Preventive Detention, Suspected Terrorists, and War

COLE FINAL
7/1/2009 12:43 AM
722 CALIFORNIA LAW REVIEW [Vol. 97:693
These reforms would place preventive detention in the context of pending
immigration proceedings on the same footing as preventive detention pending a
criminal trial. By ensuring that the government must promptly demonstrate that
detention without bond is actually necessary, such reforms would reduce the
likelihood that immigration detention is employed unnecessarily to detain
persons who pose no threat. Preventive detention unquestionably has a place in
immigration enforcement, but under current law it can too easily be imposed
without an objective basis—as the aftermath of 9/11 illustrated.
B. Material Witness Law
The material witness law 140 is designed for a legitimate purpose: to ensure
that individuals do not evade their civic obligation to provide testimony in a
criminal investigation or trial by fleeing the jurisdiction. However, because it
permits detention without probable cause of criminal activity, it is a tempting
tool for law enforcement authorities who suspect a given individual but lack
sufficient evidence to establish probable cause. The law was not designed,
however, as a catch-all provision to allow detention of suspicious individuals.
If it were, it would likely be unconstitutional because it would provide an endrun
around the probable cause requirement.
To forestall abusive invocation of the material-witness law, it should be
amended to impose a presumptive time limit on detention. It might provide, for
example, that a material witness must be brought to testify before a grand jury
within forty-eight hours of his arrest unless the government can show good
cause for delaying the testimony. In no event should the government be
permitted to hold an individual for more than a week to procure grand jury
testimony. There is no reason not to have the detained individual testify
promptly, especially given the constitutional interest in minimizing nonpunitive
restrictions on individual liberty.
When witnesses are held to testify at trial, delay issues are more difficult.
Fitting an individual’s testimony into a criminal trial will often require more
flexibility as trials can be lengthy and are frequently delayed or deferred by
forces beyond the prosecution’s control. But the material-witness law permits a
judge to order that a material witness’s testimony be taken by videotape
deposition. 141 When delays of more than two weeks are likely, courts should
require that the witness’s testimony be taken by videotape deposition. Without
of dangerous foreign nationals who could not be removed. In Turkmen¸ the district court
transformed that limitation into a presumptive authorization of six months of detention even
where removal could be effectuated immediately. Turkmen, 2006 U.S. Dist. LEXIS 39170, at *31.
The Turkmen decision is pending on appeal before the Court of Appeals for the Second Circuit.
(Disclosure: I am co-counsel for plaintiffs in Turkmen v. Ashcroft).
140. 18 U.S.C. § 3144 (2006).
141. See id. (“No material witness may be detained because of inability to comply with any
condition of release if the testimony of such witness can adequately be secured by deposition, and
if further detention is not necessary to prevent a failure of justice.”).