My exuberant colleague Ricardo J. Bascuas has put online an early draft of an important article, The Unconstitutionality of “Hold Until Cleared”: Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet ( forthcoming Vanderbilt Law Review, April 2005).
The article argues very persuasively that the material witness statute is being seriously misused to hold innocent people in jail, and to sweat possibly guilty ones when the government lacks the information to charge them. But we knew that.
What makes this article special is that it also demonstrates through careful textual analysis that the courts which approved the government's use of the material witness statute to jail people fundamentally misunderstood the original meaning of the orignial material witness statute, which was in fact carefully designed to do no such thing, but only to allow the jailing of witnesses who failed to promise to appear, or who failed to appear when bound to do so.
Not only is this a great article, but it's Ricardo's first one — a sign of a glittering academic career in the making.
