The unconstitutionality of "hold until cleared": Reexamining material witness detentions in the wake of the September 11th dragnet

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Since the terrorist attacks of September 11, 2001, federal agents and prosecutors have sought and obtained the detention of dozens of individuals as so-called "material witnesses." Though charged with no crime, these people have been subjected to secret weeks- or months-long incarcerations. Nearly all have been released after the government was satisfied they had no terrorist ties. Despite the outrage that the government's tactic has engendered, the constitutionality of detaining material witnesses has not been seriously questioned by litigants, courts, or legal commentators. Laboring under the misapprehension that the incarceration of witnesses has long been held constitutional, commentators have been constrained merely to echo the mainstream media's complaint that the Department of Justice is "abusing" the material witness statute. Court challenges to such detentions have likewise been rebuffed on the ground that such detentions have long been held constitutional. This Article examines the federal government's unprecedented and calculated reliance on the material witness statute in its post-September 11th terrorism investigation. Examining the cases cited in support of the idea that prolonged incarceration of witnesses is constitutional, the Article shows how historical practice, Supreme Court precedent, and the Constitution itself have been misread to justify a tactic offensive to the Fourth Amendment. Authorities from the earliest days of the Republic to the present make clear that, rather than supporting the incarceration of witnesses, the practice is at best of dubious constitutionality. The Article concludes that the Executive's reliance on the statute for investigative detentions and the Judiciary's credulous acquiescence in this practice pose a potentially long-term threat to the Fourth Amendment's basic safeguard against unreasonable seizures.

Original languageEnglish (US)
Pages (from-to)677-736
Number of pages60
JournalVanderbilt Law Review
Issue number3
StatePublished - Apr 1 2005

ASJC Scopus subject areas

  • Law


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