Julia Sarnoff

On October 18th, the Supreme Court granted certiorari to its first case of the new term: Ashcroft v. Al-Kidd, 580 F.3d 949 (9thCir. 2009), cert. granted, 2010 U.S. LEXIS 8303 (U.S. Oct. 18, 2010) (No. 10-98), a plea by former U.S. Attorney General John Ashcroft for immunity to a lawsuit alleging that he misused a federal anti-terrorism law. The case concerns the arrest and detention of Nevada resident Abdullah al-Kidd, who was detained for 15 days under a material witness warrant (issuedfor a temporary detention of an individual who was a witness of someone else’s alleged crime when it is believed that the individual will not be available at the time of trial) before being released and held on a form of probation for over a year. Al-Kidd claims that the material witness law was used unconstitutionally to detain suspects that the government had insufficient evidence to arrest otherwise in order to further investigate them as suspects.


The Court limited its review of the case to two issues: whether Ashcroft is entitled to absolute immunity in a case involving a detention under the federal “material witness” law, and whether he is entitled at least to qualified immunity to a Fourth Amendment claim. 


If the 9th circuit’s holding permitting a damages action raising sensitive national security issues to proceed through discovery against Ashcroft is affirmed, Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution’s rule that a suspect may not be arrested without probable cause. Ashcroft’s proponents argue that allowing the case to proceed through discovery threatens to interfere with the ability of high-level government officials to carry out their jobs effectively. However, defendants of the 9th Circuit’s decision are concerned that immunity for Ashcroft in this case will also extend to other Administration officials who violate Constitutional rights in the name of fighting terrorism.


This is the second time the Supreme Court has ruled on a dispute about the Justice Department’s actions during the “war on terrorism.” The first time, with Ashcroft v. Iqbal, 129 U.S. 1937 (2009). Ashcroft was victorious when he was found to be not responsible for the mistreatment of individuals detained in the immediate aftermath of 9/11. The ruling in Ashcroft v. Iqbal made it made it considerably more difficult to bring lawsuits against high-ranking officials – it will be interesting to see how Ashcroft fares this time around.