By Jonathan Abrams, HLS 2012 NSJ Staff Writer
On September 4th, the United States Court of Appeals for the Ninth Circuit handed down an important ruling on preventive detention, holding that the federal government’s use of the material witness statute, 18 U.S.C. § 3144, to detain suspected terrorists is unconstitutional.
The case, al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), involves a lawsuit brought by Abdullah al-Kidd, an American citizen who was thought to have ties to suspected terrorist Sami Omar Al-Hussayen. Shortly after Al-Hussayen was arrested, authorities learned that al-Kidd was about to leave the country for Saudi Arabia. Fearful that al-Kidd was leaving to escape U.S. authorities, the government arrested him pursuant to the material witness statute, which allows for detention of a witness to a criminal proceeding to secure his testimony for that proceeding. Al-Kidd was held for 15 days and then released after agreeing to live with his in-laws in Las Vegas, thereby keeping him in the country. He was never called as a witness in Mr. al-Hussayen’s trial.
Mr. al-Kidd brought suit against Attorney General John Ashcroft personally, claiming that he created and authorized a program to misuse the material witness statute to detain suspected terrorists.
The Ninth Circuit, in an opinion written by Judge Milan Smith and joined by Judge David Thompson, first found that Mr. Ashcroft is not completely immune from suit because the purpose behind this alleged use of the material witness statute was investigative and not prosecutorial. More significantly, the court held that Ashcroft’s acts violated the Fourth Amendment. Normally, the government may detain someone if they truly intend to use them as a material witness. But where that is not the case, and the true purpose is investigatory, the government needs the same probable cause as required to charge someone with a crime. The opinion summarized its holding:
[P]robable 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.
Judge Carlos T. Bea dissented from the majority’s holding on the Fourth Amendment issue. He noted that the subjective intent of the government is generally irrelevant to Fourth Amendment analysis. Furthermore, courts have held that probable cause has not required proof of the suspect’s guilt; searches of the innocents’ homes have been allowed.
The Department of Justice now has the choice of asking the Ninth Circuit to hear the appeal en banc, petitioning the Supreme Court to hear the case, or letting the case go back to the district court for trial. The last option would likely involve extensive investigation of the Bush administration’s detention policies.