Spanish officials said on Friday that American investigators had apparently matched Mr. Mayfield's fingerprints to a single print on a plastic bag recovered from a stolen van used by the bombers. The bag, which held seven copper detonators like those used on the train bombs, was found at a suburban Madrid train station hours after the bombings....A senior Spanish counterterrorism official said that investigators from Spain and the United States differed on whether the fingerprint on the bag conclusively matched those of Mr. Mayfield, who was identified to the Spaniards only as a military veteran who had converted to Islam. Though a Spanish police report described the forensic evidence as a match, the official said, F.B.I. officials had raised some questions.

After searching Mr. Mayfield's home,

[Police] also froze Mr. Mayfield's bank accounts and assets, his mother said, and took him to a Portland jail with no explanation.

Mayfield has not been allowed to speak with his wife. He was honorably discharged from the U.S. Army after 8 years of service. He met his Egyptian wife in college and converted to Islam after they married.

We litigated a material witness issue in federal court yesterday--in a case with no connection to terrorism. The Government snatched a British citizen at the Miami airport who was changing planes to go to Boston to visit family. He was arrested on a "material witness" warrant, jailed, and ultimately given a bond and told to turn himself in to Denver ten days later. The reason for the snatch: The Government thought he might have relevant testimony to give against our client in a criminal tax case, and since he lived in the Turks and Caicos, which is beyond the subpoena power of the U.S., it thought he might not voluntarily appear at the trial. So the Government obtained a material witness arrest warrant to be able to take his deposition and preserve his testimony for our client's trial.

After a long oral argument yesterday, the federal judge rejected our argument that the Government should have to present evidence, other than that the witness did not reside in the U.S. and was beyond the subpoena power of the court, that the witness would not appear voluntarily if asked. The Government acknowledged it had never asked the man if he would appear. The Government acknowledged it could have served him with a trial subpoena while he was in Miami, instead of arresting him. But then, it said, it would not have been able to take his deposition and preserve his testimony for our client's trial if he failed to honor the subpoena.

So this witness, who may or may not have information against our client, leaves his island home to go to Boston and visit family, never gets there, and instead, is arrested, has his passport taken so he can't leave the country, and two weeks later, has to appear in Denver.

Depositions in federal criminal cases are granted sparingly. They are disfavored due to the potential for denying a defendant his 6th Amendment right to confront witnesses. The federal criminal rules allow depositions if the Government can show exceptional circumstances, namely, that the witness' testimony is material and that there is a substantial likelihood the witness won't appear for trial.

The material witness statute, on the other hand, doesn't place a burden on the Government to show unavailablity. It merely requires them to assert, in an ex parte proceeding where the other side does not get to be heard, that it is "impracticable" to secure the witnesses appearance in a criminal proceeding.

So, the bottom line is, any time the Government wants information from a non-U.S. resident, they can get a material witness warrant, have them arrested, detain them indefinitely unless a judge grants bond, delay their departure home if they are released on bail and then compel them to appear anywhere in the country for a deposition.

Here's the text of the material witness statute:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

Arrest warrants issued in secret, executed against foreign residents, allowing for their detention, just because the Government seeks information they may or may not have or be willing to give. This is a recipe for injustice.

In the case of lawyer Brandon Mayfield, a U.S. citizen who was home in Portland, Ore. with no known plans to leave, what was the "impracticability" that required his arrest and detention on a material witness warrant? There isn't even a criminal proceeding in the U.S. regarding the Spain train bombings. This strikes us as very, very unfair.