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When has federal detention of "witnesses" gone too far?(16 posts)

When has federal detention of "witnesses" gone too far?PdxMark
Apr 8, 2003 8:54 AM
http://www.portlandtribune.com/archview.cgi?id=17518

A local US citizen, Palestinian-born, raised in Kuwait and a US citizen for 15 years, was arrested 3 weeks ago and is being held in solitary confinement in Federal prison without any charges being pressed. His hearings are held in secret, and a gag order has silenced his family, lawyers, etc. He apparently gave money to a charity that was later deemed to support terrorism, but no-one who can talk actually knows why he's being held. His kids go to school with the kids of friends of mine.

So, when has this sort of behavior by the government gone too far? When does the domestic war on terror reduce Constitutional protections meaningless fairy tales? What is left of the United Staes when the government is free to throw someone into prison without a showing of probable cause? Is it OK so long as they are Arabs? Maybe protesters are OK too.
Round up the Irish Americans!filtersweep
Apr 8, 2003 9:16 AM
The sooner the better!

I love the rationale behind the suspension of the writ: that a terrorist can communicate with his buddies THROUGH his attorney... it never was "an issue" with "Mafia" hearings (despite all the witness and jury tampering that was orchestrated).

This is an undeclared war, so there really should be no weird "war powers" in place.
Hmmm, then why does the government need further power with Patriot Act?js5280
Apr 8, 2003 9:19 AM
He's being held under a law (material witness statute) passed in 1984. 3 weeks certainly seems excessive without formally charging him. Another good reminder that when you give the government power, don't be surprised or complain if the government all sudden comes after you.
What Constitutional protection does this violate?TJeanloz
Apr 8, 2003 9:38 AM
This seems unsavory, but Constitutional. The whole thing is secret for a reason, and the details will eventually come out. Without knowing the details of the case, I don't think anybody is in a position to speculate about the appropriateness of this individual's confinement.
Equal protection, due process, I think. nmOldEdScott
Apr 8, 2003 9:41 AM
There are ongoing hearings, apparently,TJeanloz
Apr 8, 2003 9:50 AM
The ongoing hearings indicate that there is some "due process of law" going on in the situation. I don't see the equal protection case at all -- what law is he being denied the protection of?
Well, if the case is getting extraordinary treatment.OldEdScott
Apr 8, 2003 9:55 AM
If this class of defendants is being singled out for special treatment, without a specific legal justification. You can't just say "We don't like these people, so they won't get the same treatment as other defendants."
He's not a defendant...TJeanloz
Apr 8, 2003 9:58 AM
Interestingly enough, if he were a defendant, he would have more rights afforded to him. But as a material witness, he is getting standard treatment.
if feds doing it...DougSloan
Apr 8, 2003 9:49 AM
May be exceptions or rulings I'm not aware of, but here are some possibilities (I don't do criminal law):

Art I, Section 9: The privilege of the writ of habeas corpus (i.e., "get out of jail") shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

5th: ...nor be deprived of life, liberty, or property, without due process of law;

6th: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

8th: Excessive bail shall not be required...

14th Amendment due process and equal protection applies only to states and subdivisions, not feds.
True, but,TJeanloz
Apr 8, 2003 9:54 AM
Writ of habeas corpus -- we must assume here that public safety requires the detention. And I presume a judge has made that decision.

5th -- the ongoing hearings seem to be due process of law.

6th -- the person in question is not "the accused" in a criminal prosecution.

8th -- if the writ of habeas corpus is suspended, we might presume that no amount of bail is sufficient to safeguard the public.
right, I assumeDougSloan
Apr 8, 2003 9:56 AM
I think this is governed by the exception to habeas corpus, and statutory guidelines as well as case law permit the detaining under the present circumstances. That's always going to be gray area judgment call.

Doug
also, 5th amendmentDougSloan
Apr 8, 2003 10:01 AM
You do not have to be a criminal defendant for the 5th Amendment Due Process clause to apply. It even applies to taking your land for government purposes (emminent domain). Here's all the text:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
I agree, except that there appears to be due process (nm)TJeanloz
Apr 8, 2003 10:02 AM
There's no due process in these types of cases...PdxMark
Apr 8, 2003 10:27 AM
Not in the regular meaning of due process, anyway...

Due process requires at least a showing of probable cause that a crime was committed by the defendant. From what can be discerned from the secret hearings, there's no indication that the guy is accused of any crime. So where's the probable cause for the crime to justify holding him?

Secret hearings in the case of a trial involving state secrets is one thing, but as the basis for deciding to toss someone into solitary confinement is something else entirely.

What is scarey is that there seems to be no constitutional limits to the statutory powers the Federal government is exercising. The government can go to a judge and say they think the guy is a "material witness" under the statute, relating to some event, and so needs to be taken into custody. Follow-up hearings are held in secret, so there's no public view of what the government says the guy might be a witness to.

These "material witness" games have apparently kept people in jail for months -- longer than the sentences for many misdemeanor crimes. Where do Constitutional limits on the government come in, if not after several months? After several years? I could see a few days in exceptional situations, but holding someone for weeks or months seems far beyond reason.
Length,TJeanloz
Apr 8, 2003 10:38 AM
In terms of how long somebody can be a material witness, I would presume that it's related to the case that they are a witness to. If the defendants in the case are getting their speedy trial, than the material witness is presumably on the same timetable.

I think it is fair to say that a material witness who is believed to be a flight risk or danger to public safety should be able to be detained until they have testified in the proceeding to which they are a party.

It is also clear that there are a number of hearings going on with a federal judge presiding, which seems fair to me.
Material witness statute & summary of its (ab)usePdxMark
Apr 8, 2003 10:41 AM
http://www.washingtonpost.com/ac2/wp-dyn/A31438-2002Nov23?language=printer

And the statute itself 18 USC 3144:

Sec. 3144. - Release or detention of a material witness

If it appears from an affidavit filed by a party (eg FBI agent) that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. 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. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure