Toobin: Material witness rule can be dangerous if used improperly
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 A court threw out the case against an American lawyer once linked to Madrid’s bombings, says CNN's Kelli Arena. (May 24)
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(CNN) -- On Monday a federal court threw out the case against an American lawyer in Oregon once linked to the Madrid train bombings. The FBI expressed regret for a fingerprint-identification error that led to his arrest. (Full story)
CNN anchor Wolf Blitzer discussed the case, and the material witness rule, with CNN Senior Legal Analyst Jeffrey Toobin.
WOLF BLITZER: As we reported, a federal court threw out the case against Brandon Mayfield, the Oregon attorney arrested in connection with the deadly train bombings in Madrid, Spain, in March. The court said the FBI had misidentified fingerprints.
Joining us now, our senior legal analyst, Jeffrey Toobin. This is a pretty shocking case, you've got to admit, from all perspectives.
JEFFREY TOOBIN: Absolutely. And to have the judge very specifically say that the FBI made this error on the fingerprint, that's a real slap at the FBI on a fairly straightforward matter, identifying a fingerprint. And there probably will be and should be some fallout on this.
BLITZER: The suspicion was that he was supposedly under some sort of surveillance before this, and they -- because his name was surfacing or whatever, they tried to arrest him under this material witness issue in order to get -- before it was too late, supposedly, before he could flee.
TOOBIN: One of the key aspects of the Justice Department policy since 9/11 has been prevention. They believe that it is important to arrest people before they can commit any terrorist acts, rather than try to enforce the law after something terrible has happened. Now, that's a very good idea in theory, but here, we have a situation where someone was arrested for absolutely no reason and then held under the material witness rule, which is, I think, a very unfamiliar rule to many people.
BLITZER: Well, talk about that material witness rule.
TOOBIN: Well, the way it works is, the Justice Department can designate anyone and say, "We believe this person is a witness who may flee if he is not held in custody." These people are not accused of any crime. They are simply witnesses who are material to an investigation or a pending trial. They have no rights to get out on bail. This has been used a lot by the Justice Department.
Many of the 1,000 or so people who were held after 9/11 were held as material witnesses and then ultimately freed, as this fellow was, when it was discovered that they did nothing wrong. It's a very dangerous tool in the hands of law enforcement, if used improperly, because there is no recourse, except the Justice Department saying, "Well, we got the wrong guy."
BLITZER: And if this could happen -- this kind of mistake, the FBI could make this kind of mistake in this case, the question will be asked, who knows how many other mistakes have been made?
TOOBIN: Well, that's right. And that's one of the reasons that there's been a lot of attempts to find out how many material witnesses were held since 9/11. Some of them have been released. We don't know if all of them have been released.
This is an example of someone being held for two weeks inappropriately. You know, obviously, it is good that an innocent man was freed, but two weeks is not a trivial amount of time to be held in prison.
