March 21, 2006
Liberty Coalition Letter to United States Congress
Providing safeguards for material witness detentions: S.1739 and companion legislation in the House of Representatives
Re: Providing safeguards for material witness detentions: S.1739 and companion legislation in the House of Representatives
Dear Members of Congress:
We the undersigned organizations urge you to support legislation that will reform the standards for the arrest and detention of material witnesses pursuant to 18 U.S.C. – 3144.
Congress enacted the current material witness law in 1984 to enable the government to arrest and detain key witnesses for the purpose of securing their testimony at grand jury proceedings or criminal trial. It is the most onerous method of obtaining the testimony of a witness in a judicial proceeding, and is intended to be used solely in those limited circumstances where the witness would otherwise flee. Since September 11, 2001, the government has repeatedly used the federal material witness statute for a very different purpose: to indefinitely detain individuals who are or may become suspects in ongoing investigations.
Innocent people have been arrested and detained under this statute, yet never formally charged or given the opportunity to defend themselves. Many were detained for months at a time, some as long as six months, and at least one for more than a year. A significant number were never brought before any judicial body to testify, and many were arrested and detained pursuant to this statute even though they could not be reasonably classified as a flight risk.
Brandon Mayfield is a case in point. Mr. Mayfield, a respected attorney, U.S. citizen, husband and father, was arrested under the federal material witness statute and imprisoned for three weeks, without ever being charged with a crime or given an opportunity to defend himself. He was never brought before a grand jury to testify. In fact, no grand jury was even impaneled at the time of his arrest. His home was searched for four hours by the FBI while his wife was made to sit at the kitchen table and prevented from leaving to pick up her children at school. The FBI have still not returned files seized in that search, and Mr. Mayfield was only released when it became apparent that the fingerprint evidence which supposedly connected to him to a series of Madrid bombings was faulty.
This misuse of the material witness warrant statute is not only harmful to the individuals who have been wrongly detained; it is also detrimental to the rule of law. Legislation pending in the Senate (S.1739), and soon to be introduced in the House, would remedy this situation by clarifying the statute to ensure that it is used for the purpose for which it is intended.
Specifically, the legislation would require the existence of a pending grand jury proceeding or criminal trial before material witness warrants could be issued, place time limits on the length of detention, require evidence that the detained witness is in fact a flight risk, and import due process standards from the Federal Rules of Criminal Procedure to ensure that material witnesses are informed of the basis of their arrest and their right to counsel. Notably, state material witness laws already incorporate these or analogous protections.
The misuse of the material witness warrant statute to indefinitely detain individuals without charge threatens all of our liberties and our nation's respect for the rule of law. We urge you to support the pending legislation that will protect against its future abuse.
Former Member of Congress Bob Barr
Republican Liberty Caucus
Fairfax County Privacy Council
National Lawyers Guild–National Office
National Security Whistleblowers Coalition
Remar Sutton Co-Founder
The Privacy Rights Now Coalition
Friends Committee on National Legislation
National Association of Criminal Defense Lawyers
U.S. Bill of Rights Foundation
Human Rights Watch