The Unconstitutionality of 'Hold Until Cleared': Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet

60 Pages Posted: 13 Oct 2004


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 DOJ 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. The 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 prohibited tactic. Rather than supporting the incarceration of witnesses, authorities from the earliest days of the Republic to the present make clear that the practice has never been approved and is at best of dubious constitutionality.

Keywords: Material Witness, Arrest, Detention, Fourth Amendment

JEL Classification: K14, K42

Suggested Citation

Bascuas, Ricardo J., The Unconstitutionality of 'Hold Until Cleared': Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet. Vanderbilt Law Review, April 2005, Available at SSRN:

Ricardo J. Bascuas (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-2672 (Phone)
305-284-1588 (Fax)


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