Worst Decisions, #7: Ashcroft v. al-Kidd

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #8, we talked about J. McIntyre Machinery v. Nicastro, which protected foreign corporations from accountability when their products cause harm.

Worst Decisions of the 2010-11 Corporate Court Term: #7 Ashcroft v. al-Kidd
Giving the Seal of Approval to Harsh Imprisonment of Americans under False Pretenses

The Supreme Court threw out a lawsuit brought against former Attorney General John Ashcroft by Abdullah al-Kidd, an American citizen who was detained for 16 days in harsh conditions.

Al-Kidd was accused of no crime and responded with full cooperation to several FBI requests for information.  Nonetheless, federal law enforcement, which had no intention of obtaining testimony, detained al-Kidd using a material witness warrant supported by an affidavit that included several falsehoods and omissions. As a result, al-Kidd was held in a cell that was lit 24 hours a day and was subjected to strip searches, body cavity searches, and shackling of his wrists, legs, and waist.

All eight justices who heard the case held that Ashcroft was entitled to qualified immunity because there was no “clearly established” law stating that using a material witness warrant in the way he used it was illegal.  Nonetheless, Chief Justice Roberts and Justices Scalia, Thomas, and Alito sought to go even further.  They stated conclusively that Ashcroft’s actions were lawful despite the federal government’s use of false and misleading information to obtain the warrant.  For example, law enforcement stated that al-Kidd purchased a first-class one-way ticket to Saudi Arabia instead of the coach round-trip ticket he actually purchased.  Law enforcement also did not tell the magistrate that they had no intention of asking al-Kidd to testify or that his entire family lived in the United States, where he was born and raised.

Justice Ginsburg, in an opinion concurring in the judgment that was joined by Justices Breyer and Sotomayor, described the Court’s assumption as “puzzling.”  Citing the omissions and falsehoods used to obtain the warrant, she added that “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 (that Ashcroft acted lawfully) was neither necessary nor proper.”

Ashcroft v. al-Kidd is number seven on AFJ”s Worst Decisions of the Corporate Court Term because it denied justice to an American citizen who suffered profound harm at the hands of his government and because the leading four-person opinion needlessly approves deceptive tactics used to unfairly arrest of innocent Americans.  

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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.

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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.

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New York Times Urges Supreme Court to Hold Ashcroft Accountable

In a powerful editorial today, the New York Times urged the Supreme Court to rule against the former Attorney General in the case of Ashcroft v. Al-Kidd.

The case involves the Justice Department, at the time led by Ashcroft, and its misuse of "material witness" warrants to detain American citizens without counsel, even when the government had no intention of using as witnesses in any case. Mr. Kidd was held for more than two weeks. During his detention, he was repeatedly interrogated, and treated more like a prisoner or suspect than a witness. He was never called as a witness in any cases.

The Times editorial notes that 31 former prosecutors have also urged the Supreme Court to side with Mr. Kidd, and ignore Mr. Ashcroft's argument that he cannot be sued in this case:

The former prosecutors’ brief underscores why the justices should uphold the judgment of the United States Court of Appeals for the Ninth Circuit that Mr. Ashcroft forfeited immunity when he devised the strategy that led to the [material witness] statute’s misuse.

...

It can’t be used to detain someone because it simply doesn’t grant that power. The Non-Detention Act says clearly: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” After Sept. 11, 2001, Mr. Ashcroft asked Congress for that authority. Congress said no — and the Justice Department’s misuse of the material witness statute was a ruse to get around that rebuff.

Despite the “settled understanding” to the contrary, the department got away with that ruse until this case. The Supreme Court should say it has no power to do so.

Click here to read more on the Al-Kidd case.

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Los Angeles Times Urges Supreme Court to Rule for Wrongfully Detained Citizen

The Los Angles times published an editorial on Saturday urging the Supreme Court to rule in favor of Abdullah al-Kidd in Ashcroft v. al-Kidd, a case that was argued before the Court last Wednesday. The editorial argued that former Attorney General John Ashcroft should not be shielded from damages in a lawsuit brought by Kidd, an American citizen who was wrongfully detained and kept for over two weeks under very harsh conditions:

Kidd sued Ashcroft, who, Kidd maintained, had presided over a policy of using the material witness statute to imprison suspects without the required probable cause. The existence of such a policy is confirmed by the way administration officials described Kidd. In testimony before Congress, FBI Director Robert Mueller mentioned Kidd as being among "suspected terrorists," suggesting that he wasn't being confined in preparation to giving testimony.

The LA Times referred to the case as an “egregious human rights violation,” and urged the Court to ensure that “an ordeal like Kidd’s [doesn’t] happen to anyone else.”

Alliance for Justice has analyzed the case as part of our 2010-11 Corporate Court Docket.

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Detaining American Citizens Under False Pretenses

Today’s Washington Post features an editorial urging the Supreme Court to side with the former Attorney General in the case of Ashcroft vs. al-Kidd. Abdullah al-Kidd, a natural-born American citizen, was detained for more than two weeks under false pretenses as a “material witness,” without access to legal counsel. He was never charged with a crime, or called to testify as a witness against anyone else.

The Post and others have said that Ashcroft was justified in ordering the detention of an American citizen under a “material witness” warrant, and then holding and interrogating him for more than two weeks without counsel.

Here's how the government treated this "material witness:"

• Mr. Kidd was detained as a "witness" in a case a month after the indictment was issued, and a full year before the trial was to begin.
• He was released from detention long before the trial began, and was never called as a witness.
• During his detention, he was repeatedly strip-searched, interrogated, and kept in a lighted cell to interfere with his sleep.
• During his previous -- cooperative -- interviews with the FBI, Mr. Kidd was never asked or told to be available as a witness.

It's hard to see how the Washington Post could examine those facts and come to any conclusion other than the one reached by Mr. Kidd: that the government never intended to use him as a witness, and so detained him under false pretenses.

For more on this case, see AFJ’s analysis here.

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Supreme Court to Hear Oral Arguments on Accountability for Detaining Citizens on Phony Grounds

The Supreme Court will hear oral arguments this week in Ashcroft v. Al-Kidd, a case concerning an American citizen detained for more than two weeks in harsh conditions on the specious grounds that he was a material witness.

Abdullah Al-Kidd is an American-born United States citizen and convert to Islam who lives in Idaho. The FBI targeted Al-Kidd and his wife for surveillance and interviews during a broad terrorism investigation in the state following the attacks of September 11, 2001. The investigation revealed no evidence of wrongdoing by Al-Kidd or his wife. However, FBI agents arrested him on a material witness warrant related to an investigation of another person, and took him into custody. Following several interrogations without counsel, Al-Kidd was held for 15 nights in jails in three states with hardened criminals, and transported aboard a “Con Air” flight in which he was held in full shackles. He was never used as a material witness – the pretext under which he was originally arrested.

Al-Kidd sued former Attorney General John Ashcroft for ordering his wrongful detention. He argues that neither the absolute nor qualified immunity sometimes afforded government officials is appropriate in this case because Ashcroft’s use of a material witness warrant was merely a pretext to submit Al-Kidd to preventative detention. The Ninth Circuit ruled in favor of Al-Kidd and Ashcroft appealed the decision.

If the Supreme Court rules in Ashcroft’s favor, it will enable government officials to circumvent fundamental constitutional protections by detaining individuals indefinitely without access to an attorney simply by claiming they are needed as material witnesses.

Oral arguments are scheduled for Wednesday, March 2.

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