Constitutional Law

ACLU Material Witness Case Heads to Supreme Court

By Suzanne Ito, ACLU

Yesterday, the Supreme Court agreed to hear al-Kidd v. Ashcroft, the ACLU's case against former Attorney General John Ashcroft on behalf of Abdullah al-Kidd, a Kansas-born U.S. citizen who was wrongly arrested and detained as a material witness in 2003.

The federal material witness statute allows law enforcement to detain a witness whose testimony prosecutors believe is material at a criminal trial if it believes that witness won't testify voluntarily. Our client was arrested and detained ostensibly so he'd testify as a material witness in the trial of Sami Omar al-Hussayen, who attended the same university as al-Kidd and was charged with visa fraud.

During his 16-day detention, al-Kidd was moved to three separate federal detention facilities in three different states, and was sometimes held naked and shackled hand-and-foot. After he was released, al-Kidd's travel was restricted to only four states and he had to surrender his passport and report to probation officers. These draconian conditions lasted for more than a year.

But here's the problem: al-Kidd was never asked to testify against al-Hussayen. And al-Kidd himself was never charged with a crime. So why was he being treated like a criminal?

Prior to 9/11, the material witness law was used sparingly to ensure witnesses would be available to testify in criminal cases. After 9/11, Ashcroft retooled the law into an investigative detention statute, allowing the government to arrest and detain individuals for whom they lacked probable cause to charge with a crime. Our lawsuit charges this Ashcroft policy violates fundamental constitutional principles and al-Kidd was a victim of that policy. The district and appellate courts agreed.

The Supreme Court will now consider the case.

Full post as published by Blog of Rights on October 19, 2010 (boomark / email).