The Supreme Court ruled on Tuesday that former U.S. Attorney General John Ashcroft cannot be forced to pay damages to Muslim men who claim they were arrested as “material witnesses” only because the government suspected them of ties to terrorist groups.
A federal law allows police to arrest anyone they say has information “material in a criminal proceeding” and who might not obey a subpoena.
Abdullah al-Kidd was arrested in 2003 as he checked in for a flight to Saudi Arabia after police filed an affidavit before a judge saying that al-Kidd had information “crucial” to the prosecution of Sami Omar al-Hussayen. Al-Kidd was held for 16 days and released on bail for 14 months until al-Hussayen’s trial concluded. Al-Kidd was never called as a witness.
Al-Kidd sued Ashcroft, arguing that Ashcroft had instituted a government policy of using the material witness statute to arrest people as a way of detaining them while investigating ties to terrorism.
All eight Supreme Court Justices who heard the case agreed that, whether the “pretextual” arrests were constitutional or not, the law was not “clearly established,” and therefore Ashcroft should be immune from lawsuits holding him personally responsible. Justice Elena Kagan did not participate, since she worked on the case before being nominated to the Supreme Court.
Only five of the Justices agreed that the arrest did not violate al-Kidd’s rights under the Constitution’s Fourth Amendment, which protects against unreasonable searches and seizures. Justice Antonin Scalia, writing the majority opinion for the Court, said that police had filed an affidavit before a judge explaining why they thought al-Kidd’s arrest was necessary, and the judge then issued a warrant for the arrest. Al-Kidd conceded that the affidavit gave reasons to believe that he had information and might flee.
Because the police filed an affidavit (which al-Kidd does not challenge), and a judge issued a warrant, the arrest was lawful, Scalia wrote. The Court’s ruling means that subjective motives of the police are irrelevant, except in special circumstances not present here.
Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor wrote separately, saying that there are questions about the validity of the warrant, if it was sought under a pretext. They did not go so far as to say the warrant was invalid, but they said the majority went too far. If Ashcroft has immunity, they said, the Court did not need to make a decision on the constitutionality of the arrest.
Justice Anthony Kennedy also wrote a separate opinion. While he agreed with the majority on immunity and the validity of the warrant, he expressed some doubt about the constitutionality of the material witness law itself. That law was not challenged by al-Kidd, he said, so he agreed with the majority’s decision.
With four Justices expressing doubt about the material witness law, and Justice Elena Kagan’s view unknown, a challenge to the law itself seems likely to come before the Court soon.
The case is Ashcroft v. Al-Kidd.