What is detainment under the material witness statute?

The material witness statute permits the detainment of any person who may have information pertaining to a criminal investigation for the purpose of testifying before a grand jury or during a criminal proceeding.

In order to detain a material witness, the government must first obtain a warrant. To obtain a warrant, a prosecutor must apply to a federal district judge and provide evidence demonstrating that the alleged witness has information crucial to the proceeding and would be otherwise unavailable. Normally, the evidence is presented in the form of an affidavit from an FBI agent, outlining his knowledge of the alleged witness' role in the investigation.

Any person who is detained as a material witness has a right to demand a hearing before a federal judge and the right to counsel, appointed at government expense, if necessary. A federal judge must determine whether the person is, in fact, a material witness and whether he may be detained. Detainment is supposed to be required only if there is a risk of flight or danger.

If the judge affirms the detainment, the person may be held for any length of time his testimony is needed for the criminal case. Thus, if his testimony is needed only for the grand jury proceeding, he may be held until he testifies for the grand jury, and then he would be released. If his testimony is deemed necessary for trial, the person could be held until the trial is completed, which could be years.

As a practical matter, persons held as material witnesses are rarely released unless the government is ready to release them. If the detainee challenges their detention, the government has other options, such as filing criminal charges against the detainee. This strategy was used against Terry Nichols. Nichols was originally detained as a material witness in connection with the bombing of the Murrah Federal Building in Oklahoma City. Nichols objected to his detention, arguing that there was no evidence that he would flee or otherwise be unavailable. The government then filed criminal charges against Nichols, making it irrelevant whether he would flee as a material witness, and kept him in jail as a criminal suspect.

Detainees who are genuine witnesses are expected to testify at grand jury proceedings or trials. If the detainee refuses to testify, then the person can be held in jail for contempt, unless they have a valid Fifth Amendment claim.

What happens if the witness invokes the Fifth Amendment?

The Fifth Amendment provides witnesses with a right to remain silent if their testimony would incriminate them in any way.

If a witness invokes the Fifth Amendment, a judge must determine whether there is a valid Fifth Amendment claim.

If the judge determines that the claim is invalid, then the person must testify or he may be jailed for contempt. If the claim is valid, then the government must either release the witness or offer him immunity for his testimony. If immunity is granted and the witness still refuses to testify, then he may be jailed for contempt.

Are material witness proceedings open to the public?

Grand jury proceedings are normally closed to the public, so witnesses' testimony to the grand jury would be closed. However, the other court proceedings, such as the hearing to determine whether the witness should be detained or whether the witness has a valid Fifth Amendment privilege, are ordinary court proceedings. Therefore, those proceedings should be presumed open to the public. But, as in any case, the judge may close the proceeding or seal records in some circumstances.

The Reporters Committee contends that federal judges should not close material witness proceedings without first evaluating the First Amendment issues involved. The procedures a judge should follow before closing a courtroom are described fully in the section below regarding criminal proceedings.

May I obtain the material witness warrant or affidavit?

In theory, the warrant and affidavit would be part of the court's records. However, it is likely that courts will seal these records.

A court record should be presumptively available to the public. However, records may be sealed if the court makes specific, on-the-record findings demonstrating that closure is necessary to preserve higher values, and if the order is narrowly tailored to serve that interest. Journalists should expect judges to use this test to seal warrants from the September 11th investigation.

However, even if a material witness warrant is sealed, the existence of the warrant should be noted on the court's docket. In one case, a criminal defense attorney objected to the fact that the government prosecutors secretly obtained material witness warrants to detain witnesses and failed to tell defense counsel about the warrants. The warrants were not listed on the court docket, and the judge had sealed the records. The appellate court found that it may have been an error to keep secret the existence of the warrants and remanded the case to the trial court for further findings. (United States v. LaFuente)

In the post-Sept. 11 detentions, material witness warrants were most likely issued from the federal trial courts in the Southern District of New York in Manhattan and the Eastern District of Virginia in Alexandria.

How have material witness proceedings been used in the War on Terrorism?

The Department of Justice has not released an exact tally of persons detained as material witnesses, but it appears that the bulk of detainees who were first detained were brought in as material witnesses. As the investigation continued, many of the "material witnesses" were released or charged with crimes. For example, Osama Awadallah, a student from San Diego, had originally been detained as a material witness after investigators found his name and phone number on a piece of paper in the glove compartment of a hijacker's car. Awadallah told the grand jury that he did not know any of the hijackers, but changed his testimony once he was confronted with evidence that he did know a few of them. Awadallah was charged with perjury and is now being held as a criminal detainee rather than as a material witness. At the time of this report, it appears that only a small portion of the remaining detainees are being held as material witnesses.

Civil rights groups and foreign nations have protested the expansive use of material witness warrants, claiming that they were used as an excuse to round up Arab and Muslim men, without adequate evidence demonstrating that they had anything to do with the attacks or the hijackers. For example, in October 2001, The Wall Street Journal reported that Saudi Arabia, once notified of the detainment of its citizens, arranged for the release of nine out of the ten Saudis that had been held as material witnesses. Two of the men were telecommunications company executives who had been in Chicago for a conference. Other detained Saudis included a tourist, a pilot for Saudi Arabian Airlines and a radiologist living in Texas. The detainees alleged that there was no evidence tying them to the attacks or the hijackers. They claimed they had been detained solely because of their ethnicity.

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