Can Prosecutors Make the Fourth Amendment Disappear by Calling a Suspect a Witness?

Yesterday the Supreme Court heard oral arguments in a case challenging misuse of the federal "material witness" statute, which allows detention of a witness when "it may become impracticable to secure the presence of the person by subpoena," to hold terrorism suspects after 9/11. The case was brought by Abdullah al-Kidd, a U.S. citizen who was detained for 16 days in 2003, ostensibly as a material witness, while the government tried unsuccessfully to build a case against him. Al-Kidd argues that the Justice Department routinely used the material witness law as a cloak for preventive detention in cases where it did not have enough evidence to charge terrorism suspects with a crime. It is pretty clear that is in fact what happened, since so many of the "material witnesses" were never called to testify; instead they were either released, like Al-Kidd, or reclassified as criminal defendants. Furthermore, the way the detainees were treated while in custody suggests they were considered suspects, not witnesses. As Justice Ruth Bader Ginsburg remarked during the oral arguments, "There are allegations here that this man was kept awake, the lights shining in his cell for 24 hours, kept without clothes....That doesn't sound like the way one would treat someone whose testimony you want."

Al-Kidd, who is represented by the American Civil Liberties Union, also cites a 2001 statement by Ashcroft:

Today I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department's strategy to prevent terrorist attacks by taking suspected terrorists off the street...Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.

Since it is illegal for the government to simply lock citizens up without charge while it collects evidence against them (or to prevent them from committing crimes), it might seem like Al-Kidd has a strong case. Yet New York Times legal writer Adam Liptak, noting a distinct lack of challenging questions for the government from justices other than Ginsburg, concludes that "the justices' lack of engagement at the argument probably signaled a victory for the government." The only real question, he says, is how the Court will side with the government. Since Al-Kidd sued former Attorney General John Ashcroft personally, arguing that he authorized misuse of the material witness law, the Court could rule that establishing this policy was part of his core duties as a prosecutor, meaning he is entitled to absolute immunity from lawsuits by detainees. Alternatively, since Al-Kidd sued Ashcroft under the Bivens doctrine, which allows lawsuits against public officials who violate people's constitutional rights, it could say Ashcroft has qualified immunity because Al-Kidd's detention did not violate a clearly established right.

In 2009 the U.S. Court of Appeals for the 9th Circuit rejected (PDF) both of these immunity arguments. It said Ashcroft was not entitled to absolute immunity because, assuming Al-Kidd's allegations are true, his detention furthered an investigative rather than a prosecutorial function. "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 court said, "the prosecutor is entitled at most to qualified, rather than absolute, immunity." The 9th Circuit also concluded that, assuming Al-Kidd was indeed held as a suspect rather than a witness, his detention was a unconstitutional "seizure" under the Fourth Amendment. It noted that "the Supreme Court has never held that detention of innocent persons as material witnesses is permissible under the Fourth Amendment." Even if such detentions are constitutional, it said, an arrest without probable cause, which is essentially what Al-Kidd alleges, is not.

During yesterday's arguments before the Supreme Court, several justices repeatedly expressed the concern that drawing a distinction between witnesses and suspects, though seemingly required by the statute and presumably required by the Fourth Amendment, would entail endless inquiries into prosecutors' motives and invite a flood of litigation. Assuming Liptak is right, these concerns will prove decisive. But as the 9th Circuit noted, resolving claims like Al-Kidd's does not require telepathy. There is strong, objective evidence, including Ashcroft's own words, that Al-Kidd's detention as a "material witness" was a ruse designed to conceal a violation of his constitutional rights.

The transcipt of the oral arguments in Ashcroft v. Al-Kidd is here (PDF). More on prosecutorial immunity here.

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  • creech||

    Further evidence that the best way to proceed when approached by a federal agent for any reason is to clam up and demand legal representation.

  • hmm||

    Radio just said Judge Vincent just pushed the Obamacare ruling time for appeal to expedited and gave the DOJ 7 days to file. I guess they pissed him off.

  • Almanian||

    Yeah, I just heard the same thing

  • ||

    I have total, unshakable faith in Scalia/Thomas/Alito to make the wrong decision & further erode the rights & interests of individual citizens vis a vis those of powerful groups, such as government or international corporations.

  • ||

    I have total faith that anyone who claims that "so and so is doing the bidding of power groups such as international corporations" is a douchebag.

  • Citizen Awesomesauce Nothing||

    I'm beginning to believe that the inability to distinguish the fundamental difference between the force force of government and market "forces" is genetic. I only hope Darwin was right.

  • Fist of Etiquette||

    ...would entail endless inquiries into prosecutors' motives and invite a flood of litigation.

    So suddenly we're concerned about drumming up extra business for attorneys?

  • ||

    Sadly this is one area where Scalia shows his ass. While, as has been pointed out on Reason, Scalia can often be on the right side of things and is not the pro government fanatic his simpleton lefty critics portray him to be, he looses his way with his committment to consistency and stability. Scalia will admit that things like the post Wickard commerce clause cases are wrongly decided. But then say that they still have to be upheld becuse to undo so much law that people have come to rely upon would in his words "cause chaos".

    That is what he will do here. He knows good and well this is unconstituional. But he won't overturn it because it might be a messy and chaotic process to untangle things if the statute is properly interpreted.

  • Night Elf Mohawk||

    Because the ever-expanding commerce clause doesn't cause chaos. It sounds like a cop out more than anything.

  • ||

    It is a total cop out on his part. If they were putting people in ovens, would Scalia refuse to stop it if doing so would cause chaos?

  • ||

    But I thnk there is hope. If three of the liberals vote the right way, Kennedy and Thomas might to. Thomas is just contankerous enought to do it. And Kennedy just wants to be the deciding vote.

  • Old Mexican||

    Can Prosecutors Make the Fourth Amendment Disappear by Calling a Suspect a Witness?


    Well...

    If they can tax you,
    If they can take your children and pretend to 'educate' them,
    If they can take your property,
    If they can tell you how to manage your business,
    If they can tell you who you can hire,
    If they can....

  • Almanian||

    "Witness", "Suspect", "Perp", "Citizen", "Victim", "The Accused"....just words, really.
    Synonyms, actually, in different contexts. Amirite, Dept of Justice/FBI/CIA types?

    Wonder what dunphy thinks about all this....?

  • Virginia||

    noting a distinct lack of challenging questions for the government from justices other than Ginsburg, concludes that "the justices' lack of engagement at the argument probably signaled a victory for the government."

    Or this is a slam dunk and uphold the 9th's ruling.

  • Barely Suppressed Rage||

    I heard this story on NPR yesterday during my commute - I didn't get the guy's name, but some dick from some right-wing group said "Mr. Al-Kidd was only held for 15 days..."

    Like "what's the big deal? The guy was held for only 15 days, then they let him go. I don't see what the fuss is."

    Fuckin' a, I hate the knee-jerk "God is on our side, we don't want no anti-`murican turrists here" right-wingers just about as much as I can't stand the constantly-have-their-panties-in-a-bunch progressives.

    I'd like to see what that fucking asshole would think if the feds picked him up for no reason and held him for 15 days.

  • Jack On||

    ^^ Don't let Gregory Smith see this.

  • ||

    I'm a little puzzled by why the government can lock you up without accusing you of a crime, in the first place.

    But, assuming they can, we could probably put a stop to abuses by saying that anyone detained as a material witness cannot be charged with the crime being investigated. Make the cops and prosecutors choose up front.

  • ||

    I'm a little puzzled, too, especially by this statement, "Al-Kidd's detention did not violate a clearly established right." I guess the legal reasoning that's been applied to the 4th Amendment over the years has created such a hash that that statement is, for all practical purposes, true.

  • ||

    That just means the govt will claim to be investigating something other than what they want to eventually charge the material witness with.

  • Publilius||

    "There are allegations here that this man was kept awake, the lights shining in his cell for 24 hours, kept without clothes....That doesn't sound like the way one would treat someone whose testimony you want."

    Even suspects should not be treated that way. Innocent until proven guilty and all that. This is no different than the police "roughing up" suspects which was common before the 1970s.

  • ||

    . This is no different than the police "roughing up" suspects which was common before the 1970s.

    [rolls eyes] Yeah. Thank God they finally stopped doing that.

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