{"id":340,"date":"2009-11-06T14:53:00","date_gmt":"2009-11-06T21:53:00","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=340"},"modified":"2009-11-06T14:53:00","modified_gmt":"2009-11-06T21:53:00","slug":"ninth-circuit-rules-unconstitutional-use-of-material-witness-statute-to-detain-terrorist-suspects","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2009\/11\/ninth-circuit-rules-unconstitutional-use-of-material-witness-statute-to-detain-terrorist-suspects\/","title":{"rendered":"Ninth Circuit Rules Unconstitutional Use of Material Witness Statute to Detain Terrorist Suspects"},"content":{"rendered":"

By Jonathan Abrams, <\/strong>HLS 2012 NSJ Staff Writer
\n<\/strong><\/p>\n

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\u2019s use of the material witness statute, 18 U.S.C. \u00a7 3144, to detain suspected terrorists is unconstitutional.<\/p>\n

The case, al-Kidd<\/em> v. Ashcroft<\/em>, 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.\u00a0 Shortly after Al-Hussayen was arrested, authorities learned that al-Kidd was about to leave the country for Saudi Arabia.\u00a0 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.\u00a0 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.\u00a0 He was never called as a witness in Mr. al-Hussayen\u2019s trial.<\/p>\n

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.
\n
\nThe 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.\u00a0 More significantly, the court held that Ashcroft\u2019s acts violated the Fourth Amendment.\u00a0 Normally, the government may detain someone if they truly intend to use them as a material witness.\u00a0 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.\u00a0 The opinion summarized its holding:<\/p>\n

[P]robable cause–including individualized suspicion of criminal wrongdoing–is required [by the Fourth Amendment] when 18 U.S.C. \u00a7 3144 is not being used for its stated purpose, but instead for the purpose of criminal investigation. . . .\u00a0\u00a0 All seizures of criminal suspects require probable cause of criminal activity.\u00a0 To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.<\/p><\/blockquote>\n

Judge Carlos T. Bea dissented from the majority\u2019s holding on the Fourth Amendment issue.\u00a0 He noted that the subjective intent of the government is generally irrelevant to Fourth Amendment analysis.\u00a0 Furthermore, courts have held that probable cause has not required proof of the suspect\u2019s guilt; searches of the innocents\u2019 homes have been allowed.<\/p>\n

The Department of Justice now has the choice of asking the Ninth Circuit to hear the appeal en banc<\/em>, petitioning the Supreme Court to hear the case, or letting the case go back to the district court for trial.\u00a0 The last option would likely involve extensive investigation of the Bush administration\u2019s detention policies.<\/p>\n

For more information, please see the opinion<\/a>, The New York Times article<\/a> covering the case, and Professor Orin Kerr’s analysis of the issues available at The Volokh Conspiracy<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s use of the material witness statute, 18 U.S.C. \u00a7 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.\u00a0 Shortly after Al-Hussayen was arrested, authorities learned that al-Kidd was about to leave the country for Saudi […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-340","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-5u","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/340","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=340"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/340\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=340"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=340"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=340"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}