Public Policy Center, University of Nebraska


Date of this Version



American Criminal Law Review (2003) 40: 1,235-1,269.


Copyright 2003, Georgetown University. Used by permission.


This article focuses on the deficiencies that exist in the Witness Security statute regarding enforcement of promises made to foreign national witnesses. Part II provides an overview of the Witness Security program (WITSEC) from its creation by the Organized Crime Control Act of 1970 through subsequent changes made in the Witness Security Reform Act of 1984. It outlines the purpose and characteristics of the WITSEC program and reviews problems associated with government responsibility for the acts of program participants. Part III highlights the importance of the WITSEC program to the United States in an era of growing international crime and terrorism. As international crime continues to proliferate, foreign witnesses will play an ever more important role in providing U.S. authorities with information and testimony. The WITSEC program is essential to providing protection to foreign witnesses who reside in any number of dangerous home country jurisdictions. Emphasis is placed on organized crime in Colombia and the Commonwealth of Independent States to illustrate this point.

Parts IV, V, and VI provide the bulk of this article's analysis. Part IV outlines problems specific to foreign national witnesses in the WITSEC program, with particular reference to immigration status. It also discusses congressional recognition that such problems hamper United States policy in terms of creating support among potential foreign witnesses. Part V discusses how the discretionary function exception of the Federal Tort Claims Act (FfCA) bars tort suits against the United States by witnesses and other parties for the unfulfilled promises of federal agents. It reviews case law interpreting the discretionary function exception in the WITSEC context. Part V also examines language in the WITSEC statute that bars breach of contract actions in the federal courts by witness plaintiffs. Part VI concludes this Article with a recommendation that lawmakers consider changes to the WITSEC program to mitigate or eliminate the problem of unenforceable promises being made to witnesses. It proposes recognition of enforceable agreements between the government and witnesses in matters important to witness safety or well-being, and discusses how such agreements would harmoniously coincide with pre-existing law enforcement policies. Such changes would not only be equitable to witnesses who cooperate with U.S. law enforcement agencies, but would also prove valuable in terms of creating greater support and confidence in U.S. law enforcement agencies abroad.