ACLU Material Witness Case Heads to Supreme Court

Oct. 19, 2010 aclu.org

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.