Critics, however, contend that since September 11, 2001, seventy individuals, mostly Muslims, have been arrested and detained in abuse of the statute's authority. 3199

Witnesses at Congressional oversight hearings charged that the authority under 18 U.S.C. 3199 following the hearings, section 12 of the bill amended section 1001 of the USA PATRIOT Act by directing periodic review of the exercise of the authority under section 3144. But this cannot be. Nevertheless, perhaps because of Administration opposition, the provision was dropped from H.R. 3199 prior to House passage. No similar provision could be found in H.R. 3199 ( S. 1389 ) as approved in the Senate, in the conference bill, H.Rept. In its recast form, section 3144 among other things would:
establish a preference for postponing arrest until after a material witness has been served with a summons or subpoena and failed or refused to appear, unless the court finds by clear and convincing evidence that service is likely to result in flight or otherwise unlikely to secure the witness' attendance; make it clear that the provision applies to grand jury proceedings; explicitly permit arrest by officers who are not in physical possession of the warrant; require an initial judicial appearance without unnecessary delay in the district of the arrest or in an adjacent district if more expedient or if the warrant was issued there and the appearance occurs on the day of arrest; limit detention to 5 day increments for a maximum of 30 days (10 days in the case of grand jury witness); require the Attorney General to file an annual report to the Judiciary Committees on the number of material witness warrants sought, granted and denied within the year; the number of material witnesses arrested who were not deposed or did not appear before judicial proceedings; and the average number of days arrested material witnesses were detained. Iraola, Terrorism, Grand Juries, and the Federal Material Witness Statute , 34 St. Mary's Law Journal 401(2003). Material Witnesses in Criminal Proceedings: Securing and Assuring Their Attendance , 18 Missouri Law Review 38 (1953).
This is an overview of the law under the federal material witness statute which authorizes the arrest of material witnesses, permits their release under essentially the same bail laws that apply to federal criminal defendants, but favors their release after their depositions have taken.
Witnesses at Congressional oversight hearings alleged that the authority to arrest and hold material witnesses until their appearance at federal criminal proceedings (including grand jury proceedings) had been abused following September 11, 2001. Section 12 of the USA PATRIOT Act and Terrorism Prevention Reauthorization Act ( H.R. 3199 ) as reported by the House Judiciary Committee called for a periodic review and reports on the use of the material witness statute. In the face of Administration opposition, however, the provision was dropped from the bill prior to House consideration. No similar proposal could be found in the version of H.R. 3199 ( S. 1389 ) approved in the Senate or in the conference bill sent to the President. S. 1739 would rewrite the federal statute, setting detention time limits and raising evidentiary standards for arrest and detention among other things.
A list of citations to comparable state statutes and a bibliography of law review articles and notes are appended.
The report is available in an abridged formâwithout footnotes, citations to most authorities and appendicesâas CRS Report RS22259, Arrest and Detention of Material Witnesses: A Sketch , by [author name scrubbed].