Civil Liberties Online

PART C: Material Witnesses

Beyond the Patriot Act: Cases and Laws Outside of the Scope of the PATRIOT Act That Nonetheless Raise Civil Liberties Issues

The Material Witness Statute, 18 U.S.C. ? 3144, allows the detention of a witness material to a criminal proceeding if the witness’ presence cannot be secured by a subpoena. It is unclear whether this statute authorizes detention of material witnesses in grand jury proceedings. The resolution of that ambiguity has repercussions for terrorist investigations. Many of the government’s anti-terrorist investigations involve grand jury proceedings. Courts that allow detention of material witnesses related to grand jury proceedings potentially broaden the government’s prosecutorial power in the anti-terrorist arena. See Unites States v. Awadallah, 2005 U.S. Dist. LEXIS 10209 (S.D.N.Y 2005) (finding that defendant could be detained as a material witness to grand jury proceedings related to the September 11th attacks); but see In re Material Witness Warrant, 213 F.Supp. 2d 287 (S.D.N.Y. 2002) (deciding that the Material Witness Statute applies to individuals needed for testimony in grand jury proceedings); In re Grand Jury Material Witness Det., 271 F. Supp. 2d 1266 (D. Or. 2003) (applying the Material Witness Statute in grand jury situations because grand jury proceedings are considered criminal proceedings as intended by the statute). Cf. Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004) (allowing a non-citizen detained as a material witness to the September 11th investigation to change status to an enemy combatant).

Although detention of a material witness relevant to a grand jury proceeding may inconvenience an individual, this detention is not necessarily a violation of civil liberties. In the realm of national security protection, it must be remembered that many judges have issued rulings favorable to civil liberties. For example, the trial court in United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004), ordered production of material witnesses by the government without allowing any substitutions to such production. Also, Judge Rosen in United States v. Koubriti condemned the governmental actions denying defendants access to exculpatory evidence during defendants’ trial. 336 F. Supp. 2d 676 (E.D. Mich., 2004). Finally, the Sixth Circuit judge in Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002), granted the public access to immigration hearings based on a First Amendment right. Likewise, the court in Parlak v. Baker affirmed a citizen’s constitutional right to fair detention pursuant to immigration proceedings when for a reasonable amount of time. 2005 U.S. Dist. LEXIS 9646 (E.D. Mich. 2005). And, perhaps most importantly, the Supreme Court in Hamdi v. Rumsfeld concluded that a United States citizen, despite being designated an enemy combatant, was entitled to a form of due process, specifically contesting enemy combatant status before a neutral decision maker. 124 S. Ct. 2633 (2004).

Grand jury proceedings and the consequent detention of material witnesses have been on the rise because of the effort against terrorism. See Niki Kuckes, The Useful, Dangerous Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1 (2004) (describing the dependency of grand jury proceedings on criminal prosecutors and therefore outlining the system’s flaws, especially at a time when grand juries are increasingly used for terrorist investigations). Therefore, the concern for civil liberties in this arena is two-fold: applicability of the Material Witness Statute to grand jury proceedings and the grand jury proceedings themselves.