Tuesday, March 1, 2011;
ABDULLAH AL-KIDD was arrested at Dulles International Airport in 2003 after purchasing a roundtrip, coach ticket to Saudi Arabia. Prosecutors in Idaho had linked Mr. Kidd, a U.S. citizen who converted to Islam, to a Saudi citizen in the United States who was alleged to be an operative for the Islamic Assembly of North America, a group the prosecutors said "disseminated radical Islamic ideology and sought to recruit others to engage in acts of violence and terrorism." The Justice Department detained Mr. Kidd under a law that allows it to hold a material witness who is believed to be a flight risk or who is unlikely to respond to a subpoena.
Mr. Kidd was detained for roughly two weeks, during which he was subjected to multiple strip searches and held in cells that were lighted 24 hours a day. After his release, Mr. Kidd's travel was restricted for one year and he had to report his whereabouts to a probation officer and consent to in-home visits. Yet Mr. Kidd was never called to testify as a witness or charged with a crime.
Mr. Kidd sued former attorney general John D. Ashcroft personally for allegedly misusing the material-witness law as a pretext for preventive detention. He prevailed before a split panel of the U.S. Court of Appeals for the 9th Circuit, which concluded that his constitutional rights against unreasonable seizures and searches were violated because the former attorney general "unlawfully used the federal material witness statute to investigate or preemptively detain." The decision stripped Mr. Ashcroft of the immunity from lawsuits typically enjoyed by prosecutors acting in their official capacity and allowed Mr. Kidd to proceed in his quest to recover damages from the one-time attorney general.
The Supreme Court is scheduled to take up the case on Wednesday and should overturn the appeals court decision.
An official may be stripped of legal immunity only if he violates clearly established constitutional norms. The Justice Department, in our opinion, should not routinely use the material-witness statute as a means to investigate and detain suspects, especially those who are American citizens. But in 2003, there was no legal precedent on which Mr. Ashcroft could rely to determine whether the department had the right to use the warrant more freely in national security matters. The 9th Circuit panel admitted as much, acknowledging that in 2003 "no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution." Another indication that the law was far from clear: Eight judges on the 9th Circuit voted to reconsider the panel's decision. As disconcerting as the attorney general's actions were, he should not personally be on the hook for damages when such profound questions exist about the state of the law.