Mr. President, under the Federal material witness statute our government is authorized to arrest a witness in order to secure his testimony in a criminal proceeding. In order to obtain a material…
Mr. President, under the Federal material witness statute our government is authorized to arrest a witness in order to secure his testimony in a criminal proceeding. In order to obtain a material witness warrant, the government must establish that the witness has information that is material to a criminal proceeding, and that it may become impracticable to secure the witness's presence at the proceeding by a subpoena. Once arrested, a material witness may be detained for a reasonable period, until his testimony can be secured by deposition or appearance in court.
The material witness law was intended to ensure the appearance of witnesses in those rare cases where they might otherwise flee to avoid testifying in a criminal proceeding. This authority is an important tool for our government's law enforcement duties, but it must be exercised responsibly. As the Court of Appeals for the Second Circuit noted in 2003, in the case of United States v. Awadallah, ``It would be improper for the government to use [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.'' Since September 11, 2001, however, that is exactly what the government has been doing. Indeed, senior Administration officials, including our current Attorney General, have admitted that the government routinely uses material witness warrants to detain suspects in the so-called war on terror.
A report released this summer by Human Rights Watch and the American Civil Liberties Union identifies 70 men, including more than a dozen citizens, whom the Department of Justice
arrested as material witnesses in connection with its terrorism investigations. Many were never brought before a court or grand jury to testify for the simple reason that they were viewed not as witnesses, but as suspects. The evidence against these suspects was often flimsy at best, and would never have sufficed for criminal arrest and pre- trial detention. This twisting of a narrow law designed to secure testimony into a broad preventive detention authority has resulted in some notorious abuses.
Just days after 9/11, the FBI arrested eight Egyptian-born men in Evansville, IN--one a naturalized American citizen--as material witnesses, based on a bogus tip that they planned to fly a plane into the Sears Tower in Chicago. The men were held for more than a week in solitary confinement before being released. Many months later, the FBI issued a rare public apology to these men. That apology, while necessary, could not repair the damage that had been done to them and their families in the form of lost business, tainted reputations, and the accusing stares of their friends and neighbors.
The case of Abdallah Higazy further highlights the danger that can occur when this authority is abused. Shortly after 9/11, the 30-year- old Egyptian graduate student with a valid visa, was picked up after a security guard at a hotel located across the street from Ground Zero claimed to have found an aviation radio in the room where Higazy had stayed on 9/11. Higazy was held for more than a month in solitary confinement until he ultimately confessed that the radio was his. Higazy was then charged with lying to the FBI for initially denying possession of the radio. These charges were dropped after the true owner of the radio, an American pilot, went to the hotel to claim it.
In another, higher profile case in May 2004, Portland attorney Brandon Mayfield was arrested as a material witness in connection with the Madrid train bombing. An email sent from the Portland FBI office to the Los Angeles FBI office the day before Mayfield's arrest refers to him as a ``Moslem convert'' and notes as a ``problem'' that there was not enough evidence to arrest him for a crime. After spending two weeks in prison, Mayfield was released and the FBI was expressing regret about the erroneous fingerprint match that led to his arrest.
These and other examples of post-9/11 misuse of the material witness statute are documented in the HRW/ACLU report. As the report shows, such misuse does more than just circumvent the requirement of probable cause for a criminal arrest. Suspects arrested as material witnesses are denied the basic protections guaranteed to criminal defendants, including the right to view any exculpatory evidence and to be able to challenge the basis for their arrest and incarceration. The report concludes that the misuse of the material witness law ``threatens U.S. citizens and non-citizens alike because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention.''
The bill I introduce today will ensure that the material witness law is used only for the narrow purpose that Congress originally intended, to obtain testimony, and not to hold criminal suspects without charge when probable cause is lacking.
First, the bill raises the standard that the government must meet to obtain a material witness warrant. Under current law, a judge may order the arrest of a material witness if there is probable cause to believe that securing his presence by subpoena may become ``impracticable.'' Under the bill, there must be probable cause to believe that the witness has been served with a subpoena and failed or refused to appear as required, or clear and convincing evidence that the service of a subpoena is likely to result in the person fleeing or cannot adequately secure the appearance of the person as required.
Second, the bill imports several due process safeguards from the Federal Rules of Criminal Procedure relating to the arrest and arraignment of criminal defendants. Among other things, the bill requires that a material witness warrant specify that the testimony of the witness is sought in a criminal case or grand jury proceeding, and command that the witness be arrested and brought to court without unnecessary delay. The warrant must also inform the witness of his right to retain counselor or request that one be appointed. The right to counsel is already guaranteed to material witnesses under the Criminal Justice Act, 18 U.S.C. 3006A(a)(1)(g), and protects the witness from erroneous, unnecessary, and prolonged incarceration.
The bill further provides that, upon arresting a material witness, the government must provide him with a copy of the warrant or inform him of the warrant's existence and purpose. A material witness must be brought before a judge ``without unnecessary delay''--a term that has been strictly interpreted when applied to the criminally accused. The initial appearance must be in the district of arrest or an adjacent district. At the initial appearance, the judge must inform the witness of the basis for his arrest and of his right to counsel. The judge must also allow the witness a reasonable opportunity to consult with counsel. The judge must then determine whether the witness should be released or detained pending the taking of his testimony.
Third, the bill establishes clear procedures for material witness detention hearings. Current law provides that material witnesses shall be treated in accordance with 18 U.S.C. 3142, which governs the release or detention of defendants pending trial. Section 3142, however, contains many factors that are not applicable to material witnesses. For example, courts have held that a material witness may not be detained on the basis of dangerousness. (See Awadallah, 349 F.3d at 63 n.15.) The bill clarifies that in detention hearings for material witnesses, flight risk is the only relevant factor. A court shall order a material witness detained only if no condition or combination of conditions will reasonably assure the appearance of the witness as required. As under current law, no 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. In determining whether a material witness should be released or detained, the court shall take into account the available information concerning the history and characteristics of the witness, and may also consider challenges to the basis of the warrant.
Fourth, the bill establishes the ``clear and convincing evidence'' standard used in other civil detention contexts for material witness detentions. Few courts have directly examined what standard of proof should be required of the government to demonstrate that no conditions of release can reasonably assure a witness's appearance. While the lower ``preponderance of the evidence'' standard may suffice for pre- trial detention of defendants who pose a risk of flight, in the case of defendants there has also been a finding of probable cause to believe the person committed a crime. In the case of a witness, where there is no probable cause to believe the person committed a crime, the usual grounds for fearing flight--the defendant's aversion to risking a guilty verdict and attendant sentencing--are not present.
Fifth, the bill imposes reasonable but firm time limits on the detention of material witnesses. Current law sets no firm limit on how long a witness may be incarcerated before being presented in a criminal proceeding or released. This has resulted, according to the recent report, in many witnesses enduring imprisonment for two or more months, and in one case for more than a year. Under my bill, a material witness may initially be held for not more than five days, or until his testimony can adequately be secured, whichever is earlier. That period may be extended for additional periods of up to five days, upon a showing of good cause for why the testimony could not adequately be secured during the previous five-day period. The total period of detention may not exceed 10 days for a grand jury witness, or 30 days for a trial witness, and in no case may a witness be held any longer than necessary to secure his testimony.
Sixth, in recognition of the fact that material witnesses are not charged with any offense, the bill requires that they be held in a corrections facility that is separate, to the extent practicable, from persons charged with or convicted of a criminal offense, and under the least restrictive conditions possible.
Finally, to facilitate congressional oversight, the bill requires the Justice Department to report annually on the use of the material witness law. Since 9/11, the Department has withheld information relating to material witnesses on the theory--in my view, a flawed theory--that such information is covered by the grand jury secrecy rule. It is hard to imagine how the release of generalized data, such as the aggregate number of people detained as material witnesses, could damage any reputational interest or any of the other interests protected by Rule 6(e).
The recent, detailed report on post-9/11 uses of the material witness statute leaves no doubt that the law has been bent out of shape, with real consequences for citizens and non-citizens alike. My bill will restore the law to its original purpose and prevent future abuses. I urge its speedy passage.
I ask unanimous consent that the text of the bill be included in the Record.