Abusing the Material Witness Statute:
Why Detaining Grand Jury Witnesses Violates The Fourth Amendment

Since the events of September 11th, the government has repeatedly - and some believe, increasingly - imprisoned a number of persons without filing criminal charges against them. The government has detained these persons as material witnesses, arguing that each person is a flight risk and their testimony is necessary for a grand jury's investigation.

The recent, controversial detention of Mike Hawash - a U.S. citizen and Intel engineer - is a case in point. For over five weeks, beginning in mid-March, the United States detained Hawash as a "material witness" because it purportedly wanted him to testify before a grand jury investigating issues related to terrorism. During this time, it never accused Hawash of having committed any act of terror or any crime, or even of being in any way dangerous or a threat. Nonetheless, Hawash was detained under the most severe of prison conditions.

Hawash never testified before the grand jury. Last week, a day before Hawash was due to be released, the government brought criminal charges against him.

Hawash's case raises some very troubling questions: If the government had a basis for criminally charging Hawash all along, why didn't it offer that as the reason for his detention, rather than invoking the material witness statute? Was the reason for detaining Hawash as a material witness so that the government could use the intimidating confinement to obtain information, while avoiding the basic protections that are given criminal defendants? What motivated the government's conduct?

Many observers have been disturbed by detentions like Hawash's, especially because the government has made mistakes. In at least one case, the government obtained a false confession from a material witness who, the government had to later concede before a federal judge, had no terrorist connections.

Some have even suggested that this tactic is unconstitutional, as a Due Process violation or otherwise. In this column, I will argue that the government's tactics are, indeed, unconstitutional, for they violate the Fourth Amendment.

The Fourth Amendment and Its Requirements

Most readers are probably familiar with the Fourth Amendment in the context of seizures of evidence. But the Amendment, by its own language, also applies to seizures of "persons" and imposes two requirements on the government. (The relationship between the clauses imposing these requirements is controversial in academia and elsewhere; in this column, I will discuss the way the Supreme Court has interpreted them over the last forty years.)

One clause of the Fourth Amendment mandates that "no Warrants shall issue, but upon probable cause." Probable cause has uniformly been interpreted as a basis to believe an individual committed a crime.

This has been the understanding since the Founding. In 1807, for example, famed Judge William Cranch wrote: "The cause of issuing a warrant of arrest, is a crime committed by the person charged. Probable cause, therefore, is a probability that the crime has been committed by that person." And the Supreme Court has repeatedly said similar things in cases such as Hunter v. Bryant, Illinois v. Gates, and Beck v. Ohio.

The Fourth Amendment's other clause requires that seizures of persons - like seizures of "things" - must not be "unreasonable." To determine when a seizure or search is unreasonable, courts balance the nature, quality, and duration of the intrusion on an individual's right to liberty against whatever interests the government asserts for the intrusion.

Putting these two clauses together, the Supreme Court has repeatedly held that, as a general rule, searches and seizures violate the Fourth Amendment unless supported by probable cause. When there are exceptions to this rule, courts must determine whether the search or seizure is reasonable by applying the balancing test described above.

Terry v. Ohio is one of the more famous examples showing how the Court has applied the Fourth Amendment. In this so-called "stop and frisk" case, a police detective watched John Terry and another man for about twelve minutes as each took a turn walking several hundred feet down the block, peered into the windows of various stores and return. During this time, a third man also spoke briefly with the two men.

While this was very suspicious, it was not enough to support an arrest based on probable cause. After all, what crime had been committed? So, the detective approached the three men, identified himself and asked for their names. After receiving a mumbled response, he quickly "seized" Terry by turning him around and then "searched" him by patting the outside of his clothing. Feeling a hard object in the inner breast pocket of his topcoat, the detective inserted his hand and removed a fully loaded automatic. Terry was arrested for carrying a concealed weapon.

While the detective lacked probable cause to seize and search Terry, the Court held that the situation was an exceptional one as a "necessarily swift action predicated upon the on-the-spot observations" that could not be subject to probable cause determinations.

Rather, the conduct had to comply with the Fourth Amendment's clause against unreasonable searches and seizures, which required the government's asserted interests to be balanced against Terry's liberty.

First, the Court explained, the government has an interest in effective crime prevention and detection. The officer was thus justified in momentarily seizing the men because he had a reasonable suspicion that criminal activity was afoot.

Second, the officer had an interest in his own safety. The officer was therefore justified in searching Terry with a pat down because he reasonably believed that the person could have been armed and dangerous.

At the same time, Terry recognized that even "a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience."

But, applying the balancing test, the Court also found that the government's interest in an officer's safety outweighed the intrusion, allowing "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual."

The Court made it clear, however, that any asserted interest may not be speculative by releasing a companion case the same day as Terry in which it held another frisk was unreasonable because there was no evidence to support the claim that the officer feared for his safety.

Finally, the Court emphasized that in order for its actions to be deemed reasonable the government is required to take a narrowly tailored approach to satisfy its asserted interests. In the words of Terry, the scope of the search or seizure "must be strictly tied to and justified by the circumstances which rendered its initiation permissible."

For example, an officer may not continue to seize an individual if he finds no evidence of a crime. Likewise, no one would seriously contend that an officer can strip search a suspect during a Terry stop. A pat down alone can assure the officer than the suspect is not carrying anything dangerous. Because it is less intrusive, it must be used.

The Unreasonableness of Detaining Material Witnesses

How does this framework apply to the government's detention of grand jury material witnesses? By definition, the government has never asserted that it has probable cause to believe these witnesses have committed a crime. Thus, the Fourth Amendment's balancing test for "reasonableness" must be applied.

This requires a determination of the nature, quality, and duration of the intrusion on the liberty interest of the witness.

Obviously, the deprivations vary from case to case. But at times, the government has conceded that the conditions of confinement for material witnesses are more severe than for the typical maximum-security criminals. For example, the New York federal prison has stated that it treated all material witnesses as high-security inmates and subjected them to policies previously reserved for the "African Embassy bombers" - that is, convicted terrorists.

Or consider Hawash's case. For five weeks, unless he was scheduled to be somewhere else, the government kept him in solitary confinement in an 8-foot by 12-foot cell for 23 hours a day, 7 days a week. Whenever he left his cell, prison guards would strip-search him and place him in chains before he was moved about. Hawash could call home only once a week and only received a visit from his wife or attorney three times a week.

What interest has been asserted by the government to justify this deprivation?

For witnesses, like Hawash, who are not accused of being dangerous or a terrorist, the government has stated that it wants to guarantee that the witness will be available to testify before a grand jury investigating terrorism.

But how great is this interest? The Supreme Court has long held that grand juries can consider hearsay. Thus, the government could have interviewed Hawash and then had the interviewers testify as to what he had said. Then, if Hawash were unavailable to testify, the grand jury would only lose the opportunity to see and hear his testimony live and to ask follow-up questions. (There is no cross-examination in the grand jury.)

Moreover, the "narrow tailoring" component of the Fourth Amendment's balancing test must be remembered. To assure Hawash would testify before the grand jury, the government certainly did not need to impose maximum-security conditions - conditions reserved for those individuals who had been found guilty of committing felonies. Limiting Mike Hawash's access to his family and lawyer, for example, did nothing to advance the government's asserted interests in detaining him.

Indeed, it probably did not need to confine him in a prison at all. Alternatives used for probation - such as home detention and electronic surveillance - could have been used.

When an individual's constitutional right to liberty against the government's asserted interest is balanced in light of prior Supreme Court precedent, only one conclusion can be reached: Imprisoning material witnesses based solely on the stated need to guarantee their testimony for a grand jury is inherently unreasonable.

The Government Must Be Judged Against Its Stated Reasons For Detention

Of course, other governmental interests might well tip the balance in favor of detention even when the government lacks probable cause of a crime. Just as the Supreme Court has emphasized that the various interests must be weighed against each other, it has stressed that there are no blanket rules to when a detention is reasonable.

Thus, in this column, I have not addressed the more difficult issues of whether the government might detain people it claims are suspected terrorists but lacks evidence to serve as probable cause of any crime. Nor am I making any judgment as to whether it might be able to detain innocent people in order to stop a future terrorist act or the myriad of situations in which the balance might tip in favor of detention.

At the same time, courts must measure the reasonableness of the government's behavior against the interests it - in fact - asserts to justify the detention. Post-hoc speculation does not comport with protections embodied in the Bill of Rights.

In cases such as Hawash's, the government's stated interest, at the time of his detention, was simply to guarantee grand jury testimony. That is not enough. The imprisonment of any material witness for a grand jury, some of which have languished in prison for over a year, to purportedly facilitate a grand jury's investigation is inherently unreasonable.

Every judge, in every material witness case - related to terrorism or not - should perform the balancing and narrow tailoring analyses that the Supreme Court has long required. If they do not, there is a real threat that the words of Fourth Amendment will not be worth the paper they are written on.