The Necessary Evil of Preventive Detention in the War on Terror: ...

Material-witness warrants are traditionally used to arrest and detain material witnesses to criminal activity when it is believed that the witnesses will leave the jurisdiction to avoid having to testify. The threshold for detention as a material witness is that the person has testimony “material” to a criminal proceeding and that securing the testimony through a subpoena is “impracticable.”⁵ After 9/11 the attorney general announced a policy of “aggressive detention” of material witnesses, and at least seventy people including José Padilla and Ali Saleh Kahlah al-Marri were detained under the rationale that they were “material witnesses” without any criminal charges filed.⁶ Under the statute, however, “[n]o material witness may be detained…if the testimony of such a witness can be adequately secured by deposition, and if further detention is not necessary to prevent a failure of justice.”⁷ As law professor Stephen Schulhofer aptly points out, unless this exception is expanded to swallow the rule, the material-witness statute is a poor choice to detain terrorist suspects pending further investigation and trial.⁸ Furthermore, as Paul Rosenzweig and James Carafano wrote for the Heritage Foundation,

The Bush administration recognized the inherent limitations of creat-ing a preventive-detention regime using the material-witness statute and transferred Padilla and al-Marri to military custody as enemy combatants in 2002 and 2003, respectively. President Bush justified his unilateral decisions to label individuals as enemy combatants on the exercise of his war power as commander in chief under Article II of the Constitution and under the Joint Resolution passed by Congress after 9/11 to use all “necessary and appropriate force” against those who “planned, authorized, commit-ted or aided the terrorist attacks that occurred on September 11, 2001.”¹⁰

Significantly, on February 7, 2002, President Bush issued an executive order determining that members of al Qaeda and the Taliban are unlawful enemy combatants who are not entitled to the protections of the Third Geneva Convention.¹¹