When federal prosecutors decided they needed to take Abdullah Al-Kidd into custody in March 2003, former Attorney General John Ashcroft was not involved in the decision.  Indeed, Ashcroft had never heard of Al-Kidd, a U.S. citizen who was preparing to leave the United States for an extended period of study in Saudi Arabia.  Al-Kidd nonetheless has filed a tort suit seeking money damages from Ashcroft, based on a claim that DOJ policies approved by Ashcroft played a role in his 15-day incarceration, which Al Kidd alleges violated his Fourth Amendment rights.

The Supreme Court today heard oral arguments in Al-Kidd’s lawsuit.  It will decide whether Ashcroft is entitled to immunity from suit.  As WLF explained in a brief it filed with the Court on behalf of five former Attorneys General, the qualified immunity doctrine ought to protect Ashcroft from being held personally liable for any alleged constitutional violations.  Because it had not been clearly established by pre-2004 court decisions (or by later court decisions, for that matter) that DOJ’s policies violated the Fourth Amendment’s protections against unreasonable searches and seizures, DOJ officials are immune from claims for damages.  At today’s arguments, most of the Justices appeared to agree that the suit ought to be dismissed on qualified immunity grounds.  

Al-Kidd was arrested under a federal statute that permits short-term detention of individuals who: (1) possess “material” information regarding an ongoing criminal investigation; and (2) might well be unavailable to testify if not taken into custody.  There is little question that those prerequisites were met in this case: a close associate of Al-Kidd was awaiting trial on terrorism-related charges, and Al-Kidd’s planned overseas travel meant that he might be out of the country when the trial took place.  But Al-Kidd asserts that the “real” reason for his arrest under the Material Witness Statute was not to safeguard his testimony.  Rather, he asserts, prosecutors suspected his involvement in terrorism, yet they lacked the probable cause to charge him with a crime.  Al-Kidd argues that the Fourth Amendment (which prohibits “unreasonable” searches and seizures) bars prosecutors from detaining someone under the Material Witness Statute if they don’t really intend to use him as a witness.

That argument is in tension with existing Fourth Amendment case law, which indicates that the reasonableness of an arrest should not depend on the subjective intent of arresting officers.  But even if Al-Kidd could convince the Justices to modify existing Fourth Amendment case law, his tort suit should still be dismissed under the qualified immunity doctrine.  That doctrine prohibits a lawsuit against government officials in the absence of evidence that they violated clearly established rights.  Al-Kidd cannot possible meet that standard, in the absence of even a single court decision “clearly” establishing his interpretation of the Fourth Amendment.

Moreover, allowing cases of this sort to proceed to trial almost surely would inhibit prosecutors from aggressively enforcing the law.  If a plaintiff can keep his tort claim alive by alleging that prosecutors harbored an improper motive for arresting him (even though prosecutors met the statutory requirements for an arrest), then one can expect a proliferation of lawsuits by those detained under the Material Witness Statute – all alleging improper motive.  One can easily imagine prosecutors deciding not to invoke the statute against witnesses with valuable information about a pending criminal case, if they fear that doing so might place all their personal assets in jeopardy.

The Material Witness Statute provides numerous safeguards to protect the rights of those who wish to contest their detention.  A warrant may only be issued by an impartial judge.  Thereafter, the detainee is entitled to a court-appointed lawyer, and to argue before a judge that his detention is unwarranted.  Continued detention is permissible only if the judge finds it is the sole means of ensuring that the witness will appear at trial.  A witness whose detention is affirmed initially is free to return to court repeatedly to seek release.  In light of those safeguards, there can be little reason to provide detainees with an additional, tort-based remedy against government officials.