Take a moment, dear friends, to consider Judge Milan Smith’s sentiments about the practice of detaining Americans as “material witnesses” to terrorist activities without formally charging them with a crime:

“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Those words were taken from in al-Kidd v. Ashcroft, a decision by a Ninth Circuit panel holding that John Ashcroft may be sued for his participation in detaining suspected terrorists or terrorist affiliates under the federal material witness statute. In particular, the court held that:

1. (absolute immunity) Ashcroft is not entitled to absolute immunity from suit as representative of the United States government because in allegedly detaining al-Kidd, Ashcroft was engaging in investigative conduct, not purely “prosecutorial” conduct of the type for which officials receive absolute immunity from third-party liability.

2. (rights violations) Ashcroft may be sued for allegedly violating al-Kidd’s Fourth Amendment rights against unlawful detention and statutory rights afforded al-Kidd under the federal material witness statute because it is possible that Ashcroft did play a critical role in al-Kidd’s detention.

However, Ashcroft cannot be sued on the theory that he played a role in determining the allegedly harsh conditions of al-Kidd’s confinement under the high-bar for such allegations set out in the Supreme Court’s Iqbal decision (which I have criticized at some length here).

3. (qualified immunity) Even though Ashcroft is entitled to qualified immunity as a representative to the United States government, al-Kidd may bring an action against him because at the time Ashcroft allegedly decided to use the material witness statute to detain al-Kidd, it was legally certain that doing so would be unlawful.

The media has lauded Ninth Circuit’s decision as an affirmation of Constitutional principles we all hold dear, including due process and the rule of law. However, the circumstances surrounding al-Kidd’s incarceration warrant taking a closer look at whether the court got it right.

At the time al-Kidd was apprehended, the US government believed that al-Kidd had been in contact with suspected terrorist Sami Omar Al-Hussayen. Al-Hussayen had at that point been charged with fraud, and when al-Kidd decided to travel to Saudi Arabia on an academic scholarship, US officials felt that he could very well be traveling to Saudi Arabia to evade capture or investigation in the United States. The decision was then made to use a federal material witness statute (18 USC § 3144) to detain al-Kidd. Where a person may have information relevant to a criminal proceeding, this statute allows that individual to be detained if and only if:

a. it would be “impracticable” to obtain testimony of that individual without detaining him or her; and

b. the evidence or testimony sought about or against a third-party from the individual cannot be secured through an ordinary deposition and detaining that person is required to avoid a “failure of justice.”

So, before we even delve into the Ninth Circuit’s analysis, consider carefully what the US authorities were trying to do with the material witness statute:

The objective of using the material witness statute was to ensure that al-Kidd could be prevented from leaving the United Sates. Having been linked to a suspected terrorist, there was a national security rationale for wanting to keep a close watch on al-Kidd. He was not – like some Gitmo detainees and some poor souls (e.g., Maher Arar) that have been subject to extraordinary rendition – utterly unconnected with terrorists or terrorist organizations.

The court’s approach to the al-Kidd case leaves much to be desired. The court did get the absolute immunity issue right, holding that no government official, even one in Ashcroft’s position, should have the unchecked power to detain individuals purely to investigate whether they might be involved in some kind of criminal activity or terrorist conspiracy.

But it is unclear how the Fourth Amendment should apply to al-Kidd’s case. Whether or not al-Kidd’s detention is characterized as a true instance of preventive detention (there are respectable arguments on both sides), the Fourth Amendment’s protections have never been interpreted in a case where the government’s intended purpose for detaining an individual is to protect national security. The Ninth Circuit, of course, does not think this matters at all. Where an individual is being detained simply because the government wants to investigate the person for potential links to terrorist groups, this offends the Fourth Amendment. But why? Well, the Fourth Amendment requires probable cause in the context of criminal law, yet “probable cause” by definition does not exist when someone is merely being investigated for potential links to criminal activities or criminal organizations. In the Ninth Circuit’s own words:

“All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.”

There are two significant problems with the Ninth Circuit’s view. The first flaw is conceptual. Even if one accepts the view about probable cause articulated above, it is of course possible that the government relied on the material witness statute to investigate al-Kidd’s criminal activities while detaining him to ensure that his testimony could be secured against Al-Hussayen. Securing al-Kidd’s testimony and investigating his links to terrorism are not mutually exclusive purposes; in fact, in this context they are complementary. Thus, the notion that al-Kidd’s detention was a mere pretext is highly misleading for two reasons. First, it is absurd to think that the US government would – or should – forfeit an opportunity to interrogate al-Kidd to make it appear as though the exclusive reason he was detained was to effectively capture his testimony against Al-Hussayen. Second, it is reasonable to assume that al-Kidd, like any material witness in a terrorist case, would do everything in his power to evade capture to ensure that future terrorist acts could be successfully undertaken. This, of course, undermines the claim that Ashcroft used the statute in a purely pretextual way.

The second problem is jurisprudential. Nowhere does the Ninth Circuit confront the key issue in the case, which is: What are the implications of the fact that Ashcroft employed the material witness statute in an attempt to protect national security? It seems lost on the court that al-Kidd’s complaint expressly refers to national security as a critical factor behind the United States government’s decision to detain him. The court instead relies on a number of Fourth Amendment cases from domestic criminal law to reach the conclusion that al-Kidd was detained without probable cause. But why assume that probable cause in a case like al-Kidd’s should be identical to the sort of probable cause we require the government to possess in ordinary criminal law cases? After all, trying to protect our nation from terrorists is not exactly the same thing as searching for joints and other contraband in the glove compartments of automobiles – which is precisely the sort of scenario that a great deal of domestic Fourth Amendment jurisprudence addresses.

There is a still deeper problem with this case. Under the Ninth Circuit’s reasoning, the Fourth Amendment requirement of probable cause was not satisfied and thus Ashcroft is not entitled to qualified immunity. The doctrine of qualified immunity provides immunity to government defendants for actions done in their official capacity unless their conduct was clearly illegal at the time they engaged in it. Prior to al-Kidd v. Ashcroft, there was no case law addressing whether the federal material witness statute could be used pretextually to detain, interrogate, and quarantine individuals that the US government believed to be connected to terrorist organizations. And so it is extremely hard to see how Ashcroft could have known that he was illegally detaining al-Kidd.

I am no fan of the notion, touted by many neo-conservatives, that our government should be able to sidestep the Constitution when it comes to protecting the integrity and security of America. But in the context of national security, courts must begin to think more carefully about how the Fourth Amendment and other constitutional protections apply.

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