11/08/2010 10:12 am ET | Updated May 25, 2011

Ashcroft v. al-Kidd and Material Witness Detention

Recently, Nan Aron posted a column in this forum highly critical of the Obama Administration's defense of an aspect of Bush's material witness detention policy. Her article was entitled, "Ashcroft v. al-Kidd: Immunity for the Shameless."

Her account of al-Kidd's treatment was entirely correct. Her concern that al-Kidd got a raw deal is entirely supported by the facts of this case. The legal rule that the Ninth Circuit announced to allow Abdullah al-Kidd to recover against John Ashcroft is, however, legally indefensible.

The Ninth Circuit held that the material witness act could not be used to hold those the government believed to be criminals (or specifically terrorists) themselves. The correctness of that proposition is all that is before the U.S. Supreme Court in this case.

The Ninth Circuit rejected al-Kidd's claim he was not really a material witness -- and was therefore improperly detained. The Ninth Circuit did not give him relief on the basis of the deplorable conditions of his confinement. Ms. Aron's column is right to complain that Mr. al-Kidd did not seem to qualify for detention under the material witness statute and that the treatment he alleged he received once he was detained is inconsistent with our fundamental values.

None of these issues, however, are before the Supreme Court. The Supreme Court is considering only the issue of whether the government is forbidden to detain a person who otherwise meets the requirements of the material witness statute because the government also suspects the witness of criminal wrongdoing.

A strong argument can be made that we should not have a material witness detention statute at all. Such arguments have been made since material witnesses were first detained in the 1840s. Certainly an argument could certainly be made that al-Kidd did not qualify under the scheme we currently have.

It is very hard to argue, however, that material witness detentions are unconstitutional when used to hold witnesses the government also suspects of wrongdoing. Under the Ninth Circuit's rule, innocence ironically becomes a pre-requisite to incarceration. The legitimacy of that rule is all that is before the U.S. Supreme Court in Ashcroft v. al-Kidd.

Wesley M. Oliver is an Associate Professor of Law at Widener University. His work on the history of material witness detentions was cited in the Ninth Circuit's opinion in
al-Kidd v. Ashcroft and he filed an amicus brief urging the Supreme Court to hear this case.