Abdullah al-Kidd is the real name of the person involved in this case. However, to avoid anti-Muslim prejudice seeping into the reading of this analysis, I’m going to refer to him as John Smith. Other than the name, the facts are undisputed and come from the Supreme Court case.
John Smith is a natural born United States citizen. His parents, his wife and his children are all U. S. citizens residing in the United States. Some time after September 11, 2001, an individual was arrested and faced charges related to terrorism. Mr. Smith, charged with no crime, had tickets to travel abroad. The U. S. Justice Department went to a federal Magistrate Judge and obtained a Material Witness Warrant to detain Mr. Smith. He was arrested boarding a plane.
You have to dig deep in the case to discover the following facts. They were conveniently not mentioned in the main opinion. The affidavit upon which the warrant was based failed to mention that the government did not intend to use Mr. Smith as a witness at the criminal trial of the other individual. He was never called to testify. It failed to mention that Mr. Smith had cooperated with the FBI on several occasions prior to his arrest/detention. The affidavit alleged that Mr. Smith had a one way first class ticket, when, in fact, he had round trip coach tickets. It made no mention of his citizenship or family ties in the United States.
Following his arrest/detention, Mr. Smith spent 16 days in federal custody, followed by 14 months on what was essentially house arrest. During his time in federal custody, Mr. Smith, a “material witness” not suspected of any crime himself, was incarcerated in three different federal facilities. He was kept in high security cells that were lit 24 hours a day, seven days a week. He was subjected to multiple strip searches and body cavity searches. When he was moved about, he was ankle shackled and handcuffed with a waist restraint.
After his ordeal, Citizen Smith sued former Attorney General John Ashcroft alleging violation of Smith’s Fourth Amendment Constitutional rights. He specifically alleged that his detention was a pretext arrest and seizure of his person. The allegations were not disputed. Instead, Ashcroft raised a defense of immunity from civil liability.
For a material witness warrant to issue, a neutral judge or magistrate must determine that a) a person’s testimony is material to a criminal proceeding and b) that it may become impracticable to secure the person’s presence by subpoena. Based on the affidavit presented, such a warrant was issued.
The U. S. Supreme Court found unanimously, 8-0 with Kagan not participating, that Ashcroft was entitled to limited immunity because there was no clearly established law to alert Ashcroft that his actions would constitute an abuse of authority subject to civil liability. That means that there was no federal law or court precedent prior to the action saying explicitly that the conduct would be an actionable abuse of authority. Whatever you think of that, it is the law, has been for some time and justifies the result in the case that immunity applied. But, the Court didn’t stop there.
A five person majority of the Court, opinion by Scalia with Roberts, Alito, Thomas joining and Kennedy concurring, also found that Material Witness warrants could not be challenged based on the intent of the government in seeking such warrants. Regardless of the good or bad faith of the government, such warrants going forward are to be subjected only to objective scrutiny. They are to be assessed solely on the legality of their issuance without reference to the intent of the government in seeking them or any bad faith evidenced by the underlying affidavit.
Since the case was resolvable on the issue of immunity without reference to the warrant standard for Material Witness warrants, it could be said that judicial activism is at play here to the extent that the Court exceeded that which was necessary to decide the case. Should you choose to read the opinion , I suggest you proceed beyond the main opinion and read the concurring opinions as well.
Opinion:
While my opinion is likely clear from the above recitation, I’ll set it out here in clear terms. This is another instance of the government being shielded from citizen scrutiny even when the government acts in bad faith. The recitation is couched in terms of Citizen Smith because that shielding of the government impacts all citizens, not just Abdullah al-Kidd. Your Fourth Amendment rights, and mine, are weaker today than they were yesterday. This is nothing new for our Supreme Court. We already have suspicionless stops at road blocks to check for driver’s licenses, intoxication and illegal border crossing. We already have numerous “exceptions” to the warrant requirement. Recently that was expanded to include exigent circumstances created by the authorities. Today we add use of the Material Witness Warrant to detain with improper motive as a protected government activity against its citizens.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.