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(Federal judges must approve the detention of material witnesses, and in the past some judges have allowed them to be imprisoned for as long as six months).
Criminal justice reform activists have fought back against the detention of material witnesses, arguing that it is unjust to imprison people who are not accused of crimes.
Eritrea's ambassador to the United States defended his own government's roundup of journalists by claiming that their detention without charge was consistent with the United States' detention of material witnesses and aliens suspected by the United States of terrorist activities...
A federal district judge, Shira A. Scheindlin, had ruled in April 2002 that a law permitting the detention of material witnesses to ensure their presence in criminal proceedings did not apply to witnesses before investigative grand juries.
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The department has stepped up its detentions of material witnesses as a tactic in terrorism investigations.
Judge Mukasey, citing the assertion in 1807 by Chief Justice John Marshall that "the public has a right to every man's evidence," held that detentions of material witnesses during investigations are proper.
Both sides agree that the detention of a material witness, particularly a juvenile, is extremely rare.
"We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive," Justice Scalia wrote.
(In actuality, that fear was probably unfounded. Several months later, Judge Mukasey upheld the detention of a material witness in another case, and the Second Circuit Court of Appeals later reversed the other judge's ruling).
Mr. Ashcroft says that his strategy of "aggressive detention of lawbreakers and material witnesses" has been vital in preventing new horrors.
To be sure, other legal tactics employed by the Bush administration have attracted more criticism, including the indefinite incarceration of two men designated as enemy combatants by the military and the detention of several dozen material witnesses.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com