Ashcroft v. Al-Kidd


1. Does the former Attorney General have either absolute or qualified immunity when making the determination of whether to apply for a material witness arrant?

2. Does the person seeking a material witness warrant have to actually intend to obtain further testimony from the subject of the warrant?

Oral argument: 
March 2, 2011


The Federal Bureau of Investigation arrested Respondent Abdullah al-Kidd as a material witness in a terrorism case. Al-Kidd sued the former United States Attorney General, Petitioner John Ashcroft, alleging that he used the material witness statute, 18 U.S.C. § 3144, as a pretext to hold and investigate al-Kidd as a terrorism suspect in violation of his Fourth Amendment rights. Ashcroft asserted absolute immunity, claiming that the use of a material arrest warrant constituted a prosecutorial function. He also claimed qualified immunity, on the grounds that there was no established constitutional violation for using a material arrest warrant at the time of the arrest. Al-Kidd contends that Ashcroft is not entitled to either form of immunity because the arrest had an investigative function and no reasonable official could believe that a material witness warrant would authorize the arrest of a suspect without any intent to use the suspect as a witness. The Ninth Circuit Court of Appeals held that Ashcroft was entitled to neither absolute nor qualified immunity. The Supreme Court’s decision will determine the protection available to government officials by resolving the issue of when the government can use material witness warrants in making arrests.


Questions as Framed for the Court by the Parties 

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.

2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent's arrest.


Abdullah Al-Kidd is a United States citizen. After September 11, 2001, the Federal Bureau of Investigation (“FBI”) began investigating various terrorist activities. . As part of a larger investigation, the FBI examined possible terrorist activity that was occurring in Idaho. Following the FBI’s investigation, a lawsuit was brought against Sami Omar Al-Hussayen alleging that he had provided significant technical support to a radical Islamic group in contradiction to the claim on his visa application that he sought entry into the United States to pursue educational objectives. The FBI found evidence of links between al-Kidd and al-Hussayen, but no evidence of al-Kidd’s involvement in any illegal activity.  However, the FBI had learned that al-Kidd had planned to travel to Saudi Arabia.  According to al-Kidd, the purpose of his trip was to improve his language skills and to pursue religious studies at a university.  The prosecuting United States Attorney for the District of Idaho then applied to a magistrate judge in Idaho for a material witness warrant, pursuant to 18 U.S.C. § 3144, and arrested al-Kidd claiming that his testimony was material to al-Hussayen’s prosecution. The magistrate judge issued the warrant partially on the basis of an affidavit by an FBI agent stating that al-Kidd’s testimony would be “crucial” in supporting the government’s case against al-Hussayen. The FBI agent also affirmed that al-Kidd had a one-way first-class ticket to Saudi Arabia, when in fact he had purchased a round-trip coach ticket. Similarly, the agent claimed that al-Hussayen had paid al-Kidd over $20,000 and that the two men had met shortly after al-Kidd had returned from a trip to Yemen. 

Al-Kidd was arrested at the airport before his flight to Saudi Arabia and he was interrogated about his religious beliefs and plans to travel abroad.  Al-Kidd was then brought before a magistrate judge in Virginia where he agreed to be transferred to Idaho. Nine days after the transferAl-Kidd appeared before a magistrate judge. Al-Kidd was released from custody but was subject to the following conditions: that he live with his wife in Nevada; that he surrender his passport; and that he restrict his travel to Nevada and three other states only. Altogether, al-Kidd spent fifteen nights in jail where he was subject to the same searches and security routines as convicted criminals.The government prosecuted al-Hussayen, and his trial was completed in June 2004. Al-Hussayen, however, was not convicted of the charges.  During the trial, the government did not use any testimony from al-Kidd, and al-Kidd was never charged with a crime. After the close of trial, al-Kidd moved to lift the restrictions on his movement, and the trial court granted the motion. 

Al-Kidd sued United States Attorney General John Ashcroft in March 2005 in the District Court of Idaho claiming that Ashcroft had instituted a policy of misusing the material witness statute and that there were misleading statements in the affidavit that led to the issuance of the material witness warrant for his arrest. Ashcroft asserted defenses of qualified immunity and absolute immunity and moved to dismiss the lawsuit. The district court denied the motion to dismiss and held that Ashcroft could not claim immunity.  Ashcroft filed an interlocutory appeal, and the United States Court of Appeals for the Ninth Circuit held that Ashcroft was not entitled to either absolute or qualified immunity. The Supreme Court of the United States granted the petition for certiorari on October 18, 2010. 


In March 2005, al-Kidd sued Ashcroft and others for violations of his Fourth and Fifth Amendment rights based on the theory that the former Attorney General used the material witness warrant to illegally seize and hold al-Kidd as a suspect, as part of a general policy of using the statute as a pretext to hold suspected terrorists whom the government had insufficient evidence to arrest.   Ashcroft argues that he has absolute immunity from al-Kidd’s claims because the decision to use a material witness warrant is a prosecutorial decision.   Ashcroft alternatively claims that he has qualified immunity from al-Kidd’s claims because, even if the government’s use of a material witness warrant was unconstitutional under the circumstances, a reasonable official would not have known it was unconstitutional.  Al-Kidd, in turn, states that Ashcroft has no absolute immunity because under the circumstances the material witness warrant served an investigative, rather than prosecutorial, function.   Al-Kidd also asserts that Ashcroft’s qualified immunity argument fails because no reasonable official could believe that using a material witness warrant under the circumstances was legal. 

Is using a material witness warrant a prosecutorial function that inherently provides the actor with absolute immunity?

Ashcroft argues that, under well-established precedent, prosecutors have absolute immunity in a suit for damages when acting “within the scope of [their] prosecutorial duties.”  The scope of a prosecutor’s duties, Ashcroft claims, extends beyond the courtroom.   To determine whether an act is a prosecutorial duty, Ashcroft states that the Court looks to see if an act’s function is a “traditional function of an advocate,” regardless of the prosecutor’s actual motive or intent.  Ashcroft maintains that the need for prosecutors to carry out their public duties free from distractions and fear of retaliation, combined with other checks on prosecutorial misconduct, outweigh the danger of harm from the occasional rogue prosecutor who abuses his position.  Accordingly, Ashcroft contends that absolute immunity must protect even a prosecutorial function carried out in bad faith.  

Al-Kidd asserts that to receive absolute immunity for an act, prosecutors must show that the act’s purpose is prosecutorial in nature.   Al-Kidd states that only a fact-specific examination of each case determines “the precise function in which a prosecutor was engaged.”   Rather than ignore a prosecutor’s motives entirely, as Ashcroft suggests, al-Kidd claims that motives are highly relevant to allow a court to decide whether the act was prosecutorial in nature at all.   Al-Kidd contends that different actors can perform similar conduct “for different reasons and to advance different functions,” and that a court must look at the reasons and functions to determine whether the act’s purpose warrants absolute immunity. 

Ashcroft believes that, under the function test, the decision to request and use a material witness warrant is a protected prosecutorial act for which a prosecutor has absolute immunity.  Specifically, Ashcroft asserts that getting a warrant bears on the prosecutorial functions of deciding which witnesses have necessary testimony and which witnesses to use during trial.   Furthermore, Ashcroft argues that getting a material witness warrant is “intimately associated with the judicial phase of a criminal process,” in part because of the statutory requirement that the prosecutor show that the witness’s testimony is material to the process.  Accordingly, Ashcroft claims that applying for a material witness warrant is a prosecutorial function protected by absolute immunity. 

In response, al-Kidd contends that material witness warrants are not prosecutorial functions protected by absolute immunity under the common law.  But regardless of common law precedent, in this case, al-Kidd claims that prosecutors used the material witness warrant as an investigative tool to detain al-Kidd rather than as a prosecutorial decision pertaining to the trial of al-Hussayen.  Al-Kidd points to the fact that the government never deposed him or called him to testify, and that the FBI director described al-Kidd’s capture as a “major success” against terrorism, as evidence that the material witness warrant was a only a pretext to keep al-Kidd in the country for further investigation.  Just as investigative functions do not absolutely shield police officers from suit, al-Kidd argues, a prosecutor conducting an investigative function should not receive absolute immunity.  

Does the use of a material witness warrant to hold and investigate a suspect entitle the arresting official to qualified immunity?

Ashcroft maintains that qualified immunity protects government officials as long as their actions do not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Furthermore, Ashcroft stresses, a court should examine reasonableness objectively.   In other words, as with his absolute immunity argument, Ashcroft asserts that a government official’s subjective purpose in making an arrest does not matter as long as objective facts support the action.   Specifically, Ashcroft argues that an arrest under the material witness warrant does not violate the Fourth Amendment, regardless of the subjective motives of the arresting official.  Additionally, Ashcroft claims that at the time of al-Kidd’s arrest there was no constitutional rule barring officials from using a material witness warrant for the “‘immediate purpose’ of investigating or detaining the witness.”  Ashcroft points to the eight judges on the lower court who did not see a constitutional problem as evidence that reasonable officers could disagree about the legality of the use of a material witness warrant for the government’s purposes.   Accordingly, Ashcroft believes the use of a material witness warrant in this case justifies qualified immunity. 

Al-Kidd claims that any reasonable officer would have known that he could not use a material witness warrant to hold and investigate a suspect with no intent to secure the suspect’s testimony for a trial.  Al-Kidd contends that the material witness statute, if constitutional, only authorizes arrest for the purpose of securing witness testimony.   Accordingly, al-Kidd asserts, the Court should adopt the standard that if the government “would not have sought the warrant but for its interest in detaining and investigating the witness himself,” then the government violated the Fourth Amendment and the material witness statute.   The Fourth Amendment, al-Kidd argues, protects individuals from arrest for other purposes, such as investigation as a suspect, without “probable cause of wrongdoing.”  Al-Kidd does not insist that an arrest for investigation and detention purposes under the material witness statute inherently violates the Constitution, but rather that such a purpose violates the Constitution when it is the only purpose for the arrest.   Al-Kidd states that no reasonable official could realistically believe that it is constitutional to arrest a suspect on a material witness warrant with no intent to use the suspect as a witness, and therefore that Ashcroft cannot receive qualified immunity for the arrest of al-Kidd.  


The material witness statute provides that a warrant can be issued to secure the presence or testimony, or both, of a material witness in a criminal matter; the warrant is issued if a party files an affidavit stating that the testimony of that person is material to the case and that a subpoena may not be sufficient to obtain the presence of the witness at trial.  In the present case, former United States Attorney General John Ashcroft claims that he is protected by either absolute immunity, or in the alternative, qualified immunity regarding his role in the issuance of a material witness warrant for Abdullah al-Kidd.   However, al-Kidd maintains that the warrant was issued as a mere pretext to allow the federal government to investigate his activity and detain him without probable cause.  In determining the contours of the immunity doctrine in this case, the Supreme Court will have to balance the interests of the federal government in prosecuting cases without fear of reprisal against the Fourth Amendment rights of an American citizen.


The Washington Legal Foundation and five former Attorneys General of United States (collectively “WLF”) assert that the material witness statute is an important tool for prosecutors to both ensure the availability of individuals who have important testimony regarding a pending case and further investigate those who, aside from being a material witness, are also suspected of being involved in criminal activities.  The WLF states that the importance of material witness warrants is evidenced by their adoption in every state. The WLF further contends that if immunity is not provided with regards to the issuance of these warrants, it will deter their use by the government because the prosecutor will not want to risk being subject to personal liability, even when the warrant would be a valid and useful tool in prosecuting crimes.  In effect,the WLF maintains that this places the prosecutor in a difficult position when there is a witness who the prosecutor intends to investigate further, but also whose testimony is material to a criminal proceeding. 

In contrast, former federal prosecutors (“FFP”) argue that a lack of immunity would not deter prosecutors from issuing a material witness warrant when there is the dual goal of securing testimony and further investigating the witness. The FFP maintain that there should be no fear of a successful suit as long as there is a genuine intent to secure testimony. 

In response, the WLF contends that although it may be possible for a prosecutor to prevail eventually in a case regarding the issuance of a material witness warrant, the initial litigation is what the immunity doctrine is designed to prevent.The WLF maintains that permitting these suits will place significant and unnecessary burdens on prosecutors. 


Fourth Amendment Concerns

The FFP maintains that permitting prosecutorial immunity for purely pretextual uses of material witness warrants would allow prosecutors to ignore an individual’s Fourth Amendment rights.  The FFP argues that if a material witness warrant can be issued when there is no intention of using the subject’s testimony at trial, it would permit the government to detain an individual without probable cause while police search for evidence of criminal behavior. 

Similarly, a group of legal scholars (“LS”) argue that extending absolute immunity to this case is particularly dangerous because there are no checks to ensure that the process is not abused. For example,LS contends that there is less judicial oversight of the arrested witness and therefore more opportunity for abuse. LS also notes that particularly in this situation, where Ashcroft has no supervisors as a practical matter, there is not enough oversight to ensure that the material witness warrant is not abused. 

In contrast, WLF argues that there is no Fourth Amendment violation in the present case.  The WLF maintains that because al-Kidd is not arguing that the material witness statute is invalid, as long as Attorney General Ashcroft complied with the statutory requirements, there can be no question of the constitutionality of his action.  The WLF further contends that the statute was properly applied, and as a result, a Fourth Amendment violation cannot arise. 



The issue in this case is whether the Supreme Court will extend prosecutorial immunity to cover the issuance of a material witness warrant. Ashcroft argues that absolute, or at least partial, immunity should cover this action because it is closely tied to the judicial process. Similarly, Ashcroft maintains that a lack of immunity will significantly impair the value of the material witness warrant as a tool in the prosecution of criminal activity. On the other hand, al-Kidd contends that the use of the material witness warrant in this case violated his Fourth Amendment rights. Al-Kidd maintains that permitting prosecutorial immunity for this procedure will open the door to its abuse. The Supreme Court’s decision will determine the boundaries of prosecutorial immunity and whether, shielded by that immunity, prosecutors can use the material witness warrant as a tool for investigating and detaining suspects without having to generate enough evidence of wrongdoing to support an arrest.


The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

Additional Resources 

 The Washington Post, Robert Barnes: Supreme Court to Decide whether Ashcroft can be Sued by Detained Citizen (Oct. 18, 2010)

· The New York Times, Adam Liptak: Justices to Hear Appeal over Liability for Detention (Oct. 18, 2010)