US Supreme Court to rule on “material witness” law

(Scotus Blog) The Obama Administration is challenging before the Supreme Court a ruling by the Ninth Circuit Court that government officials are not entitled to full legal immunity if they use the “material witness” law — a law that apparently has been used with some frequency in suspected terrorism cases — as a pretext for investigating or detaining an individual, even if a neutral judge has issued a warrant to seize that individual. 

In the petition, the Solicitor General’s office argued that the Circuit Court ruling not only exposes officials to personal liability for money damages for acts of their subordinates, but will have “long-term consequences” in limiting “the usefulnessof the material witness statute.”

Although the Ninth Circuit did not explicitly strike down the law as used in this case, the Solicitor General’s petition said, it will have that effect when prosecutors ponder the arrest of a witness who they think has vital criminal evidence, but they lack sufficient basis for believing that that individual has himself committed a crime that prosecutors can charge. 

Noting that the material witness law dates back to 1789, the petition noted that all 50 states also have similar laws.  “Until now, the constitutionality of this statute apparent has never been doubted…The Ninth Circuit’s implicit invalidation of such a longstanding and important act of Congress” supports Supreme Court review, it added.

The petition reached the Court just a month after the Justices, in a 6-3 ruling on June 21 (Holder v. Humanitarian Law Project, 08-1498), decided that the federal government may use a law against “material support” of terrorist organizations to stop even humanitarian groups from helping terrorist groups pursue peaceful goals or policites.  

It is not known just how often the government has used the “material witness” law to round up individuals during terrorism probes, but the number very likely is significant.

Read more on the case here.