But Four Justices Question Government’s Use of Material Witness Statute for Preventive Detention
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WASHINGTON – The United States Supreme Court today allowed Attorney General John Ashcroft to escape liability for the wrongful arrest and detention of a U.S. Citizen under the material witness law, but four justices raised serious questions about using the statute to justify preventive detention in the future.
The ACLU filed a lawsuit against Ashcroft in 2005 on behalf of Abdullah al-Kidd, a U.S. citizen who was improperly arrested and detained in 2003 as a material witness. The ACLU’s lawsuit charges that al-Kidd’s arrest was part of a pattern of pretextual material witness arrests that occurred after Sept. 11, pursuant to a nationwide policy instituted by Ashcroft.
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. Al-Kidd 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. Yet despite never being called to testify in the case or charged with a crime, al-Kidd was detained for 16 days, moved to three separate federal detention facilities in three different states and was sometimes held naked and shackled hand-and-foot.
In today’s decision, no member of the Court held that the government’s use of the material witness statute was lawful in al-Kidd’s case, and four justices separately wrote that they had real questions about the statute’s use in his arrest and detention.
The following can be attributed to Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project:
“The Court has unfortunately let Attorney General Ashcroft off the hook, but half of the justices who participated in today’s decision expressed real questions about how the government used the material witness statute in al-Kidd’s case. Our hope is that those questions will lead to a serious examination moving forward of the use of the statute as a tool for preventive detention.”