8-0, My Foot: Material Witness Case Generates Material Differences

The neatness of the outcome in Ashcroft v. al-Kidd belies the Supreme Court's uncertainty about how the Fourth Amendment applies to the War on Terror. 


The record will reflect that the United States Supreme Court decided a significant terror law case Monday by means of a unanimous ruling in favor of the federal government. But the reality of the Court's decision in Ashcroft v. al-Kidd is far less clear. And we may have just witnessed another example this term where the absence of Justice Elena Kagan from any consideration of a case--she recused herself again because of her work as Solicitor General-- may have materially affected its outcome.

By a count of 8-0, the Court rejected a civil lawsuit for money damages brought by a man named Abdullah al-Kidd, an American Muslim, who was held in custody for 16 days back in 2003 on a "material witness" warrant. Those warrants allow federal officials to arrest and detain a person as a potential witness, even if the person is not necessarily suspected of having committed a crime. Two years later, after the government neither indicted him nor called him to testify as a witness, al-Kidd sued several federal government officials, including then-Attorney General John Ashcroft, contending that the warrant was just a pretext to round up and investigate terror suspects without probable cause.

Ashcroft and his co-defendants promptly asserted that they were legally immune from any such lawsuit because their conduct in seeking the warrant was a duly-performed prosecutorial function. But a federal trial court disagreed, to the surprise of many legal observers who closely follow these things. And then the 9th U.S. Circuit Court of Appeals held that Ashcroft could be held liable because the 2003 material witness warrant issued against al-Kidd violated his Fourth Amendment right to be free from a "pretextual arrest" absent the traditional requirement of probable cause.

To give you a sense of what al-Kidd went through, and why he subsequently sued, here's how the 9th Circuit began its now-overturned 2009 ruling:

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport's police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist.

He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd's confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

To Justice Antonin Scalia, who wrote the Court's main opinion, none of this treatment justified allowing al-Kidd's lawsuit against Ashcroft to proceed toward trial. Justice Scalia wrote:

A warrant issued by a neutral Magistrate Judge authorized al-Kidd's arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear... Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation. Efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.

This conclusion went too far for Justice Anthony Kennedy, once again the Court's swing-voter. He agreed that Ashcroft was protected by "qualified immunity" from al-Kidd's lawsuit-- all of the justices did-- but disagreed with Justice Scalia's view that the warrant itself was necessarily justified under Fourth Amendment law. "The Court's holding is limited to the arguments presented by the parties and leaves unresolved whether the Government's use of the material witness statute in this case was lawful, Justice Kennedy wrote. "Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness arrests might be consistent with statutory and constitutional requirements."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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