The Supreme Court today handed down its opinion in Ashcroft v. al-Kidd. The case concerned the Department of Justice's practice after 9/11 of using material witness warrants to detain suspects even though they had no intention of actually calling them as witnesses. Unanimously (with Kagan not participating), the Court held that former Attorney General John Ashcroft was immune from the suit because he had not violated a "clearly established" constitutional right that existed at the time.
The Court left open, however, the question of whether this practice was constitutional (in part because al-Kidd's legal team decided not to argue that the warrant violated the Fourth Amendment). The three concurring opinions by Kennedy, Ginsburg, and Sotomayor (all joined in whole or in part by Breyer), however, all strongly hinted that they would find the practice illegal if a suit addressed the issue on the merits. Ginsburg reminds us about the troubling nature of the practices in question:
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?
Casting further doubt on the assumption that the warrant was validly obtained, the Magistrate Judge was not told that al-Kidd's parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit 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.
As the unanimous judgment on the immunity question reflects, the Court was probably right to conclude that Ashcroft was immune. But the Court should find in a future case that the practice of using warrants as a pretext for holding suspects without probable cause and obtaining them by withholding material information is illegal. It's simply impossible to square what the DOJ did here with the requirements of the Fourth Amendment.
