U.S. Supreme Court

Supreme Court Finds John Ashcroft Not Liable for Material Witness Arrest, Hits 9th Circuit


The U.S. Supreme Court has ruled against a former college football player who had claimed he was unconstitutionally held as a material witness in a terrorism probe after the Sept. 11 terrorist attacks.

The U.S. Supreme Court found no liability for former Attorney General John Ashcroft in an 8-0 opinion. Writing for the court, Justice Antonin Scalia takes the San Francisco-based 9th U.S. Circuit Court of Appeals to task for ruling otherwise based on citations to “irrelevant” cases, broad references to history, and a district court judge’s shout out to the former attorney general.

Abdullah al-Kidd, a Muslim and a former star running back at the University of Idaho, sued after he was arrested on a material witness warrant as he was preparing to board a plane for Saudi Arabia. Al-Kidd, a U.S. citizen, claims he was held for 16 days with hardened criminals, where he was strip-searched and shackled. He was never called as a witness in a terrorism prosecution.

Al-Kidd alleges that then-Attorney General Ashcroft authorized using the material witness statute to detain persons suspected of supporting terrorism even though there was not enough evidence to charge them with a crime.

Scalia found no Fourth Amendment violation for Ashcroft’s alleged authorization in a portion of his opinion (PDF) joined by four other justices. He added that al-Kidd’s separate claims against FBI agents who sought the material witness warrant were not before the court.

Scalia noted that al-Kidd had sued for a Fourth Amendment violation based on U.S. officials’ subjective intent. But subjective intent was not relevant, Scalia said, since al-Kidd was arrested on a warrant based on individualized suspicion that had been issued by a neutral magistrate judge. “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,” Scalia wrote.

Even if there had been a Fourth Amendment violation, Scalia concluded, Ashcroft was entitled to qualified immunity because he did not violate clearly established law, a conclusion supported by all the justices participating in the case. Justice Elena Kagan had recused herself.

Scalia was scathing in his criticism of the 9th Circuit opinion finding that neither qualified nor absolute immunity protected Ashcroft in the suit.

According to Scalia, the 9th Circuit found Ashcroft was on notice that he was using the statute in an illegitimate way partly because of a district court judge’s footnote that “call[ed] out Ashcroft by name.” Even if the Justice Department did “bring to the attorney general’s personal attention all district judges’ footnoted speculations that boldly ‘call him out by name,’ ” Scalia wrote, it is an “extraordinary proposition” to assert that the footnote showed a clearly established constitutional violation.

Scalia said the appeals court had cited “irrelevant” cases and “cherry-picked” portions of precedent to support its opinion. He also criticized the 9th Circuit for making “broad historical assertions” about English royalty’s use of general warrants to find clearly established law. “Ashcroft must be forgiven for missing the parallel, which escapes us as well,” Scalia wrote.

Justice Anthony M. Kennedy joined Scalia’s opinion in full, but he emphasized in a concurrence that the opinion addressed only the legal theory put before the court. The opinion does not resolve whether the use of the material witness statute was lawful in this case, Kennedy said.

Three other justices—Ruth Bader Ginsburg, Sonia Sotomayor and Stephen G. Breyer—said Scalia should have decided the case based on immunity principles and did not need to reach the Fourth Amendment issue.

The case is Ashcroft v. Al-Kidd.

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