The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] in Ashcroft v. al-Kidd [Cornell LII Backgrounder] that a witness in a terror investigation cannot challenge the constitutionality of an objectively reasonable arrest pursuant to a validly obtained warrant even if the government did not call or had no intention of calling the witness for trial. Abdullah Al-Kidd argued that his arrest prior to flying to Saudi Arabia was unconstitutional since it was made for an improper motive. The court ruled 8-0, with four concurrences, to reverse and remand the decision by the US Court of Appeals for the Ninth Circuit [official website]. Justice Elena Kagan recused herself. The opinion of the court by Justice Antonin Scalia held that the warrant was objectively reasonable pursuant to the federal material witness statute [18 USC § 3144 text] and could not be challenged for improper motive. Scalia further held that former US attorney general John Ashcroft [JURIST news archive] was entitled to absolute immunity because he did not violate any clearly established law. Justice Anthony Kennedy filed a concurring opinion, which Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined in part, agreeing with the opinion of the court but making two observations. First, that the ruling leaves unresolved whether the government's use of the material witness statute in this case was lawful. Second, that actions of national office holders must be given deference for qualified immunity purposes where the law of different jurisdictions conflicts, especially when the action taken was consistent with the laws of the jurisdiction where it occurred. Justices Ginsburg and Sotomayor questioned whether the warrant was "validly obtained" if the government failed to disclose to the judicial magistrate issuing the warrant that it had no intention to use al-Kidd as a witness, that he and his family are naturally-born US citizens, and that he in fact had a round-trip flight to Saudi Arabia. Ginsburg further noted that his harsh treatment and detention after being arrested "is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times."
Ashcroft appealed the decision [JURIST report] of the US Court of Appeals for the Ninth Circuit that absolute and qualified [AELE backgrounders] immunity do not shield him from the suit. During oral arguments [JURIST report], counsel for Ashcroft argued that the appellate court's ruling is contrary to precedent that states that intent plays no role in finding that absolute immunity applies to traditional prosecutorial functions, such as issuing material witness warrants. He also argued that, regardless of the finding on absolute immunity, qualified immunity protects officials unless their actions violate constitutional rights, which Ashcroft argues does not occur by using a material witness warrant in a pretextual manner. Counsel for respondent, an American citizen who was detained pursuant to a material witness warrant later found to be factually inaccurate, Al-Kidd argued that qualified immunity does not apply because the detention violated al-Kidd's Fourth Amendment [text] rights. He further argues that absolute immunity does not protect those who would use the material witness warrant to investigate an individual, and that the attorney general should not be permitted to claim greater immunity than the FBI agents that carried out his instructions.