Bascuas on Material Witness Detentions
Ricardo J. Bascuas (University of Miami – School of Law) has posted The Unconstitutionality of ‘Hold Until Cleared’: Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet (Vanderbilt Law Review, April 2005). Here is the abstract:
- Since the terrorist attacks of September 11, 2001, federal agents and prosecutors have sought and obtained the detention of dozens of individuals as so-called material witnesses. Though charged with no crime, these people have been subjected to long and oppressive incarcerations. Nearly all have been released after the government was satisfied they had no terrorist ties. Despite the outrage that the government’s tactic has inspired, legal commentators and the federal courts have uniformly but mistakenly presumed that the constitutionality of detaining witnesses has long been established. Laboring under the misapprehension that the incarceration of witnesses has long been held constitutional, commentators have been constrained merely to echo the mainstream media’s complaint that DOJ is abusing the material witness statute.
This Article explores the root of the fallacy that incarcerating material witnesses has been deemed constitutional since the 18th century. Much of the blame for this is attributable to United States v. Bacon, a 1971 Ninth Circuit case whose precedential force continues to this day to deprive anyone labeled a material witness of the Fourth Amendment’s protection. The Article examines the few federal court decisions ruling on the legality of detaining material witnesses in connection with the September 11th investigation and the authorities on which they rely. These cases carelessly misread and misapply Supreme Court decisions that, rather than supporting the incarceration of witnesses, make clear that the practice has never been approved and is at best of dubious constitutionality. Indeed, imprisoning individuals without evidence of their involvement in criminal activity is necessarily unreasonable under the Fourth Amendment.