Text and Pretext: The Future of Material Witness Detention After Ashcroft v. Al-Kidd

The Supreme Court, in its 2011 decision in Ashcroftv. al-Kidd, closed the door under the Fourth Amendment on a material witness's ability to argue that the government pretextually held the witness for individual investigation rather than for testimony in an upcoming criminal proceeding. Although traditionally pretext was raised as a Fourth Amendment argument, a material witness can also claim pretext under the federal material witness statute by arguing that detaining officers did not comply with the statute, and thus, avoid the constitutional argument altogether. In al-Kidd, the Court did not address whether a material witness can instead argue pretext through the federal material witness statute directly.Regardless of whether the country is in the immediate aftermath of an attack on its national security, like the 9/11 attacks, or in peacetime, the concerns that arose in relation to witnesses who were pretextually held following 9/11 are equally applicable. These concerns relate to the justification of a witness's incarceration and include the government's misrepresentation of how "material" a witness actually is to a criminal proceeding and the genuine flight risk a material witness poses.To protect against the reality of these concerns, courts should read a higher standard into the federal material witness statute before authorizing a warrant to detain a material witness. Today, in order to detain a material witness pursuant to the statute, the government must meet the plain terms of the materiality and impracticability requirements; however, courts have not definitively determined the evidentiary standard used to assess whether those terms have been met. Therefore, the door is still open for discussion concerning the evidentiary burden the government should be required to meet to legally detain a material witness under the statute."There is no worse heresy than that the office sanctifies the holder of it."1INTRODUCTIONImagine that following a recent executive order authorizing the use of limited force in Syria, Reuters and the Associated Press confirm that an Iranian terrorist cell is lending support to Bashar al- Assad and planning an attack on U.S. soil. Within days of the alleged order, the Federal Bureau of Investigation (FBI) detains an Iranian man, a community college student who leftIran some years ago and currently resides in San Diego, California. FBI agents claim that the student must be detained as a material witness for the upcoming trial of a suspected Iranian terrorist. The government supports the detention by pointing to a piece of paper found in the terrorist's car, which bears both the terrorist's name and the student's old phone number. The government also indicates that the student's continuing ties to Iran and his unwillingness to come forward and share information regarding the terrorist further suggest that he is a flight risk. The student is arrested, and weeks later, he has yet to be called as a witness. Although hypothetical, this story closely resembles the case of Osama Awadallah, a student who was held as a material witness in the wake of the 9/11 attacks.2The federal material witness statute authorizes a judge to order the arrest of an individual whose testimony "is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena." 3 Material witnesses enjoy the same constitutional right to pretrial release as other federal detainees, and federal law requires a material witness's release if his4 testimony "can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice."5 Typically, a material witness challenging his detention will claim that the arrest amounted to an illegal seizure under the Fourth Amendment because the purpose of the arrest was not to use the witness for testimony in another case, but was instead to hold him as a suspected criminal. …