There's a guy suing former Attorney General John Ashcroft. Why? The story begins a few years ago.

After September 11, the government shifted toward more aggressive policies in hunting down potential terrorists. One such change was in the use of material witness warrants, which are typically meant to ensure a witness will show up at trial. But in the court of the war on terror, prosecutors begin using them to arrest and further investigate people with suspected terrorist ties. One of those people was Abdullah al-Kidd, an American-born Muslim convert who was detained for 15 days under a material witness warrant, but never made to testify. Al-Kidd said it was all just an excuse to dig up more dirt on him, and now he wants to sue former Attorney General John Ashcroft. The Supreme Court heard oral arguments today over whether he can do that.

In 2003, the FBI used a misleading material witness warrant so it could detain Abdullah al-Kidd, who'd been cooperating with them as they investigated his friend, Sami al-Hussayen. Al-Kidd had been awarded a scholarship to study in Saudi Arabia, and was waiting to board a flight when he was arrested, NPR's Nina Totenberg reports. The FBI had told a judge that al-Kidd had a one-way ticket when it was really round trip, that the ticket was first-class when it was coach, that it cost $5,000 when it really cost $1,700. They didn't tell the magistrate that al-Kidd was born in the U.S. ... or that his parents were born in the U.S. ... or that he had been cooperating with the FBI ... or that they'd never told him not to travel.

His arrest was hailed by then-FBI Director Robert Mueller as one of five big counter-terror achievements--right up there with Khalid Sheikh Mohammed's arrest--when Mueller testified before Congress. But al-Kidd was never made to testify about al-Hussayen, and al-Hussayen was not convicted of any charges.

The Supreme Court has prevented civil liberties groups from suing Ashcroft before, because such high-ranking officials couldn't be tied closely enough to individual cases. The Obama administration says that allowing officials like Ashcroft to be sued would make it harder for them to do their jobs. But al-Kidd points to statements by Ashcroft and other officials--Mueller for example--that show authorities were using material witness warrants in a rather suspect fashion. As veteran Supreme Court-covering journalist Lyle Denniston explains, al-Kidd's lawsuit contends "that, after 9/11, Ashcroft had instituted a policy of using the material witness law as a pretext, to hold people like him when it actually had no evidence that would justify his arrest as a criminal suspect." Al-Kidd says his arrest violated his Fourth Amendment rights "on the theory that a prosecutor is barred from seeking a material witness arrest warrant with the real motive of investigation or detention."

Ashcroft unsuccessfully tried to have the case dismissed on ground that he had legal immunity as attorney general. Then he appealed to the Ninth Circuit Court, which said Ashcroft didn't have absolute immunity or "qualified immunity" to al-Kidd's Fourth Amendment claim. The Justice Department appealed to the Supreme Court. How might the justices decide?

Denniston says that, on the one hand, the Court doesn't like limiting what prosecutors can do. And at least some of the justices have shown they don't want to limit how the government responds to terrorism.

But if the Court looks at the history of the material witness law, and its centuries-long focus on securing testimony and not on allowing detention, it may well be more willing to consider some tightening of the boundaries of that law. The difficulty of doing so in this case, however, is that the appeal is presented solely as a question of immunity — for or against it. Thus, the case is not a straightforward issue of statutory interpretation, but rather an examination of what the Fourth Amendment allows or does not allow in arranging to round up and hold individuals for reasons other than securing their testimony.


The Washington Post's editorial board thinks the Court should rule in Ashcroft's favor, because officials like him can only lose immunity if they violate "clearly established constitutional norms." Back in 2003, "there was no legal precedent on which Mr. Ashcroft could rely" in figuring out whether he could expand the use of a material witness warrant.