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Argument preview: An old law in new guises?

At 11 a.m.Wednesday, the Supreme Court will hear one hour of oral argument on a claim of immunity for a top government official in ordering that an old law designed to assure that witnesses appear at trial be used to justify rounding up terrorism suspects and holding them even though there was not enough evidence to justify arrest or detention.  The case is Ashcroft v. Al-Kidd (10-98).  Arguing for former U.S. Attorney General John Ashcroft will be Acting U.S. Solicitor General Neal K. Katyal.  Arguing for Abdullah al-Kidd, the U.S. citizen held for 15 days, will be Lee Gelernt of New York, an American Civil Liberties Union lawyer.



Since the 16th Century in England, and at least since 1789 in the United States, the government has had the authority to insist that those who may have witnessed or otherwise knew about a crime are available to testify when a case goes to trial.  Until modern times, such witnesses were allowed to put up some money, such as “bail,” or otherwise give some formal indication that they would, in fact, appear.  If, however, a witness could not provide such assurances, jailing was a possibility to make sure they did appear, although that apparently was not common.   These were the so-called “material witness” laws — that is, laws to guarantee that “material” evidence would be available to prosecutors when the time came to present it in court.

In the U.S., some legal historians date the controversy that is now newly before the Supreme Court to 1966.   In that year, Congress passed the Bail Reform Act and, as part of that, revised the federal “material witness” law so that it no longer gave a potential witness an option to put up a guarantee of appearance.  It authorized detention without a specific finding that a witness had refused to appear or had refused to put up a bail or a personal guarantee.  That revision soon came to be understood, despite reassurances that detention would not be the norm, that material witnesses would, indeed, be subject to arrest in the first place.   Congress nailed down this view with another version of bail reform in 1984 — the one that gave the material witness law its current form.

That version says simply that, if it is shown that “it may become impracticable to secure the presence of a person by subpoena,” a judge “may order the arrest of the person.”  The Supreme Court has granted review of a case to say just what that authority means, and whether, if the law is used for a purpose other than to make sure a witness shows up at the trial, what legal consequences are to follow.   In the process of examining those questions, the Justices will also consider whether, in fact, courts may probe the purpose or motive that led a prosecutor to go to court to get a warrant to arrest a material witness.

John Ashcroft was the U.S. Attorney General when the “war on terrorism” was declared by the Bush Administration in 2001.  A few weeks after the 9/11 terrorist attacks, he told a group of news reporters that the “aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks” and that this strategy would be part of an energetic new effort to take “suspected terrorists off the street.”   Internal FBI documents indicated that such roundups would not necessarily lead to criminal charges, but to detention simply as a material witness without regard to any potential charges.   And a high Justice Department official was quoting as saying that the material witness law would be used as “an investigative tool in the war on terrorism.”

Caught up in this sweeping new use of the old law was, among others, Abdullah al-Kidd.  The FBI, after 9/11, was conducting an investigation in Idaho, focusing on possible associates of an individual named Sami Omar Al-Hussayen, who the FBI believed was involved in recruiting individuals to engage in violence and terrorism despite claims that he was working for a charity (where al-Kidd has said he, too, worked).   The FBI started secretly monitoring the activities of al-Kidd, a U.S. citizen and a graduate of the University of Idaho, where he had gained some local fame as a football player.  (While in college, he had converted to Islam, and changed his name from Lavoni T. Kidd to Abdullah al-Kidd.  The FBI also conducted surveillance on his wife.)

After Al-Hussayen was indicted, the FBI, believing that al-Kidd was planning to flee to Saudi Arabia, persuaded a U.S.magistrate judge to issue a material witness arrest warrant for al-Kidd.  The judge was told that his testimony was vital in the prosecution of Al-Hussayen, and that he had to be detained to assure that he would be available. He was arrested at Dulles Airport outside Washington on March 16, 2003, just before his overseas flight departed.   He would later insist that he was not planning only a one-way trip to Saudi Arabia, and that his journey there was only to continue his studies.

The FBI did not warn him about his legal rights, and did not indicate he was going to be charged with any crime (and he never was).  He was questioned for several hours, and was told that, if he cooperated, he would be allowed to make his planned trip.   Instead, he was detained for the next 15 days, in jails in Idaho, Oklahoma, and Virginia.  He claimed later that he was held in harsh conditions, and was seriously mistreated, as if he were a dangerous terrorist.  After he was released, he was told he had to stay in Nevada, where he then lived, and had to surrender his passport.

He was never called to testify against Al-Hussayen, whose trial ended with an acquittal on some of the charges and a non-decision on the others.  After that, the magistrate judge lifted the conditions on al-Kidd.

In March 2005, al-Kidd sued Ashcroft, and a number of other officials, seeking damages for allegedly misusing the material witness law, not to guarantee his testimony, but to investigate him for possible criminal charges and to detain him because of a perception that he was dangerous.  The lawsuit contended that, after 9/11, Ashcroft had instituted a policy of using the material witness law as a pretext, to hold people like him when it actually had no evidence that would justify his arrest as a criminal suspect.  The document also claimed that al-Kidd’s seizure was a violation of his Fourth Amendment rights, on the theory that a prosecutor is barred from seeking a material witness arrest warrant with the real motive of investigation or detention.

Before the case could go to trial, Ashcroft moved to have the lawsuit dismissed, claiming that, as the country’s lead prosecutor, he had legal immunity for the decisions he made in that role.  That maneuver failed. The former attorney general then took the case to the Ninth Circuit Court, which ruled that Ashcroft did not have total, or absolute, immunity as a prosecutor, to the claim that he had adopted an official policy of misusing the material witness law, and also did not have “qualified immunity” to the Fourth Amendment claim that he had wrongly authorized the request for a witness arrest warrant while intending to keep al-Kidd detained for investigation.

Justice Department lawyers representing Ashcroft then took the case on to the Supreme Court.

Petition for Certiorari

Seeking to avoid trial altogether, Ashcroft’s petition asked the Court to take his case and rule that, as a prosecutor, his decisions about how to deal with the threat of terrorism were part of his official duty and that he therefore enjoyed prosecutorial immunity in that role just as a line prosecutor would have in deciding how to pursue ordinary criminal wrongdoing.  First, he claimed absolute immunity, arguing that his orders to subordinates to seek an arrest warrant for Al-Kidd was “an integral part of a prosecutor’s advocacy function.”  It is a long-standing principle, the petition argued, that absolute immunity applies regardless of what a prosecutor’s specific intent was for an official action.

Second, he claimed qualified immunity to the claim that the material witness law could not be used to hold an individual for investigation.  Again, he asserted, the prosecutor’s intent does not make a witness arrest invalid under the Fourth Amendment.  And, even if the Ninth Circuit had found that such a pretextual use of the warrant was now a Fourth Amendment violation, that surely was not an established legal principle at the time of the events in al-Kidd’s case, the petition argued.

The petition sought to raise a third issue, about Ashcroft’s responsibility for misstatements made by FBI agents in obtaining the arrest warrant for al-Kidd.  That claim has been dropped by al-Kidd’s lawyers, and is no longer at issue.

Ashcroft’s lawyers argued that the Circuit Court ruling was an unprecedented intrusion into prosecutorial discretion, and would seriously limit the use of the material witness arrest law.  All that Ashcroft had done, his lawyers asserted, was simply to use authority that Congress had given in the material witness law, and he made use of that authority only with the permission of an magistrate judge.

Al-Kidd’s lawyers urged the Court not to hear the case at the pre-trial stage.  Ashcroft had no idea whether, after a trial, he would face any potential liability or damages verdict, the opposition brief argued.  And, if he did, he could return to the Supreme Court with a new appeal.  Moreover, al-Kidd’s counsel said, there is no conflict among the federal appeals courts on the issues Ashcroft was seeking to raise.  Moreover, the brief asserted that the Circuit Court ruling did not sweep broadly, but was narrowly confined to the specifics of al-Kidd’s lawsuit.

Last October 18, the Court agreed to hear the case, limiting its review to the two immunity claims — absolute and qualified immunity.  It denied review of the third question, dealing with the now-abandoned issue of misstatements in obtaining the arrest warrant.

Merits Briefs

Ashcroft’s brief on the merits focused on general arguments about criminal prosecution, and not about the role that the material witness law has allegedly played in the government’s pursuit of terrorist suspects.  On the absolute immunity claim, the brief contended that the whole idea behind that kind of legal shield for prosecutors is to enable them to make the official choices they have to make without fear of being haled into court to defend themselves, and without fear of a jury’s award of damages.

If absolute immunity were not available, the brief went on, Ashcroft at least was entitled to a finding that he was immune to the Fourth Amendment abuse-of-the-warrant claim, relying on Supreme Court precedent that an officer of the law carrying out his duties is not to have his “subjective purpose” subjected to judicial review.  In the al-Kidd incident, the brief said, Ashcroft only enforced a law that Congress had passed, and did so with the permission of, and continuing supervision by, a magistrate judge.  Thus, the brief contended, the Circuit Court’s questioning of his purpose was, in essence, an invalidation of the material witness law in “the circumstances of this case.”

Since there is absolutely no precedent for the Fourth Amendment view of the Ninth Circuit on this point, the Ashcroft brief said, it could not have been “clearly established law” in the time period at issue, so Ashcroft is entitled to qualified immunity for that reason alone, if for no other.

Al-Kidd’s merits brief chose to put its primary emphasis on the qualified immunity claim, in order to give prominence to the argument that the Fourth Amendment clearly forbids government officials from carrying out a “full-scale arrest” unless the officers have probable cause to believe that a crime has been committed.  The material witness law, it added, is a narrow exception to that general principle, but only if such a warrant is used “to secure testimony.”   The law thus cannot be used as a form of “preventive detention” without violating the Fourth Amendment, the brief said.

On whether the courts are allowed to second-guess the motive for misusing the material witness law, the al-Kidd brief said that a motive is, in fact, an important factor when officers seeking to detain someone do not have evidence that amounts to probable cause to arrest.

On the absolute immunity claim, al-Kidd’s merits brief argued that such legal protection is not available when the officer seeking the witness warrant obtains it with the specific purpose to investigate the witness himself for possible criminal activity.

Ashcroft drew the support, as amici, of five former U.S. attorneys general, joined by the Washington Legal Foundation, contending that the Ninth Circuit ruling will be a serious impediment to prosecutors’ choices of how to enforce the law.   They expressed most serious concern over what they considered to be the Circuit Court’s loose standard for determining when a constitutional principle was clearly established.  On al-Kidd’s side are organizations of criminal defense lawyers, human rights advocates, a group of former federal prosecutors (arguing for a strict interpretation of the purposes for which a material witness warrant may be sought), and a group of legal historians seeking to acquaint the Court with the concept of material witness law going back into English history.


The fact that the Court was willing to hear the former Attorney General’s case even at a pre-trial stage, and even with the lack of conflicting lower court rulings, was a clear sign that at least some of the Justices are concerned about exposing high-level officials to damage lawsuits — in the same way that the Court, in fact, was troubled by an earlier case against Ashcroft himself in another post-9/11 challenge.  (The ruling in 2009 in Ashcroft v. Iqbal made it harder to sue high-level officials and, in fact, that case ended in a settlement after it was sent back to lower courts.)

If the Court were to view the case through the analytic prism suggested by Ashcroft’s legal team — that is, this is all about prosecutorial discretion — that can only be favorable to him.  The Court has been reluctant to adopt restraints on what prosecutors do with their legal authority, and has been protective of the general concept that government officials should generally be summoned to court only when they have violated very clearly established legal norms.

But if the Court looks at the history of the material witness law, and its centuries-long focus on securing testimony and not on allowing detention, it may well be more willing to consider some tightening of the boundaries of that law.   The difficulty of doing so in this case, however, is that the appeal is presented solely as a question of immunity — for or against it.  Thus, the case is not a straightforward issue of statutory interpretation, but rather an examination of what the Fourth Amendment allows or does not allow in arranging to round up and hold individuals for reasons other than securing their testimony.

An unknown is whether the fact that al-Kidd was taken and held in the immediate aftermath of the 9/11 terrorist attacks will make him a less sympathetic figure for the Justices.  At least some members of the Court have already demonstrated clearly a reluctance to intrude too heavily upon the government’s authority to respond to 9/11 and to the threat of terrorism in general.


Recommended Citation: Lyle Denniston, Argument preview: An old law in new guises?, SCOTUSblog (Mar. 1, 2011, 7:49 PM),