.”170

The Department of Justice refused to give Kleinschmidt any information about why it believed al-Mirabi had material information to a criminal proceeding. “Nobody can tell me, and I’m supposed to represent him … I had no idea what crime he was supposed to testify for, or if there was even a grand jury investigation when he was arrested.”171 The government held al-Mirabi for six months without having him testify. Kleinschmidt, who had worked for seven years as a federal prosecutor, told HRW/ACLU:

I’ve never seen a case like this. It’s the emotional issue of terrorism—if they were somehow involved in hatching the plan, the government has to have some information to show the judge by [probable cause] that they participated in it. There is no longer a line in the court between being involved in a conspiracy or being a witness.172

After being jailed nine months, al-Mirabi applied for and was granted voluntary departure and returned to Saudi Arabia with his wife and children. He was never charged with a crime.173

Nabil al-Marabh

The U.S. Attorney’s Office for the Northern District of Illinois also prohibited Nabil al-Marabh and his attorney, John Meyer, from viewing any records pertaining to the arrest of al-Marabh as a material witness except for the basic subpoena sent to al-Marabh after his arrest. The government filed every record pertaining to al-Marabh’s detention ex parte and under seal. Knowing only that al-Marabh was a material witness, Meyer filed four motions on behalf of al-Marabh, including a motion to unseal the affidavit supporting the arrest warrant so al-Marabh could challenge it.174 After months of continuances, the government released al-Marabh without ever having him testify before a grand jury.

As Meyer told HRW/ACLU:

I never got a copy of the affidavit. The judge refused to unseal it and disclose it. I didn’t get a copy of any of the documents that supported his arrest other than the warrant.

[T]he government filed all their papers under seal. I was operating totally blindly in the case as far as the representation was concerned. There was the issue of the basis of the warrant and why he couldn’t be taken in front of a grand jury [by the government]. Because it was under seal, even now I can’t truly know why he was detained. I don’t know and I never will.175

Restricted Access

More than thirty lawyers for post-September 11 material witnesses told HRW/ACLU that they were only permitted to view the warrant for arrest and supporting affidavit in the courtroom. The procedure has varied from courtroom to courtroom. Some lawyers have been permitted to take notes, while others have not. Some lawyers have only been able to view the documents for a short period of time in the presence of the government attorneys and sometimes the judge. Others have been able to bring the documents with them into a private room to review with their clients. Almost all lawyers have been denied access to evidence that the government used to support the arrest beyond what was included in the affidavit. Specifically:

  • Public defender George Taseff, who was appointed to represent Ali Saleh Kalah al-Marri when he was arrested as a material witness in Illinois, told HRW/ACLU:

I was only permitted to look at the warrant and affidavit briefly-about 10 minutes. I requested a copy but the judge denied my request on national security grounds. I was not given a copy and was only allowed to view it in the court room with the judge and prosecutors present. I looked at it with al-Marri, who was also seeing it for the first time. I could take notes. I scribbled notes furiously.176

  • Fred Sinclair, who represented material witnesses Salman al-Mohammedi and Mohamed al-Qudhaieen in Virginia was also restricted to viewing the evidence supporting his clients’ detention in court:

I was not allowed to take a copy of the affidavit. I could only see it in court and I had to write it out. Everything was secret-the warrant was filed under seal. The courtroom was closed. It didn’t matter whether they had agreed to cooperate.177

  • Susan Otto, representing material witness Mujahid Menepta in Oklahoma, only was able to view the affidavit briefly in court in the presence of the government and the judge. “I only was able to see the warrant and affidavit in open court. A number of FBI and cops were sitting at the table with the government.” Menepta was permitted to view the affidavit with Otto while she was in court but was not given his own copy.178

Denial of Right to Counsel

Everyone has the right to an attorney when subjected to “custodial” interrogation, i.e., when he or she is not free to leave, or when government agents seek to question him about suspected criminal conduct.179 Material witnesses are guaranteed the right to counsel at their court appearance by statute and by the Fifth Amendment right to due process.180 If a material witness appears in court without counsel, the presiding judicial officer is required to inform the witness that he or she has the right to counsel. If a witness cannot afford an attorney, he or she has the right to court-appointed counsel.

In the material witness context: “Counsel is required so that the material witness may know precisely what is happening, so that he is aware of the prospect of incarceration, and so that he is treated fairly by the prosecution.”181 Despite these clear requirements, federal authorities have sometimes failed to inform material witnesses they were interrogating about their right to counsel. Moreover, even when witnesses have requested counsel, government agents have sometimes delayed for days in providing counsel, or they have discouraged witnesses from obtaining counsel, suggesting that the presence of counsel would simply delay the witnesses’ release.

Federal agents have also refused to allow a number of witnesses to call lawyers or their family after their arrest. Some witnesses have reported being held for days or weeks before they were permitted to contact anyone. Mujahid Menepta, detained as a material witness in October 2001, described his frustrations to HRW/ACLU:

[When they arrested me] they didn’t tell me I had a right to a lawyer. They didn’t allow a phone call. I asked repeatedly and was denied. There were two agents who interviewed me. I was still in handcuffs while being questioned. I asked again why I was being arrested. They said there were no charges—their only response was that you’re just under arrest. Then they took me to county jail. They still refused to allow me to make a phone call. The next day I got no phone call. … I finally got angry; I kept wondering where I am and what country I am in. This isn’t the United States. Where is my phone call?182

Lawyers also have had a difficult time locating their clients. Patrick Joyce, lawyer for material witness Omar Bakarbashat, was told by the FBI that Bakarbashat was being held in the Metropolitan Correctional Center in Manhattan. According to Joyce:

I was not able to gain access to my client for days. I was first told he was at MCC in the Special Housing Unit. I waited six to seven hours at MCC and never got to see Omar. Then I was told he was moved to MDC Brooklyn.183

The friends and family of Hussein al Attas hired a lawyer to represent al Attas after he was arrested as a material witness and visa violator in September 2001. The lawyer, however, had no success in locating him:

I couldn’t track him down. … He was picked up on September 11—they got to him pretty fast. It was very confusing when I contacted the INS. They asked whether I had a G-28 [an immigration form designating an attorney]. It was like a dog chasing its own tail at that time—how could he have signed a G-28 in prison?I called county jails, the FBI, the INS. No one knew where he was.184

Failure to Compensate Material Witnesses

The Supreme Court requires the government to compensate material witnesses who are incarcerated without bail. The law guarantees them $40 per day.185 However, none of the witnesses we interviewed were informed of their right to compensation or received any compensation for the days they spent in jail. In fact, many never received compensation for their travel home from far-away jails, or the wages they lost while they were detained.



[149]The United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (U.N. Body of Principles), G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), principle 11(1) provides that “[a] person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.” When an individual has been deprived of a liberty interest, the Fifth Amendment right to Due Process guarantees a prompt hearing, conducted at a meaningful time and in a meaningful manner. Barry v. Barchi, 443 U.S. 55 (1979).

[150]18 U.S.C. § 3142(i)(1), In re Grand Jury Material Witness Detention, 271 F. Supp. 2d 1266 (D. Or. 2003).

[151]Interview with Dr. Albader al-Hazmi. See also Pierce, “Coming Home.”

[152]Interview with Ayub Ali Khan; HRW/ACLU telephone interview with Mohammad Azmath, Hyderabad, India, April 2, 2004 (Interview with Mohammad Azmath).

[153]Federal Rules of Criminal Procedure 46(h).

[154]HRW/ACLU interview with Mujahid Menepta, St. Louis, Missouri, July 22, 2004.

[155]The ICCPR, article 9(2) provides that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” The Human Rights Committee has noted that article 9(2) “requires that anyone who is arrested shall be informed sufficiently of the reasons for his arrest to enable him to take immediate steps to secure his release if he believes that the reasons given are invalid or unfounded.” Drescher Caldas v. Uruguay (43/1979), July 21, 1983.

[156]United States constitutional guarantees of due process establish the right of anyone detained to be informed of the grounds for his or her arrest. United States v. Hamdi, 124 S.Ct. 2633, 2648-49 (2004) (“For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.”) (internal citations and footnotes excluded).

[157]Interview with Tajammul Bhatti.

[158]See the “Excessive Force in Arresting Witnesses” Section of Chapter IV for further details.

[159]HRW/ACLU telephone interview with Mark Foster, Evansville, Indiana, November 2004.

[160]Ibid.

[161]Ibid.; Interview with Tarek Albasti; Interview with Tarek Omar; HRW/ACLU interview with Ahmed Hassan, Evansville, Indiana, June 20, 2004.

[162]Ibid.

[163]Interview with Tarek Omar.

[164]Interview with Tarek Albasti.

[165]Kimberly Hefling, “FBI Agent Clears Names of Innocent Men,” Contra Costa Times, Sept. 12, 2003.

[166]Dan Malone “Cells without Number, Prisoners with Arab Names,” Fort Worth Weekly, May 9, 2002.

[167]Al-Mirabi had briefly overstayed his visa in the United States,because his U.S.-citizen wife encountered complications when she gave birth to their child in August 2001. HRW/ACLU telephone interview with Gerald Kleinschmidt, San Antonio, Texas, February 25, 2004 (Interview with Gerald Kleinschmidt).

[168]Docket, United States v. Almirabi, MJ No. 01:357 (N.D. Tex. November 13, 2001); Interview with Gerald Kleinschmidt.

[169]Human Rights Watch/ACLU requested the records for United States v. Almirabi, and the clerk for the Northern District Court of Texas stated the records were no longer in Texas. The clerk informed HRW/ACLU that the files had been transferred to the Northern District of Illinois. Our in-person request in Chicago and search for “al Mirabi” or “Almirabi” on the docket system of the Northern District of Illinois revealed no record for Anwar al-Mirabi.

[170]Josh Gerstein, “Mystery Man, Alleged Witness Expected to Testify in Chicago,” ABC News, January 8, 2003.

[171]Interview with Gerald Kleinschmidt.

[172]Ibid.

[173]Ibid.

[174]Motion of witness Nabil Al-Marabh to quash material witness warrant, to unseal the material witness warrant affidavit and motion for an evidentiary hearing, In re: A matter before the Special April 2002-1 Grand Jury concerning material witness NABIL AL-MARABH, No. 01-GJ-1622. (N.D. Ill. Filed 2002).

[175]Interview with John Meyer.

[176]Human Rights Watch/ACLU telephone interview with Assistant Public Defender George Tassef, Peoria, Illinois, April 27, 2004.

[177]HRW/ACLU telephone interview with J. Fredrick Sinclair, attorney for Mohammad al-Qudhaieen, Alexandria, Virginia, August 17, 2004.

[178]Interview with Susan Otto.

[179]See, e.g., U.N. Body of Principles, principle 17(1): “A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.”

[180]18 U.S.C. § 3006A(a)(1)(g); In re Class Action Application for Habeas Corpus ex rel. ll Material Witnesses, 612 F.Supp. 940, 943-44 (W.D. Tex. 1985).

[181]Ibid.

[182]Interview with Susan Otto.

[183]HRW/ACLU telephone interview with Patrick Joyce, New York, New York, March 2004.

[184]HRW/ACLU telephone interview with Mitchell Gray, Oklahoma City, Oklahoma, July 2004. See also “Presumption of Guilt,” describing difficulties of lawyers and clients unable to find relatives held after September 11.

[185]Hurtado v. U.S.,411 U.S. 578 (1973), re-hearing denied, 411 U.S. 978; 28 U.S.C. § 1821.


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