The Honorable Patrick J. Leahy
United States Senate
Washington, DC 20510

Re: S. 1739, providing safeguards for material witness detentions

Dear Senator Leahy:

On behalf of the American Civil Liberties Union and its nearly 500,000 members, we offer our strong support for S. 1739, reforming the standards for the arrest and detention of material witnesses pursuant to 18 U.S.C. § 3144.

After 9/11, government officials misused the material witness statute in scores of cases to lock up mostly Arab and Muslim men, many of whom - despite being arrested as ""witnesses"" - were never brought before any judicial body to testify. The ACLU and Human Rights Watch authored a joint report detailing the misuse of this law to justify a campaign of indefinite detention without criminal charge.[1]

As further explained in the attached memorandum, if enacted, S. 1739 would represent a substantial reform of this extraordinary power - the power to arrest and detain a person who has been accused of no crime, but simply has information that might be ""material"" to a criminal case. The statute giving this power to the government consists of only one short paragraph, providing little guidance to courts as to how this power should be constrained. This lack of guidance was a key reason for the post-9/11 abuse of the law.

Among other things, the bill clarifies and strengthens the standard for a court to apply in determining whether a material witness should be arrested or detained. The bill also provides clear, workable time limits for detention of material witnesses in both trial and grand jury proceedings. The bill provides that material witnesses must be confined in the least restrictive means possible. It also provides that material witnesses should be detained, ""to the extent practicable,"" in a facility separate from accused or convicted criminals. Finally, the bill requires the Attorney General to report to Congress concerning the use of the material witness statute. S. 1739 would codify much of the judge-made law regarding material witnesses. It provides that material witnesses are entitled to specific rights, which are clearly established but were violated all too often in post-9/11 investigations. These include, for example, the right for the witness to have notice of the arrest warrant and the right to a prompt hearing to determine whether the witness poses a flight risk.

The bill falls short in some respects. It continues to permit the use of the material witness statute in grand jury proceedings, which pose the greatest potential for abuse. It also does not limit or reform the secrecy of many material witness proceedings. While S. 1739 does not address all of the serious problems presented by the misuse of the material witness statute, it contains very significant reforms to this far-reaching, but ill-defined law. We urge its swift enactment.

Alexander Hamilton, in defense of the federal judiciary, noted that "" 'confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten is a . . . dangerous engine of arbitrary government' "" The Federalist No. 84 (emphasis in original) (quoting Sir William Blackstone). S. 1739 arms the judiciary with important tools to help prevent the material witness law from becoming such an engine.

Thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Timothy H. Edgar
National Security Policy Counsel

cc: Members of the Senate Judiciary Committee

Endnotes

[1] American Civil Liberties Union & Human Rights Watch, Witness to Abuse: Human Rights Abuses under the Material Witness Law Since September 11 (2005), available at: /SafeandFree/SafeandFree.cfm?ID=18585&c=280