Muslim Roundup Claims Can’t Target Ashcroft

(CN) - A Muslim American who was detained as a witness for two weeks after the Sept. 11 terrorist attacks cannot sue former U.S. Attorney General John Ashcroft, the Supreme Court ruled Tuesday.

The decision from the unanimous court reverses a 9th Circuit ruling that called the government's use of witnesses after the terrorist attacks "repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."

Abdullah al-Kidd, an American student at the University of Idaho, sued in 2005, claiming his civil rights were violated when he was held for two weeks in 2003 as a material witness. The young man was arrested at the Dulles International Airport in Virginia, where he had checked in for a flight to Saudi Arabia, and held for 16 days in high-security units.

Authorities said they wanted al-Kidd to testify in a visa fraud trial against a fellow university student with alleged ties to a jihadist organization. Ultimately, however, prosecutors never called him as a witness while monitoring him through supervised release for 14 months.

Al-Kidd claimed Ashcroft's policy unfairly targeted Muslim and Arab men, and that his two-week arrest cost him a scholarship to study abroad.

In September 2009, a two-judge majority of the 9th Circuit in Seattle rejected Ashcroft's assertions that he enjoyed absolute immunity from the lawsuit because it was part of his job. The full court refused to reconsider its ruling six months later, but the Supreme Court agreed to take up the appeal in October 2010.

Eight 9th Circuit judges had dissented from the denial of rehearing en banc, calling the majority's action a "troubling legal error."

In reversing the decision Tuesday, the high court rejected the merits of al-Kidd's claims and did not reach the issue of immunity.

"Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation," according to the lead opinion authored by Justice Antonin Scalia.

"At the time of al-Kidd's arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional," Scalia added.

Since qualified immunity is meant to protect all but the "plainly incompetent or those who knowingly violate the law," according to the court's 1986 precedent in Malley v. Briggs, Ashcroft fits the bill, according to the court.

He deserves qualified immunity even assuming - contrafactually - that his alleged detention policy violated the Fourth Amendment," Scalia wrote.

"Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity," he added.

Four other justices joined in that decision entirely, though Justice Anthony Kennedy also issued a separate concurring opinion.

"The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute," Kennedy wrote. "If material witness warrants do not qualify as 'Warrants' under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment's separate reasonableness requirement for seizures of the person."

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined only in the first part of Kennedy's opinion, which included the aforementioned passage.

Ginsburg and Sotomayor each wrote opinions concurring in the judgment, and they signed each other's opinions as did Breyer. Their decisions argue that the majority improperly determined al-Kidd's Fourth Amendment arguments on the merits.

"In addressing al-Kidd's Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant," Ginsburg wrote (emphasis in original). "That characterization is puzzling. Is a warrant 'validly obtained' when the affidavit on which it is based fails to inform the issuing Magistrate Judge that 'the Government has no intention of using [al-Kidd as a witness] at [another's] trial,' and does not disclose that al-Kidd had cooperated with FBI agents each of the several times they had asked to interview him."

The government also never told the magistrate that al-Kidd's parents, wife and children were all U.S. citizens and residents, and it "misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700."

"Given these omissions and misrepresentations, there is strong cause to question the Court's opening assumption - a valid material-witness warrant - and equally strong reason to conclude that a merits determination was neither necessary nor proper," Ginsburg wrote.

Kagan did not participate in the court's consideration or decision of the case.

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