Material Witness Detentions After al-Kidd

Abstract

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Vague standards that assume the government’s good faith may be sufficient when the prosecution’s principal interest is the witness’ effective testimony. These standards are insufficient when material witnesses are potentially suspects. The egregious facts of the al-Kidd case reveal that Congress must establish clearer criteria for the arrest and treatment of material witnesses.