Material Witness Detention in a Post-9/11 World: Mission Creep or Fresh Start?

76 Pages Posted: 10 Apr 2010 Last revised: 21 May 2014

See all articles by Donald Q. Cochran

Donald Q. Cochran

Belmont University - College of Law

Date Written: April 8, 2010


Bruce Ackerman predicts that “[t]errorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it... The attack of September 11 is the prototype for many events that will litter the twenty-first century.” Whether such dire predictions turn out to be true or not, there is no question that the potential consequences of such an attack are so devastating that it is irresponsible for our government not to do everything legally possible to avoid them. And yet, despite a general realization that devastating attack by terrorists is, if not inevitable, at least a distinct possibility, the “tools” available to law enforcement in the United States to preventively or investigatively detain suspected terrorists today are essentially unchanged from September 11th.

In this article I begin by exploring the law enforcement response to the events of 9/11 when the Justice Department’s primary focus was preventing future terrorist attacks by taking suspected terrorists off the street. Arrest on immigration or criminal charges provided the basis for the majority of detentions, but there also existed a smaller number of individuals who could not be arrested for immigration or criminal charges, but against whom there was significant, and often legitimate, concern of terrorist involvement. In the case of these individuals – what I call the “hard cases” – the detention device most often employed was the ancient material witness statute. Developed over centuries for the purpose of ensuring the testimony of reluctant witnesses, the statute was forced into service after 9/11 in the “war on terror.”

I argue that the statutory safeguards provided by the material witness statute, including an arrest warrant issued by a federal judge as well as a right to a hearing, an attorney, and a presumption in favor of deposition and release, all combine to ensure that the arrest of material witnesses, although based on a different kind of probable cause than most arrests, is permissible under the Fourth Amendment. Even use of the statute to detain an individual as a terrorist suspect rather than as a witness is allowed under the Fourth Amendment, I argue, because issuance of an arrest warrant by a federal judge under the objective circumstances set out in the statute constrains law enforcement conduct sufficiently to ensure reasonable behavior, making the subjective motivation behind detention irrelevant.

I also argue, however, that serious questions exist as to whether bending an old statute to make it fit a new set of circumstances for which it was not designed is the best approach to dealing with terrorist detention. Instead, I argue that within existing Fourth Amendment law may lay the principles necessary for construction of a constitutionally permissible framework for detention of suspected terrorists. The key to such a framework lies in the United States Supreme Court’s 1972 decision in United States v. United States District Court for the Eastern District of Michigan (Keith) which suggested that the national security context permits a modification of Fourth Amendment probable cause to search, allowing a different standard more appropriate to national security. Congress’s enactment of FISA in response to Keith provides, in my opinion, a model for deliberative legislative action to create a reasonable tool for law enforcement.

While it is not entirely clear that the Keith rationale applies in the arrest context – permitting a similar modification to probable cause and the potential for creation of a FISA-like statute to establish a system of “national security detention” – I argue that such a discussion is one that we should be having as a country. Although hard decisions would have be made about some aspects of the new statute, such as the quantum of proof required to detain, access to counsel and the degree to which interrogation by intelligence officials could occur, the degree of secrecy in which proceedings would be conducted, as well as the length of time detention would be allowed, the one unquestionable advantage that a deliberately designed system of national security detention would have over the “mission creep” of an existing statute is that it would be based on debate and analysis during the legislative process and a deliberate decision by the political branches – accountable to the American people – rather than the bending of an old statute designed for other purposes to make it fit.

Suggested Citation

Cochran, Donald Q., Material Witness Detention in a Post-9/11 World: Mission Creep or Fresh Start? (April 8, 2010). George Mason Law Review, Vol. 18, No. 1. Available at SSRN:

Donald Q. Cochran (Contact Author)

Belmont University - College of Law ( email )

1900 Belmont Boulevard
Nashville, TN 37212
United States

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