{"id":5097,"date":"2012-10-11T01:18:52","date_gmt":"2012-10-11T05:18:52","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=5097"},"modified":"2016-11-16T19:56:24","modified_gmt":"2016-11-17T00:56:24","slug":"on-abdullah-al-kidds-victory","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/on-abdullah-al-kidds-victory\/","title":{"rendered":"On Abdullah al-Kidd’s Victory"},"content":{"rendered":"

Many on the political and legal left\u2014including, perhaps most prominently, Glenn Greenwald<\/a>\u2014have routinely expressed their staunch disapproval of the Obama Administration\u2019s handling of civil liberties in the realm of national security.\u00a0 Their bill of particulars is lengthy and spans his entire presidency; a small but notorious sampling of these charges includes obstructing judicial redress for torture victims<\/a>, utilizing \u201ckidnapping and torture chambers, albeit by proxy<\/a>,\u201d and executing drone strikes against American citizens abroad who are merely suspected of terrorist activity<\/a> (which at least one prominent conservative legal academic has judged likely illegal<\/a>).<\/p>\n

To these critics, the Obama Administration is presumably no better for continuing to defend the Bush Administration\u2019s use of material witness warrants\u00a0[1]<\/span> to detain individuals connected to terrorism investigations<\/a> \u201cwhom they would otherwise lack probable cause to arrest<\/a>\u201d from judicial review. \u00a0As of the end of 2011, the Obama and Bush Administrations appeared to have succeeded in shielding this controversial practice from thorough judicial scrutiny, when, in Ashcroft v. Al-Kidd<\/a>, <\/strong>the Supreme Court limited governmental liability for such preventive detention by holding that the Fourth Amendment does not prohibit \u201can objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant, even when the \u201carresting authority [possesses an] improper motive.\u201d\u00a0 The federal government\u2019s sixteen-day detention of Abdullah al-Kidd, \u201ca native-born United States citizen,\u201d as a material witness to a criminal proceeding was \u201cobjectively reasonable<\/a>\u201d because al-Kidd was about to board a flight to Saudi Arabia and federal officials believed that if he did so, \u201cinformation \u2018crucial\u2019 to the prosecution\u201d of a terrorism suspect for visa fraud, Sami Omar al-Hussayen (an acquaintance and fellow student<\/a>), \u201cwould be lost.\u201d And since al-Kidd\u2019s detention pursuant to the material witness statute did not violate clearly established federal law, former Attorney General Ashcroft was entitled to qualified immunity<\/a>.<\/p>\n

So at the end of last year, the prospects for al-Kidd obtaining meaningful redress for his detention\u2014during which he purportedly was \u201cconfined in three different detention centers\u2026kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist<\/a>\u201d\u2014did not appear so bright.<\/p>\n

But at the end of last month last month, the tides appear to have turned\u2014at least slightly\u2014for al-Kidd.<\/a> \u00a0Given the 2011 Supreme Court decision, al-Kidd retained only one fairly narrow avenue for challenge: alleging that his material witness warrant was invalidly<\/em> obtained.\u00a0 And, of course, this is precisely what he did on remand in Idaho Federal District Court.\u00a0 Perhaps surprisingly, he was successful, at least in part: the court\u00a0[2]<\/a> held that one of the federal agents\u2014Agent Michael Gneckow\u2014involved in detaining al-Kidd was not entitled to qualified immunity\u00a0[3]<\/a> for his actions in obtaining and executing the warrant.\u00a0[4]<\/a><\/p>\n

The court reached its decision by leaning on Franks v. Delaware<\/a>, a Supreme Court decision which held that when a \u201cdefendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was\u00a0included\u201d in an officer\u2019s warrant affidavit, \u201cand if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.\u201d\u00a0 If, then, at the hearing, the defendant establishes his perjury or reckless disregard allegations by a preponderance of the evidence, and the affidavit, absent the false material, remains \u201cinsufficient to establish probable cause,\u201d the warrant is void. Since it was \u201cclearly established that the United States Constitution did not permit a police officer deliberately, or with reckless disregard for the truth, to make material misrepresentations or omissions to obtain a warrant that would otherwise be without probable cause\u201d when al-Kidd\u2019s warrant was issued, qualified immunity would not be available to Agent Gneckow if al-Kidd established a Franks<\/span> violation.<\/p>\n

There was and remains little dispute that al-Kidd\u2019s testimony could have been material to al-Hussayen\u2019s visa fraud prosecution.\u00a0[5]<\/a>\u00a0 \u00a0Accordingly, the sole issue involved was whether it would be impracticable for the government to secure al-Kidd\u2019s testimony by subpoena.\u00a0 The government\u2019s case for impracticability\u2014laid out in Agent Gneckow\u2019s March 14, 2003 affidavit\u2014rested primarily on an assertion that al-Kidd had bought a $5000, one-way, first-class plane ticket to Saudi Arabia for March 16, 2003.\u00a0 And it was apparently buttressed by suggestions that al-Kidd \u201cwas a Saudi national involved with suspected terrorists, with no ties to the United States, fleeing the country within one month of the al-Hussayen indictment.\u201d\u00a0 Indeed, the affidavit implied that al-Kidd was foreign-born, through referencing al-Kidd first by his Muslim name and noting that \u201cLavoni T. Kidd,\u201d his birth name, was one of his aliases; that al-Kidd was involved in terrorism, through noting that the underlying investigation had been conducted by a terrorism task force; that al-Kidd had received over $20,000 from al-Hussayen, suggesting that al-Hussayen directly funded al-Kidd\u2019s upcoming trip; and that al-Kidd had traveled to Yemen in the past, after which he emptied a storage locker with al-Hussayen\u2019s associates; etc.<\/p>\n

The problem with the affidavit, the court noted, was that it was profoundly misleading\u2014both in its express assertions and its omissions. Al-Kidd\u2019s plane ticket was actually a $2000 open-ended round trip coach ticket.\u00a0 As Agent Gneckow knew, Al-Kidd had received the $20,000 from al-Hussayen in installments as salary for work that Al-Kidd had done for al-Hussayen on a website called al-Multaqa.\u00a0 Al-Kidd was traveling to Saudi Arabia \u201cto further his course of study in Arabic language and Islamic law, and had begun making arrangements to do so beginning in April of 2002.\u201d \u00a0In reality, al-Kidd \u201cwas a native-born United States citizen with a wife, son, and other family living in the United States.\u201d\u00a0 Importantly, al-Kidd \u201chad voluntarily cooperated with the FBI on multiple occasions in the past.\u201d\u00a0 No one had informed al-Kidd that the government might need his testimony, and no one told him that he should not travel.\u00a0 No one told him to advise the FBI if he planned to travel overseas. \u00a0And the FBI\u2014Agent Gneckow obviously included\u2014had not contacted him in more than eight months.\u00a0 Furthermore, the FBI made no effort to reach out to them regarding his travel plans before pursuing a material witness warrant.\u00a0 Although Agent Gneckow had received the information about al-Kidd\u2019s travel plans from an ICE agent on March 13, the court concluded that Agent Gneckow\u2019s actions exhibited \u201ca reckless disregard for the truth\u201d amounting to a Franks<\/span> violation.\u00a0 Accordingly, the court decided that Agent Gneckow was not entitled to qualified immunity as a matter of law, thus clearing the way for a jury trial on whether Agent Gneckow\u2019s actions in securing al-Kidd\u2019s material witness warrant were lawful.<\/p>\n

Certainly, this decision is a welcome development for civil libertarians, and I applaud the ACLU and al-Kidd for advocating so tenaciously and skillfully.\u00a0 As suggested by the case’s tortuous procedural history, it was a hard fought victory\u2014one that, as of the end of last year with the Supreme Court\u2019s decision, perhaps seemed unlikely.\u00a0 For years, critics of the War on Terror\u2019s concomitant war on civil liberties\u2014myself included\u2014have relished the precious few opportunities for providing redress to its most immediate victims, like al-Kidd.[6]<\/a>\u00a0 Each such opportunity provides at least a chance to bolster accountability in an area\u2014the amorphous and expanding realm of national security<\/a>\u2014where it is in troublingly short supply.<\/p>\n

Too little, too late?\u00a0 I\u2019m loath to say it\u2019s \u201ctoo late,\u201d because for al-Kidd, delayed redress is assuredly better than none.\u00a0 But it really is way too late.\u00a0 Al-Kidd suffered these manifest injustices nearly ten years ago.\u00a0 Only after a surely disappointing trip to the Supreme Court does al-Kidd finally have the chance\u2014one that could vanish soon, given, among other things, the outcome of probable appeals\u2014to force the government to justify his detention.<\/p>\n

Of course, if he is fortunate enough to have that opportunity, he is apparently well positioned to be vindicated.\u00a0 It should be clear to a jury that Agent Gneckow acted recklessly\u2014at the very least\u2014in preparing the warrant and that al-Kidd was detained as a proximate result of that misconduct.\u00a0 Satisfying to al-Kidd?\u00a0 Surely.\u00a0 Profoundly frustrating to al-Kidd because this entire ordeal could have been avoided if Agent Gneckow had merely reached out to him before March 16, 2003?\u00a0 Definitely.<\/p>\n

Which brings me to the second issue: \u201ctoo little.\u201d\u00a0 The trial, if it occurs, will focus on Agent Gneckow.\u00a0 And, if the Obama Administration is playing this case as close to the chest as it uniformly has in the national security realm, the focus will not veer too far from Agent Gneckow, especially since he is the sole remaining defendant.\u00a0 Unless Agent Gneckow goes Serpico (ostensibly unlikely), the trial will not likely reveal much about the policy and practice of material witness warrants more generally.\u00a0 Accordingly, questions about the scope of the program will remain unanswered, and much wrongdoing may well remain unaccounted for.\u00a0 Agent Gneckow will be painted as a rogue officer who blatantly and stupidly misused an otherwise constitutionally valid tool\u2014as opposed to one of possibly many federal agents who operated just as rashly and xenophobically as he did, perhaps in accord with directions from above.\u00a0 More optimistically, perhaps the trial will reveal yet again the worrying degree to which prejudice inflected national security operations in the wake of 9\/11 and remind us of the need to institute additional safeguards against such invidious practices in the future\u2014but even if the general public concurs, the scant news coverage of the al-Kidd decision\u00a0[7]<\/a> dims the prospect of such reckoning and reform.\u00a0 And even were the American public tuned in to the al-Kidd case, the fact that 62% of Americans approve of the Obama Administration\u2019s drone program<\/a> makes it unlikely that they will roundly oppose the use of a valid statute to temporarily detain alleged terrorists or those associated with alleged terrorists.<\/p>\n

If al-Kidd faced an uphill battle in challenging the War on Terror\u2019s infrastructure when he first filed his lawsuit in 2005<\/a>, before Congress had even passed the Military Commissions Act<\/a>, he certainly faces a similarly difficult battle now, when much of that infrastructure has been tacitly or directly approved by each branch of our federal government, and when newer, concerning policies have been approved by large majorities in Congress and the President<\/a>.\u00a0 In the new normal\u2014the world of the \u201cnational security consensus<\/a>\u201d\u2014al-Kidd\u2019s suffering has gone from remarkable to routine.\u00a0 This is not to minimize the grave injustices he has endured.\u00a0 It is merely a suggestion that once a patchwork of powerful institutions deems certain costs of doing business as necessary (if not inevitable or, cynically, desirable), the chance of achieving systemic reform through exposing those costs\u2014as concerning as they may be\u2014is slimmer. \u00a0Too little, too late.<\/p>\n

It is important, however, to recognize the victory in al-Kidd\u2019s case for what it is\u2014a hard-earned chance to obtain a degree of justice for grievous wrongs.\u00a0 Even if its reformative potential is not all we wish it were, at least that remains true.<\/p>\n

 <\/p>\n

\n
\n
\n

[1]<\/a> Material witness warrants<\/a> allow the government to detain an individual if, from an affidavit filed in support of a warrant, there is probable cause to believe \u201cthat the testimony of [that] person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena.\u201d<\/p>\n<\/div>\n

\n

[2]<\/a> In the discussion of the summary judgment decisions, \u201cthe court\u201d refers to the decision of Magistrate Judge Mikel Williams, who initially issued al-Kidd\u2019s material witness warrant, which District Judge Edward Lodge, a Bush 1 appointee<\/a>, adopted in full with respect to Agent Michael Gneckow.\u00a0 The following information regarding the summary judgment decisions was culled from Judge Williams\u2019 decision, which is available here<\/a>.\u00a0 Judge Lodge’s decision is available\u00a0here<\/a>.<\/p>\n<\/div>\n

\n

[3]<\/a> Qualified immunity, a federal common law doctrine, \u201cprotects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.\u201d\u00a0Pearson v. Callahan<\/span>, 129 S.Ct. 808, 815 (2009), quoting Harlow\u00a0v.\u00a0Fitzgerald<\/span>,\u00a0457 U.S. 800, 818\u00a0(1982)(internal quotations omitted).<\/p>\n<\/div>\n

\n

[4]<\/a> The other agent involved\u2014who, as the court indicates, merely delivered the prepared warrant to the court for review\u2014was entitled to qualified immunity, however.<\/p>\n<\/div>\n

\n

[5]<\/a> Even though al-Kidd was never called to the stand, the government\u2019s visa fraud allegations centered on al-Hussayen exceeding the scope of his nonimmigrant student visa by, among other things, providing support for the Islamic Assembly of North America, of which al-Kidd apparently had knowledge.<\/p>\n<\/div>\n

\n

[6]<\/a> The only other notable example that comes to mind is the opportunity for habeas relief for Guantanamo detainees following Boumediene v. Bush<\/span>, 553 U.S. 723 (2008)(constitutional right of habeas corpus applies to Guantanamo detainees and those designated enemy combatants on Guantanamo\u2019s territory).<\/p>\n<\/div>\n

\n

[7]<\/a> A Google search of \u201cal-Kidd\u201d yields only three news results outside of the realm of legal academia: the New York Times<\/a>, the Idaho Press Tribune<\/a>, and Democracy Now<\/a>.\u00a0 And even if the coverage were broader, the oversaturation of the media with election-related news would probably have made the decision a needle in a haystack anyway.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Many on the political and legal left\u2014including, perhaps most prominently, Glenn Greenwald\u2014have routinely expressed their staunch disapproval of the Obama 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