SUPREME COURT DISMISSES SUIT AGAINST JOHN ASHCROFT

In a rather strange case, yesterday, the Supreme Court decided to dismiss a suit by Abdullah al-Kidd against former Attorney General John Ashcroft on qualified immunity grounds.

Shortly after 9/11, al-Kidd, an American citizen, was arrested as he got on a plane for a trip to Saudi Arabia. He was arrested as a material witness in the trial of Sami Omar al-Hussayen for visa fraud. The government never called Al-Kidd as a witness. He sued Ashcroft alleging that the material witness allegation were merely a pretext to arrest him and to prevent his travel to Saudi Arabia.

To withstand a motion for summary judgment by a prosecutor or law enforcement officers a plaintiff must prove “(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.” If either of the elements are not present the motion for summary judgment is granted. The Court found both elements present. ¹ Justice Scalia writing the opinion pointed to existing law which states that with only a few exceptions an objective test governs the issues of warrants and the subjective views of law enforcement are immaterial. Therefore, assuming that al-Kidd was a material witness it did not matter whether the government actually planned to call him as a witness or the unstated reasons that he was arrested.

One question is what is the value of this case. The answer is little if anything. Since half to the justices participating in the case disagreed with Scalia finding that Ashcroft did not violate al-Kidd’s constitutional or statutory rights it does not have precedential value. The finding that the law was not clearly established at the time of al-Kidd’s prosecution adds nothing to the case law. Furthermore the way the court was presented with the issues prevented several important issues from being presented. As Justice Kennedy pointed out neither party challenged and therefore the court did not decide whether the use of the material witness statute was legal when the prosecution had no intention of calling al-Kidd as a witness in al-Hussayen’s trial. Justice Ginsberg pointed out that also left undecided is the validity of the material witness warrant.

The Court would have been better off denying certiorari or issuing a brief per curiam brief reversing the decision on the grounds that the law was not clear at the time of the arrest.,