06/03/2011 05:14 pm ET | Updated Aug 03, 2011

Ashcroft Perverted Federal Law, and the Supreme Court Blinked

In the aftermath of the September 11th terrorist attacks, federal law enforcement agents were instructed by then-Attorney General John Ashcroft to round up and detain suspected terrorists. Some 1,200 people were arrested -- mostly foreigners with immigration problems -- with wartime urgency and uncommon secrecy, on the ground that they were "material witnesses." Concededly, however, the government had no intention of using these people as witnesses. They were suspected of no wrongdoing; arresting them as "material witnesses" was a pretext both to hold them preventively and to investigate them. As described in a 2003 report by the Justice Department's Inspector General who investigated and criticized the program, 762 non-citizens were detained and abused physically and mentally. Many were held for months in detention facilities without being told why they were being detained. These people effectively "disappeared." Most were deported, and none were charged with terrorist crimes.

One of the detainees, Abdullah al-Kidd, was in fact a native-born U.S. citizen. He attended the University of Idaho and was a highly regarded running back on the University's football team. An African-American, he converted to Islam and changed his name. He was arrested under the Ashcroft program on the pretext that he was a material witness in an upcoming trial of a defendant charged with visa fraud who was associated with an organization disseminating radical Islamic ideology. A judge issued the arrest warrant based on an FBI agent's allegations that al-Kidd possessed "information germane to the matter." But the FBI agent did not explain what that information was, or why it was germane. Al-Kidd was incarcerated for 16 days in three different detention centers, kept in high-security cells lit twenty-four hours a day, strip-searched, subjected to body-cavity inspections, and handcuffed and shackled about his legs, wrist, and waist. He was released by court order on condition he live with his family in Nevada, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time his confinement and supervision ended fifteen months after his arrest, al-Kidd had been fired from his job, separated from his wife, and unable to find other employment.

Al-Kidd sued Ashcroft, claiming that the government used the material witness law not to preserve critical evidence -- its intended and alleged purpose -- but to hold and investigate him preventively when he was innocent of any wrongdoing, Ashcroft violated his constitutional rights under the Fourth Amendment. Ashcroft sought dismissal of al-Kidd's lawsuit, arguing that he was immune from civil liability. The federal district judge denied Ashcroft's motion, and the Ninth Circuit Court of Appeals affirmed, holding that the Fourth Amendment prohibits sham arrests for the purpose of investigation unless there is probable cause of criminal wrongdoing. Here, of course, there was none, and no suspicion of criminal wrongdoing has ever been alleged.

This week the Supreme Court reversed that decision and ordered the complaint dismissed. The several opinions by the justices (Justice Kagan took no part) were confusing, and, ultimately unsatisfying because they did not squarely address the constitutional issue. All of the justices agreed that Ashcroft enjoyed immunity because the constitutional issue -- that arresting a person who was suspected of no criminal wrongdoing on the pretext that he was a material witness violates the Fourth Amendment -- was not "clearly established" at the time of the challenged conduct, a prerequisite to overriding a claim of immunity. The Court then split. Justice Scalia's opinion, joined by Roberts, Thomas and Alito, said it didn't matter that al-Kidd's arrest was for a phony purpose; all that mattered was that a judge issued an arrest warrant based on the government's representation that al-Kidd was a key witness who needed to be arrested in order to secure his testimony.

The four other justices -- Kennedy, Breyer, Ginsburg and Sotomayor -- wrote separately to highlight the difficult and unresolved issues that the Scalia group had avoided. Justice Kennedy, for example, noted that a material witness arrest warrant might be governed by a much stricter standard under the Fourth Amendment than the standard applied for ordinary probable cause determinations for criminal wrongdoing. Justices Ginsburg, Breyer and Sotomayor observed that the material witness warrant for al-Kidd may have been obtained by the FBI based on false and misleading statements to the judge. No where in the application for the arrest warrant, for example, did the FBI tell the judge that the government had no intention of using al-Kidd as a witness, that al-Kidd had cooperated with the FBI on several occasions, and that al-Kidd, his parents, his wife and his children were all citizens and residents of the United States, all facts that would make his flight unlikely. Moreover, the agents falsely described al-Kidd's booking a flight to Saudi Arabia as a sinister plan to flee.

Apart from the immunity issue, the Court did not resolve the troubling question of whether the Fourth Amendment is violated when the government perverts the federal material witness law by employing it not for its intended purpose -- to preserve evidence by ensuring the testimony of a key witness -- but for a prohibited and undisclosed purpose: to arrest and detain an innocent person for investigation. The law is confusing on this issue. Sometimes a police officer's actual purpose matters, such as in non-criminal administrative searches, drug testing, and crime control checkpoints. These intrusions may not be undertaken for other than their stated purpose. Other times, however, the government's secret purpose is irrelevant, as with arrests based on probable cause, when there exists a valid -- if unstated -- reason for the action. Take the case of a traffic stop and search of a motorist. A police officer can stop almost any motorist for some technical traffic infraction -- failure to signal before changing lanes, or having a defective tail-light -- and then conduct a full-blown search of the motorist, his companions, and his car, even if the traffic violation is a sham and the officer intended to search for drugs or other contraband all along. The permissibility of such "bad faith" searches was approved by the Supreme Court in Whren v. U.S., another Scalia opinion, as long as there is an objectively valid basis for the government's action.

But al-Kidd is a different case. Because there was no need to detain al-Kidd as a material witness the Fourth Amendment prohibited the government from detaining him. While a broken tail light may justify the police in searching for drugs -- their intention all along -- that is because the police are already entitled to stop the driver -- their purpose is irrelevant nevertheless. Scalia's opinion appears to extend the sham arrest doctrine to Ashcroft's cynical subversion of the material witness law to detain wholly innocent people. Given the Supreme Court's imprimatur to sham arrests in the traffic context, it is hardly surprising that Ashcroft seized the opportunity to authorize dragnet detentions of Islamic Americans. It is disappointing, however, that given the conflicting constitutional precedents, the more liberal justices would not take the opportunity to express some outrage at Ashcroft's cynical manipulation of federal law.