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Former Attorney General John Ashcroft is immune from a damages suit claiming he used the federal material witness statute in the aftermath of the Sept. 11 terrorist attacks as a pretext to detain terrorism suspects, the U.S. Supreme Court ruled on Tuesday. Although the justices unanimously agreed that Ashcroft had not violated “clearly established law” and was entitled to qualified immunity, three separate concurrences by justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor, raised serious questions about the government’s use of the material witness law. They questioned the validity of the warrant used to arrest Abdullah al-Kidd — the Muslim American who brought the damages suit — and the harsh treatment of al-Kidd by law enforcement officials. Justice Stephen Breyer joined their opinions. Justice Elena Kagan did not participate in the case. “The Court has unfortunately let Attorney General Ashcroft off the hook, but half of the justices who participated in today’s decision expressed real questions about how the government used the material witness statute in al-Kidd’s case,” said al-Kidd’s counsel, Lee Gelernt, deputy director of the American Civil Liberties Union Immigrants’ Rights Project, in a statement. “Our hope is that those questions will lead to a serious examination moving forward of the use of the statute as a tool for preventive detention.” Ashcroft v. Al-Kidd stemmed from the March 2003 arrest of al-Kidd by FBI agents as he checked in for a flight to Saudi Arabia, where he planned to continue his post-graduate studies. Federal officials had obtained a material witness warrant based on their belief that he had information “crucial” to the prosecution of a suspected terrorist. The warrant information was riddled with serious errors and omissions. Al-Kidd was held in federal custody for 16 days, during which time he was deprived of sleep, strip-searched, handcuffed, shackled and moved to three different detention centers in three different states. He then spent 14 months on supervised release, during which he lost his job and his marriage disintegrated. He was never called as a witness. He subsequently sued Ashcroft, claiming he authorized law enforcement officials to use the material witness law as a pretext to detain individuals when they lacked sufficient evidence to charge suspects with a crime. The U.S. Court of Appeals for the 9th Circuit held that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing and that Ashcroft could not claim immunity. Justice Antonin Scalia, writing for the Court, disagreed, saying the Court has “almost uniformly” rejected examining the subjective intent of law enforcement officials in determining the reasonableness of a seizure under the Fourth Amendment. “Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation,” Scalia wrote. Even assuming that Ashcroft’s alleged detention policy violated the Fourth Amendment, Scalia added, “He deserves qualified immunity.” Government officials, he wrote, lose qualified immunity from money damages if they violate a statutory or constitutional right, and if that right was clearly established at the time of the challenged conduct. “At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional,” he said. He left unresolved whether using the material witness statute solely for detention purposes violates the Constitution. Kennedy, in his concurrence, said, “The scope of the statute’s lawful authorization is uncertain.” Ginsburg, in her concurrence, wrote, “This Court’s decisions, until today, have uniformly used the term ‘individualized suspicion’ to mean ‘individualized suspicion of wrong-doing.’ ” She called “ hardly credible” the Court’s suggestion that the term is more commonly associated with knowing something about a crime. “Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to ‘take suspected terrorists off the street,’ ” she wrote. Richard Samp of the Washington Legal Foundation, who filed an amicus brief supporting the government on behalf of five former U.S. attorneys general, said, “The material witness statute has been used for more than 200 years to detain witnesses briefly under those circumstances. Allowing individuals like al-Kidd to sue for damages would undermine effective law enforcement by making prosecutors reluctant to use the statute to gather essential evidence.” Marcia Coyle can be contacted at [email protected].

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