Supreme Court Grants Immunity to Ashcroft for Abusing Material Witness Warrants to Detain American Citizens

In its first day back from Memorial Day weekend, the Supreme Court today held that using material witness warrants as a pretext for detaining alleged terrorism suspects, with no probable cause to arrest for criminal wrongdoing, does not violate the Fourth Amendment in Ashcroft v. al-Kidd.

Eight justices unanimously held that former Attorney General Ashcroft was entitled to qualified immunity from suit, because there was no clearly established constitutional law prohibiting the pretextual use of material witness warrants to preventively detain terrorism suspects. However, Justice Scalia’s majority opinion went much further, holding that the government’s subjective intent in obtaining a material witness warrant is irrelevant under the Fourth Amendment. In other words, so long as the government’s material witness warrant is validly obtained, it does not matter whether the government actually intends to use a detainee as a witness in a prosecution, even if the warrant was a pretext to arrest a suspected terrorist.

The case arose in the aftermath of the September 11, 2001 terrorist attacks. Attorney General Ashcroft “authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations . . . with no intention of calling most of these individuals as witnesses.”

Abdullah al-Kidd, a native-born American citizen who was a college football star at the University of Idaho, was targeted for surveillance and ultimately detained in 2003, while boarding a flight to Saudi Arabia to pursue a doctoral degree in religious studies. Al-Kidd allegedly had information “crucial” to the prosecution of Sami Omar al-Hussayen, but was never called as a witness during his detention or supervised release, which lasted fourteen months and ended in al-Hussayen’s acquittal on all charges. As explained by Justice Ginsburg,

Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarceration, kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.

While there was no probable cause to arrest al-Kidd for criminal wrongdoing (and not even the suspicion of wrongdoing), the Obama Administration defended Ashcroft, with Acting Solicitor General Neal Katyal claiming in oral argument that al-Kidd’s “lawsuit seeks personal money damages against a former attorney general of the United States for doing his job."

Under Harlow v. Fitzgerald, qualified immunity protects government officials from suits for money damages, unless a plaintiff can show that (1) the official violated a statutory or constitutional right, and (2) that the right in question was clearly established at the time of the alleged violation. The Ninth Circuit held that Ashcroft was not shielded from suit for abusing the material witness statute as a pretext for arresting terrorism suspects absent probable cause of wrongdoing. Had the majority limited its opinion to the second prong – that there was no clearly established constitutional rule forbidding the pretextual use of material witness warrants – the Court would have produced a single, unanimous opinion. However, Justice Scalia took the unnecessary step of assuming the validity of the material witness warrant in order to announce a new constitutional rule. Under the majority’s new formulation, so long as a magistrate signs a material witness warrant under objectively reasonable circumstances – that is, if it “may become impracticable to secure the presence of the [witness] by subpoena” – the Attorney General can never be held accountable for harsh, pretextual detentions of American citizens.

Each of the concurring opinions noted that the validity of al-Kidd’s material witness warrant was unclear at best. The federal government omitted and misrepresented crucial information to secure the warrant. For example, the government submitted an affidavit claiming that al-Kidd had purchased “one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000,” when he had actually purchased a round-trip coach ticket costing $1,700. Furthermore, “the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States,” and that al-Kidd had been cooperative with FBI agents in several earlier interviews. As Justice Ginsburg concluded in her concurring opinion, “there is strong cause to question the Court’s opening assumption – a valid material-witness warrant – and equally strong reason to conclude that a merits determination was neither necessary nor proper.”

Justice Kennedy’s concurring opinion explained that the majority opinion did not uphold the validity of al-Kidd’s material witness warrant, leaving this question to lower courts on remand. Thus, as both Justice Ginsburg and Justice Sotomayor express in their concurrences, the majority opinion, decided on the assumption of a valid warrant, clearly overreached. Chief Justice Roberts, along with other conservatives on the Court, have often stated their preference for “limited” opinions that only decide the case at hand. Here, the majority decided a hypothetical; once the Court decided that there was no clearly established constitutional right, Attorney General Ashcroft was entitled to qualified immunity and nothing further was needed to resolve his appeal.

Nevertheless, the Court crafted a new rule, holding that an American citizen can be detained as a “material witness,” even if the federal government has no intention of ever calling that individual to testify. Brutally harsh “preventive” detention, which in Justice Ginsburg’s view presented “a grim reminder of the need to install safeguards against disrespect for human dignity,” has been given new protection by the conservative wing of the Supreme Court. While al-Kidd has settled some of his claims against lower-level officials and his suit against Attorney General Ashcroft is not entirely foreclosed (since it is still possible that the lower courts will find that the underlying warrant was not validly obtained), an effort to hold high-level government officials accountable for the ongoing, post-9/11 assault on civil liberties was dealt a strong blow by the Court.