When deference is dangerous: the judicial role in material-witness detentions.

Author:Gouldin, Lauryn P.
Position:Introduction through III. The Judicial Role in Reinterpreting the Statute, p. 1333-1360


Federal prosecutors' aggressive use of the Material Witness Statute to detain scores of potential terrorism suspects during the decade following 9/11 has been well established by scholars and human rights groups. Details about these detentions have also emerged in criminal and civil litigation, including Ashcroft v. al-Kidd, the first case challenging the government's witness detention practices to reach the Supreme Court.

This Article posits that the fixation in the literature (and in lawsuits like al-Kidd) on prosecutors' allegedly pretextual use of the statute has overshadowed the complicity of the judiciary in authorizing these arrests and detentions. The provisions of the Material Witness Statute--and its relationship to the contempt power--make clear that, despite prosecutors' efforts to co-opt the statute as a law enforcement tool, the authority to arrest and detain material witnesses is a judicial power. As such, the factors that prompted judicial acquiescence in these cases require greater scrutiny.

Judges who signed material-witness arrest warrants repeatedly departed from longstanding precedents that defined flight risk in the material-witness and bail contexts. Despite the fact that material-witness detentions should not involve considerations of dangerousness, many of these witnesses were incarcerated for weeks or even months in highly secure facilities pursuant to protocols reserved for the most dangerous pretrial detainees.

This Article considers two factors that may have influenced these judicial decisions: cognitive biases and excessive pressure to defer to the executive branch. These cases offer an opportunity to evaluate claims made by scholars in the ongoing debate about the degree to which judges do and should defer to prosecutors in cases implicating national security interests. Finally, this Article outlines preliminary proposals intended to reinvigorate the judiciary as a meaningful check in material-witness cases and more broadly in the criminal justice system.

TABLE OF CONTENTS INTRODUCTION I. THE POWER TO ARREST AND DETAIN WITNESSES A. The Material Witness Statute: [section] 3144 B. Pretrial Release or Detention: [section] 3142 C. Preventive Detention and Presumptions of Dangerousness D. The Relationship Between Witness Detention and Contempt II. PROSECUTORIAL OVERREACHING: THE WELL-KNOWN PART OF THE STORY III. THE JUDICIAL ROLE IN REINTERPRETING THE STATUTE A. A New Impracticability Standard 1. Disregarding Cooperation and Speculating About Flight 2. Discounting Traditional Anchors to the Jurisdiction 3. Basing Flight Risk on the Nature of the Crime B. The Failure to Impose Less Restrictive Conditions C. Speculating About Necessity and Danger IV. THE DYNAMICS OF BIAS AND DEFERENCE A. Cognitive Biases 1. Intuition, Deliberation, and Overconfidence 2. Threat Assessment and Probability Neglect 3. Religious, Ethnic, and National Origin Biases 4. Hindsight Bias B. Excessive Deference 1. Deference in Criminal Cases Generally 2. Pressure to Defer in the National Security Context 3. Critiques of Deference in the Material-Witness Context C. Reform Proposals 1. Improved Information-Gathering and Screening 2. Feedback and Accountability 3. Judicial Education and Training CONCLUSION Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks. It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism. --Attorney General John Ashcroft, October 31, 2001. (1)

Of course a material witness is not to be detained on the basis of dangerousness. --S. REP. No. 98-147 (1983). (2)


In the wake of 9/11, protecting the country from another terrorist attack became a "top priority" for Americans. (3) As part of that effort, the Department of Justice ("DOJ") encouraged federal prosecutors to aggressively use the "Material Witness Statute," 18 U.S.C. [section] 3144, to detain individuals who were viewed at the time as potential suspects in terrorism investigations. (4) The statute permits the arrest of individuals who have information that is "material in a criminal proceeding ... if it is shown that it may become impracticable to secure [their] presence ... by subpoena." (5)

In short order, the statute came to be viewed by prosecutors and law enforcement officers as an essential part of the executive's counter-terrorism toolkit. (6) Although the information that is available about these detentions is far from complete, (7) a disturbing picture of the government's practices has emerged from the details that surfaced during criminal prosecutions and subsequent civil litigation, (8) in media reports, (9) and from the extensive information gathered by Human Rights Watch. (10) During the last decade, scores of material witnesses have been detained in maximum security facilities for extended periods while their alleged connections to various terrorist plots were investigated. (11) Many were never called to testify before the grand jury (or in any other criminal proceeding). (12)

Even with the passage of time, and a somewhat reduced sense of urgency about the threat of terrorism, the perceived utility of the Material Witness Statute has not diminished. Indeed, in an amicus brief filed in 2011, five former Attorneys General emphasized the "importance of the Material Witness Statute for effective law enforcement," citing (and quoting) a book describing the statute as "the most potent weapon in the U.S. counterterrorism arsenal." (13) In May 2010, New York City Police Commissioner Ray Kelly reported that a material-witness warrant was obtained prior to the arrest of Faisal Shahzad, the so-called Times Square Bomber. (14)

In May 2011, the Supreme Court issued its decision in Ashcroft v. al-Kidd, the first case challenging the government's post-9/ll material-witness detention practices to reach the Court. (15) The heart of Abdullah al-Kidd's claim was that former Attorney General John Ashcroft had instituted a department-wide policy to use the Material Witness Statute pretextually to detain potential suspects on less than probable cause. (16) Reversing the Ninth Circuit, the Court unanimously held that Ashcroft was entitled to qualified immunity because he had not violated a clearly established law. (17) A majority of five Justices also rejected al-Kidd's claim against Ashcroft on the merits, refusing to invalidate the warrant solely on al-Kidd's assertion of prosecutorial pretext. (18) (Nevertheless, as Justice Kennedy made clear in his concurrence, the decision left "unresolved whether the Government's use of the Material Witness Statute in this case was lawful." (19)) These questions about Ashcroft's liability and the limits of the pretext doctrine have, understandably, fixed media and scholarly attention on the conduct of the executive branch. (20) Even before al-Kidd, scholarly analyses of post-9/11 material-witness detentions focused almost exclusively on executive branch abuses. (21) This fixation has obscured a troubling feature of these cases that is the focus of this Article: the role of the judiciary in consistently signing the warrants authorizing these arrests, setting overly restrictive conditions of confinement, and subsequently affirming the extended detentions.

Scholars like Eric Posner and Adrian Vermeule have argued that, in national security cases generally, blind judicial deference to the executive branch is both inevitable and desirable. (22) The Supreme Court has rejected these claims in the enemy combatant cases, insisting that although judges might give executive branch interests greater weight in the national security context, preserving judicial review is essential. Although this deference debate has received considerable attention, scholars focused on the Supreme Court's enemy combatant cases do not seem to acknowledge those aspects of the material-witness cases that call for an adjusted deference calculus. These cases raise concerns about judicial risk assessments in the national security context and provide a basis for developing reforms to ensure that the judicial review that the Court is so intent on protecting is meaningful and robust.

This Article proceeds in four parts. In Part I, I examine the key provisions of the relevant statutes to show that although prosecutors increasingly claim the power to arrest and detain material witnesses as a law enforcement tool, the power is statutorily assigned to the judicial branch. (23) Furthermore, the justifications for permitting material-witness arrests are closely tied to those supporting the inherent judicial power to arrest and detain witnesses for contempt. (24) This statutory review also makes clear that material witnesses may not be detained on the basis of dangerousness. Part II reviews the literature on material-witness detentions and highlights the need for greater focus on judicial conduct in these cases.

This Article's novel conception of the material-witness cases as judicial detentions frames the analysis in Part III, where I examine the specific ways that judges have relaxed or even ignored statutory requirements. In authorizing the material-witness arrests, judges significantly discounted the importance of cooperation and the witnesses' ties to the jurisdiction. In ordering detentions, judges too often ignored their statutory and constitutional obligation to impose the least restrictive set of conditions...

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