“It is curious that physical courage should be so common in the world and moral courage so rare.” –Mark Twain
In 2003, Abdullah al-Kidd, a native-born United States citizen, was arrested by the FBI. He was detained for 16 days in a high-security cell lit 24 hours a day. He was strip searched and subjected to multiple body cavity inspections. He was handcuffed and shackled about his wrists, legs and waist.
The FBI had no evidence that al-Kidd had committed a crime. He was arrested under the Material Witness Statute, which allows the FBI to arrest individuals who are believed to have knowledge of crimes and are risks to disappear. In the aftermath of September 11, then-Attorney General John Ashcroft authorized federal authorities to use the Material Witness Statute to arrest and detain individuals with suspected ties to terrorist organizations.
Why would he do that? Why would he need the Material Witness Statute to arrest individuals for suspicion of terrorism? The answer is the Fourth Amendment. American citizens have a right to be free from arrest unless the government has probable cause to believe that the citizen committed a crime. In other words, the FBI can arrest suspected terrorists, as long as they have some reliable evidence that the person actually committed a crime. In al-Kidd’s case, the FBI had no real evidence that he had done anything wrong, but they wanted to detain him anyway, so they called him a “material witness” (to a crime someone else was charged with) and arrested him.
Mr. al-Kidd sued Ashcroft for violating his rights. There is a rule that federal employees are immune from this type of lawsuit unless the constitutional right was “clearly established” when the alleged violation took place. The case went to the Supreme Court, and all eight justices who took part in the decision concluded that there was no clearly established right to be free from arrest when the Material Witness Statute was used as a pretext to detain individuals suspected of terrorist ties. Three of the justices would have created such a right.
The court probably got it right. However, the court left open the question of whether Ashcroft’s use of the Material Witness Statute was unconstitutional in the first place. Justice Scalia, who wrote the majority opinion, stated that the court did not need to decide the issue because al-Kidd had not made the proper argument. Of course, Justice Scalia and his fellow conservatives found it necessary to consider an argument in Citizens United that neither party had made. That makes Scalia a hypocrite, but it doesn’t make him wrong in this case (he was wrong the first time, right this time).
Fortunately, the court will have more opportunities to determine whether what Ashcroft did violated the constitution. However, the court could choose to avoid the issue. That would be a shame. The United States is not a country that arbitrarily detains its own citizens. After September 11th, the Bush administration became rattled and violated that principle. The government did something similar (but worse) during World War II. That is a worrying trend. Unless we are prepared to place an asterisk after the Fourth Amendment, the Supreme Court must declare the Ashcroft policy unconstitutional.