[Congressional Record Volume 151, Number 119 (Wednesday, September 21, 2005)]
[Senate]
[Pages S10296-S10299]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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

[[Page S10297]]

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.''.

[[Page S10299]]

       (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.''.
                                 ______