al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?:
The Ninth Circuit handed down a fascinating and important case on preventive detention on Friday, and one that I suspect added a new case to the Supreme Court's docket next year: al-Kidd v. Ashcroft. The basic holding of the opinion is that the post-9/11 practice of using the material witness statute to detain suspected terrorists is not only unconstitutional, but clearly unconstitutional, and that former AG Ashcroft can be personally sued for his role in it. The majority opinion was written by Judge Milan Smith and joined by Judge Thompson; Judge Bea wrote a partial concurrence and partial dissent.

  There's a lot of coverage of the case in newspapers and around the web, but nothing that really delves into the legal questions. That's understandable, as the opinions in the case fill about 100 pages. But in this post, I wanted to delve into the legal questions and see if the court's opinion holds up to scrutiny.

  My basic take is that parts of the opinion are persuasive and parts are pretty unpersuasive. First, the rejection of absolute immunity seems right. Second, the Fourth Amendment holding seems possible but rather unlikely, and in general misses the key legal question raised by the case. Third, I think the qualified immunity analysis is clearly incorrect.

  Fortunately, this case is perfect for Supreme Court review: If the en banc Ninth Circuit passes on it, this case will give the Supreme Court an ideal opportunity to evaluate the very important question of how the Fourth Amendment applies to preventive detention.

A. The Facts

 Al-Kidd is a U.S. citizen who converted to Islam and had suspicious contacts with a suspected terrorist Sami Omar Al-Hussayen, who had recently been arrested and charged with fraud. Soon after al-Hussayen was charged, officials learned that Al-Kidd was planning to leave the United States to travel Saudi Arabia. Al-Kidd said he was going to Saudi Arabia to study Islam; U.S. officials feared he was trying to leave the U.S. to escape U.S. authorities.

  DOJ officials obtained a "material witness" warrant under 18 U.S.C. § 3144 ordering that al-Kidd be detained as a possible witness in the criminal case against Al-Hussayen. Section 3144 states:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
  al-Kidd was held for about two weeks, and he claimed that he was treated very badly; he was released only when he surrendered his passport and agreed to certain conditions of release. He had to comply with those conditions of release for 15 months, and during that time he lost his job and couldn't maintain steady employment. Notably, al-Kidd was never actually called to testify at al-Hussayen's trial.

B. The Lawsuit

  al-Kidd then brought this civil suit alleging that his detention violated his Fourth Amendment rights and the material witness statute, and that his treatment during the detention violated his Fifth Amendment and Eighth Amendment rights. Importantly, the part of the suit that is on appeal is only the part that is against then-Attorney General John Ashcroft in his personal capacity. al-Kidd sued Ashcroft in his personal capacity on the theory that Ashcroft had created and authorized a program of misusing the material witness statute. Pursuant to Ashcroft's program, al-Kidd argued, DOJ had obtained a material witness warrant and detained him not because he was actually a material witness, but because they wanted to preventively detain and investigate him as a potential terrorist. Al-Kidd argued that this misuse of the material witness statute violated the statute and the Fourth Amendment.

  The Ninth Circuit in al-Kidd had to consider three questions: 1) Is an Attorney General immune from such a lawsuit? 2) If the Attorney General is not immune from suit, do the alleged facts (assuming they are true) sufficiently plead a violation of the Fourth, Fifth, and/or Eighth Amendment or Section 3144 by Ashcroft? 3) If so, was the illegality of the detention and treatment "clearly established" at the time it occurred so that there is no qualified immunity?

C. The Ninth Circuit's Decision

  Issue One: Judge Smith first ruled that Ashcroft was not entitled to absolute immunity, but rather was entitled only to qualified immunity. Smith reasoned that prosecutors get absolute immunity for prosecutorial acts but not investigative acts: Because Ashcroft's alleged acts were investigative, he was only entitled to qualified immunity. Smith noted that the act of getting a material witness warrant is ordinarily considered a prosecutorial function that triggers absolute immunity, but he reasoned that it's a different case if the allegation is that the prosecutor was using the warrant authority as a ruse to investigate.

  The Court thus holds: "when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity." The court adds that the plaintiff in such a case needs to state facts allowing the court to reach a conclusion that this intent was reasonably likely; a mere allegation of intent, without support, won't do.

  Issue Two: The next question is whether Ashcroft had violated al-Kidd's rights. This really breaks down into three discrete questions: whether Ashcroft violated al-Kidd's Fourth Amendment rights by the detention; whether Ashcroft violated Al-Kidd's statutory rights under the material witness statute; and whether Ashcroft violated al-Kidd's Fifth and Eighth Amendment rights through the conditions of confinement.

  (a) Fourth Amendment. Did Ashcroft violate al-Kidd's Fourth Amendment rights? Yes, the court concludes. The Ninth Circuit holds that if the feds are arresting someone to detain them for investigative purposes, they need the same probable cause traditionally required to arrest someone and charge them with a crime: They need probable cause to believe that a crime was committed and that the person arrested committed it. They can detain someone under a material witness warrant if they really plan to use the person as a material witness, but if the purpose of the detention was merely investigatory, they can't do that.

  In response to Judge Bea's argument that this focus on subjective intent runs contrary to Fourth Amendment law — specifically, that you can't look at the subjective intent of the detention to determine if it violates the Fourth Amendment — Judge Smith reads the checkpoint/special needs cases such as Indianapolis v. Edmond as allowing an inquiry into programmatic purpose. Because the programmatic purpose of the preventive detention regime is presumed to be investigatory — specifically, to investigate that person for a criminal act --- that purpose governs and the government can only detain the person with probable cause that they actually committed an offense.

  The Court expresses its holding on this point as follows:
probable cause— including individualized suspicion of criminal wrongdoing— is required [by the Fourth Amendment] when 18 U.S.C. § 3144 is not being used for its stated purpose, but instead for the purpose of criminal investigation. . . . 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.
  (b) Violation of 18 U.S.C. § 3144. al-Kidd next argued that the warrant that was signed by the judge to detain him did not comply with the material witness statute, and that Ashcroft was responsible for the violation: Ashcroft had played a role in establishing the use of material witness warrants to preventively detain terrorist suspects, and the creation of that program led to the use of the statute that violated al-Kidd's statutory rights. The Ninth Circuit agrees, at least at the Rule 12 dismissal stage, although it notes that there may be a different result at summary judgment depending on Ashcroft's role in using the material witness warrant to preventively detain suspects.

  (c) Fifth Amendment and Eighth Amendment. The court holds that al-Kidd's allegations that Ashcroft was responsible for his treatment during his detention cannot go forward, as "al-Kidd has not alleged adequate facts to render plausible Ashcroft’s personal involvement in setting the harsh conditions of his confinement, and has therefore failed to state a claim for which relief can be granted."

  Issue Three: The third and final issue was whether the violation of al-Kidd's Fourth Amendment rights was clearly established in 2003, when the detention occurred. This is required because Ashcroft is protected by the doctrine of qualified immunity: He is only personally liable for the alleged Fourth Amendment violation if a reasonable person in his situation would have known that the detention violated the Fourth Amendment. This inquiry generally requires a study of caselaw at the time of the time of the detention, to see if it was clear at the time that the detention was unconstitutional.

  The court acknowledges straightforwardly that there was no case law on this specific issue at the time: "In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution." However, the Court rules that the violation was clearly established because there were clear enough signs in 2003 that such detention should be deemed unconstitutional.

  Judge Smith lists five sources of law that he says collectively "clearly established" that al-Kidd's Fourth Amendment rights were violated at the time of his detention.
1) Dicta in some cases already on the books at that time saying that the statute should be limited to real witnesses, and not used as a pretext;
2)The traditional definition of probable cause in the context of criminal arrests;
3) The Supreme Court's automobile checkpoint cases, which indicated that "investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause";
4) The general "history and purposes of the Fourth Amendment," namely, limiting arbitrary government power and seizures based on less than probable cause; and finally,
5) Dicta in a footnote in one district court opinion decided before March 2003 saying "categorically" that use of the material witness statute for investigatory purposes was "illegitimate."
  Putting these five sources together, the Court concludes that "al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003. "