The Unconstitutionality of "Hold Until Cleared": Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet
On March 11, 2004, terrorists affiliated with the Al Qaida networkl detonated bombs on four commuter trains in Madrid, Spain, killing 191 people and injuring 2,000 others. Hours later, the Spanish National Police (SNP) recovered a fingerprint from a bag of detonators found in a stolen van parked at a station from which three of the bombed trains departed. The SNP requested assistance from the United States Federal Bureau of Investigation to identify the owner of the print. FBI experts concluded that the print belonged to Brandon Mayfield, a U.S. citizen living in a suburb of Portland, Oregon, and the agency began investigating and surveilling him.
Weeks later, the federal agents watching Mr. Mayfield, an immigration and family law attorney, still did not believe they had sufficient evidence of wrongdoing to charge him with any crime. The agents, however, feared that he would become aware of their investigation and flee. To prevent this, the FBI and the U.S. Attorney's Office sought a "material witness" warrant for Mr. Mayfield's arrest from a federal judge. In the affidavit supporting the warrant application, the FBI claimed it had made a "100% positive identification" to fingerprints on file from Mr. Mayfield's eight years of service in the U.S. armed forces. Because there was no record that Mr. Mayfield had ever left the country, the FBI alleged in the affidavit that he might have traveled to Spain using false documents. Although Spanish officials had expressed grave doubts about the FBI's claimed match, the FBI claimed in the affidavit that "it was believed" that the SNP's doubts had been resolved. The affidavit also included a series of other claims to insinuate Mr. Mayfield's alleged links to terrorists, including that Mr. Mayfield was the attorney in a child custody case to a man who later pled guilty to conspiring to help Al- Qaida and the Taliban.' Based on these representations, Judge Robert Jones issued a sealed warrant for Mr. Mayfield's arrest and the FBI arrested him as a "material witness" on May 6, 2004.
The assistant federal public defender appointed to represent Mr. Mayfield argued for his client's release on the ground that the government was detaining Mr. Mayfield not because he was a witness but rather to investigate him as a criminal suspect. In its four-page response, the government candidly admitted that it was doing precisely that: "Based on the evidence collected to date, the government cannot exclude the possibility that Mayfield was criminally, rather than innocently, involved in how his fingerprint got to Spain."' The government's position was that there was nothing illegal about holding Mr. Mayfield in jail as a "material witness" while it investigated him.