Sunday, June 5, 2011

Ashcroft Gets a Pass for Material-Witness Misuse

      Six weeks after the 9/11 attacks, Attorney General John Ashcroft called a news conference to announce steps the Justice Department was taking “to protect the United States from the threat of terrorist aliens.” One part of the strategy, Ashcroft said, was to take “suspected terrorists off the street” by the “aggressive detention of lawbreakers and material witnesses.”
      One of the material witnesses arrested and detained under this policy was Abdullah al-Kidd, a U.S. citizen, converted Muslim, family man, and former college football star. Al-Kidd was arrested at Dulles Airport on March 16, 2003, and over the next sixteen days handcuffed and shackled, strip-searched several times, and forced to sleep on a cement floor before a court ordered him released.
      Even so, al-Kidd’s travel was limited for another 14 months. The arrest strained his relationships with friends and family. Eventually, he was divorced and — after an employer learned of the arrest — fired. He was never called as a witness nor charged with any offense.
      Last week, the Supreme Court gave Ashcroft a pass and al-Kidd the back of its hand for his ordeal. Unanimously — with one justice recused — the court ruled that Ashcroft could not be held personally liable for the results of the policy he had so proudly proclaimed. Five of the justices went one step further to hold that government officials are free to use the material witness statute to arrest and detain U.S. citizens even if their real motive is to hold the individual in jail while they try to develop enough evidence for a real arrest.
      The government had been keeping an eye on al-Kidd for a little over a year, just as it had been surveilling uncounted other Muslim and Arab Americans in a post-9/11 dragnet. FBI agents had their suspicions about al-Kidd, especially because of his associations with Sami Omar al-Hussayen, a Saudi and a fellow student at the University of Idaho.
      The government got enough on al-Hussayen in February 2003 to charge him with visa fraud for allegedly working off campus — not permitted under a student visa — as a webmaster for the Islamic Assembly of North America. Al-Hussayen was later charged with — and then acquitted of — using the web site to provide “material support” for terrorism.
      Al-Kidd had cooperated with the FBI in previous interviews, but in March 2003 agents applied for a warrant under the federal material-witness statute. The law allows the arrest of someone whose testimony is “material to a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.”
      To make that showing, the FBI agents told the magistrate, incorrectly, that al-Kidd had just purchased a one-way ticket to Saudi Arabia. In fact, it was a round-trip ticket. The agents also failed to note al-Kidd’s previous cooperation with the agents. They heaped on insinuations about al-Kidd’s contacts with al-Hussayen and his associates, but did not indicate what testimony al-Kidd might have that would be “material” to the case against his fellow student.
      Al-Kidd was freed of all restrictions after al-Hussayen’s trial ended in April 2004 – with no conviction. A year later, Al-Kidd sued government officials and agents from Ashcroft down for what his American Civil Liberties Union lawyers called his “pretextual” arrest and detention under the material-witness statute. Al-Kidd reached settlements with the lower-level agents and corrections officials. But Ashcroft moved to dismiss the suit against him, claiming both absolute immunity and “qualified immunity” — the doctrine that shields government officials from liability in the absence of a clearly established rule that the alleged conduct was unconstitutional.
      From the start, the suit was a reach, but a federal district court judge and the Ninth U.S. Circuit Court of Appeals both rejected Ashcroft’s bid for immunity. In its ruling, the appeals court said that the Fourth Amendment prohibits pretextual arrests in the absence of probable cause of criminal wrongdoing.
      It was clear from oral arguments on March 2 that none of the eight justices saw a clearly established rule that would negate Ashcroft’s claim of qualified immunity. (Elena Kagan was recused because she was solicitor general during earlier proceedings.) So the court’s May 31 decision in Ashcroft v. al-Kidd to kick out the suit against the former attorney general came as no surprise.
      Justice Antonin Scalia’s opinion for five of the justices went further to give judicial endorsement to Ashcroft’s announced policy of what amounts to misuse of the material-witness statute. An objectively reasonable arrest, based on a validly obtained warrant, cannot be challenged, Scalia said, on the basis of an improper motive by government authorities.
      Scalia’s opinion sloughed over the doubts about the warrant against al-Kidd and his harsh treatment in detention. Liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor – highlighted those points in partial concurrences that disagreed with the majority’s decision to reach the merits of al-Kidd’s claim. A fourth justice, Anthony M. Kennedy, voiced his own doubts about the use of the material-witness statute even while joining Scalia’s opinion.
      Ginsburg closed her opinion by underlining the broader stakes in the case. Al-Kidd’s ordeal, she wrote, “is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”

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