Panel Discusses U.S. Detention Policy

- Joshua Friedlander

Yesterday, the Constitution Project, a non-profit think tank focused on building bipartisan consensus on pressing constitutional questions, hosted an panel discussion on the detention of terrorism suspects. From the government’s misuse of the Material Witness Statute to holding Guantanamo Bay detainees on limited evidence, the United States’ detention policies have spurred political, constitutional, and judicial debates.

This term’s Supreme Court case Ashcroft v. al-Kidd directly challenges the status quo of U.S. detention policy. Central to Mr. al-Kidd’s case is the Material Witness Statute, which allows the government to detain someone with material evidence to another case. The lower courts have ruled in favor of al-Kidd, however the Supreme Court will make the final judgment. In the wake of 9/11, the use of Material Witness warrants to detain terrorist suspects increased substantially. However, out of the 70 Material Witnesses detained, only half had been called to testify. According to Lee Gelernt, Deputy Director of the American Civil Liberties Union’s Immigration Rights Project and Mr. al-Kidd’s counsel, the Material Witness Statute is being used as a preventative detention tool.

In order to detain people the government lacked sufficient evidence to arrest, the Material Witness Statue has served as a preventative detention tool – allowing law enforcement to detain and investigate persons who they otherwise could not. Mr. al-Kidd, an American citizen, was detained while attempting to leave the country for Saudi Arabia on an academic scholarship. According to the government, al-Kidd was a terrorist suspect because of his association with an Idaho-based Muslim charity whose leader had also been detained by the FBI. However, concerns surrounding the affidavit the FBI used to detain al-Kidd reveal false statements about the plaintiff. Nonetheless, he was held in extremely restrictive conditions, subject to strip searches, shackling and 24-hour exposure to sunlight for over two weeks. He was released after 16 days and was never called as a witness.

The Supreme Court of the United States is now determining whether the Material Witness Statute can be employed to preventatively detain suspects. According to Gelernt, preventative detention is extremely dangerous given the implications it has for innocent people like al-Kidd. The Obama Administration has actively urged the Court to validate the manner in which the statute has been applied.

Click here to learn more about this case.