Supreme Court will Hear Al-Kidd v. Ashcroft to Determine if the Former Attorney General can be Held Responsible for Illegal Arrest and Detention of Muslim Man under Material Witness Statute


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The U.S. Supreme Court will hear a second case involving a rogue prosecutor abusing his power. This second case involves former U.S. Attorney John Ashcroft who was sued under the federal civil rights statute, 42 U.S.C. Sec. 1983, by Abdullah Al-Kidd.
We recently reported about the first case, Thompson v. Connick. The Al-Kidd case will have far greater constitutional, as well as national security, implications. The case originates from the Ninth Circuit Court of Appeals, Al-Kidd v. Ashcroft, which held that the former attorney general abused the federal material witness law which allows U.S. citizens to be locked up if they possess information about ongoing criminal investigations.
The origin of this case is rooted in this nation’s law enforcement and national security reaction to the September 11, 2001 terrorist attacks in New York City. Attorney General Ashcroft, at the behest of his boss President George W. Bush, hastily developed a policy that allowed the FBI and the Department of Justice to use the federal material witness law as a “pretext” to “arrest and detain terrorism suspects about whom they did not have a sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further,” according to the Ninth Circuit. As a matter of fact, during a “press briefing” announcing the Bush administration’s new national security strategies to protect the nation from  further terrorist attacks (after the cows escaped the barn), Ashcroft told the media:
“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.”

The arrest and detention of “terrorist suspects” as “material witnesses” was part of a larger national security strategy to identify and detain Arab and Muslim aliens, known as “September 11 Detainees,” on trumped up immigration charges—and that’s how Al-Kidd got caught up in this shameful national security dragnet. Al-Kidd was born Lavoni T. Kidd in Wichita, Kansas; certainly an unlikely hotbed for terrorism cells. He was attending the University of Idaho in 2002 where he was, according to the Ninth Circuit, “a highly regarded running back on the University’s football team.” But he had one suspicious flaw according to the FBI: the young African-American converted to Islam. That made him (and his young wife) a target of the FBI’s far-reaching—and in many respects lawless—anti-terrorism investigation of Arab and Muslim men in the wake of 9/11. The highly touted law enforcement agency did not have one piece of evidence that linked Al-Kidd (or his wife) to any “criminal activity.” But the agency’s investigation, and constant surveillance, ramped into high gear when agents learned that Al-Kidd planned “to fly to Saudi Arabia in the spring of 2003 to study Arabic and Islamic law on a scholarship at a Saudi university.”
As far as the FBI was concerned, in that Bush/Ashcroft-inspired era of terrorism paranoia, akin to the McCarthyism era of a “communist under every bed” in the 1950s, Al-Kidd may as well have donned an Osama bin Laden t-shirt proclaiming support for terrorism. The federal “G-Men,” who would have had Elliott Ness turning over in his grave, knew they had to stop this now clearly-defined “terrorist suspect” from leaving the country—and they found a convenient, though unlawful, way to accomplish that law enforcement objective. The Ninth Circuit explained:
“On February 13, 2003, a federal grand jury in Idaho indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. officials. On March 14, Idaho U.S. Attorney’s Office submitted an application to a magistrate judge of the District of Idaho, seeking al-Kidd’s arrest as a material witness in the Al-Hussayen trial. Appended to the application was an affidavit by Scott Mace, a Special Agent of the FBI in Boise (the Mace Affidavit). The Mace Affidavit described two contacts al-Kidd [sic] had with Al-Hussayen: al-Kidd has received in ‘excess of $20,000’ from Al-Hussayen (though the Mace Affidavit does not indicate what this payment was for), and al-Kidd had ‘met with Al-Hussayen’s associates’ after returning from a trip to Yemen. It also contained evidence of al-Kidd’s contacts with officials of the Islamic Assembly of North America (IANA, an organization with which Al-Hussayen was affiliated), including one official ‘who was recently arrested in New York.’ It ended with the statement, ‘[d]ue to Al-Kidd’s demonstrated involvement with the defendant … he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.’ The Mace Affidavit did not elaborate on what ‘information’ al-Kidd might have had, nor how his testimony might be ‘germane’—let alone ‘crucial’—to the prosecution of Al-Hussayen.
“The affidavit further stated: ‘Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK Airport in New York and then to Saudi Arabia … It is believed that if Al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.’
“In fact, al-Kidd had a round-trip, coach class ticket, costing approximately $1700. The Mace Affidavit omitted the facts that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him. The magistrate judge issued the warrant the same day.”
The FBI went after Al-Kidd not in the manner of arresting and detaining a “material witness” but as a “suspected terrorist” about to launch some secret attack. Agents swooped him up at the ticket counter at Dulles International Airport where he was immediately handcuffed, then escorted into the airport’s “police substation” where he was interrogated. Over the next sixteen days he was moved from the Alexandria Detention Center in Virginia to the Oklahoma Federal Transfer Center and finally to the Ada County, Idaho, jail. He was constantly stripped searched and held in “high security units” at each facility. He was handcuffed and shackled about his wrists, waist and legs during the transfer trips. He was kept in a lit cell twenty-four hours a day, except for two hours for exercise in a controlled area.
A petition to the court resulted in Al-Kidd being released from custody but on the condition that he and his wife live at his in-laws home in Nevada; that his travel be limited to Nevada and three other states; that he report regularly to a probation officer; that he always be available for home visits from the probation officer throughout the period of restriction; and that he surrender his passport—all these punitive restrictions without an iota of evidence of criminal wrongdoing being presented against him. These restrictions remained in place for one year before he was permitted to obtain his own residence in Las Vegas just as he and his wife were separating.
Three months later Al-Hussayen was acquitted on most of the charges brought against him and a mistrial declared on the remaining counts after the jury could not reach a verdict. He was then deported to Saudi Arabia for visa violations. All restrictions were then lifted against Al-Kidd but he was promptly fired from his job. “He alleges he was terminated when he was denied a security clearance because of his arrest,” the Ninth Circuit said. “He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.”
Al-Kidd sued Ashcroft, several of his subordinates in the Justice Department, and the FBI agents involved in preparing the Mace Affidavit. Al-Kidd’s lawsuit was based on the landmark case Bivens v. Six Unknown Named Agents of the Federal Bureau of Investigation (known as a “Bivens action”). Ashcroft moved to have the lawsuit dismissed under Federal Rules of Civil Procedure 12(b) (6) that he enjoyed absolute immunity from civil liability for actions he took in the case. The District Court rejected the claim, holding that Ashcroft’s policy to use the material witness statute as a “pretext” to detain individuals pending a criminal investigation was a “police type investigative activity” and not the “prosecutorial advocacy” for which absolute immunity is traditionally reserved. The District Court also denied Ashcroft plea of qualified immunity. The Ninth Circuit agreed with the lower court, essentially holding that Ashcroft had acted outside the scope of his official duties and, therefore, was not immune from civil prosecution for any wrongdoing he engaged in while acting outside that scope.
The Supreme Court has agreed to hear the case and determine what, if any, immunity the former attorney general enjoyed in the Al-Kidd case.
What is the difference between absolute and qualified immunity in cases involving federal or state prosecutors?
First, in a Bivens action, the Supreme Court in Buckley v. Fitzsimmons (1993) held that “most public officials” are entitled only to qualified immunity. However, when it comes to prosecutors, federal or state, the Supreme Court held in Imbler v. Pachtman that they are entitled to absolute immunity when engaged in conduct “intimately associated with the judicial phase of the criminal process” and/or the conduct is done “in the course of [their] role as an advocate for the State.”
Qualified immunity generally attaches to prosecutorial conduct when, as put by the Ninth Circuit, it involves “investigatory or administrative functions” such as when prosecutors are functioning “essentially … as police officers or detectives.” At the federal level, the Supreme Court made it clear a quarter century ago in Mitchell v. Forsyth that a U.S. Attorney General does not enjoy absolute immunity when performing “national security functions.” And in any absolute immunity context, the Court in Burns v. Reed held that the burden rests with the official seeking it to show he or she is so entitled:
“The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been ‘quite sparing’ in our recognition of absolute immunity, and have refused to extend it any ‘further than its justification would warrant.’”
The Supreme Court in Forrester v. White adopted what it called a “functional approach” to determine if an action is “prosecutorial” and, therefore, entitled to absolute immunity. This approach examines the “nature of the function” performed and not the “identity of the actor who performed it.” While the high court has recognized that it is not always clear when a prosecutor is functioning as a “prosecutor” or an “investigator,” absolute immunity will apply, as pointed out in Burns, “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.” Utilizing the functional approach, the Supreme Court has applied absolute immunity in the following contexts:

  • Initiating a prosecution,
  • Presenting false or perjured testimony,
  • Appearing in court to apply for a search warrant,
  • Preparing and filing information motion, and
  • Preparing motion for arrest warrant.

By contrast, prosecutors are entitled only to qualified immunity in the following contexts:

  • Giving legal advice to police,
  • Investigating and fabricating physical evidence at crime scene, and
  • Acting as a complaining witness in support of a warrant application.

A review of these various conducts can be found in the Supreme Court decisions in Burns, Kalina v. Fletcher, and Van de Kamp v. Goldstein.
Whether or not a particular function deserves absolute immunity requires that the reviewing court, by Supreme Court mandate in Mitchell, generally look “for a historical or common-law basis for the immunity in question.” Ashcroft argued before the Ninth Circuit that the decision to seek a material witness warrant is always a “prosecutorial” function. But the Ninth Circuit rebuffed that assertion, saying Ashcroft had “presented us with no historical evidence that a common-law tradition of absolute immunity from suit for prosecutors seeking material witness arrests exists, and our own research has uncovered none, even though the practice of detaining witnesses who are not criminal suspects dates back to at least the 1840s.”
The Supreme Court not only agreed to hear the Ashcroft appeal because of its obvious national security implications but also because there is a split among the circuits as to whether absolute immunity attaches in the material witness context. At least three circuits—Second Circuit, Seventh Circuit and Sixth Circuit—have held absolute immunity attaches while the Ninth Circuit with Al-Kidd and the Third Circuit have said it does not attach.
Significantly, Al-Kidd does not challenge the issue that absolute immunity generally attaches in decisions to seek material witness warrants. Instead his argument centers on the factual premise that the decision to arrest him was, as the Ninth Circuit observed, “an act in furtherance of an investigative or national security function for which the Attorney General may claim only qualified immunity. That is, Al-Kidd claims he was arrested not in order to secure his testimony at Al-Hussayen’s trial, but in order to detain, interrogate, and gather evidence against him, in particular.”
We agree with Al-Kidd’s attorneys. The material witness warrant process was abused under the “pretext” of national security. There was absolutely no reason to believe, much less any evidence to show, that Al-Kidd had knowledge or evidence in the investigation being conducted against Al-Hussayen. Al-Kidd was arrested, detained, abused, and ultimately had his entire personal life destroyed because of the criminal conduct of Ashcroft, the U.S. Justice Department, and the FBI. They should all be brought to account in a court of law, but given the conservative nature of the Supreme Court and its tendency to wrap constitutional rulings around political ideology, we do not hold out much hope for Al-Kidd’s quest for justice before the Court. If not absolute immunity, the Supreme Court will probably give Ashcroft and his cohorts a defense of qualified immunity—and both the quality and integrity of our justice system will suffer the consequences because of it.
The “war on terror” is not a license to drive a stake through the heart of constitutional and civil liberties in a democratic society. But such a war can be used as an invitation to become a police state. For the past nine years, we have been flirting around the edges of such a state—and if anyone truly listens to the rhetoric being espoused the “tea party” folks and right-wing Republicans, they are ready to embrace such a state just to “take our country back.” Fanaticism is a tempting ideology until it is put in practice—just as it was in the Al-Kidd case in particular and the “9/11 detainees” cases in general. God help us if that becomes this nation’s normal political response to either real or suspected acts of terrorism.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair