Four weeks after winning a broad interpretation by the Supreme Court of one of the government’s main legal weapons in the “war on terrorism,” the Obama Administration has asked the Court to give officials wide-ranging legal immunity for enforcing another such law.  At issue in the just-appealed case of Ashcroft v. Al-Kidd (10-98) is a law that permits the arrest and detention of an individual sought as a “material witness” — a law that apparently has been used with some frequency in suspected terrorism cases.  The new petition, filed late Friday, is here; the lower court’s opinions are here.

The Administration is challenging a ruling by the Ninth Circuit Court that government officials are not entitled to full legal immunity if they use the “material witness” law as a pretext for investigating or detaining an individual, even if a neutral judge has issued a warrant to seize that individual.  In the petition, filed on behalf of former Attorney General John Ashcroft, the Solicitor General’s office argued that the Circuit Court ruling not only exposes officials to personal liability for money damages for acts of their subordinates, but will have “long-term consequences” in limiting “the usefulnessof the material witness statute.”

Although the Ninth Circuit did not explicitly strike down the law as used in this case, the Solicitor General’s petition said, it will have that effect when prosecutors ponder the arrest of a witness who they think has vital criminal evidence, but they lack sufficient basis for believing that that individual has himself committed a crime that prosecutors can charge.  “The decision below,” it argued, “suggests that prosecutors will be subject to suit if they lack probable cause to charge such an individual but arrest him on a material witness warrant — even though that warrant is issued by a neutral judge.”

Noting that the material witness law dates back to 1789, the petition noted that all 50 states also have similar laws.  “Until now, the constitutionality of this statute apparent has never been doubted…The Nith Circuit’s implicit invalidation of such a longstandign and important act of Congress” supports Supreme Court rievew, it added.

Aside from arguing that Ashcroft — and other prosecutors who make use of the material witness law — should have complete legal immunity to damage lawsuits for the way the law is enforced, the petition  also argued that the Ninth Circuit was wrong in denying Ashcroft even qualified immunity from the claim that the law’s use in this case was a mere pretext for investigating and detaining the witness.  And it also contended that the Circuit Court was wrong in suggesting that Ashcroft may be held liable for allegedly false statements that were made in a sworn staement used to obtain the arrest warrant.

The petition reached the Court just a month after the Justices, in a 6-3 ruling on June 21 (Holder v. Humanitarian Law Project, 08-1498), decided that the federal government may use a law against “material support” of terrorist organizations to stop even humanitarian groups from helping terrorist groups pursue peaceful goals or policites.   The “material support” law has been used in more than 200 prosecutions by the goverenment since the terrorist attacks of Sept. 11, 2001.

It is not known just hwo often the government has used the “material witness” law to round up individuals during terrorism probes, but the number very likely is significant.

The new case involves a Nevada man, Abdullah Al-Kidd, a U.S. citizen who was seized by the FBI at Dulles Airport outside Washington, D.C., on March 16, 2003, as he prepared to board a flight to Saudi Arabia.   The government sought and obtained a material witness warrant for Al-Kidd from a magistrate judge, believing that he may have had information that bore on the government’s investigation of Omar Al-Hussayen on terrorist support charges, and other criminal charges.  The FBI had concluded that Al-Hussayen had entered the U.S. on the false notion that he was only seeking to pursue a course of academic study, but actually was helping to raise funds for an organization,  the Islamic Assembly of North America, that support radical causes.

At Al-Hussasyen’s trial, a jury found him not guilty on some charges and could not reach a verdict on others.  Al-Kidd was not called to testify at the trial.  After that proceeding had ended, a federal judge lifted restrictions on Al-Kidd, including limits on his travel.   In March 2005, he sued Ashcroft and other federal officials, seeking damages for allegedly misusing the material witness law against him.   He had been held in detention for 16 days after his arrest.

Posted in Detainee Litigation