An American Muslim who was jailed for 16 days under harsh conditions by US counterterrorism agents but never charged with a crime has lost his bid to hold former Attorney General John Ashcroft legally responsible for the ordeal.
The US Supreme Court ruled 8 to 0 on Tuesday that Mr. Ashcroft was entitled to the protection of qualified immunity from a resulting lawsuit.
The court also ruled 5 to 3 that Ashcroft’s actions did not violate the protections of the Fourth Amendment against unreasonable seizure. The opinion, in Ashcroft v. Al-Kidd, is the latest in a series of decisions at the high court insulating government officials from constitutional challenges by individuals subjected to aggressive government tactics following the 9/11 terrorist attacks.
The court said the former attorney general was shielded by immunity because his actions did not violate clearly established law when he allegedly authorized the preventative detention of terrorism suspects under a statute designed to ensure the testimony of witnesses at a trial.
Critics have charged that the counterterrorism agents used the so-called material witness statute as a pretext to sidestep the more rigorous constitutional requirement of probable cause necessary to obtain a criminal arrest warrant.
Under the material witness statute, authorities do not need to prove evidence of a crime. Rather, they need only prove that the targeted individual possessed information crucial to a trial or grand jury investigation. It allowed agents to quickly arrest terrorism suspects and hold them under harsh conditions to facilitate interrogations and further investigation.
Writing for five members of the court, Justice Antonin Scalia said as long as authorities had valid justification for an individual’s arrest as a material witness, any other pretextual motives of officials were not relevant.
“Efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer,” Justice Scalia wrote.
The case stems from the March 2003 ordeal of Abdullah al-Kidd.
Kidd had earlier been questioned by FBI agents and had cooperated fully in a visa fraud investigation against a fellow Muslim student in Idaho. But the agents never asked Kidd prior to his arrest whether he would be willing to appear voluntarily as a witness. Instead, they waited until he was about to board a plane for Saudi Arabia and a religious pilgrimage to Mecca.
He was treated like a criminal. Federal agents led him through the airport terminal in handcuffs and detained him in a series of maximum-security lockups.
The material witness warrant used to justify the Kidd’s detention contained substantial errors. It said Kidd was booked on a one-way, first-class flight to Saudi Arabia. (He held a round-trip coach ticket.) It also said Kidd’s testimony was crucial in the ongoing visa fraud investigation in Idaho.
Despite the aggressive actions taken by the government, Kidd was never called as a witness in the visa fraud case or any other case. Nor was he charged with a crime.
The ordeal took a toll. He lost his job, and his marriage crumbled.
Outraged at his treatment, Kidd, with the help of the American Civil Liberties Union (ACLU), filed suit against his jailers, against the agents, and against Ashcroft, the man whom he says approved the policy that allowed the government to mistreat him.
At issue at the Supreme Court was whether Ashcroft was entitled to immunity or could be held accountable for allegedly violating the protections of the Fourth Amendment.
The Ninth US Circuit Court of Appeals had ruled that Ashcroft could be held responsible and that he had violated Fourth Amendment protections.
In reversing that decision, Scalia said the appeals court focused improperly on the underlying motive of officials.
“We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.”
Eight of the court’s nine justices participated in the Kidd case. Justice Elena Kagan recused herself because she had worked on the case during her time as US solicitor general.
Although all eight agreed that Ashcroft was entitled to qualified immunity, the justices are sharply split over how to analyze the underlying Fourth Amendment issue.
Justice Anthony Kennedy provided the key fifth vote for Scalia’s majority opinion. But Justice Kennedy wrote a separate concurrence to emphasize the narrowness of the decision.
“The court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the government’s use of the material witness statute in this case was lawful,” Kennedy wrote.
“I … agree with Justice Kennedy that Al-Kidd’s treatment presents serious questions, unaddressed by the court, concerning the legality of the government’s use of the material witness statute in this case,” Justice Ginsburg wrote in a concurrence.
She added: “His ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”
ACLU officials expressed disappointment in the decision but noted that four justices had written separately to express concern about the pretextural use of the material witness statute.
“The court has unfortunately let Attorney General Ashcroft off the hook, but half the justices who participated in today’s decision expressed real questions about how the government used the material witness statute in Al-Kidd’s case,” said Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project. “Our hope is that those questions will lead to a serious examination moving forward of the use of the statute as a tool for preventative detention.”
Other analysts praised the high court's action. “The Supreme Court appropriately declined to second-guess the decision of prosecutors to detain Mr. Al-Kidd,” said Richard Samp, chief counsel of the Washington Legal Foundation.
“Allowing individuals like Al-Kidd to sue for damages would undermine effective law enforcement by making prosecutors reluctant to use the material witness statute to gather essential evidence,” Mr. Samp said.
The case is Ashcroft v. Al-Kidd (10-98).