S. 1739. A bill to amend the material witness statute to strengthen................

Congressional Record: September 21, 2005 (Senate)
Page S10296-S10303




STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LEAHY:
S. 1739. A bill to amend the material witness statute to strengthen
procedural safeguards, and for other purposes; to the Committee on the
Judiciary.
Mr. LEAHY. 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

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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.

[[Page S10298]]

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.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1739

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. RELEASE OR DETENTION OF A MATERIAL WITNESS.

(a) Amendments to Title 18.--Section 3144 of title 18,
United States Code, is amended to read as follows:

``Sec. 3144. Release or detention of a material witness

``(a) Arrest of Material Witness.--
``(1) In general.--A judicial officer may order the arrest
of a person as a material witness, if it appears from an
affidavit filed by a party in a criminal case before a court
of the United States, or by an attorney for the Government in
a matter occurring before a Federal grand jury, that there is
probable cause to believe that--
``(A) the testimony of such person is material in such case
or matter; and
``(B) the person has been served with a summons or subpoena
and failed or refused to appear as required.
``(2) Exception.--A judicial officer may waive the summons
or subpoena requirement described in paragraph (1)(B), if the
judicial officer finds by clear and convincing evidence that
the service of a summons or subpoena--
``(A) is likely to result in the person fleeing; or
``(B) cannot adequately secure the appearance of the person
as required.
``(b) Warrant for Material Witness.--
``(1) Requirements.--A warrant issued under subsection (a)
shall--
``(A) contain the name of the material witness or, if the
name of such witness is unknown, a name or description by
which the witness can be identified with reasonable
certainty;
``(B) specify that the testimony of the witness is sought
in a criminal case or grand jury proceeding;
``(C) command that the witness be arrested and brought
without unnecessary delay before a judicial officer;
``(D) inform the witness of the witness's right to retain
counsel or to request that counsel be appointed if the
witness cannot obtain counsel; and
``(E) be signed by a judicial officer.
``(2) Execution of warrant.--
``(A) Arrest of witness.--A warrant issued under subsection
(a) shall be executed by arresting the material witness.
``(B) Warrant to be provided to witness.--
``(i) In general.--Upon arrest, an officer possessing the
warrant shall show such warrant to the material witness.
``(ii) Warrant not in possession of arresting officer.--If
an officer does not possess the warrant at the time of arrest
of a material witness, an officer--

``(I) shall inform the witness of the existence and purpose
of the warrant; and
``(II) at the request of the witness, shall provide the
warrant to the witness as soon as possible.

``(3) Return of warrant.--
``(A) After execution.--After executing a warrant issued
under subsection (a), an officer shall return the warrant to
the judicial officer before whom the material witness is
brought in accordance with subsection (c).
``(B) Unexecuted warrant.--At the request of an attorney
for the United States Government, an unexecuted warrant shall
be brought back to and canceled by a judicial officer.
``(c) Initial Appearance.--
``(1) Appearance upon arrest.--A material witness arrested
pursuant to a warrant issued under subsection (a) shall be
brought without unnecessary delay before a judicial officer.
``(2) Place of initial appearance.--The initial appearance
of a material witness arrested pursuant to a warrant issued
under subsection (a) shall be--
``(A) in the district of arrest; or
``(B) in an adjacent district if--
``(i) the appearance can occur more promptly there; or
``(ii) the warrant was issued there and the initial
appearance will occur on the day of the arrest.
``(3) Procedures.--At the initial appearance described in
paragraph (2), a judicial officer shall--
``(A) inform a material witness of--
``(i) the warrant against the witness, and the application
and affidavit filed in support of the warrant; and
``(ii) the witness's right to retain counsel or to request
that counsel be appointed if the witness cannot obtain
counsel;
``(B) allow the witness a reasonable opportunity to consult
with counsel;
``(C) release or detain the witness as provided by
subsection (d); and
``(D) if the initial appearance occurs in a district other
than where the warrant issued, transfer the witness to such
district, provided that the judicial officer finds that the
witness is the same person named in the warrant.
``(d) Release or Detention.--
``(1) In general.--Upon the appearance before a judicial
officer of a material witness arrested pursuant to a warrant
issued under subsection (a), the judicial officer shall order
the release or detention of such witness.
``(2) Release.--
``(A) In general.--A judicial officer shall order the
release of a material witness arrested pursuant to a warrant
issued under subsection (a) on personal recognizance or upon
execution of an unsecured appearance bond under section
3142(b), or on a condition or combination of conditions under
section 3142(c), unless the judicial officer determines by
clear and convincing evidence that such release will not
reasonably assure the appearance of the witness as required.
``(B) Testimony secured by deposition.--No material witness
may be detained because of the inability of the witness to
comply with any condition of release if the testimony of such
witness can adequately be secured by deposition.
``(3) Detention.--
``(A) No reasonable assurance of appearance.--If, after a
hearing pursuant to the provisions of section 3142(f)(2), a
judicial officer finds by clear and convincing evidence that
no condition or combination of conditions will reasonably
assure the appearance of a material witness as required by
this section, such judicial officer may order that the
witness be detained for a period not to exceed 5 days, or
until the testimony of the witness can adequately be secured
by deposition or by appearance before the court or grand
jury, whichever is earlier.
``(B) Extension of detention.--
``(i) In general.--Subject to clause (ii), upon the motion
of a party (or an attorney for the United States Government
in a matter occurring before a Federal grand jury), the
period of detention under subparagraph (A) may be extended
for additional periods of up to 5 days, or until the
testimony of a material witness can adequately be secured by
deposition or by appearance before the court or grand jury,
whichever is earlier.
``(ii) Limit.--The total period of detention under this
subparagraph may not exceed--

``(I) 30 days, where the testimony of the witness is sought
in a criminal case; or
``(II) 10 days, where the testimony of the witness is
sought in a grand jury proceeding.

``(C) Good cause required.--A motion under subparagraph (B)
shall demonstrate good cause for why the testimony of a
material witness could not adequately be secured by
deposition or by appearance before the court or grand jury
during the previous 5-day period.
``(4) Factors to be considered.--A judicial officer, in
determining whether a material witness should be released or
detained--
``(A) shall take into account the available information
concerning the history and characteristics of the witness,
including the information described in section 3142(g)(3)(A);
and
``(B) may consider challenges to the basis of the warrant.
``(5) Contents of release order.--A release order issued
under paragraph (2) shall comply with the requirements of
paragraphs (1) and (2)(B) of section 3142(h).
``(6) Contents of detention order.--A detention order
issued under paragraph (3) shall comply with the requirements
of section 3142(i), provided that a judicial officer shall
direct that a material witness be held--
``(A) in a facility separate and apart, to the extent
practicable, from persons charged with or convicted of a
criminal offense; and
``(B) under the least restrictive conditions possible.
``(e) Report.--
``(1) In general.--Notwithstanding any other provision of
law, the Attorney General shall provide to the Committees on
the Judiciary of the Senate and the House of Representatives
an annual report regarding the use of this section by the
United States Government during the preceding 1-year period.
``(2) Content of report.--A report required under paragraph
(1) shall include--
``(A) the number of warrants sought under subsection (a),
and the number either granted or denied;
``(B) the number of material witnesses arrested pursuant to
a warrant issued under subsection (a) whose testimony was not
secured by deposition or by appearance before the court or
grand jury, and the reasons therefore; and
``(C) the average number of days that material witnesses
arrested pursuant to a warrant issued under subsection (a)
were detained.''.

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(b) Amendment to Federal Rules of Civil Procedure.--Rule
46(h) of the Federal Rules of Criminal Procedure is amended
to read as follows:
``(h) Supervising Detention Pending Trial.--To eliminate
unnecessary detention, the court must supervise the detention
within the district of any defendants awaiting trial and of
any persons held as material witnesses.''.