To: Interested Persons

From: Timothy H. Edgar, National Security Policy Counsel

Re: Analysis of S. 1739, providing procedural safeguards for material witnesses

Senator Patrick Leahy (D-VT) has introduced legislation (S. 1739) amending the material witness statue (18 U.S.C. § 3144) to provide clearer procedural safeguards for persons detained as material witnesses.

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.

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 enabling the post-9/11 abuse of the law.[1]

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 a witness poses a flight risk.

The bill falls short in a few areas. The bill 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. In many post-9/11 material witness proceedings, the public and media were barred, even though there is nothing in the law that requires proceedings to be held secretly, including proceedings for grand jury witnesses. This secrecy facilitated abuse of the material witness law. Congressional reporting is welcome, but is no substitute for open court proceedings.

Requires law enforcement to meet specific standards in order to both arrest and detain a material witness

The bill imposes clear standards that the government must meet to arrest a material witness. Since September 11, for example, some courts have issued material witness arrest warrants without any clear evidence that the witness will flee. As a result, some individuals who were never charged with a crime spent more time in prison then many people convicted of crimes.

To arrest a person who is both presumed innocent and is not accused of any crime, it is appropriate that the government meet a heavy burden of proof. S. 1739 adopts a dual standard, requiring a heavier burden for the government to arrest a witness if prosecutors have not first tried to secure the appearance of the witness by subpoena. If the witness has been served with a subpoena, the government must show there is probable cause that the witness has information that is ""material"" to a criminal case and has failed or refused to appear. Requiring law enforcement to prove by probable cause that the witness who has been served refuses to testify before arresting him comports with current contempt rules. See 28 U.S.C. § 1826

However, if the government wants to arrest a witness without having served any subpoena, it must provide 'clear and convincing' evidence to the court that the witness will flee or otherwise will not appear if served. The higher standard is appropriate because the government should not be able to arrest a person who has been given no opportunity to testify except on the basis of very strong evidence.

S. 1739 also creates a rebuttable presumption against detaining a material witness and increases the standard of proof for detention. ""Clear and convincing"" evidence is required to show that the witness's appearance in court cannot reasonably be assured absent detention.

Finally, the bill eliminates the vague ""failure of justice"" prong for continued detention. This prong has been misused to permit indefinite detention without charge for reasons not related to the statute's purpose of ensuring testimony is available in a criminal case. S. 1739 provides that the court may consider only the issue of whether a witness is likely to flee if released. This reform will help make sure material witnesses, who are accused of no crime, are not treated like criminal suspects who may be detained, even absent a risk of flight, if they are deemed a danger to the community.

Creates clear time limits

Current law imposes no set time limit on the detention of a material witness, who may be held for an unspecified ""reasonable time"" even though the person is accused of no crime. By contrast, a person who is arrested under normal procedures must be charged within 48 hours or released. The ""reasonable time"" framework has proved unworkable, resulting in many detentions lasting weeks, months or even indefinitely.

The bill provides a time limit of up to five days or until the testimony of the witness can be obtained, whichever is earlier. The time limit can be renewed for additional five day periods, up to a maximum of ten days for a grand jury proceeding or thirty days for a criminal trial.

While both trials and grand jury proceedings can last for months, the most serious abuses have occurred with grand jury witnesses. Grand jury terms last up to 18 months and can be extended even longer. There is no good reason a witness cannot be brought before the grand jury within ten days.

Of course, if a witness refuses to answer questions, the court could find the witness in contempt, keeping the witness locked up for a potentially much longer period. In the absence of a contempt finding, however, there is no good reason for prolonged detention of a witness. People who are not accused of any crime should not be kept locked up for the convenience of courts or prosecutors.

Provides separate detention facilities and least restrictive confinement for material witnesses

This bill clarifies that material witnesses must be incarcerated in facilities separate from criminal defendants or suspects ""to the extent practicable,"" and includes the limitation that the conditions must be the least restrictive possible. This requirement makes clear the government's obligation to distinguish material witnesses from criminal suspects.

Requires Attorney General to report on use of material witness statute

S. 1739 includes a requirement for an annual report to Congress on the use of the material witness statute. The report will enhance congressional oversight. The Attorney General must report on the number of material witnesses detained, the number of applications, the number whose testimony was not secured, and the average duration of the witnesses' detentions.

Shortcoming: permits continued use in grand jury proceedings under low standard of materiality

S. 1739 permits the use of material witness arrests in grand jury proceedings, which pose the greatest potential for abuse. Grand jury investigations are wide ranging. Moreover, once a grand jury is convened, an investigation can continue for eighteen months or even longer, if the grand jury's term is renewed. The jury can subpoena any testimony unless there is no possibility that it would yield information relevant to the investigation.

As a result of this very elastic standard, it is very difficult for witnesses in grand jury proceedings to contest the government's contention that their testimony is ""material."" In grand jury proceedings, courts generally defer to the government and do not require a high level of specificity when establishing the materiality of a witness's testimony.

The text of the material witness statute is not clear as to whether it applies to grand jury proceedings. See United States v. Awadallah, 349 F.3d 42, 53 (2nd Cir. 2003) (relying on a footnote in a committee report to hold the term ""criminal proceeding"" includes grand jury proceedings). Prior to 9/11, the statute was rarely used in that context, and the abuses that have resulted strongly suggest the statute should not extend to the grand jury. At a minimum, the statute should be amended to require a stronger showing of materiality. S. 1739 leaves in place the authority to detain grand jury witnesses and does nothing to reform the very loose showing of materiality that is required.

Shortcoming: fails to reform excessive secrecy in material witness proceedings

Also problematic is the bill's failure to provide strong safeguards against secret material witness proceedings. While matters occurring before the grand jury proceedings are kept secret under Rule 6(e) of the Federal Rules of Criminal Procedure, nothing requires the government to keep secret the entirely separate hearing concerning whether the government can keep a witness in jail simply because the witness is held in connection with a grand jury proceeding.

Before 9/11, the great majority of such hearings were held in open session. After 9/11, however, the government routinely sought to close such proceedings, invoking national security.

Greater secrecy facilitates abuse of the process because the media and public lack access to the proceedings. For example, the government may offer secret evidence to the court when applying for a material witness arrest warrant or at the initial hearing to determine the witness' flight risk, without fear these actions will be perceived by the public as unfair. Witnesses, who are unable to examine this secret evidence, cannot prepare a defense to prevent the court from detaining them.

For example, in the case of Brandon Mayfield, who was wrongly suspected of involvement in the Madrid bombings of 2004, the FBI stated it was 100 per cent positive that Mayfield left a fingerprint on a bag of detonators found near the Madrid bombing sight. The FBI obtained a material witness arrest warrant for him even though there was no evidence that Mayfield had traveled to Spain in the last ten years. Mayfield was not allowed to view the evidence that was used to support the warrant. He had no method of effectively contesting his arrest and detention.

The abuses that resulted from keeping secret the detention of material witnesses warrant legislation that would keep those hearings open, or at least set a much higher bar for closing such hearings. Unfortunately, the bill does not address that issue.

Conclusion: An Important Step Forward

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. 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).

After 9/11, experience has shown that 18 U.S.C. § 3144 was misused as just such a dangerous engine. If enacted, S. 1739 would ensure the extraordinary power to detain a person simply for being a witness is much less dangerous to basic freedoms.

Endnote

[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