an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Use and Abuse of the Federal Material Witness Statute
The New York Times reports today that Maher Hawash, an American citizen who is a 38 year old software engineer who works for Intel Corp. and who lives in the Portland, Oregon area, has been held in prison for the past two weeks without being charged with a crime or brought before a judge. Instead, the Justice Department has chosen to detain him indefintely as a material witness. TalkLeft also has coverage here.
The federal material witness statute allows federal officials to detain people whose testimony is thought to be material to an ongoing criminal investigation for the purpose of testifying before a grand jury or in a criminal trial. The material witness statute, passed in 1984, was used rather infrequently before 9/11, mostly in drug smuggling and organized crime cases.
Following 9/11 the Justice Department has used the statute to round up an unspecified number of people and hold them indefinitely without trial. (You can find previous stories on the Justice Department's policy here, here, here, and here.) The statute is designed to ensure that people are available to testify in criminal proceedings, and states by its terms that detention is *not* permitted if the testimony can be obtained by deposition. As the statute, codified at 18 U.S.C 3144, states:
No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
Nevertheless, the Justice Department does not appear to be interested in actually having many of the detainees testify. Rather, they simply want to hold them so that they can incapacitate them or interrogate them at their convenience. This is a clear abuse of the purposes of the statute.
Does the "failure of justice" language justify indefinite detention? No, for two reasons. First, the point of this language is to permit flexibility in situations where the government would like to hold someone *temporarily* until the government can determine whether their testimony at a grand jury hearing or criminal is necessary in addition to deposition testimony. It should not apply to permit *indefinite* detention if the government isn't really serious about obtaining such testimony. Second, and perhaps more importantly, the "failure of justice" language cannot be used to permit indefinite detention of persons the government thinks might be involved in wrongdoing. That is because the government always retains the authority to charge the detainee as a criminal suspect, and hold him or her for trial. If the government doesn't even have probable cause to arrest a citizen, it is not clear why the government may subject that citizen to indefinite incarceration. This is competely backwards: if the government *did* have probable cause to arrest, then the citizen would have various procedural rights to appear before a judge to determine whether the test of probable cause was met, and the case against him or her would have to be set for prosecution and trial. Thus, if the government is permitted to use the material witness statute in the way that the Justice Department is currently using it, a citizen is *worse off* if the government lacks evidence to prosecute him or her. The statute should not be read to permit an end-run around the criminal procedure protections of the Bill of Rights.
Using the material witness statute to detain people when there is no serious interest in obtaining their testimony for a grand jury or a criminal trial is an abuse of the federal material witness statute. It is important to recognize that this statute may be constitutional on its face and yet it may be unconstitutionally applied if its undelying purposes are abused by overzealous government officials. That is what has been going on in the months following 9/11. The Justice Department needs to stop misusing the statute, and if they will not, Congress needs to amend this statute to prevent these violations of civil liberties. Unfortunately, I fear that this particular abuse of civil liberties is not very high on Congress's agenda, and that the Ashcroft led Justice Department would, if anything, like even more power to detain people indefinitely.