Brief of Amicus Curiae Wesley MacNeil Oliver in Support of the Petition for Writ of Certiorari in John Ashcroft v. Abdullah Al-Kidd

Abstract

The United States Court of Appeals for the Ninth Circuit recently held that a lawsuit could proceed against John Ashcroft in his individual capacity for the way he detained material witnesses after the Terror of September 11, 2001. Ashcroft allegedly used those he believed to be terrorist suspects as material witnesses when he lacked adequate suspicion to bring formal charges. All of these “witnesses” otherwise qualified for detention under the federal material witness detention statute. The Ninth Circuit concluded that this “pretextual” use of the material witness detention statute clearly violated the Fourth Amendment as it circumvented the probable cause threshold required to hold suspects. The court reasoned that no court had previous held this pretextual use of the statute to be unlawful because Ashcroft’s use of the statute was “novel” and “unprecedented.”

This historical claim is false. From 1850 to 1930, material witness detentions were used quite frequently – most often to hold those whom law enforcement officials suspected of criminal activity. In fact, reformers during the era objected to the use of the detentions to hold innocent persons, but seemed to have little or no problem with the use of the power to temporarily hold those suspected of criminal activity. In New York, a law in 1883 forbid the detention of any “witness” whom law enforcement officials did not also suspect of criminal activity. In short, the public was tolerant of the way Ashcroft is alleged to have used the material witness detention statute in this case. The public was outraged when it was used in the only way the Ninth Circuit claims it can be used consistent with the Constitution.

This brief in support of John Ashcroft’s petition for a writ of certiorari was filed on July 23, 2010.

Keywords: : Material Witness Detention, Legal History, Ashcroft, Al-Kidd, Pretext, Terrorism, September 11

JEL Classification: k1