Case 1:05-cv-00093-EJL-MHW Document 1 Filed 03/15/05 Page 1 of 29

R. KEITH ROARK. ISB No. 2230 Kei th(c/:roark law .com THE ROARK LAW F!Rl\1. LLP 409 N. Main St. Hailey. lD 83333 (208) 788-2427 Fax: (208) 788-3918
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KATHLEEN J. ELLIOTT. ISB No. 4359 kje@.hampton-clliott.com TERESA A. HAMPTON. ISB No. 4364 tah@hampton-clliott.com HAMPTON & ELLIOTT 912 North 8'h Street Boise, ID 83302 (208) 384-5456 Fax: (208) 384-5476

5\l

UC\JITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAIIO . ---- ---- --- - - -- - - -- -·- -------- --- -·- --'
ABDULLAH AL-KIDD,
Plaintiff.
v.
ALBERTO GONZALES. Attorney General of the United States: JOHN ASHCROFT. Former Attorney General of the United States; ROBERT MUELLER, Director ofth~ Federal Bureau of Investigation: MICIIAFL CHERTOFF. Secretary of the Department of Homeland Security and Former Assistant Attorney General of the Department of Justice: JAMES DlJNNING. Warden. Alexandria Detention Center:
COMPLAINT- I

CASE NO.
COMPLAINT AND DEMAND FOR JURY TRIAL

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DENNIS M. CALLAHAN, Warden, Oklahoma Federal Transfer Center; VAUGHN KILLEEN, former Warden, Ada County Jail: FBI Agents MICHAEL JAMES GNECKOW, SCOTT MACE; UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; FEDERAL BUREAU OF INVESTIGATION; TERRORIST SCREENING CENTER; DON'NA BUCELLA, Director of the Terrorist Screening Center; .JOHN DOES 1-25,
Defendants.
Plaintiff Abdullah al-Kidd, through counsel, hereby complains and alleges the following: INTRODUCTION
1. Abdullah al-Kicld, a United States Citizen born in Wichita, Kansas, was unlawfully arrested and detained as a material witness in March 2003. For 15 days he was cletainccl and treated not as a witness, but as a terrorist suspect. Among other things, he was held in 24-hour lockdown in maximum-security facilities; transported between three different prisons in three different states, bound each time in wrist, arm and waist shackles; and singled out and forced to sit naked in a public holding cell for hours in front of dozens of clothed inmates and guards, at least one of whom was female. Even after he was released, his freedom was severely curtailed
even bother to call Mr. al-Kidd as a witness. 2. Mr. al-Kidd now brings this action against various federal and state officials and
agencies to vindicate his right to be free from unlawful and arbitrary arrest and detention. He seeks declaratory and injunctive relief as well as damages.
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JURISDICTION AND VENUE 3. This case is brought pursuant to, inter alia. the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, and 42 U.S.C. ~ 1983. This CoU11 has jurisdiction under 28 U.S.C. ~ 1331,28 U.S.C. § 1343,28 U.S.C. § 2201, and 28 U.S.C. § 2202. 4. Venue is proper in the District of Idaho because a substantial part of the events complained of giving rise to Plaintiffs claim occuned in this District. 28 U.S.C. §§ 1391(b), 1391(e).
PARTIES 5. Plaintiff ABDULLAH AL-KIDD is a United States citizen living in Las Vegas, Nevada. 6. Defendant ALBERTO GONZALES is the Attorney General of the United States of America. As Attorney General, he has ultimate responsibility for the United States Department of Justice and the Federal Bureau oflnvestigation, the Bureau of Prisons and the United States Marshals Service. In this capacity, Defendant Gonzales has responsibility for administering the material witness statute, and also has oversight of various databases that contain and disseminate anest and detention records. Defendant Gonzales is the successor to John Ashcroft, who served as Attorney General of the United States until November 9, 2004. Defendant Gonzales is sued in his official capacity. 7. Defendant JOHN ASHCROFT was the Attomcy General of the United States of America from February I, 2001 to November 9, 2004, and at the time Mr. al-Kidd was arrested and confined. In this capacity, Defendant Ashcroft had responsibility for administering the material witness statLLte, and also had responsibility for the maintenance and operation of various
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databases that contain and disseminate arrest and detention records. Defendant Ashcroft is sued in his individual capacity.
8. Defendant ROBERT MUELLER is the Director of the Federal Bureau of Investigation. As Director, he has responsibility for administering the material witness statute and also has responsibility for the maintenance and operation of various databases that contain and disseminate arrest and detention records. Defendant Mueller is sued in his official capacity.
9. MICHAEL CHERTOFF is the current Secretary of the Department of Homeland Security. As the Secretary of Homeland Security, he has responsibility for the maintenance and operation of various databases that contain and disseminate arrest and detention records. As Secretary of Homeland Security, Defendant Chertoffis sued in his official capacity. Defendant Chertoffwas also the former Assistant Attorney General for the Criminal Division of the Depm1ment of Ju;tice from May 9, 2001 to June 9, 2003, and occupied this position at the time Mr. ai-Kidd was arrested and detained. While Assistant Attorney General, Defendant Chcrtoff had responsibility for overseeing the implementation and administration of the material witness statute. As the former Assistant Attorney General, Defendant Chertoffis sued in his individual capacity.
10. Defendant SCOTT MACE was the FBI agent who prepared and signed the affidavit submitted in support of the application to arrest Mr. al-Kidd as a material witness ("affidavit"). Defendant Mace is sued in his individual capacity.
11. Defendant MICHAEL JAMES GNECKOW was an FBI agent at the time Mr. a!Kidd \\US arrested and detained. According to the affidavit submitted in suppm1 of the material witness application in Mr. al-Kidd's case, Defendant Gneckow provided Defendant Mace with some of the facts used in the affidavit. Defendant Gneckow is sued in his individual capacity.
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12. Defendant JAMES DUl\NING, at all relevant times to this complaint, was the Warden for the Alexandria Detention Center. While Warden, Defendant Dunning had responsibility for the conditions under which Mr. al-Kidd was confined. While Warden, Defendant Dunning subjected Mr. ai-Kidd to unreasonable and excessively harsh conditions in violation of the Constitution and federal statutes. Defendant Dunning is sued in his individual capacity.
13. Defendant DENNIS M. CALLAHAN, at all relevant times to this complaint, was the Warden for the Oklahoma Federal Transfer Center. While Warden, Defendant Callahan had responsibility for the conditions under which Mr. al-Kidd was confined. While Warden, Defendant Callahan subjected Mr. ai-Kidd to unreasonable and excessively harsh conditions in violation of the Constitution and federal statutes. Defendant Callahan is sued in his individual capacity.
14. Defendant VAUGHN KILLEEN, at all relevant times to this complaint, was the Warden for the Ada County Jail. While Warden, Defendant Killeen had responsibility for the conditions under which Mr. al-Kidd was con lined. While Warden, Defendant Killeen subjected Mr. ai-Kidd to unreasonable and excessively harsh conditions in violation of the Constitution and federal statutes. Defendant Killeen is sued in his individual capacity.
15. Defendant UNITED STATES DEPARTMENT OF JUSTICE ("DOJ") is a federal agency authorized by statute to arrest material witnesses, impose conditions of conlinement on material witnesses. and to administer and maintain various databases containing and disseminating arrest and detention records and other infor111ation.
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16. Defendant UNITED STATES DEPARTMENT OF HOMELAND SECURITY ("'DHS") is a federal agency that also operates and maintains federal databases that contain and disseminate arrest, detention, and other homeland-security related records.
17. Defendant FEDERAL BUREAU OF INVESTIGATlON ("FBI") is the agency within DOJ responsible for gathering intelligence for material witness and criminal proceedings, and administering cer1ain databases that contain and disseminate detention, an·est, and other records.
18. Defendant TERRORIST SCREENING CENTER is a multi-agency program established by Homeland Security Presidential Directive 6 and housed within the FBI to centralize foreign and domestic intelligence, criminal information, and homeland security data for dissemination to law enforcement officials and others.
19. Defendant DONNA BUCELLA is the Director of the Terrorist Screening Center and has ultimate responsibility for the Center's actions, including the maintenance and dissemination of arrest, detention, and other records relating to terrorism investigations. Defendant Bucella is sued in her individual capacity.
20. Plaintiff1s unaware of the true names and capacities, whether individual or otherwise, of Defendants DOES I through 25, inclusive, and therefore sues those defendants by fictitious names. Plaintiff is infom1ed and believes, and on that basis alleges, that these DOE defendants, and each of them, are in some manner responsible and liable for the acts and/or damages alleged in this Complaint. and that among these DOE defendants are supervisory employees and federal and state agents who acted under color of law. Plaintiff will amend this Complaint to allege the DOE defendants' true names and capacities when they have been ascertained.
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Jt:RYDEMAND 21. Plaintiff demands a trial by jury in this action on each of his claims triable by jury.
FACTS The Material Witness Warrant
22. On February 13, 2003, an Indictment was filed in the United States District Court for the District of Idaho in the case of Sami Omar Al Hussaycn, a graduate student at the University ofldaho. The Indictment alleged that Mr. Al Hussayen had committed visa fraud and had made false statements to United States officials.
23. Approximately one month later, on March 14, 2003, the United States Attorney's Office submitted an application in the United States District Court for the District of Idaho for the anest ofPlaintiffAbdullah al-Kidd as a material witness. According to the government, Mr. al-Kidd had infom1ation gern1ane to Mr. Al Hussayen 's criminal trial, which was not scheduled to begin for more than a year.
24. United States Magistrate Judge Mikel Williams for the District of Idaho approved the application and issued the material anest warrant for Mr. al-Kidd on March 14, 2003, the same day as the government's request.
25. The government sought the anest warrant for Mr. al-Kidd pursuant to 28 U.S.C. § 3144 (the federal material witness statute). Under the statute, the federal government is authorized to arrest and detain an individual who has not been charged with a crime and is sought only as a witness in a criminal proceeding. But this extraordinary power is carefully circumscribed and can only be exercised under nanow circumstances.
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26. To secure a material "itness warrant, the government must demonstrate probable cause to believe that the witness has information relevant to a criminal proceeding and that the testimony could not he secured without an arrest. See 28 C.S.C. § 3144.
27. Even where these statutory conditions are satisfied, the government must, if possible, depose a material witness and release him from custody.
28. Even if a material witness is not amenable to subpoena, and even if a deposition of that person would not suffice, the government must impose the least restrictive constraints possible on such a person sufficient to insure his presence at trial.
29. The material witness application submitted by the United States Attorney in Idaho for Mr. ai-Kidd's arrest was based on a single affidavit, executed by FBI agent Mace. The affidavit stated that Agent Mace relied on facts acquired and supplied by FBI agent Gneckow and other law enforcement officials. Both Agents Mace and Gneckow are defendants in this action.
30. The 3-pagc affidavit consisted of only one substantive paragraph pertaining to whether Mr. a!-Kidd' s testimony could be secured voluntarily, without the need for an arrest. The affidavit likewise contained oniy one substantive paragraph pertaining to whether Mr. aiKidd had information that was material to Mr. AI Hussayen's criminal proceeding.
31. The single substantive paragraph addressing whether Mr. al-Kidd's testimony could have been secured without the need for an arrest stated only that:
Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia.
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Affidavit at ,17 (application and affidavit attached as Exhibit "A"); id. at ,i 8 (offering the one-
line conclusion that "[i]t is believed that if Al-Kidd travels to Saudi Arabia, the United States GO\nnment will be unable to secure his presence at trial via subpoena").
32. The affidavit, on its face, failed to establish probable cause that Mr. al-Kidd's testimony could not be secured voluntarily or by subpoena.
33. Defendants Mace and Gneckow knew or reasonably should have known that the affidavit failed to establish probable cause that Mr. al-Kidd would decline to testify voluntarily, without arrest.
34. Defendants Mace and Gneckow knew or reasonably should have known that there was not in fact probable cause to believe that Mr. al-Kidd would decline to testify voluntarily, without aJTest.
35. Furthermore, the affidavit contained false and misleading infonnation. Mr. al-Kidd had a round-trip ticket, not a one-way ticket, as wrongfully alleged in the affidavit.
36. Defendants Mace and Gneckow knew or reasonably should have known that the affidavit contained false and misleading information.
37. Defendants Mace and Gneckow acted intentionaiiy, knowingly, and/or with deliberate indifference in submitting a false and misleading affidavit in support of the warrant.
38. Upon infonnation and belief, Magistrate Judge Williams would not have signed the material arrest warrant against Mr. al-Kidd had he known that the affidavit contained false and/or misleading information.
39. The affidavit also omitted critical information that was directly material to whether there was probable cause to believe that Mr. al-Kidd's testimony could be secured only by his arrest.
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40. Among other things, the affidavit did not inform the Court that: Mr. al-Kidd had made himself available and fully cooperated with the FBI on at least three prior occasions and sat for extensive interviews on these occasions: that in these prior interviews Mr. al-Kidd was forthcoming; that Mr. al-Kidd was a Cnited States citizen born in 1972 in Kansas; that his mother and father are United States citizens and were living in the United States; that he was a father and husband and that his wife and two children lived in the Cnited States; that he had strong community tics as a long-tenn social worker; that he attended the University of Idaho on a football scholarship; and that after graduating he remained in Idaho and engaged in extensive charitable and social work in the community.
41. Defendants Mace and Gneckow were aware of, or reasonably should have been aware of, the foregoing facts omitted from the affidavit.
42. Defendants Mace and Gneckow acted intentionally, knowingly, and/or with deliberate indifference in submitting an affidavit that omitted critical facts relevant to whether there was probable cause to believe Mr. ai-Kidd would have testified voluntarily, without arrest.
43. Mr. al-Kidd's trip to Saudi Arabia was for the purpose of language and religious study. At no time did Defendants Mace or Gneckow, or any other official of the United States, tell Mr. al-Kidd that he should consult with the government before he scheduled a trip abroad.
44. At no time did Defendants Mace or Gneckow, or any other official of the United States, contact Mr. al-Kidd to inquire whether he would testify voluntarily, without the need for an arrest warrant. Similarly, at no time did Defendants Mace or Gneckow, or any other official of the United States, contact Mr. al-Kidd to ask whether he would postpone his trip to Saudi Arabia.
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45. Mr. ai-Kidd would have voluntarily complied with a subpoena had he been issued one. Mr. al-Kidd would have voluntarily postponed or cancelled his study trip to Saudi Arabia had Agents Mace, Gneckow, or any other FBI agent so requested.
46. The affidavit submitted in support of the material arrest warrant was also invalid and unlawful on the separate and independent ground that it did not establish probable cause to believe that Mr. al-Kidd had information that was material to Al Hussayen's criminal proceeding.
47. Defendants Mace and Gneckow knew or reasonably should have known that the affidavit was materially misleading as to Mr. al-Kidd's relationship with AI Hussayen. Defendants Mace and Gneckow acted intentionally, knowingly, and/or with deliberate indifference to the misleading nature of the affidavit.
48. Among other things, the affidavit stated that Mr. al-Kidd had material information because he or his wife received payments from AI Hussayen "and his associates in excess of S20,000." In fact, defendants knew or reasonably should have known that Mr. al-Kidd worked for the same charitable Islamic organization as Mr. AI Hussayen and received a salary for assisting \Vith English language classes, speaking engagements, and publishing English manuals on Islam for prisoners.
49. Without the misleading portions of the affidavit, the warrant application did not contain sufficient detail to establish that there was probable cause to believe that Mr. al-Kidd had testimony relevant to the trial of AI Hussayen. Even with the misleading portions, the affidavit still did not establish that there was probable cause to believe that Mr. al-Kidd would have relevant testimony.
CO:V!PLAINT - II

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50. Defendants Mace and Gneckow acted under color of law in preparing and executing the affida\it in suppon of the material witness application in Mr. ai-Kidd's case.
51. Defendants Mace and Gneckow acted intentionally, knowingly, and/or with deliberate indifference to the constitutional and legal rights of Mr. ai-Kidd.
52. Defendants Mace and Gneckow knew or reasonably should have known that the consequences of their actions would result in the unlawful arrest of Mr. al-Kidd, and would also subject Mr. al-Kidd to unreasonable and unlawful use of force, unconstitutional conditions of confinement, and to punishment without due process. Mr. al-Kidd's Arrest
53. Two days after the warrant issued, on March 16, 2003, FBI agents arrested Mr. alKidd as a material witness pursuant to the March 14 warrant issued in Idaho; between the 141h and 16'h of March, the government did not contact Mr. ai-Kidd to ask whether he would voluntarily meet with the FBI, postpone his trip or relinquish his passpon. Instead, FBI agents humiliatingly arrested and handcuffed him at the Dulles International Airpm1 in Virginia shoniy before his flight.
54. i\t the ticket counter, FBI agents confiscated his passport. ~v1r. a1-Kidd infonned the agents that he would cooperate. The agents did not inform Mr. al-Kidd of his right to a lawyer or provide him with a copy of the atTest warrant.
55. After his arrest at the ticket counter, the FBI agents walked Mr. ai-Kidd in handcuffs through the airport, as onlookers stared at them. Mr. al-Kidd was then driven to a police substation near the airport, where he was placed in a holding cell alone.
56. After approximately one hour in the holding cell, the agents brought Mr. ai-Kidd to an interrogation room, where he was informed that he did not have to talk, but that if he
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cooperated the matter might be resolved and he could continue on his flight. Mr. al-Kidd agreed to talk and was interrogated at length. The agents questioned Mr. al-Kidd about his beliefs, conversion to Islam, and his travels. He repeatedly assured the government agents that he would testify in the trial ifncccssary and that he would make himself available for subpoena at any time that he was requested to do so.
57. After the interrogation, Mr. al-Kidd was taken back to the holding cell, where he was again handcuffed and taken to the Alexandria Detention Center in Virginia. Detention Conditions
58. Mr. al-Kidd was ultimately detained for 15 days, until his release in Boise on March 31, 2003. During this time, he was held in three different facilities: the Alexandria Detention Center in Virginia, the Federal Transfer Center in Oklahoma, and the Ada County Jail in Boise, Idaho. In each facility, he was treated as if he were a terrorist suspect, rather than a witness, and subjected to humiliating, punitive and excessively harsh conditions and restrictions on his liberty.
59. When Mr. al-Kidd was transferred between detention centers, Mr. al-Kidd was treated as if he were a terrorist suspect, rather than a witness, and subjected to humiliating, punitive and excessively harsh conditions and restrictions on his liberty. Alexandria Detention Center
60. At the Alexandria Detention Center in Virginia (his first stop), he was placed in the lockdown unit of the facility, in a small cell with one other inmate.
61. On March 17,2003 Mr. al-Kidd was taken to the United States District Court for the Eastern District of Virginia, where the government moved to continue his detention without bond until he could be transfened to Idaho, which the government said would be done as quickly as possible. United States :'v1agistrate Judge Liam O'Grady asked whether Mr. al-Kidd wanted to
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have his detention hearing in the Eastern District of Virginia within the next three days or instead be transferred to Boise, Idaho for the hearing. The Magistrate .Judge further advised Mr. al-Kidd that it might be in his interest to be transferred to Boise where people were more familiar with his case. \llr. ai-Kidd expressed concern about how long it would take to have his hearing in Idaho. Without the aid of an attorney and feeling overwhelmed, Mr. al-Kidd agreed to be transferred to Boise on the assumption that the transfer would occur quickly.
62. Two days after his court appearance without counsel, on March 19, 2003, Mr. aiKidd was removed from lockdown at the Alexandra facility and strip-searched. Mr. al-Kidd was then transferred to the maximum-security unit of the jail. Upon information and belief, Mr. alKidd was held in the same cell where John Walker Lindh and Zacarias Moussaoui, two individuals who have been charged with terrorist offenses by the United States, had been detained.
63. Mr. al-Kidd spent the next five days in the maximum-security unit of the Alexandria Detention Center, in solitary confinement, for 23-hours a day in a small cell called the "the hole."
64. Upon information and belief, n1any, if not most, of the other imnatcs in the maximum-security unit had been charged or convicted of serious crimes.
65. On March 24, 2003, eight days after his arrest, Mr. al-Kidd was taken to a processing room where employees of the U.S. Marshals Service handcuffed his hands and legs, chained his waist, and then lmked his waist cham to a blue box on his hands, which was padlocked.
66. Agents of the Marshals Service then escorted Mr. al-Kidd in handcuffs, shackles, and chains to an airfield and onto a special "Conair" plane. He remained shackled for the entire trip
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as he was transported, with approximately 100 other individuals, to the Federal Transfer Center in Oklahoma.
67. Upon infonnation and belief, many of the individuals with whom he was transfened had been charged or convicted of serious offenses, including murder.
68. While Warden, and acting under color of law, Defendant Dunning had ultimate responsibility and oversight for the unlawful, excessive, and punitive manner in which Mr. aiKidd was held in the Alexandria facility.
69. While Warden, Defendant Dunning knew or should have reasonably known that Mr. al-Kidd was being subjected to unlawful, excessive, and punitive detention conditions.
70. While Warden, Defendant Dunning acted intentionally, knowingly, and/or with deliberate indifference to the constitutional and legal rights of Mr. al-Kidd to be free from unlawful, excessive, and punitive detention conditions. Oklahoma Federal Transfer Center
71. At the Oklahoma Federal Transfer Center, Mr. al-Kidd and the other detainees from the plane were brought to a small room. After waiting for approximately one and one-half hours, !\1r. al-Kidd v/as ordered to ren1ovc his clothes in front of other detainees and sit in a cell alone, completely naked, in plain view of other inmates and guards, including at least one female guard. Other inmates were permitted to remain clothed and were processed. Mr. al-Kidd remained naked in his holding cell until every other detainee had been processed.
72. After all the inmates had been processed, Mr. al-Kidd was processed. He was then placed him in solitary confinement in the Special Housing Unit of the facility.
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73. While Warden, and acting under color of law, Defendant Callahan had responsibility and oversight for the unlawful, excessive, and punitive manner in which Mr. ai-Kidd was held in his facility.
74. While Warden, Defendant Callahan knew or should have reasonably known that Mr. al-Kidd was being subjected to unlawful, excessive, and punitive detention conditions.
75. While Warden, Defendant Callahan acted intentionally, knowingly, and/or with deliberate indifference to the constitutional and legal rights of Mr. al-Kidd to be free from unlawful, excessive, and punitive detention conditions. Ada Countv Jail
76. On March 25, 2003, employees of the U.S. Marshals Service again handcuffed, shackled, and chained Mr. al-Kidd, and transferred him to Boise, Idaho. Throughout the flight, he remained handcuffed, shackled, and chained. His request to use the bathroom on the plane was refused.
77. When Mr. al-Kidd arrived in Boise on March 25, he remained handcuffed, shackled, and chained while he was transferred to a holding cell in the United States District Court. Under the watch of an agent of the ltv1arshals Service, l'v1r. al-Kidd n1et \Vith a lawyer fron1 the federal Public Defender's office in Idaho for approximately ten minutes before he was scheduled to appear in court.
78. At the hearing, the govemment requested a three-day continuance and asked that Mr. al-Krdd's detention be continued without bail during that time, asserting that he poses a danger and that there was a risk he would flee. The Court ultimately granted a two-day continuance and scheduled a hearing for March 27. Employees of the U.S. Marshals Service then transported Mr. ai-Kidd to Ada County Jail.
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79. After being processed at the Ada County Jail, Mr. al-Kidd was constrained by ankle and waist chains, and his anns were latched to a waist chain preventing him from extending them. He was then taken to the maximum-security unit of the prison, where he was placed in solitary confinement, in a small glass cell refeJTed to as the "fish bowl." Mr. al-Kidd spent the next five days in Ada County Jail.
80. While Warden, and acting under color of law, Defendant Killeen had responsibility and oversight for the unlawful, excessive, and punitive manner in which Mr. al-Kidd was held in his facility.
81. While Warden, Defendant Killeen knew or should have reasonably known that Mr. al-Kidd was being subjected to unlawful, excessive, and punitive detention conditions.
82. While Warden, Defendant Killeen acted intentionally, knowingly, and/or with deliberate indifference to the constitutional and legal rights of Mr. al-Kidd to be free from unlawful, excessive, and punitive detention conditions. Release Conditions
83. On March 28, 2003, Defendant Gneckow and two United States Attomeys intcrvicNcd T"v1r. al-Kidd at the Ada County Detention Center in the presence an attorney from the Public Defender Service. For the next several hours, Mr. al-Kidd was again questioned about his conversion to Islam, his beliefs about Islam, his activities, travels and his associations with AI Hussayen.
84. During the meeting, Mr. al-Kidd repeated once again his willingness to cooperate and assured the govemment that he would make himself available for subpoena and appear at any time that he was requested to do so. He further promised that he would not leave the country. The govemment ultimately proposed that he be released only under strict conditions.
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85. Sixteen days after his arrest, on March 31, 2003, the Court ordered Mr. al-Kidd released on conditions. The Court ordered Mr. al-Kidd released into the custody of his wife and that he live with her at her parents' home in Nevada. The Court confiscated his passport, barred him from applying for a new one and limited his travel to four states. He was required to report to a probation officer in Idaho weekly and an officer in Las Vegas monthly and subjected to home visits throughout his period of supervision.
86. For the next 441 days, Mr. al-Kidd lived under the conditions imposed by the Court. 87. After almost a year of living in his restrictive release conditions, Mr. al-Kidd's marriage began to fall apart. On March 22, 2004, Mr. al-Kidd filed a Motion for Modification of his release conditions at his in-laws' because his living conditions had become unbearable and he and his wife were separating. On March 31, 2004, the court modified the conditions to allow him to secure his own residence in Las Vegas, Nevada. 88. On June I 0, 2004, a jury acquitted Sami Omar AI Hussayen on all the major charges and failed to reach a verdict on the remaining counts. The government never called Mr. al-Kidd to testify at the trial. The Cout1 subsequently dismissed the material witness warrant, 15 months after ~v1r. a1-Kidd was arrested. Post-September 11 Policy and Practice Regarding Material Witnesses 89. In the aftem1ath of September 11,2001, the United States government adopted a policy and/or practice of using the federal material witness statute in an unprecedented, unlawful, excessive and punitive manner. Under this policy and/or practice, individuals were arrested on material witness warrants without probable cause that they had information gerrnane to a criminal proceeding or that their testimony could not be secured without the need for an arrest, and were unnecessarily detained for prolonged periods and in excessive and punitive conditions.
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Further, under this policy and/or practice, the material witness statute was used to hold suspects where the govemment had not established probable cause to arrest the individual for a crime. Under this policy and/or practice of preventive detention, many of the individuals arrested as material witnesses were either never called to testify and/or were later charged with a crime after being detained and interrogated, without 'Y!iranda wamings, for lengthy periods of time, sometimes weeks, or even months.
90. Upon infom1ation and belief, most of the individuals subjected to this policy and/or practice were Muslim men.
91. Upon information and belief, while Attorney General, and acting under color of law, Defendant Ashcroft was a principal architect of, and set into motion, this unlawful and unprecedented policy and/or practice regarding the material witness statute, and had oversight responsibility for its implementation.
92. Upon infom1ation and belief, while an Assistant Attorney General, and acting under color of law, Defendant Chertoffwas a principal architect of, and set into motion, this unlawful and unprecedented policy and/or practice regarding the material wrtness statute, and had oversight responsibility for its in1plementation.
93. Defendants Ashcroft and Chertoffknew, or reasonably should have known, the unlawful, excessive, and punitive manner in which the federal material witness statute was being used in the aftennath of September II, 2001. Further, Defendants Ashcroft and Chertoffknew or reasonably should have known that the manner in which the material witness statute was being used would result in the unlawful arrest of Mr. al-Kidd, and would also subject Mr. alKidd to unreasonable and unlawful use of force, unconstitutional conditions of confinement, and to punishment without due process.
COMPLAINT - 19

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94. Defendants Ashcroft and Chertoff, in creating, overseeing, and implementing this unlawful, excessive, and punitive policy and/or practice, acted intentionally, knowingly, and/or with deliberate indifference, towards the constitutional and legal rights of individuals arrested and detained under the policy and/or practice. Irreparable Harm Suffered bv Mr. al-Kidd
95. There is a real and actual controversy between Plaintiff and Defendants, and Defendants' actions arc the proximate cause of Plaintiffs injuries.
96. Mr. al-Kidd has suffered and continues to suffer hann, including irreparable ham1, as a direct result of the violations complained of herein, and that ham1 will continue unless declared unlawful and enjoined by this Court.
97. During this 15-month period, Mr. al-Kidd's marriage slowly unraveled and he ultimately separated from his wife. He was also unable to find steady employment after his life had been disrupted by the arrest. He was also deprived of the opportunity to study Islamic law and Arabic in Saudi Arabia on a scholarship.
98. As a result of his anest, detention, and treatment during detention Mr. al-Kidd has
anxiety, nervousness, stress, depression and humiliation. 99. Upon information and belief, Mr. al-Kidd has also faced, and will continue to face,
adverse employment consequences because the govemmcnt maintains and disseminates mformation and records about h1s anest and detention as a material witness.
I00. In July 2004, Mr. al-Kidd was fired from his job with a contractor who did work on a United States Am1y base, on infonnation and belie[ because he was denied a required security clearance. Upon infom1ation and belief, he did not receive the necessary clearance because of
COMPLAINT- 20

Case 1:05-cv-00093-EJL-MHW Document 1 Filed 03/15/05 Page 21 of 29
the material arrest and other records maintained by defendants DOJ, FBI, DHS, and TSC in v·arious databases and disseminated to Mr. al-Kidd's employers and others.
I01. Upon inforn1ation and belief, inforn1ation and records concerning Mr. al-Kidd's material witness arrest and detention appear in several federal databases, including defendant FBI's National Crime Inforn1ation Center database (NCIC) and the database operated by the Terrorist Screening Center (TSC).
COUNT ONE VIOLATION OF THE BAIL REFORM ACT (18 U.S.C. § 3144) I 02. The foregoing allegations are re-alleged and incorporated herein by reference. I 03. Mr. al-Kidd's arrest, detention and post-detention release conditions violated the statute.
COUNT TWO VIOLATION OF THE FOURTH AMENDMENT I 04. The foregoing allegations arc re-alleged and incorporated herein by reference. 105. Mr. al-Kidd's arrest and post-release conditions violated the Fourth Amendment of the United States Constitution.
COUNT THREE VIOLATION OF THE FIFTH AMENDMENT 106. The foregoing allegations are re-allcged and incorporated herein by reference. 107. The arrest and conditions under which Mr. al-Kidd was detained violated the Fifth Amendment of the United States Constitution, as do the conditions governing his post-detention release.
CO:V!PLAJ:'.JT - 21

Case 1:05-cv-00093-EJL-MHW Document 1 Filed 03/15/05 Page 22 of 29
COUNT FOUR UNLAWFUL ARREST AND DETENTION
(42 u.s.c. § 1983)
108. The foregoing allegations are re-alleged and incorporated herein by reference. 109. This claim is against all non-federal defendants acting under color of law. 110. Defendants' actions violated Mr. al-Kidd's constitutional and legal rights to be free from unlawful anest and post-release conditions, and punitive and unconstitutional conditions of confinement and detention in violation of 42 U.S.C. § 1983 and the Fourth, Fifth and Fourteenth Amendments ofthe United States Constitution.
COUNT FIVE UNLAWFUL MAINTENANCE OF RECORDS
(Expungement Action at Common Law) 111. The foregoing allegations are re-alleged and incorporated herein by reference. 112. Upon information and belief, Defendants FBI and TSC have entered and presently maintain records related to Mr. al-Kidd's arrest and detentiOn in the NCIC and TSC databases, rcspccti vel y. 113. Upon infom1ation and belief, defendants have entered and presently maintain records related to Mr. al-Kidd's anest and detention in other databases and record systems. 114. The govemment may not retain records of anests or detentions where the maintenance of such records would be fundamentally unfair. such as where the anest or detention was illegal. 115. Mr. al-Kidd's arrest and detention violated the Fourth, Fifth, and Fourteenth Amendments of the United Stales Constitution and 28 C.S.C. § 3144.
COMPLAINT - 22

Case 1:05-cv-00093-EJL-MHW Document 1 Filed 03/15/05 Page 23 of 29
116. Maintenance of records of his atTest and detention would be fundamentally unfair and unlawful.
COUNT SIX Ul\'LAWFUL MAINTENANCE OF RECORDS (Expungement Action Under NCIC Statute, 28 U.S.C. § 534) 117. The foregoing allegations are re-alleged and incorporated herein by reference. 118. Upon infonnation and belief, Defendant FBI has entered and presently maintains records of'\!lr. al-Kidd's arrest and detention in the NClC database. 119. Congress has authorized Defendant FBI to enter specified records into the NCIC database and disseminate them to prospective employers, law enforcement officials, and other public and private agencies. 120. Congress has not authorized the FBI to enter records of the arrest and detention of persons subject to material witness warrants into the NCIC database. l 21. Defendant FBI's entry into the NCIC of records relating to the arrest and detention of Mr. al-Kidd pursuant to a material witness warrant is arbitrary, capricious, and not authorized by the NCIC statute, 28 U.S.C. § 534. 122. Mr. al-Kidd is entitled to declaratory and injunctive relief ordering that records related to his unlawful arrest and detention be expunged from the NCIC.
RELIEF WHEREFORE, Plaintiff respectfully requests relief as follows:
123. A declaration that Defendants' actions violated the Constitution, 42 U.S.C. 0 l 983,
and the material witness law, 28 U.S.C. q 3144, and the common law.
COMPLAINT- 23

Case 1:05-cv-00093-EJL-MHW Document 1 Filed 03/15/05 Page 24 of 29

124. A declaration that Defendants' actions, practices, customs, and policies, regarding the arrest and detention and release conditions of material witnesses, alleged herein were unjustified, illegal and violated the constitutional and legal rights of Abdullah al-Kidd.
125. A declaration that Defendants improperly used the material witness statute to improperly constrain the liberty of Abdullah al-Kidd.
126. Expungement of all records, fingerprints and notations relating to the unlawful arrest and detention of Mr. al-Kidd as a material witness.
127. Expungement of all FBI records or files in the NCTC, TSC and any other databases, that arc unconstitutional, unlawful, or inaccurate.
128. Trial by jury. 129. Compensatory damages in an amount to be proven at trial. 130. Punitive damages in an amount to be proven at trial. 131. Costs and reasonable attomey fees. 132. Such other relief as the Court deems just and equitable.

DATED: ~vfarch 15, 2005.

Respectfully submitted,
THE ROA!UC LAW F!R'\1, LLP HAMPTON & ELLIOTT
~wr;:,~c~~~~
(' R. K%TT~OARK
Attomeys for Plaintiff

COMPLAINT - 24

• Case 1:05-cv-00093-EJL-MHW Document 1

•Filed 03/15/05 Page 25 of 29

1 THOMAS E. MOSS UNITED STl!TES ATTORNEY
2 DISTRICT OF IDAHO KIM R. LINDQUIST
3 ASSISTANT UNITED STATES ATTORNEY OTS'l'!UCT OF IDAHO
q WELLS FARGO CENTER, SUITE 201 8 77 WEST MAIN STREET
5 BC){St:, IDAHO 83702 TELEPHONE: (208) l14-72Il
6 ~ILING P.DDRESS: P.O. BOX 32 BOISE, IDAHO 83707
7

UNITED STATES COURTS DfSTAICT OF IDAHO
MAR 1 ? 2003
----M.HEC'D
-- -- -- LODGED~_HLED

8

9

10

11

12 UNITED STATES DISTRICT COURT FOR THE D[STRICT OF IDAHO

14 UNITED STATES OF AMERICA

15

'JS.

16 SAMI 0~? AL-HUSSAYEN,

CR No. 03-048-C-EJL
A?PLICATION FOR ARREST \vARRANT OF MATERIAL WITNESS

17

Defendant.

18

19

The Un~ted States of Amecica and Thomas E. Moss, United States

20 Attorney for the District of Idaho, by and through Kim R. Lindquist,

21 Assistant United States Attor:-~ey, with 'this Appl:'-ca t:'-on for Arrest

22 'V'iar.L':±IJL of Material Hitr:e2:is, ar:d move the Court that .Jn o.rrcDt warrant

23 be issued for "the follow~ng material witness: Abdullah Al~Kidd, a/k/a

24 Lavoni T. Kidd.

25

On February 13, 2003, an Indictment was filed in United States

26 Dis~rict Court for tha District of Idaho al:eging violations of 18

APPJJCATTON FOR ARREST WARRANT OF MATFRTAL WTTNFSS- I

EXHIBIT A •

• Case 1:05-cv-00093-EJL-MHW Document 1

•Filed 03/15/05 Page 26 of 29

1 U.S.C. §§ 1001(&) (~) and (2), and 3238- ~alse Statement ~o the Uni~ed

2 States; and 18 U.S.C. §§ l546(a), 3237 and 3238- Visa f::·aud. As a 3 res~lt of said Indic~ment, a warrar:~ of arrest for the defendan~ was

4 issr::.ed.

5

The testimony of the aforeme~tioned material witness is material

6 to both the prosecution and the defendant herein.

7

There i.s a risk that u.:1less ":he Court detains or imposes

8 res-;:rictions on the travel of said material witness, he w.i.ll bo

9 unavailable at future proceedings ~n this case.

10

This applicatior. is furc:her based upon the Affidavit of Scott

11 Mace, Special Agent, federal B~reau o~ Invesc:igation, the Indic:ment

12 filed herein, and the warrant of arrest against t~e defenda~t herein.

13

~ay DATED this _/_ll

of M<lrch, 2002.

14

'l'f'OMAS E. MOSS

Uniced States Attorney

15

By

16
--~ ·~ k"----

17

Kim R. Lindquist

Assistant United States Attorney

18

19

20

21

22

23

24

25

26

API'LIC'ATlON FOR ARREST WARRANT OF MATERIAL WTTN£SS · 2

• Case 1:05-cv-00093-EJL-MHW Document 1

•Filed 03/15/05 Page 27 of 29

1

2

STATE AND DISTRICT OF IDAHO

3

BOISE, IDAHO

4

UNITED STATES OF A.\1ERlCA )

5

)

v.

)

Case No. 03-048-C-EJL

6

)

SAMIOMARAL-HUSSAYEN )

7

)

)

8

)

9
10
ll
follows: J.2

AFFIDAVIT I, SCOTT MACE, the undersigned, being duly sworn, depose and slate as
Tam a Special Agent ofthe FBI currently assigned to the Boise, Idaho, Resident

Agency of the Salt Lake City Division. I have been a Special Agent ofthe FBI for six years

and have been involved in multiple investigations involving crimes under Title 18 ofthe United

States Code. This Affidavit is based upon facts acquired by fellow FBT Special Agent Michael

James Gneckow and other law enforcement officials pertaining to the investigation. On March J 7
14, 2003, Special Agent Michael James Gneckow advised your affiant of the following: 18
I) Gneckow is a Special Agent with the Federal Bureau ofinvestigation (FBI), 19
currently assigned to the Coeur d'Alene, Idaho Resident Agency, within the FBI's Salt Lake 20
City Division. He has been a Special Agent with the FBI for six (6) years and has len (1 0) 21
additional years of Federal law enforcement experience as a Special Agent with the U.S. Naval
22

of the United States.
25
2) Based upon his own observation and those ofother law enforcement officers 26
involved in the subject investigation, this affidavit is made in support of an application for 7.7
arrest warrant of a material witness, namely: Abdullah Al-Kidd, a/k/a Lavoni T, Kidd. 28
1

• Case 1:05-cv-00093-EJL-MHW Document 1

•Filed 03/15/05 Page 28 of 29

l

3) During the past 16 years Gneckow has been involved in dozens of

2 investigations involving illegal activities such as terrorism and money laundering, including

3 the Olymptc Park Bornhing in Atlanta and numerous investigations overseas. During the

4 period of1986to 1996, he was assigned as a foreign counterintelligence/international terrorism

5 investigator with the United States Naval Criminal investigative Service. For the past six

6 years, as a Special Agent with the FBI, he has been assigned numerous terrorism investigations

7 and has been involved in several search warrants, many of which were related to terrorism or

8 terrorism-related matters. During his career with NCIS and the FBI, he has worked closely

9 with agents and officers of many other agencies, including the CIA, DEA, ATF, Customs

10 Service, IRS, FBI, ~Sand the various investigative/intelligence components of the United

11 States Armed Forces, concerning matters relating to the national security ofthe United States.

12

4) In addition to his personal experience as above-referenced, he has received

13 specialized training in the area of terrorism and counter-terrorism, as well as economic-based

14 crime, by attending numerous seminars offered by the Department of .Justice, FBI, and other

15 agencies. He has also participated as an instructor in some of these seminars.

16

5) Gneckow is currently a member ofthe Inland Northwest Joint Terrorism Task

17 Force and as such, works alongside other Federal, state and local law enforcement officers,

18 including agents ofthe U.S. Immigration andl\aturalization Service (INS) and other personnel

19 who investigative document fraud by foreign nationals.

2 0

6) On February 13, 2003, an Indictment was filed in United States District Court

21 lor the District of Idaho alleging violations of 18 U.S.C. §§ I 001 (a)(J) and (2), and 3238-

22 False Statement to the United States; and l8U.S.C. §§ 1546(a), 3237 and 3238- Visa Fraud.

2 311 During the course ofthat investigation, information was developed regarding the involvement

2 4 of Abdullah A1-Kidd with the defendant. That information includes that from March 2000 to

2 5 November 2001, an individual identified as Abdullah Al-Kidd, alk/a Lavoni T. Kidd, andJor

2 6 his spouse, Nadine Zegura, received payments from Sami Omar Al-Hussayen and his

21 associates in excess of$20,000.00. AJ-](jdd traveled to Sana' a, Yemen, in August 2001 and

7 8 remained there until April2002, when he returned to the United States. Upon his return to the

2

• Case 1:05-cv-00093-EJL-MHW Document 1

•Filed 03/15/05 Page 29 of 29

1 United States, Al-Kidd traveled to Moscow, Idaho, and met with Al-Hussayen's associates.

2 While in Moscow, Al-Kidd emptied a storage facility which contained personal items

3 belonging to him. Among those personal items were documents Al-K.idd left behind, which ~ included a conference program for the second annual lANA conference in Dearborn, Michigan,

5 in December 1994; a hotel receipt from Sacramento, California, dated 4/26/2001, in the name

6 ofAbdullah Al-Kidd, listing his company name as "Al-Multaqa;" and telephone numbers for

7 lANA (734-528-0006) and Basem Khafagi (734-481-1930). Khafagi is a former Director of

E IANA and former University ofTdaho student (graduated in 1988) who was recently arrested

9 in New York.

~ 0

7) Kidd is scheduled to take a one-way, first class flight (costing approximately

ll $5,000.00) to Saudi Arabia on Sunday, March 16,2003, at approximately 6:00 EST. He is

1 7 scheduled to fly from Dulles International Airport to JFK International Airport in New York

13 and then to Saudi Arabia.

14

8) Due to AI-Kidd's demonstrated involvement with the defendant, Sami Omar

1 S AI-Hussayen, he is believed to be in possession of information germane to this matter which

16 will be crucial to the prosecution. It is believed that if Al"Kidd travels to Saudi Arabia, the

17 United Stales Government will be unable to secure his presence at trial via subpoena.

18 II 19

Respectfully submitted,

70

SCOtT MACE

.

Specml Agent

Federal Bureau ofinvestigation

Boise, Idal10

Subscribed and sworn to before me this _tl_ day of March: zyoJ-: ·_ :·.

24 25

~~11 '(;(ii_·- _~

26

Mikel H. Wii1imns

United States Magistrate Judge

27

28

3

 
 Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 1 of 37
Forrest Christian Trial Attorney, Torts Branch U.S. Department of Justice forrest.christian@usdoj.gov Va. Bar No. 46743 Tel: 202-616-4326 Fax: 202-616-4314
Philip Lammens Trial Attorney, Torts Branch U.S. Department of Justice philip.lammens@usdoj.gov Fla. Bar No. 0610501 Tel: 202-616-4169 Fax: 202-616-4314
P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044
Attorneys for the Federal Defendants

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 2 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; JOHN ASHCROFT, )

Former Attorney General of the United

)

States; ROBERT MUELLER, Director of )

the Federal Bureau of Investigation;

)

MICHAEL CHERTOFF, Secretary of the )

Department of Homeland Security; JAMES )

DUNNING, Sheriff for the City of

)

Alexandria; DENNIS CALLAHAN, Former )

Warden, Oklahoma Federal Transfer Center; )

VAUGHN KILLEEN, Former Sheriff of )

Ada County; FBI Agents MICHAEL

)

JAMES GNECKOW, SCOTT MACE;

)

UNITED STATES DEPARTMENT OF )

JUSTICE; UNITED STATES

)

DEPARTMENT OF HOMELAND

)

SECURITY; FEDERAL BUREAU OF

)

INVESTIGATION; TERRORIST

)

SCREENING CENTER; DONNA

)

BUCELLA, Director of the Terrorist

)

Screening Center; UNITED STATES;

)

JOHN DOES 1-25,

)

)

Defendants.

)

)

Case No. 1:05-cv-093-EJL
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS

Following September 11, 2001, the Federal Bureau of Investigation (FBI) conducted an anti-terrorism investigation in Idaho.1 Am. Compl. ¶¶ 43-46. FBI agents engaged in surveillance

of Abdullah al-Kidd, plaintiff in the instant civil action, during the course of this terrorism

1 Defendants have accepted, as true for purposes of the instant motion only, all wellpleaded allegations in the amended complaint.
2

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 3 of 37
investigation. Id. ¶ 44. Sami Omar Al-Hussayen, a graduate student at the University of Idaho, was subsequently charged with visa fraud and making false statements. Id. ¶ 45.
On March 14, 2003, the U.S. Attorney’s Office for the District of Idaho sought a material witness warrant in order to secure plaintiff’s presence at Al-Hussayen’s criminal proceedings. Am. Compl., Ex. A. U.S. Magistrate Judge Mikel H. Williams granted the warrant application, and, two days later, FBI agents arrested plaintiff at Dulles International Airport in Virginia as he prepared to leave for a flight that terminated in Saudi Arabia. Am. Compl. ¶¶ 47, 65. After his arrest, plaintiff was detained at the Alexandria Detention Center in Virginia, the Federal Transfer Center (FTC) in Oklahoma, and, finally, the Ada County Jail in Boise, Idaho. Id. ¶ 70.
Plaintiff made an initial appearance before this Court on March 25, 2003, and a subsequent appearance on March 31, 2003. United States v. Al-Hussayen, 3:03-cr-00048-EJLALL, Docket Nos. 41, 45. After plaintiff, represented by counsel, had an opportunity to present his concerns and “the government” proposed that plaintiff be released from custody, this Court entered an order on March 31, 2003 providing for plaintiff’s release under certain conditions. See id.; Am. Compl. ¶¶ 9, 102, 103. The conditions of release included that plaintiff reside with his wife and her parents in Nevada, that he relinquish his passport, and that he limit his travel to Nevada and three other nearby states. Id. ¶ 103. These conditions were lifted approximately thirteen months after plaintiff’s release from custody. Id. ¶ 104.
On March 15, 2005, al-Kidd filed the instant civil action, which he amended on November 18, 2005. Plaintiff alleges that his arrest, detention, and conditions of confinement violated the Fourth and Fifth Amendments to the United States Constitution; the Bail Reform Act, 18 U.S.C. § 3142; and the “material witness statute,” 18 U.S.C. § 3144. He seeks
3

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 4 of 37
compensatory and punitive damages, the expungement of his arrest record, and a declaration that the federal defendants violated his rights. He names former Attorney General John Ashcroft, retired Bureau of Prisons (BOP) Warden Dennis Callahan, and FBI Special Agents Scott Mace and Michael Gneckow as defendants in their individual capacity. Plaintiff alleges that defendants Mace and Gneckow submitted a factually incorrect affidavit in support of the material witness warrant for his arrest and that defendant Callahan oversaw the imposition of unlawful conditions of confinement against him. Plaintiff sues defendant Ashcroft for allegedly adopting unspecified policies or practices that resulted in his unlawful arrest and confinement. Plaintiff seeks damages from these individuals under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).2
The claims against the individual defendants should be dismissed for the following reasons: (1) this Court lacks personal jurisdiction to adjudicate any of the claims against Ashcroft and Callahan; (2) Ashcroft is entitled to absolute immunity as to his alleged actions in securing the material witness warrant against plaintiff because such conduct was part of his prosecutorial function as Attorney General; (3) Ashcroft, Mace, and Gneckow are entitled to qualified immunity as to their alleged actions in securing the warrant because it was properly issued based on probable cause or at least arguable probable cause; (4) Ashcroft is entitled to qualified immunity on the warrant claim for the additional reason that plaintiff has failed to properly allege his personal involvement in the decision to seek the warrant; (5) Ashcroft and Callahan are
2 The claims asserted against the remaining defendants, who are either federal agencies or federal employees named in their official capacity, are addressed in a separately filed motion to dismiss or, in the alternative, for summary judgment submitted on behalf of the United States. See generally Kentucky v. Graham, 473 U.S. 159, 165 (1985) (claim asserted against federal employee in his official capacity should be treated as a claim against the United States).
4

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 5 of 37
entitled to qualified immunity on plaintiff’s unlawful conditions of confinement claim because plaintiff has failed to allege any personal involvement in the creation or enforcement of these purported conditions; (6) all of the defendants are entitled to dismissal of plaintiff’s claims under 18 U.S.C. §§ 3142 and 3144 because neither provision creates a private right of action.
ARGUMENT I. This Court Lacks Personal Jurisdiction Over Ashcroft and Callahan
Plaintiff bears the burden of demonstrating that personal jurisdiction exists over individually named defendants sued for damages in constitutional tort actions. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987); Gilbert v. DaGrossa, 756 F.2d 1455, 1459 (9th Cir. 1985). He must show that the exercise of personal jurisdiction is consistent with the constitutional requirements of due process. Schwarzenegger, 374 F.3d at 800; Lake, 817 F.2d at 1420.3 The amended complaint fails to make such a showing as to Ashcroft and Callahan in this case.
The Due Process Clause allows a court to exercise general or specific jurisdiction over a defendant. Lake, 817 F.2d at 1420. General jurisdiction is appropriate “[i]f the defendant’s activities and contacts with the forum state are substantial, continuous, or systematic.” National Union Fire Ins. Co., 259 F. Supp. 2d at 1103; accord Schwarzenegger, 374 F.3d at 801. The amended complaint does not establish general jurisdiction as to Ashcroft or Callahan because
3 The assertion of jurisdiction over a non-resident defendant requires compliance with both the forum state’s long-arm statute (Idaho Code § 5-514) and the Due Process Clause of the U.S. Constitution. Lake, 817 F.2d at 1420; National Union Fire Ins. Co. v. Aerohawk Aviation, Inc., 259 F. Supp. 2d 1096, 1101 (D. Idaho 2003). In Idaho, these limits are coextensive, so any exercise of jurisdiction must be in accordance with constitutional principles of due process. Lake, 817 F.2d at 1420; Schwarzenegger, 374 F.3d at 801-02.
5

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 6 of 37
there is no allegation that either ever resided in Idaho or otherwise had any continuous or systematic contacts with this State.
To establish specific jurisdiction, plaintiff must show that the defendant had “minimum contacts” with the forum that are sufficiently related to his claim “such that the maintenance of the action does not offend the ‘traditional notions of fair play and substantial justice.’” Lake, 817 F.2d at 1420 (citation omitted). To accomplish this, plaintiff must demonstrate that each defendant “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Schwarzenegger, 374 F.3d at 805; Lake, 817 F.2d at 1421. Plaintiff cannot make that showing here.
The amended complaint does not allege that Ashcroft committed an intentional act that was directly aimed at plaintiff or Idaho. Instead, it alleges only that Ashcroft had “ultimate responsibility” for the Department of Justice. Am. Compl. ¶ 23. Service as a senior federal official, even when it includes authority over government employees acting in every state, does not create minimum contacts with each and every state. See Wag-Aero, Inc. v. United States, 837 F. Supp. 1479, 1485 (E.D. Wis. 1993) (“When federal agency heads are not alleged to have been directly and actively involved in activities in the forum state, many courts have refused to exercise personal jurisdiction over them.”); cf. Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir. 1981) (finding personal jurisdiction lacking over a former CIA Director where CIA agents in New York were “simply United States employees acting as agents for the United States government”); Green v. McCall, 710 F.2d 29, 33-34 (2d Cir. 1983) (holding that personal jurisdiction could not be established over U.S. Parole Commissioners where hearing examiners in Connecticut were merely acting as agents for the government). “If a federal agency head could
6

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 7 of 37
be sued personally in any district within his or her official authority merely for supervising acts of subordinates . . . , the minimum contacts requirement would be rendered meaningless.” WagAero, Inc., 837 F. Supp. at 1485.
The allegation that Ashcroft was the “principal architect” of policies that he knew “would foreseeably result in the unlawful arrest and detention of material witnesses,” Am. Compl. ¶¶ 137-38, is similarly unavailing. As an initial matter, there is no question that the decision to seek the material witness warrant was an independent judgment of Kim Lindquist, an Assistant United States Attorney in this district and the lead prosecutor in the Al-Hussayen case. AUSA Lindquist makes clear in his attached declaration that he decided to apply for the material witness warrant for plaintiff based solely upon his own assessment of the facts of the case and the applicable legal standard. Ex. 1, Lindquist Declaration, ¶ 5.4 His decision was not made pursuant to any perceived instructions, policies, or practices of the Justice Department, let alone of former Attorney General Ashcroft personally. Id. ¶¶ 6, 7.
Even setting aside Lindquist’s declaration and assuming for the purposes of this motion that Ashcroft formulated some general policy related to plaintiff’s arrest, that would not be a sufficient basis for this Court to exercise personal jurisdiction over him. The mere promulgation of a general policy by a senior federal official does not create minimum contacts in every forum in which the policy is enforced. See Vu v. Meese, 755 F. Supp. 1375, 1377-78 (E.D. La. 1991) (recognizing that “the fact that federal government officials enforce federal laws and policies on
4 Consideration of Lindquist’s affidavit does not convert this motion to dismiss to a motion for summary judgment: “Motions to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(2) are speaking motions and it is appropriate to look beyond the pleadings to affidavits and other evidence when considering them.” National Union Fire Ins. Co., 259 F. Supp. 2d at 1101.
7

Case 1:05-cv-00093-EJL Document 48-1 Filed 01/23/2006 Page 8 of 37
a nationwide basis is not sufficient in and of itself to maintain personal jurisdiction in a lawsuit which seeks money damages against those same government officials in their individual capacities”). To establish specific jurisdiction, a plaintiff must allege more than the mere occurrence of “a foreign act with foreseeable effects in the forum state.” Bancroft & Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1087 (9th Cir. 2004); accord Schwarzenegger, 374 F.3d at 805. There must be “express aiming” of the alleged action giving rise to the claim, either “at a plaintiff whom the defendant knows to be a resident of the forum state,” Bancroft & Masters, Inc., 223 F.3d at 1087, or at the forum state itself, Schwarzenegger, 374 F.3d at 806-07.
Here, the amended complaint asserts that Ashcroft “knew or reasonably should have known that the manner in which the material witness statute was being used would foreseeably result in the unlawful arrest and detention of material witnesses (such as Mr. al-Kidd).” Am. Compl. ¶ 138. It does not contend that Ashcroft directed federal officers to obtain a material witness warrant for plaintiff or that Ashcroft in any other way specifically targeted him for detention. Indeed, plaintiff does not maintain that Ashcroft even knew of his existence, much less of his residence in Idaho. The absence of any allegation that Ashcroft expressly aimed “his post-9/11 material witness policies and practices,” id. ¶ 109, at plaintiff or the forum state confirms that the Court lacks personal jurisdiction over Ashcroft. See Schwarzenegger, 374 F.3d at 806-07; Bancroft & Masters, Inc., 223 F.3d at 1087.
Plaintiff’s allegations regarding his allegedly unlawful conditions of confinement are similarly incapable of establishing personal jurisdiction over Ashcroft and Callahan. Plaintiff has alleged no actions whatsoever by Ashcroft – related to this jurisdiction or otherwise – that could demonstrate his involvement in deciding how or where plaintiff would be confined after he was
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taken into custody. Nor has plaintiff alleged any action by Callahan related to his conditions of confinement. The only allegation as to Callahan is that he once served as warden of the Federal Transfer Center in Oklahoma, a facility where plaintiff was briefly detained in March 2003. However, Callahan did not become the warden at the Oklahoma FTC until June 15, 2003, months after plaintiff had been transferred to Idaho. Ex. 2, Callahan Declaration ¶ 4. Callahan was serving as the warden at the Federal Correctional Institute in Loretto, Pennsylvania during plaintiff’s alleged detention at the Oklahoma FTC. Even had Callahan been the warden at the Oklahoma FTC during plaintiff’s stay there, that would not constitute any meaningful contact with this district. Since Callahan had no connection to plaintiff or his alleged injuries in this district, there is no basis for this Court to assert jurisdiction over him. II. Ashcroft Is Entitled to Absolute Prosecutorial Immunity As To Plaintiff’s Claim
Based On His Arrest Under The Material Witness Warrant Absolute immunity protects prosecutors and their supervisors for acts that are “intimately associated with the judicial phase of the criminal process.” Genzler v. Longanbach, 410 F.3d 630, 643-44 (9th Cir.) (quotation and citation omitted), cert. denied, 128 S. Ct. 736 (2005). The primary purpose behind this immunity is to ensure independent prosecutorial decisionmaking. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). In order to serve that purpose, the Ninth Circuit broadly construes the scope of prosecutorial immunity. Id. Absolute immunity is available based on the nature of the function performed by the prosecutor. Kalina v. Fletcher, 522 U.S. 118, 127 (1997). “If the action was part of the judicial process, the prosecutor is entitled to the protection of absolute immunity whether or not he or she violated the . . . plaintiff’s constitutional rights.” Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003). In assessing whether conduct is part of the judicial process for immunity purposes, a
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court should look at the prosecutor’s “ultimate acts,” without regard to his subjective intentions. Ashelman, 793 F.2d at 1078; Genzler, 410 F.3d at 637 (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)) (a prosecutor acting as an advocate is absolutely immune even where he maliciously initiates a prosecution, uses perjured testimony at trial, and suppresses material evidence at trial). The doctrine also covers a wide range of prosecutorial activity. Provided that the individual was functioning as a prosecutor, he may claim prosecutorial immunity even for “‘actions preliminary to the initiation of a prosecution and actions apart from the courtroom.’” Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993) (quoting Imbler, 424 U.S. at 431 n.33).
Against this backdrop, a prosecutor who seeks to guarantee the presence of a witness for trial through the use of a material witness warrant is entitled to absolute immunity. Daniels v. Kieser, 586 F.2d 64, 68 (7th Cir. 1978); see also Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984) (finding state prosecutor absolutely immune for obtaining a capias to secure the presence of a witness at trial); White v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (noting that if plaintiff had not waived his claims, the court would have afforded the prosecutors absolute immunity for arresting and incarcerating the plaintiff as a material witness); DeBoer v. Martin, 537 F. Supp. 1159, 1163 (N.D. Ill. 1982) (finding prosecutors absolutely immune for causing arrest warrant and subpoenas to be issued for trial witness); cf. Hamilton v. Daley, 777 F.2d 1207, 1212-13 (7th Cir. 1985) (recognizing in the attorney’s fees context that a claim for securing the attendance of a witness for trial is barred under Imbler).5
In the present case, plaintiff alleges that the “United States Attorney’s Office submitted
5 The Ninth Circuit also has recognized in an unpublished opinion that prosecutors are entitled to absolute immunity for seeking to secure testimony through the arrest of a witness. McBeth v. Novak, 1999 WL 980481, at *1 (9th Cir. October 18, 1999).
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an application” for his arrest as a material witness. Am. Compl. ¶ 46. However, plaintiff did not name any of the front-line prosecutors as defendants, apparently recognizing their entitlement to prosecutorial immunity. Plaintiff instead attempted to circumvent the immunity defense by naming former Attorney General Ashcroft as the allegedly responsible party. Plaintiff cannot defeat prosecutorial immunity through such a maneuver.
To the extent that plaintiff alleges that Ashcroft played any role whatsoever in either his arrest pursuant to the material witness warrant or the prosecution of Al-Hussayen, those actions would have been taken by him in his former prosecutorial capacity. There is no question that the Attorney General is protected by absolute immunity to the same extent as front-line prosecutors when he acts in a prosecutorial capacity. See Dellums v. Powell, 660 F.2d 802, 806 n.13 (D.C. Cir. 1981) (“So long as the Attorney General is initiating or instituting a prosecution, he is absolutely immune.”); accord Genzler, 410 F.3d at 644 (concluding that supervisory prosecutors are entitled to absolute immunity for “advocacy intimately associated with the judicial phase of the criminal process”) (quotation and citation omitted). Absolute immunity for prosecutors would be meaningless if plaintiffs could simply bypass its protections by recovering damages from the prosecutors’ supervisors. See, e.g., Bodie v. Morgenthau, 342 F. Supp. 2d 193, 205 (S.D.N.Y. 2004) (“‘To the extent the supervision or policies concern the prosecutorial decisions for which the [assistant district attorneys] have absolute immunity, then those derivative allegations against supervisors must also be dismissed on the ground that the supervising district attorneys have absolute immunity for the prosecution-related decisions of their subordinates”).
Plaintiff cannot defeat prosecutorial immunity by casting Ashcroft as a policymaker rather than as a prosecutor. See Eisenberg v. Dist. Attorney of the County of Kings, 847 F. Supp.
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1029, 1037 (E.D.N.Y. 1994) (“Plaintiff’s mere characterization of the District Attorney’s prosecutorial decision-making as ‘policy’ does not remove it from the ambit of absolute immunity.”). An official is absolutely immune from claims originating out of his promulgation of a general prosecutorial policy. Haynesworth v. Miller, 820 F.2d 1245, 1268-69 (D.C. Cir. 1987); Roe v. City & County of San Francisco, 109 F.3d 578, 583-84 (9th Cir. 1997) (citing Haynesworth in finding prosecutor entitled to absolute immunity for decision not to prosecute “a whole line of cases”); Bortello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005) (citing Roe in finding prosecutors entitled to absolute immunity for decision not to prosecute “group of cases”); Watson v. Sandpoint Police Dep’t, 2005 WL 2847441, at *2 (D. Idaho Oct. 3, 2005) (J. Lodge) (“Even a ‘policy’ that bears on whether to file or dismiss a charge falls within the absolute immunity protection.”).6 That rule makes sense, as any claim that the Attorney General created a policy that resulted in federal prosecutors seeking a material witness warrant in connection with an ongoing criminal prosecution clearly describes conduct that is intimately associated with the judicial process. See, e.g., Haynesworth, 820 F.2d at 1268-69; Roe, 109 F.3d at 583-84; Bortello, 413 F.3d at 976.7 Accordingly, Ashcroft is entitled to absolute immunity as to plaintiff’s Bivens claims as they relate to the decision to obtain the material witness warrant. III. The Federal Defendants Are Entitled To Qualified Immunity
Government officials are “shielded from liability for civil damages if their actions did not
6 The Ninth Circuit does not recognize a “‘meaningful distinction between a decision on prosecution in a single instance and decisions on prosecutions formulated as a policy for general application.’” Roe, 109 F.3d at 583 (quoting Haynesworth, 820 F.2d at 1269).
7 At the time the material witness warrant was issued for plaintiff, the criminal defendant in the underlying case, Al-Hussayen, had been indicted and a trial date was set for April 15, 2003. See United States v. Al-Hussayen, 3:03-cr-00048-EJL-ALL, Docket Nos. 1 & 13.
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violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The privilege is an immunity from suit rather than a mere defense to liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quotation and citation omitted). Qualified immunity protects government officials because individual capacity suits “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). To minimize those social costs, the Supreme Court has repeatedly stressed that courts should apply qualified immunity “at the earliest possible stage of litigation.” Saucier, 533 U.S. at 201 (quotation and citation omitted). If a complaint fails to state a claim sufficient to overcome qualified immunity, the court should dismiss the action under Rule 12(b)(6) at the outset, without allowing discovery. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to a dismissal before the commencement of discovery.”); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Until this threshold immunity question is resolved, discovery should not be allowed.”).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff’s allegations, if true, establish a constitutional violation.” Hope, 536 U.S. at 736. “[T]he next, sequential step is to ask whether the right was clearly established.” Saucier, 533 U.S. at 201. “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope, 536 U.S. at 739 (quotation and citation omitted). The Supreme Court has explained that the
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standard of liability is so high that it protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Hope, 536 U.S. at 741 (noting that the “salient question” that a court must answer when making this inquiry is whether the state of the law at the time of the incident gave the officer “fair warning” that his alleged treatment of the plaintiff was unconstitutional). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of the pre-existing law the unlawfulness must be apparent.” Id. at 739 (quotation and citation omitted). Also, the plaintiff bears the burden of showing that the law was clearly established at the time of the alleged constitutional violation. Alford v. Haner, 333 F.3d 972, 977 (9th Cir. 2003).
The gist of plaintiff’s Fourth Amendment claim here is that he was arrested because Mace and Gneckow “submitted a facially invalid affidavit.” Am. Compl. ¶ 59. Plaintiff offers three reasons why the warrant was invalid: (1) Mace and Gneckow knew or should have known that it was not supported by probable cause, id. ¶ 50; (2) Mace and Gneckow knew or should have known that the affidavit contained “false, material information,” id. ¶ 52, and omitted other “material information,” id., ¶ 59; and (3) Mace and Gneckow sought the material witness warrant “for the purpose of detaining [plaintiff] preventively and/ or for the purpose of further investigating [plaintiff] for possible criminal wrongdoing.” Id. ¶ 56. None of these allegations,
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which are addressed in turn below, is remotely sufficient to overcome qualified immunity.8 A. Affidavit, on its Face, Established Probable Cause for Plaintiff’s Arrest Pursuant to a Material Witness Warrant In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court adopted a highly flexible
“totality of the circumstances” analysis to determine whether probable cause existed to support the issuance of a warrant. At the core of this analysis is the rejection of “rigid legal rules” in favor of a “commonsense” perspective that is “practical [and] nontechnical.” Id. at 230-36. In undertaking that analysis, the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing] that probable cause existed.” Id. at 238-39. This highly deferential standard of review begins with a “presumption of validity,” Franks v. Delaware, 438 U.S. 154, 171 (1978), and requires that “doubtful or marginal cases” be resolved in favor of the magistrate’s finding of probable cause. Gates, 462 U.S. at 236 & 237 n.10 (magistrate’s finding of probable cause is entitled to “great deference”).
The defendants are immune from liability if they acted with “arguable” probable cause in seeking the warrant. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (finding that qualified immunity protects defendants if they “‘reasonably but mistakenly conclude[d] that probable cause [was] present’”); Kephart v. City of Bakersfield, 2005 WL 1704463, at *23 (E.D.
8 Plaintiff contends that he also can assert a Fifth Amendment due process claim based on the same allegations. See Am. Compl. ¶ 157. It is hornbook law, however, that “claims arising before or during arrest are to be analyzed exclusively under the fourth amendment’s reasonableness standard rather than the substantive due process standard.” Fontana v. Haskin, 262 F.3d 871, 881 (9th Cir. 2001); see also Graham v. Connor, 490 U.S. 386, 395 (1989). Where “‘a constitutional claim is covered by a specific constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.’” Fontana, 262 F.3d at 882 (citing County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)).
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Cal. July 16, 2005) (“The qualified immunity question does not depend on whether probable cause actually existed.”). Thus, a court can find that an officer made an arrest without probable cause, but nevertheless decide that, since it is unclear whether an objectively reasonable officer could have believed probable cause existed, the arresting officer is still entitled to qualified immunity. See Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997) (where “materiality may not have been clear at the time the officer decided what to include in, and what to exclude from, the affidavit . . . the shield of qualified immunity should not be lost”).
Plaintiff here has challenged the probable cause determination based on the facts set forth in the affidavit filed in support of the material witness warrant application that resulted in his arrest. The material witness statute, 18 U.S.C. § 3144, authorizes the arrest of a potential witness to secure testimony in a criminal proceeding when two requirements are satisfied. First, the party seeking the warrant must show by affidavit that there is probable cause to conclude that the testimony of the witness will be “material in a criminal proceeding.” See United States v. Awadallah, 349 F.3d 42, 66 (2d Cir. 2003) (citing 18 U.S.C. § 3144). Second, the party seeking the warrant must show that “it may become impracticable to secure the presence of the ... [witness] by subpoena.” 18 U.S.C. § 3144. Both requirements were satisfied in this instance.
1. Materiality of plaintiff’s testimony is beyond dispute. Plaintiff alleges the affidavit was “facially unlawful” because it “wholly failed to establish probable cause to believe that Mr. al-Kidd had testimony that was germane to AlHussayen’s criminal proceeding.” Am. Compl. ¶ 58. That assertion is refuted by the documents submitted to the court in support of the material witness arrest warrant, which established probable cause to conclude that plaintiff could provide material testimony in the prosecution of
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Al-Hussayen. Those documents included the materials referenced in the warrant application
itself, namely the “Affidavit of Scott Mace . . . , the Indictment filed herein, and the warrant of
arrest against the defendant herein.” Am. Compl., Ex. A, Warrant Application (hereinafter “Application”) at 2. It is appropriate, therefore, to consider those sources now.9 See Wayne R.
LaFave, Search and Seizure, § 3.2(d) at 49 (4th ed. 2004) (inquiry turns on the record that “was
made available to the issuing magistrate before the warrant was issued, including reasonable
inferences drawn by the affiant”); United States v. Rubio, 727 F.2d 786, 795 (9th Cir. 1984) (any
fact unknown to the magistrate at the time of his decision is considered to be outside the “four corners of the warrant affidavit”).10
The indictment charged Al-Hussayen with nine counts of visa fraud and making false
statements. Ex. 3, Indictment of Sami Omar Al-Hussayen (hereinafter “Indictment”) at 11-18.
These charges arose out of allegations that Al-Hussayen had sought and obtained a student visa
for the claimed purpose of pursuing a full course of study at the University of Idaho when in fact
9 As the amended complaint refers at length to the probable cause affidavit and even attaches a copy of the warrant application, those documents may be considered in assessing under Rule 12(b)(6) the facial sufficiency of the complaint. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).
10 See also Owens v. Lott, 372 F.3d 267, 277 (4th Cir. 2004), cert. denied, 125 S. Ct. 876 (2005) (“Our review of whether the search warrant was supported by probable cause – in other words, a review of the facts upon which the issuing magistrate relied – may not go beyond the information actually presented to the magistrate during the warrant application process.”); United States v. Serao, 367 F.2d 347, 350 (2d Cir. 1966), vacated on other grounds sub nom. Piccioli v. United States, 390 U.S. 202 (1968) (holding that it would be “hypertechnical” for a magistrate not to act “upon an entire picture disclosed to him in interrelated affidavits”); United States v. Taylor, 716 F.2d 701, 705-06 (9th Cir. 1983) (finding that where “the agent’s affidavit incorporated the previous affidavit made by the same agent” the facts set forth in these documents could be considered together to establish probable cause).
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he intended to engage in, and later engaged in, unauthorized and undisclosed business activities in the United States. Those alleged activities included Al-Hussayen’s service as “the formal registered agent” and “a business associate” for an Islamic organization. Indictment ¶ 17. While serving in that capacity, Al-Hussayen allegedly participated in a series of financial transactions and computer web-site activities with organizations linked to radical Islamic ideologues who advocated terrorism. See id. ¶¶ 17, 19, 20.
Plaintiff readily concedes in his complaint that he “worked for the same charitable Islamic organization as Mr. Al-Hussayen for a considerable period of time and received a salary for his work.” Am. Compl. ¶ 60. That concession alone demonstrates that there was probable cause to believe that plaintiff could provide material testimony related to Al-Hussayen’s involvement in business activities that violated the terms of his student visa.
Plaintiff’s concession that he worked with Al-Hussayen parallels the statement in the warrant affidavit that “from March 2000 to November 2001, an individual identified as Abdullah Al-Kidd, a/k/a Lavoni T. Kidd, and/or his spouse, Nadine Zegura, received payments from Sami Omar Al-Hussayen and his associates in excess of $20,000.00.” Am. Compl., Ex. A, Aff. ¶ 6. Al-Hussayen’s transfer to plaintiff of such a significant sum of money over a limited period of time constituted substantial evidence that Al-Hussayen was not in the United States solely to pursue an academic degree as he had claimed when he obtained a visa. Indictment ¶ 4. It indicated instead that Al-Hussayen – in contravention of his previous certifications to U.S. officials – was involved in business activities, see id. ¶ 8; Aff. ¶ 6, and that plaintiff had direct knowledge of at least some of those activities. See United States v. Feingold, 416 F. Supp. 627, 628 (E.D.N.Y. 1976) (fact that material witness “signed checks totaling $50,000 to XYZ
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Collection Company, of which [defendant] was sole proprietor” supported finding that his testimony would be material to defendant’s trial on tax evasion charges).
The indictment also provided evidence that the transactions between Al-Hussayen and plaintiff were part of a larger, more complex financial arrangement. The $20,000 transferred to the plaintiff and/or his wife appeared to be part of Al-Hussayen’s receipt and disbursement of “approximately $300,000.00" over a six-year period. Indictment ¶ 23. Al-Hussayen allegedly disbursed some of these funds to the Islamic Assembly of North America (IANA) and its officers. Id. ¶ 24. Plaintiff seemed to share at least some of Al-Hussayen’s ties to the IANA. For instance, plaintiff had been observed cleaning out a storage locker in which he left behind a few relevant items, including a program for a previous IANA conference and telephone numbers for both the IANA and its former director, Basem Khafagi. Aff. ¶ 6.
The indictment also alleged that Al-Hussayen had disbursed some funds to pay for travel to Middle Eastern countries “for other individuals, including travel related to IANA.” Indictment ¶ 27. That allegation presented another potential link between Al-Hussayen and plaintiff. Plaintiff had recently traveled to Sana’a, Yemen and, when he returned to Idaho, he met with AlHussayen’s associates. Aff. at ¶ 6. Plaintiff also had scheduled expensive travel to Saudi Arabia. Id. ¶¶ 6, 7. Based on all those facts, there was probable cause to believe that plaintiff could offer testimony that would be material to at least some of Al-Hussayen’s “business activities,” most notably his disbursements of thousands of dollars to individuals affiliated with IANA. Those facts satisfied the materiality requirement in 18 U.S.C. § 3144.
2. Affidavit established probable cause to believe that plaintiff was a flight risk. The other requirement under the material witness warrant statute – that parties seeking a
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material witness warrant must “show probable cause to believe that it is or may be impracticable to rely on a subpoena to get the witness before the grand jury” – is also satisfied in this case. 18 U.S.C. § 3144. The courts have found that a material witness may be detained if the government establishes a “risk of flight” by a preponderance of the evidence. United States v. Rosa-Ortiz, 348 F.3d 33, 40 (1st Cir. 2003) (citing United States v. Nai, 949 F. Supp. 42, 45 (D. Mass. 1996) (collecting cases)); cf. United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990) (government must establish, by a preponderance of the evidence, the risk of flight by the defendant). In United States v. Benevolence Int’l Foundation, Inc., a case involving a perjury charge filed in connection with a terrorism financing investigation, the court outlined the appropriate framework for determining whether an individual presented a risk of flight. 222 F. Supp. 2d 1005, 1006 (N.D. Ill. 2002). Specifically, a court should “assess (A) the Defendant’s mental state (including his motivation to flee) and (B) whether the Defendant has the physical means to flee.” Id.
Turning first to plaintiff’s “mental state,” it reasonably appeared that he intended to flee because he had scheduled overseas travel in the aftermath of Al-Hussayen’s indictment and arrest. See Indictment at 18 (dated February 13, 2003); United States v. Al-Hussayen, 3:03-cr00048-EJL-ALL, Docket No. 11 (arrest warrant for Al-Hussayen executed on February 26, 2003); Aff. ¶ 7 (plaintiff attempted to travel to Saudi Arabia on March 16, 2003).11 He also chose Saudi Arabia as his destination, a country that did not have an extradition treaty with the
11 See United States v. Wang, 818 F. Supp. 156, 158-59 (E.D. Va. 1993) (based in part on purchase of “an airplane ticket for [defendant’s] mother, it appears that defendant [ ] has flight on her mind”); United States v. Vortis, 785 F.2d 327, 330 (D.C. Cir. 1986) (relevant to flight risk assessment that defendant was “planning to travel to Liberia for a semi-permanent transfer”).
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United States.12 Am. Compl. ¶ 5 (plaintiff was arrested in Virginia at Dulles International Airport, where he was prepared to depart for a flight that terminated in Saudi Arabia).
The nature and circumstances of the underlying investigation made the risk of flight much more significant in this case. Criminal investigations into conspiracies potentially related to international terrorism logically present special flight concerns regarding potential witnesses closely associated with the alleged conspiracy. See Benevolence Int’l Found., Inc., 222 F. Supp. 2d at 1007 (discussing defendant’s flight risk in light of “the post 9/11 climate in this country” and “the natural human tendency ... [for an individual under scrutiny for possible involvement in terrorist activities] to apprehensively feel he’s in a difficult and opprobrious situation, from which flows an incentive and risk for flight”); see also United States v. McVeigh, 940 F. Supp. 1541, 1562 (D. Colo. 1996) (finding that the witness’ “renunciation of his U.S. citizenship and his association with Tim McVeigh, a person involved in such a heinous crime, indicates that his testimony cannot be secured through the issuance of a subpoena”). The indictment alleged that Al-Hussayen provided “expert computer services” to a number of web sites, Indictment ¶ 15, some of which disseminated “radical Islamic ideology the purpose of which was indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.” Id. ¶ 17. Although Al-Hussayen was indicted for visa fraud, this alleged criminal act occurred in the context of alleged efforts to finance and support Islamic terrorism. Plaintiff was well aware at the time of both the nature of the investigation and the FBI’s interest in him. He alleges that the FBI had spoken to him several times prior to Al-Hussayen’s arrest, Am. Compl. ¶ 15, and that
12 United States v. Almohandis, 297 F. Supp. 2d 404, 406 n.1 (D. Mass. 2004) (“[t]here is no extradition treaty in place between the United States and Saudi Arabia”).
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the FBI had conducted surveillance of him “as part of their broad terrorism investigation,” id. ¶ 44. Considering plaintiff’s travel plans, the timing of those plans, his intended destination, his connections to Al-Hussayen, and his knowledge of both the terrorism investigation and the FBI’s interest in him, there was clear probable cause to believe that plaintiff had the requisite mental state for a flight risk.
As to plaintiff’s physical means of flight, there is no issue in this instance. The warrant affidavit indicated that plaintiff had scheduled travel to Saudi Arabia, and he was arrested at Dulles International Airport as he prepared to leave the United States. Also, the warrant affidavit pointed out that plaintiff and his wife had received over $20,000 from Al-Hussayen and his associates. Aff. ¶ 6. A witness’ “access to large sums of money” is relevant to the flight inquiry. Bacon v. United States, 449 F.2d 933, 944 (9th Cir. 1971). It also is relevant that Al-Hussayen, a Saudi national, appeared to have an extensive network of contacts in Saudi Arabia. See Indictment ¶ 20 (noting ties to a “radical Saudi sheikh”), ¶ 23 (receipt of a monthly stipend from the “Saudi Arabian Government”), ¶ 18 (service as “administrative point of contact” in Idaho for a Saudi Arabian company), ¶ 24 (receipt of wire transfers from Saudi Arabia). An objective officer consequently could conclude quite reasonably that Al-Hussayen would have associates in Saudi Arabia that might be willing to assist plaintiff. See, e.g., Wang, 818 F. Supp. at 158-59 (Finding that defendant presented a risk of flight in part because she “has connections with Chinese nationals in the United States who in the past have provided her with significant sums of money. Such connections and resources could easily facilitate defendant Wang’s departure from the United States.”). Plaintiff also had recently spent nine months in Sana’a, Yemen. Aff. ¶ 6. As an “experienced international traveler,” he would have had “little difficulty” fleeing to
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Yemen, Saudi Arabia, or any other country without an extradition treaty. United States v. Seif, 2001 WL 1415034, at *2 (D. Ariz. Nov. 8, 2001).
B. Plaintiff Cannot State a Claim under Franks v. Delaware because even his Redraft of the Affidavit Shows There Was Probable Cause for his Arrest
Plaintiff maintains that the warrant affidavit must be reconsidered now to address what he labels false statements and misleading omissions. In order to state a claim based on such allegations, plaintiff must satisfy two fundamental requirements. First, he must show that Mace and Gneckow either deliberately lied to the court or acted with reckless disregard for the truth in seeking the warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978); Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995) (a civil rights claim alleging that law enforcement officers misled a magistrate into issuing a warrant must meet the same standards as a criminal defendant making such a claim under Franks). That requirement cannot be satisfied by vague or conclusory assertions. The plaintiff must “point out specifically the portion of the warrant affidavit that is claimed to be false” and must provide “a statement of supporting reasons” for the challenge. Franks, 438 U.S. at 171. Only a substantial showing of deliberate falsehood or reckless disregard for the truth will overcome the “presumption of validity with respect to the affidavit supporting” the warrant. Id.
To establish reckless disregard for the truth, it must be shown that the law enforcement officer “in fact entertained serious doubts as to the truth of [the] allegations” or, at a minimum, omitted facts from the warrant affidavit that were “‘clearly critical’ to a finding of probable cause.” Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991); see also St. Amant v. Thompson, 390 U.S. 727, 731 (1968). “Negligence or innocent mistake are insufficient” to challenge a warrant. Franks, 438 U.S. at 171. That precludes challenges to warrants based merely upon the
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claim that law enforcement officers failed to properly verify essential information or otherwise conducted an inadequate investigation prior to seeking a warrant. See, e.g., United States v. Miller, 753 F.2d 1475 (9th Cir. 1985) (holding that failure to verify information provided by an informant does not invalidate a warrant); United States v. Young Buffalo, 591 F.2d 506 (9th Cir. 1979) (holding that the failure to determine that the defendant’s motorcycle was destroyed before he allegedly used it in a robbery did not invalidate a warrant).
After satisfying the first step in the Franks inquiry, a plaintiff must then show that, but for the alleged inclusions or omissions he attacks, the warrant would not have issued. Hervey, 65 F.3d at 789; see also Franks, 438 U.S. at 171-72. To accomplish this, a plaintiff must prove that the alleged falsehoods and omissions were material to the court’s probable cause determination in the sense that they were essential or indispensable to the finding. Once the alleged omissions are considered and the alleged falsehoods are discounted, if there still exists a substantial basis for the court’s probable cause finding, the plaintiff cannot prevail on a Franks claim. See Franks, 438 U.S. at 171-72 (concluding that a challenge to a warrant will fail “if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause”); Hervey, 65 F.3d at 789 (“the plaintiff must establish that the remaining information in the affidavit is insufficient to establish probable cause”).
1. The material witness warrant would have issued even with the inclusion of the information alleged in the amended complaint.
Plaintiff has identified information omitted from the affidavit that he believes should give rise to a Franks claim. See Am. Compl. ¶ 15. These alleged omissions have no bearing on the materiality of the testimony plaintiff could provide; rather, their relevance, if any, extends only to
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the second prong of the material witness statute: the impracticability of securing plaintiff’s testimony. Plaintiff argues, for example, that the affidavit was facially invalid because it did not mention that he was a graduate of the University of Idaho and a native-born U.S. citizen who had a wife, child, parents, and siblings who also were native-born U.S. citizens living in this country. Id. Plaintiff cannot rely on this omission to give rise to a claim under Franks because the information he has identified cannot be said to have been clearly critical to the probable cause determination. Nor is there any basis to argue that its inclusion in the warrant would have vitiated probable cause.
While citizenship and family ties may be relevant to the impracticability prong, they are not determinative. That is especially true here, where plaintiff’s apparent access to the network of international contacts that he developed through his previous travels, Al-Hussayen, and the IANA could have enabled him to disregard subpoenas from U.S. officials. Since the material witness warrant sought only to guarantee plaintiff’s availability at Al-Hussayen’s criminal proceedings, the central issue was whether plaintiff would be able to temporarily absent himself from the United States and thereby avoid participation in Al-Hussayen’s trial. Application at 2 (“There is a risk that unless the Court detains or imposes restrictions on the travel of said material witness, he will be unavailable at future proceedings in this case.”). Plaintiff’s international contacts consequently were of far greater significance than the possibility that he might eventually return to the United States to see his family and friends. After all, plaintiff had just recently returned from Yemen, where he had been able to set aside, from August 2001 to April 2002, his ties to his family and friends in the United States. Aff. ¶ 6. This indicated that he was capable of a similar stay in Saudi Arabia, which could have enabled him to avoid any
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involvement in the Al-Hussayen proceedings. Plaintiff also alleges that Mace and Gneckow should have mentioned that he had spoken
with the FBI on several occasions prior to his arrest. Am. Compl. ¶ 15. However, plaintiff has alleged nothing about his prior contacts with the FBI that the agents should have recognized as clearly critical to the probable cause analysis, much less contacts that would have vitiated the Court’s probable cause finding had it been included in the affidavit. He certainly does not claim that he disclosed any information to the FBI that demonstrated his willingness to voluntarily appear and testify against Al-Hussayen. Moreover, plaintiff’s contacts with the FBI occurred before Al-Hussayen was indicted and plaintiff had arranged to travel to Saudi Arabia. This clear change of circumstances diminished the arguable significance of any prior contacts.
Lastly, plaintiff maintains that the affidavit should have stated that the FBI did not inform him that he might be needed as a witness or that he could not travel abroad. Am. Compl. ¶ 15. He further asserts that the affidavit should have noted that he was never asked if he would be willing to testify, voluntarily relinquish his passport, or otherwise postpone his trip to Saudi Arabia. Id. None of these alleged omissions is even relevant to the probable cause finding, let alone matters that the agents should have understood were clearly critical to the analysis. It cannot be rationally argued that the failure to disclose such information in the warrant affidavit somehow misled the Court into issuing an arrest warrant that it would otherwise have rejected. It is important to recognize that the warrant affidavit included no information that could have caused the Court to conclude incorrectly that plaintiff had been uncooperative with the FBI in any respect in the investigation. Because there were no such implications in the warrant affidavit, the issue did not demand clarification. Indeed, it is obvious that, had the FBI asked
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plaintiff to assist it by such things as postponing foreign travel or relinquishing his passport, the agents would have made that clear in the affidavit to demonstrate that he was affirmatively uncooperative and had scheduled travel despite their contrary request. Consequently, the alleged omissions identified by plaintiff are facially inadequate to state a Fourth Amendment claim because there is no basis to conclude that the Court was misled on this matter.
2. Affidavit established probable cause even with the excision of information plaintiff alleges was inaccurate.
The same analysis applies to the one alleged misrepresentation in the warrant affidavit that plaintiff maintains establishes a Franks claim. Plaintiff asserts that the affidavit falsely stated that he was “scheduled to take a one-way, first-class flight (costing approximately $5,000) to Saudi Arabia,” see Aff. ¶¶ 7, 8, when instead he was attempting to travel to Saudi Arabia on a round trip, “coach-class ticket costing less than $2,000.” See Am. Compl. ¶¶ 14, 15. However, mere identification of an inaccuracy in a warrant affidavit is insufficient to present a Franks challenge to an arrest warrant because the error could be due to negligence or innocent mistake rather than an effort to mislead the court. Plaintiff’s complaint is facially deficient because it contains no facts demonstrating that Mace and Gneckow either knew the information was false when they included it in the warrant affidavit or acted with reckless disregard for the truth. Moreover, even assuming for purposes of this motion that the agents intentionally or recklessly misrepresented the details of plaintiff’s airfare arrangements to Saudi Arabia, his Fourth Amendment challenge to the warrant still fails under Franks.
It is immaterial whether the ticket plaintiff purchased for his intended travel was a $2,000 coach-class ticket or a $5,000 first-class ticket. Either way, there is no dispute that plaintiff purchased an expensive airline ticket to a foreign country with which the United States did not
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have an extradition treaty. Similarly, the distinction between a one-way and a round-trip ticket is of little importance. The critical fact was that plaintiff had scheduled travel to Saudi Arabia shortly after Al-Hussayen’s indictment and arrest, and it reasonably appeared he would be unavailable to testify if he was not detained. The Court’s probable cause finding simply was not dependent on the details of plaintiff’s flight arrangements.
3. Allegations regarding defendants’ subjective purposes are irrelevant to the probable cause inquiry.
In his final challenge to the warrant, plaintiff argues that Mace and Gneckow should be held personally liable because they sought his arrest “for the purpose of detaining [him] preventively and/ or for the purpose of further investigating [him] for possible criminal wrongdoing.” Am. Compl., ¶ 56. He asserts a similar claim against former Attorney General Ashcroft, who he maintains created the policy that established this unlawful purpose. See id. ¶¶ 112, 125. These allegations fail to state a claim because the defendants’ alleged subjective intent is wholly irrelevant for Fourth Amendment purposes. The Supreme Court made clear in Whren v. United States that, where there is probable cause to arrest an individual pursuant to law, it is immaterial whether another, even unlawful, purpose exists. 517 U.S. 806, 813 (1996).
The Supreme Court in Whren approved the stop of a vehicle for a minor traffic violation even though the violation was allegedly a pretext to search for drugs without probable cause. Id.; see also Devenpeck v. Alford, 125 S.Ct. 588, 594 (2004) (rejecting challenges to arrests based on improper intent where there was objective probable cause); United States v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002) (as long as officer had “objectively valid ground” upon which to make an arrest, the fact that he articulated an invalid one “does not render the arrest unlawful”). The same rule applies here to plaintiff’s claim that he was arrested for pretextual reasons under the
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material witness statute. See In re De Jesus Berrios, 706 F.2d 355, 357-58 (1st Cir. 1983) (satisfaction of test in material witness statute permitted arrest of individual even where he alleged that warrant for his “testimony” was a “subterfuge” for acquisition of non-testimonial evidence). Such allegations of unlawful purpose fail to state a Fourth Amendment claim.
C. Defendants are Entitled to Qualified Immunity because They Did Not Violate Any Clearly Established Constitutional Right
The above analysis demonstrates compelling probable cause for the issuance of the material witness warrant. Beyond question, it provides at least an arguable basis for the issuance of the warrant, which is all that is required for qualified immunity purposes. See discussion supra at 15-16 (explaining that officer who makes a reasonable mistake concerning the existence of probable cause or the materiality of an omission or a misstatement is entitled to qualified immunity). That Mace and Gneckow made, at worst, a reasonable mistake (and, thus, are entitled to qualified immunity) is especially clear given the circumstances underlying the issuance of the warrant and the later proceedings that were conducted. Mace and Gneckow did not act alone or independently in seeking the warrant. They instead acted in conjunction with the United States Attorney’s Office for the District of Idaho, and an Assistant United States Attorney actually signed the warrant application. Subsequently, the court reviewed the warrant and determined that probable cause existed to detain plaintiff. Plaintiff was later provided a probable cause hearing, and although he was eventually released from custody, the court placed continuing restrictions on his freedom. See Am. Compl. §§ 102-04 (detailing conditions of release); United States v. AlHussayen, 3:03-cr-00048-EJL-ALL, Docket Nos. 41 (initial appearance of plaintiff on March 25, 2003), 45 (detention hearing held for plaintiff on March 31, 2003). These circumstances conclusively demonstrate that the United States Attorney’s Office and this Court – both before
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and after an adversarial hearing – determined that there was a legal basis to hold plaintiff as a witness in Al-Hussayen’s prosecution. In light of those undisputed facts, it would be unreasonable now to find that Mace and Gneckow violated plaintiff’s clearly established Fourth Amendment rights when they sought the material witness warrant. See Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985) (finding that it would be “plainly unreasonable” to require law enforcement officers to second-guess, at their own risk, the legal assessments of trained lawyers).
D. Plaintiff Fails to Allege Facts Sufficient to Show Ashcroft and Callahan Personally Participated in a Constitutional Violation
Plaintiff’s claims against Ashcroft and Callahan should be dismissed on qualified immunity grounds for the additional reason that plaintiff has failed to properly allege their personal participation in any unconstitutional conduct. Plaintiff sues Ashcroft for creating policies that allegedly resulted in his arrest in violation of the Fourth Amendment and his confinement in violation of the Fifth Amendment. Plaintiff’s cause of action against Callahan is limited to his Fifth Amendment conditions of confinement claim.13 Both claims rest exclusively on allegations of boilerplate legal conclusions that are devoid of any factual content regarding either Ashcroft’s or Callahan’s personal involvement in the alleged misconduct. Such insubstantial allegations are inadequate to overcome the qualified immunity defense.
Under the qualified immunity doctrine, federal officials are protected from the entirety of the litigation process unless they engaged in actions that violated a plaintiff’s clearly established constitutional rights. High-level government officials may not be subjected to personal suits
13 Conversely, plaintiff’s claims against Mace and Gneckow are based entirely on his allegedly unlawful arrest. He does not allege that they had any involvement in establishing his conditions of confinement.
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based merely on the alleged misconduct of their subordinates. Vicarious liability in constitutional tort actions against government officials has been repeatedly rejected by the Ninth Circuit. Bibeau v. Pacific Northwest Research Found. Inc., 188 F.3d 1105, 1114 (9th Cir. 1999); Pellegrino v. United States, 73 F.3d 934, 936 (9th Cir. 1996); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
In the present case, plaintiff contends that Ashcroft should be held personally liable for his arrest because he had “ultimate responsibility” for the agencies involved in obtaining the arrest warrant and because he was responsible “for administering the material witness statute.” Am. Compl. ¶ 23. He also alleges that Ashcroft was the “principal architect” of unspecified policies related to the statute, id. ¶ 137, and that these policies resulted in “the unlawful arrest and detention of material witnesses (such as Mr. al-Kidd).” Id. ¶ 138. This attempted reliance on Ashcroft’s former position as Attorney General is a transparent attempt to hold him liable for the acts of his subordinates. “Bivens liability[, however,] is premised on proof of direct personal responsibility.” Pellegrino, 73 F.3d at 936. Plaintiff cannot make that showing here because he does not allege that Ashcroft either participated in or directed his arrest. If bypassing qualified immunity was as easy as alleging that a cabinet level official had ultimate responsibility and authority with regard to official acts performed by his subordinates, then the rule against vicarious liability in constitutional tort actions would be meaningless.
To be sure, high-ranking officials may be held liable for adopting or enforcing unconstitutional policies or practices that cause their subordinates to deprive others of clearly
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established constitutional rights. To properly state such a claim, however, a plaintiff cannot rely on boilerplate assertions devoid of factual content. Plaintiff must instead allege facts sufficient to demonstrate a causal connection between the defendant’s conduct and the alleged deprivation of his clearly established rights. Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991). As the Sixth Circuit explained in Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir. 1989):
If a mere assertion that a former cabinet officer and two other officials ‘acted to implement, approve, carry out, and otherwise facilitate’ alleged unlawful policies were sufficient to state a claim, any suit against a federal agency could be turned into a Bivens action by adding a claim for damages against the agency head and could needlessly subject him to the burdens of discovery and trial. The Eleventh Circuit’s recent decision in Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003), aptly illustrates the requirement of factual allegations of personal involvement. In that case, relatives of Elian Gonzalez sued the Attorney General and other senior-level federal officials based on alleged misconduct by agents who raided the relatives’ home in Miami to obtain custody of Elian. Id. at 1231-33. The Gonzalez family alleged that the senior-level officials “‘personally directed and caused a paramilitary raid upon [their] residence, and had actual knowledge of, and agreed to, and approved of, and acquiesced in, the raid.’” Id. at 1235.14 The family further alleged that “the agents on the scene ‘acted under the personal direction of [the supervisory defendants], and with the knowledge, agreement, approval, and acquiescence of [the supervisory defendants].’” Id. Finally, the family “allege[d] that these defendants ‘personally participated in the constitutional violations, and there was clearly a causal connection between their actions and
14 All internal citations in passages quoted from Gonzalez come directly from the plaintiffs’ complaint in that case.
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the constitutional deprivation.’” Id. The Eleventh Circuit held that these allegations were too “vague and conclusory” to
establish supervisory liability because, although the plaintiffs “state[d] that there [was] a causal connection between these defendants’ acts and the excessive force used by the agents on the scene, . . . they d[id] not allege any facts to support this causal connection.” Id. at 1235. The court further explained that, because of the presumption of legitimacy accorded official conduct, see Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004), no inference of personal complicity could arise based simply on the supervisory defendants’ positions of authority. Gonzalez, 325 F.3d at 1235-36; accord Dalrymple v. Reno, 334 F.3d 991, 996-97 (11th Cir. 2003); see also Bruns v. National Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (“Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”).
Plaintiff’s allegations in this case are even less substantive than those rejected in Gonzalez. The policy claim against Ashcroft, to the extent it is discernable, seems to be that in his effort to use every available tool to arrest those suspected of terrorist activities, see Am. Compl. ¶ 114, he formulated a policy whereby law enforcement officers could “use the material witness statute” to detain terrorist suspects about “whom they did not have sufficient evidence to arrest on criminal charges.” Id. ¶ 116. Although plaintiff’s allegations certainly indicate that Ashcroft supported aggressive law enforcement to combat terrorism, there is no allegation that he ever authorized, approved, or condoned any remotely unlawful action with regard to plaintiff or anyone else. It is axiomatic that the material witness statute does not require evidence to support criminal charges against a reluctant witness in order to take that witness into custody. The purpose of 18 U.S.C. §
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3144 is simply to allow the temporary detention of any person where reasonably necessary to secure his or her testimony in criminal proceedings. See 18 U.S.C. § 3144. Plaintiff’s policy claim is facially deficient because he has alleged no facts demonstrating that Ashcroft caused or encouraged the arrest of persons under the material witness statute in the absence of probable cause to believe that the requirements of the statute were satisfied.
Plaintiff’s allegations as to Ashcroft and Callahan in regard to his Fifth Amendment conditions of confinement claims are similarly deficient. Plaintiff alleges nothing whatsoever to establish that Ashcroft ever took any action that even indirectly impacted the manner, place, or circumstances in which he was held or that Ashcroft was even aware of his detention at the time. Although plaintiff alleges that Callahan “knew” he was being subjected to unlawful conditions of confinement, Am. Compl. ¶¶ 73, 74, he provides no factual foundation for the assertion. He does not claim that Callahan personally imposed any unlawful conditions on him, was ever present to observe any such conditions, or that he or anyone on his behalf ever communicated with Callahan about his conditions of confinement. Plaintiff merely relies on boilerplate assertions of personal knowledge and responsibility that are plainly unavailing. See Wong v. United States, 373 F.3d 952, 966-67 (9th Cir. 2004) (dismissing claim because plaintiff failed “to identify what role, if any, each individual defendant had in placing her in detention, much less whether any of the named INS officials knew or reasonably should have known of the detention conditions to which [she] would be subjected”); see also Gaston v. Coughlin, 249 F.3d 156, 161 (2d Cir. 2001) (dismissing constitutional tort claim against the Commissioner of the Department of Corrections for lack of personal involvement brought by an inmate who claimed he had been subjected to subfreezing temperatures and raw sewage in his cell due to long-term maintenance problems);
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Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir. 1982) (rejecting attempt to hold Commissioner of Corrections personally liable based on fact that prisoner had corresponded with him regarding constitutional violations at jail within his statewide jurisdiction, because “such a broad theory of liability is inconsistent with the personal responsibility requirement”). IV. There Is No Private Right Of Action Under 18 U.S.C. §§ 3142, 3144
Plaintiff alleges in Count I that his arrest, detention, and conditions of release violated both the “Bail Reform Act,” 18 U.S.C. § 3142, and the “material witness statute,” 18 U.S.C. § 3144. Am. Compl. ¶ 151. Although it is unclear what relief he seeks for these alleged violations, there is no question that neither section creates a private right of action.
“Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). A statute can create a private right of action either expressly or by implication. Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831, 834 (9th Cir. 2004). Congress’s intent, found in the text and structure of the statute, is crucial in determining whether a private right of action exists. Alexander, 532 U.S. at 288-89. If the statute does not expressly include a cause of action, a plaintiff asserting such a right “bears the relatively heavy burden of demonstrating that Congress affirmatively contemplated private enforcement when it passed the statute.” Casas v. American Airlines, Inc., 304 F.3d 517, 521-22 (5th Cir. 2002); see also Hoang, 376 F.3d at 834-35.
Neither 18 U.S.C. §§ 3142 nor 3144 expressly creates a private right of action. The legislative history offers no basis for establishing a congressional intent that runs contrary to the plain language of these two sections. The case law similarly offers no possibility of inferring an implied cause of action. Accordingly, these claims must be dismissed to the extent to which they
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are asserted against the individual defendants. CONCLUSION
For the foregoing reasons, the federal defendants respectfully submit that plaintiff’s claims against them should be dismissed with prejudice.
Dated: January 23, 2006 Respectfully submitted, Peter D. Keisler Assistant Attorney General Jeffrey S. Bucholtz Deputy Assistant Attorney General Timothy P. Garren Director, Torts Branch
/s/ Forrest Christian Trial Attorney, Torts Branch
/s/ Philip Lammens Trial Attorney, Torts Branch United States Department of Justice P.O. Box 7146 Ben Franklin Station Washington, D.C. 20044 Tel: 202-616-4169 Fax: 202-616-4314 Attorneys for the Federal Defendants
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CERTIFICATE OF SERVICE I hereby certify that on January 23, 2006, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Lee Gelernt, Attorney for Plaintiff Email: lgelernt@aclu.org Robin L. Goldfaden, Attorney for Plaintiff ACLU Immigrants’ Rights Project Cynthia Jane Woolley, Attorney for Plaintiff Email: cynthia@ketchumidaholaw.com R. Keith Roark, Attorney for Plaintiff Email: keith@roarklaw.com Kathleen J. Elliott, Attorney for Plaintiff Email: kje@hampton-elliott.com Teresa A. Hampton, Attorney for Plaintiff Email: tah@hampton-elliott.com Merlyn W. Clark, Attorney for Defendant Dunning Email: MWC@HTEH.COM Julie D. Reading, Attorney for Defendant Killeen Email: jreading@adaweb.net
/s/ Forrest Christian U.S. Department of Justice
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 2005 WL 2868047 (D.Idaho)

Page 1

For Opinion See 2008 WL 5123009 , 2008 WL 2788418 , 2008 WL 2795137 , 2008 WL 553777 , 2007 WL 4391029 , 2007 WL 4261930 , 2006 WL 5429570 , 2006 WL 2682346
United States District Court, D. Idaho. Abdullah AL-KIDD, Plaintiff, v.
Alberto GONZALES, Attorney General of the United States; John Ashcroft, Former Attorney General of the United States; Robert Mueller, Director of the Federal Bureau of Investigation; Michael Chertoff, Secretary of
the Department of Homeland Security and Former Assistant Attorney General of the Department of Justice; James Dunning, Warden, Alexandria Detention Center; Dennis M. Callahan, Warden, Oklahoma Federal Transfer Center; Vaugh Killeen, Former Warden, Ada County Jail; Fbi Agents Michael James Gneckow, Scott Mace; United States Department of Homeland Security; Federal Bureau of Investigation; Terrorist Screening Center;
Donna Bucella, Director of the Terrorist Screening Center; John does 1-25, Defendants. No. 1:05-cv-00093-EJL. September 26, 2005.
Answer and Demand for Jury Trial Plaintiff,
Greg H. Bower, Ada County Prosecuting Attorney, Julie D. Reading, Deputy Prosecuting Attorney, Civil Division, 200 W. Front Street, Room 3191, Boise, ID 83702, (208) 287-7700, Idaho State Bar No. 6225
COMES NOW, Defendant, Vaughn Killeen, (hereinafter “Defendant”), by and through his attorney of record, Julie D. Reading, Deputy Ada County Prosecuting Attorney, Civil Division, and in answer to Plaintiffs Complaint and Demand for Jury Trial (hereinafter “Complaint”), admit, deny, and allege as follows:
FIRST DEFENSE
Plaintiff's Complaint fails to state a claim against Defendant upon which relief can be granted and should be dismissed, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
SECOND DEFENSE
Defendant denies each and every allegation of Plaintiff's Complaint not herein specifically and expressly admitted.
THIRD DEFENSE
I.
Answering paragraphs 1 and 2 of Plaintiff's Complaint, Defendant is without information sufficient to form a belief as to the truth of the allegations contained therein and therefore denies same.
II.
Answering paragraphs 3 and 4 of Plaintiff's Complaint, Jurisdiction and Venue, to the extent an answer is re-
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quired, the allegations contained therein constitute legal conclusions which Defendant is not required to admit or deny.
III.
Answering paragraphs 5 through 13 of Plaintiff's Complaint, Defendant is without information sufficient to form a belief as to the truth of the allegations contained therein and therefore denies same.
IV.
Answering paragraph 14 of Plaintiff's Complaint, Defendant admits that Defendant Vaughn Killeen is a resident of the State of Idaho, County of Ada, and was the duly elected Sheriff of Ada County at the time of the alleged incidents, with duties and responsibilities with respect to prisoners held in the Ada County Jail are as set forth in Idaho Code § 20-601, but Defendant denies the remaining allegations contained therein. Further, to the extent the allegations contained therein constitute legal conclusions, Defendant is not required to admit or deny same.
V.
Answering paragraphs 15 through 78 of Plaintiff's Complaint, Defendant is without information sufficient to form a belief as to the truth of the allegations contained therein and therefore denies same.
VI.
Answering paragraph 79 of Plaintiff's Complaint, Defendant admits that Plaintiff was held for five days in the Ada County jail and was kept separately from the general population of the Ada County jail for his own protection as directed by the United States authorities. As to the remaining allegations in Paragraph 79, Defendant denies or is without sufficient information as to answer, and therefore denies the same.
VII.
Answering paragraph 80 of Plaintiff's Complaint, the allegations contained therein constitute legal conclusions which Defendant is not required to admit or deny. To the extent that an answer is required, Defendant admits that Vaughn Killeen was the duly elected Ada County Sheriff and his duties and responsibilities with respect to prisoners held in the Ada County Jail are as set forth in Idaho Code § 20-601, et seq., however, as to the remaining allegations, Defendant denies the same.
VIII.
Answering paragraphs 81 of Plaintiff's Complaint, the allegations contained therein constitute legal conclusions which Defendant is not required to admit or deny, however, to the extent that an answer is required, Defendant denies the allegations set forth.
IX.
Answering paragraph 82 of Plaintiff's Complaint, the allegations contained therein constitute legal conclusions which Defendant is not required to admit or deny, however, to the extent that an answer is required, Defendant denies the allegations set forth.
X.
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Answering paragraph 83 through 95, Defendant is without information sufficient to form a belief as to the truth of the allegations, and therefore, denies the same. To the extent an answer is required, Defendant denies that its actions were the proximate cause of Plaintiff's injuries, to the extent that they are proven to exist.
XI. Answering paragraphs 96 through 101, Defendant is without information sufficient to form a belief as to the truth of the allegations, and therefore, denies the same.
XII. Answering paragraphs 102, 104, 106, 108, 111 and 117, Defendant reasserts the answers previously provided with respect to the specific paragraphs incorporated.
XIII. Answering paragraphs 103, 105, 107, 109, 110, 114, 115, 116, and 119-122 of Plaintiff's Complaint, the allegations contained therein constitute legal conclusions which Defendant is not required to admit or deny, however, to the extent that an answer is required, Defendant denies the allegations set forth.
XIV. Answering paragraphs 112, 113 and 118, Defendant is without information sufficient to form a belief as to the truth of the allegations, and therefore, denies the same.
FOURTH DEFENSE As and for an affirmative defense, Defendant alleges that, insofar as Plaintiff's Complaint seeks to set forth claims based upon state law, Plaintiff has failed to comply with the requirements of posting a bond pursuant to Idaho Code § 6-610, and said claims should be dismissed.
FIFTH DEFENSE As and for an affirmative defense, Defendant alleges that, insofar as Plaintiff's Complaint sets forth claims based upon state law, said state law claims are either barred or limited by the Idaho Tort Claims Act.
SIXTH DEFENSE As and for an affirmative defense, Defendant alleges that his acts or omissions, if any, were undertaken in good faith, without malice, with probable cause, and were justified and responsible under the circumstances.
SEVENTH DEFENSE As and for an affirmative defense, Defendant alleges that his acts or omissions, if any, were privileged.
EIGHTH DEFENSE As and for an affirmative defense, Defendant alleges that he is absolutely immune from suit for his acts or omissions, if any.
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NINTH DEFENSE As and for an affirmative defense, Defendant alleges that his acts or omissions, if any, which are not entitled to absolute immunity, are entitled to qualified good faith immunity from suit.
TENTH DEFENSE As and for an affirmative defense, Defendant alleges that, to the extent Plaintiff's Complaint alleges violations of the Idaho Constitution, Idaho statutes, or other Idaho law, such claims cannot form the basis of a cause of action under 42 U.S.C. § 1983.
ELEVENTH DEFENSE As and for an affirmative defense, Defendant alleges that he is not liable under the theory of respondeat superior .
TWELFTH DEFENSE As and for an affirmative defense, Defendant alleges that he is not liable since there was no policy or custom that led to the deprivation of a constitutional right.
THIRTEENTH DEFENSE As and for an affirmative defense, Defendant alleges that the acts or omissions of said Defendant, if any, do not rise to a level of deprivation of constitutionally protected rights.
FOURTEENTH DEFENSE As and for an affirmative defense, Defendant alleges that injuries or damages alleged by Plaintiff, if any, were proximately caused by Plaintiff's comparative negligence and/or fault which negligence or fault was equal to or greater than the negligence or fault of said Defendant, if any, and bars or reduces Plaintiff's recovery.
FIFTEENTH DEFENSE As and for an affirmative defense, Defendant alleges that the damages alleged by Plaintiff were proximately caused, if at all, by acts or omissions of persons or entities other than said Defendant.
SIXTEENTH DEFENSE As and for an affirmative defense, Defendant alleges that Plaintiff failed to comply with requirements of Idaho Code §§ 6-906 and 6-908 and therefore Plaintiff's claims are barred.
SEVENTEENTH DEFENSE As and for an affirmative defense, Defendant alleges that acts or omissions of said Defendant, if any, were not the proximate cause nor the cause in fact of the alleged injuries or damages claimed by Plaintiff, if any.
EIGHTEENTH DEFENSE As and for an affirmative defense, Defendant alleges that he is immune from an award of punitive damages for
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Plaintiff's federal and state law claims. NINETEENTH DEFENSE
As and for an affirmative defense, Defendant asserts that the acts or omissions of said Defendant, if any, were not performed under color of state law.
TWENIETH DEFENSE As and for an affirmative defense, Defendant asserts that he was not a moving force behind the constitutional violation, if any are proven to have occurred as against the other defendants.
TWENTY-FIRST DEFENSE As and for an affirmative defense, Defendant asserts that that the acts or omissions of said Defendant, if any, did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
TWENTY-SECOND DEFENSE As and for an affirmative defense, Defendant asserts that the acts or omissions of said Defendant, if any, were not unlawful.
TWENTY-THIRD DEFENSE As and for an affirmative defense, Defendant asserts that the acts or omissions of said Defendant, if any, were performed at the direction of the United States Marshals Service and/or other federal agents of the United States Department of Justice, who by contract, control the receiving, discharge, placement, medical services and mandatory minimum conditions of confinement of federal prisoners.
TWENTY-FOURTH DEFENSE As and for an affirmative defense, Defendant asserts that the acts or omissions of said Defendant, if any, were performed pursuant to contractual duties executed under the intergovernmental Service Agreement - Housing of Federal Prisoners.
ATTORNEY FEES As a direct result of the filing of this action, Defendant has been forced to retain the services of the Ada County Prosecuting Attorney, Civil Division, and has and will continue to incur fees and costs in defense thereof and request that he be granted reasonable attorney fees pursuant to Idaho Code § 12-121, 42 U.S.C. 1988, and/or 28 U.S.C. 1927, and all applicable Idaho or Federal law, or rules of civil procedure. WHEREFORE, said Defendant prays for judgment as follows: A. That the Complaint be dismissed as to claims against the Defendant; B. That judgment be entered in favor of Defendant on all claims; C. That the Court award Defendant his attorney fees and cost incurred in defense of this action; and
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2005 WL 2868047 (D.Idaho)
D. That the Court grant such other and further relief as it deems just in the premises. END OF DOCUMENT

Page 6

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 Case 1:05-cv-00093-EJL Document 63 Fi led 03/15/2006 Page 1 of 36

R. KEITH ROARK~ ISB No. 2230 Keith@roark1aw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 (208) 788-2427 Fax: (208) 788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchurnidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 (208) 725-5356 Fax: (208) 725-5569
KATHLEEN J. ELLIOTT, ISB No. 4359 kj e@hampton-elliott.com TERESA A. HAMPTON, ISB No. 4364 tah@hampton-elliott. com HAMPTON & ELLIOTT 912 North 8th Street Boise, ID 83302 (208) 384-5456 Fax: (208) 384-5476
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

)

ABDULLAH AL-K.IDD,

)

)

Plaintiff,

)

vs.

)

)

ALBERTO GONZALES, Attorney General of the )

United States; JOHN ASHCROFT, Fonner

)

Attorney General ofthe United States; ROBERT )

MUELLER, Director of the Federal Bureau of )

Investigation; MICHAEL CHERTOFF, Secretary )

CASE NO. 05-093-EJL
OPPOSITION TO FEDERAL DEFENDANTS' MOTION TO DISMISS (Docket# 55)

Case 1:05-cv-00093-EJL Document 63 Filed 03/15/2006 Page 2 of 36

of the Department of Homeland Security; JNvfES )

DUNNING, Sheriff for the City of Alexandria; )

DENNIS M. CALLAHAN, Former Warden,

)

Oklahoma Federal Transfer Center; VAUGHN )

KILLEEN, Former Sheriff of Ada County;

)

FBI Agents MICHAEL JNvfES GNECKOW,

)

SCOTT MACE; UNITED STATES

)

DEPARTMENT OF JUSTICE; UNITED STATES )

DEPARTMENT OF HOMELAND SECURITY; )

FEDERAL BUREAU OF INVESTIGATION;

)

TERRORIST SCREENING CENTER;

)

DONNA BUCELLA, Director of the Terrorist

)

Screening Center; UNITED STATES; JOHN

)

DOES 1-25,

)

)

_____D_ef_en_d_an_ts_. _________________

)
)

Additional Counsel for Plaintiff:
LEEGELERNT lgelemt@aclu.org AMERICAN CIVIL LIBERTIES UNION
FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2616 Fax: (212) 549-2654
MICHAEL J. WISHNIE michael. wishnie@nyu.edu 245 Sullivan Street New York, NY 10012 (212) 998-6471 Fax: (212) 995-4031 (Cooperating Counsel for the ACLU)

LUCAS GUTTENTAG lguttentag@aclu.org ROBIN GOLDFADEN rgoldfaden@aclu. org AMERICAN CIVIL LIBERTIES
UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 405 141h Street, Suite 300 Oakland, CA 94612-9987 (510) 625-2010 Fax: (510) 622-0050
JACK VANVALKENBURGH, ISB No. 3818 jackvv@acluidaho.org AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF IDAHO P.O. Box 1897 Boise, ID 83701 (208) 344-9750 Fax: (208) 344-7201

Case 1:05-cv-00093-EJL Document 63 Filed 03/15/2006 Page 3 of 36
TABLE OF CONTENTS IN"TRODUCTION ............................................................. 1 FACTUAL STATEMENT ...................................................... 1 ARGUMENT ................................................................. 3
FBI Defendants Mace and Gneckow ......................................... 4 I. MACE AND GNECKOW ARE LIABLE UNDER THE FRANKS TEST .......... 4
A. The Allegations That Defendants Acted Intentionally Or Recklessly Must Be Taken As True .............................................. 5
B. The Corrected Affidavit Does Not Establish Probable Cause Of Flight Risk ......................................................... 6 1. The "Corrected" Affidavit .................................. 6 2. The corrected affidavit does not satisfy the Ninth Circuit's material witness standards ......................................... 7 3. Defendants have applied the wrong legal standard ................ 9 4. The omissions and false statements were plainly relevant to probable cause .......................................... 13 (a) Omissions ........................................ 13 (b) False Statements ................................... 15
II. MACE AND GNECKOW ARE LIABLE UNDER THE NIALLEY TEST ........ 16 III. MACE AND GNECKOW'S ACTIONS ARE NOT IMMUNIZED BECAUSE
THE COURT APPROVED THE WARRANT ............................ 18 1. Malley Test ............................................. 18 2. Franks Test ............................................. 18

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IV. THE ARREST AND DETENTION WERE UNCONSTITUTIONAL IF DONE FOR THE PURPOSE OF INVESTIGATION OR PREVENTIVE DETENTION ...................................................... 19
Defendant Ashcroft .. . .................................................. 21 V. DEFENDANT ASHCROFT IS SUBJECT TO THE COURT'S
JURISDICTION ......................................... . ........... 21 VI. PLAINTIFF HAS ALLEGED A LEGALLY SUFFICIENT CONNECTION
BETWEEN DEFENDANT ASHCROFT AND THIS CASE .............. . .. 22 VII. DEFENDANT ASHCROFT IS NOT ENTITLED TO ABSOLUTE
IMMUNITY ....................................................... 28 CONCLUSION ..... .. ....................................................... 30

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INTRODUCTION Defendants Mace, Gneckow and Ashcroft have moved to dismiss under F.R.C.P. Rule 12(b)(6) for failure to state a claim, and Defendant Ashcroft has also moved to dismiss under Rule 12(b)(2) for lack of personal jurisdiction. The central flaw running throughout defendants' brief is the failure to distinguish between the standards governing the arrest and detention of witnesses (such as plaintiff al-Kidd) and those governing the arrest and detention of individuals charged with or convicted of criminal offenses (which plaintiff was not). Under the Ninth Circuit's well-established standards, a witness may not be arrested and detained without being given the "opportunity" to voluntarily cooperate- an opportunity that Mr. al-Kidd was never afforded, even though he is a United States citizen who had cooperated extensively with the FBI and had never stopped cooperating. Bacon v. United States, 449 F.2d 933, 945 (9th Cir. 1971). 1
FACTUAL STATEMENT 1. Plaintiff al-Kidd is a 33-year-old African-American man raised near Seattle. Like Mr. al-Kidd, his mother, father, siblings and children are all native-born United States citizens. At the time he was arrested, Mr. al-Kidd was married to a native-born United States citizen. Am. Compl. ~~ 15, 39, 54b. Mr. al-Kidd graduated from the University ofldaho, where he was a starting running back on the football team. Before graduating, he converted to Islam and changed his name from Lavoni T. Kidd to Abdullah al-Kidd. Am. Compl. ~~ 15, 40, 54a. 2. While in college, and after graduation, Mr. al-Kidd traveled abroad to further his religious studies. He returned to the United States on each occasion. At the time of his arrest,
1 Defendant Callahan has also sought dismissal on the principal ground that he became warden after plaintiff was released. Plaintiff does not object to Callahan's dismissal and has filed a motion to substitute the correct warden of the Oklahoma facility.
1

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Mr. al-Kidd was traveling to Saudi Arabia to study on a scholarship at a well-known university. Am. Compl. ~~ 15, 42.
3. During the spring and summer of2002, FBI agents conducted surveillance of Mr. al-Kidd and his then-wife as part of a broad terrorism investigation in Idaho. The FBI
surveillance logs do not report any illegal activity by Mr. al-K.idd. Am. Campi. ~ 44.
4. On March 14, 2003, the United States Attorney's Office submitted an application and
supporting affidavit to this Court for the arrest of Mr. al-Kidd as a material witness pursuant to 18 U.S.C. § 3144, in the AI-Hussayen case. Am. Compl. ~ 46. According to the affidavit,
al-Kidd had "crucial" information and was a flight risk because he was scheduled to travel to Saudi Arabia in two days. Am. Compl. ~~ 46, 49, 58. Significantly, the warrant contained false statements about Mr. al-Kidd's plane ticket, which the government subsequently conceded. The affidavit also omitted numerous facts, including that Mr. al-Kidd (a) had extensively cooperated with the FBI and had never stopped cooperating, (b) had never been told to refrain from traveling or to inform the FBI if he planned to travel, (c) had never been asked, much less refused, to testify, and (d) had never been asked to relinquish his passport or otherwise postpone his trip to Saudi Arabia pending trial or a deposition. Am. Compl. ~~ 15, 54, 55, 112.
5. Based on the incorrect and misleading affidavit, United States Magistrate Judge Williams issued the material witness arrest warrant on March 14, 2003. Am. Compl. ~ 47. On
March 16, 2003, Mr. al-Kidd was arrested by FBI agents at Dulles Airport and led away in
handcuffs in front of scores of onlookers. Am. Compl. ~~ 5, 65. Over the next fifteen days, Mr. al-K.idd was shuffled between three different detention facilities across the country. Am. Compl. ~ 6, 70. When transported between facilities, he was shackled, Am. Compl. 1~ 6, 83 , 84, 92, 93 ,
2

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112, and at each facility held under heightened security conditions. Am. Compl. ~~ 6, 73-74, 87, 95, 157.
6. On March 27, 2003, while Mr. al-Kidd remained in detention, FBI Director Mueller
testified before Congress that the goverrunent was making progress in the fight against terrorism and that one of its recent "successes" was the arrest of Mr. al-Kidd. The other examples listed by Director Mueller were all individuals criminally charged with terrorism-related offenses or enemy combatants, such as K.halid Shaikh Mohammed, the alleged "mastermind" of the September 11th attacks. The Director's testimony did not mention that Mr. al-Kidd had been arrested only as a witness. To date, the government has never explained why the FBI Director would tell Congress that the arrest of Mr. al-Kidd- supposedly a witness- represented one of the government's noteworthy recent successes in the war on terrorism. Am. Compl. ~~ 8, 11, 100.
7. Mr. al-Kidd was eventually released from detention on March 31,2003, under severe restrictions. More than thirteen months later, the trial for which Mr. al-Kidd's testimony was supposedly needed ended without a conviction. Mr. al-Kidd was never called as a witness (and
was never subsequently charged with a crime). Am. Compl. ~~ 9, 70, 103, 106. ARGUMENT
Dismissalllilder Rule 12(b)(6) is proper "only if it appears to a certainty that [a plaintiff] would be entitled to no relief under any state of facts that could be proved." See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). At the pleading stage, a court must "accept all
3

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material allegations in the complaint as true and construe them in the light most favorable to [the plaintiff]." See North Star Intern v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983).2
FBI Defendants Mace and Gneckow Mace was the agent who signed and submitted the affidavit in support of Mr. al-Kidd's arrest, and Gneckow provided information for the affidavit. No other FBI agent is mentioned by name in the affidavit. Both defendants acknowledge that FBI agents can be held individually liable for their actions in preparing and submitting an arrest affidavit, under either of two distinct tests. One is the Franks test, which looks at whether probable cause for Mr. al-Kidd's arrest would have existed under a "corrected" version ofthe affidavit- i.e., one without intentional or reckless false statements and omissions. Franks v. Delaware, 438 U.S. 154 (1978). The second is the Malley test, which looks at whether it was reasonable for defendants to have believed that the affidavit on its face (i.e., as actually presented to the Court), demonstrated probable cause. Malley v. Briggs, 475 U.S. 335 (1986). Defendants Mace and Gneckow are liable under both tests. I. MACE AND GNECKOW ARE LIABLE UNDER THE FRANKS TEST. For a Franks claim, plaintiff must show that (1) the false statements and omissions in the affidavit were made deliberately or recklessly, and (2) the ''corrected" affidavit (with false statements deleted and omissions added) would not have established probable cause. See, e.g., Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1295 (9th Cir. 1999); Liston v. County ofRiverside, 120 F.3d 965, 973 (9th Cir. 1997).
2 Defendant Ashcroft's Rule 12(b)(2) motion is discussed separately. See Section V.
4

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A. The Allegations That Defendants Acted Intentionally Or Recklessly Must Be Taken As True.
At the pleading stage, plaintiff need not have, and could not be expected to have, clear proof that defendants acted intentionally or recklessly. The complaint's allegations must be taken as true, and under the Franks test, the "question of intent or recklessness is a factual determination for the trier of fact." Mendocino Environmental Center, 192 F.3d at 1295. See Kim v. Gant, 1995 \VL 508208, at *4 (E.D. Pa., Aug. 22, 1995) ("court must take as true the allegation ... that the troopers knowingly lied in obtaining the warrant").
Defendants suggest that a "substantial showing" of intent or recklessness is required. Defs.' Mem. at 19 (citing, e.g., Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995)). But none of the cases cited by defendants involved motions at the pleading stage; plaintiffs must make a "substantial showing" at the summary judgment stage. See Hervey, 65 F.3d at 788-89. Defendants also suggest that an omission is only reckless or intentional if it was "clearly critical to the probable cause determination." Defs.' Mem. at 20. But, again, defendants incorrectly rely on summary judgment cases (such as Hervey). 3
Here, the Complaint specifically alleges that the affidavit's false statements and omissions were caused by Mace and Gneckow's intentional and/or reckless actions. See Am. Compl. ~~51, 52, 54, 59, 60. That is sufficient to withstand a motion to dismiss.
3 Even at the summary judgment stage, the test is not whether an omission was "clearly critical" to probable cause, which defendants take from a Tenth Circuit case (Bruning v. Pixler, 949 F.2d 352); the Ninth Circuit's test is whether an omission "tends to mislead." United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985).
5

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B. The Corrected Affidavit Does Not Establish Probable Cause Of Flight Risk. The second step in the Franks test is whether the corrected affidavit would have established probable cause. Critically, under Franks, the question is not whether a reasonable officer would have believed that the corrected affidavit satisfied probable cause. Rather, the court's inquiry is focused solely on whether the corrected affidavit does or does not establish probable cause because the officer loses his immunity when he intentionally or recklessly submits an affidavit containing materially false statements or omissions. See, e.g., Mendocino Environmental Center, 192 F.3d at 1295 ("We begin with the precept that a police officer who recklessly or knowingly includes false material information in, or omits material information from, a search warrant affidavit cannot be said to have acted in an objectively reasonable manner, and the shield of qualified immunity is lost") (citation omitted); Liston, 120 F.3d at 973 n.8. 1. The "Corrected" Affidavit. The affidavit submitted to Judge Williams contained 8 paragraphs, only three of which (~~ 6-8) even discussed Mr. al-Kidd. Those three paragraphs would have read very differently had they not contained munerous omissions and false statements, including: --failing to state that Mr. al-Kidd and the defendant Al-Hussayen worked together and that Al-Hussayen was responsible for paying Mr. al-Kidd his salary. Thus, the more than
$20,000 received by Mr. al-Kidd was his salary for work over a significant period of time, Am.
CompL ~ 60;
--falsely stating that Mr. al-Kidd had a one-way, first-class ticket costing approximately
$5,000, when Mr. al-Kidd actually had a roundtrip, coach ticket costing approximately $1,700, id. ~~ 14, 53;
--failing to note that Mr. al-K.idd was not a Saudi national returning home, but rather a native-born United States citizen who had substantial ties in the United States, including a native-born United States citizen mother, father, sibling, wife and child, id. ~~ 15, 39, 40;
6

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--failing to note that Mr. al-Kidd had talked with the FBI on several occasions, either in-person or on the phone, and had voluntarily answered questions for hours on a wide range of topics at his mothds home, where he was then living, and that he had never failed to show up to these pre-arranged meetings, id. ,-r,-r 15, 54;
--failing to note that the FBI had not contacted Mr. al-Kidd for approximately six months and that the FBI never told him, before or after the Al-Hussayen indictment, that he might be needed as a witness at some point or that he could not travel abroad or that he must inform the FBI if he did intend to travel abroad, id.;
--failing to note that the FBI never asked al-Kidd whether he would be willing to continue cooperating and voluntarily agree to testify (or to comply with a subpoena issued to him before he left for Saudi Arabia). Id In addition, the FBI also never asked Mr. al-Kidd whether he would voluntarily relinquish his passport or otherwise agree to postpone his trip to Saudi Arabia until after the trial (or his deposition could be taken), id.
Defendants contend that the affidavit, even as corrected, would still have established probable cause to believe that Mr. al-Kidd was a flight risk, thereby warranting the extraordinary step of arresting and detaining a United States citizen as a witness. The flaw in defendants' argument is the same one that runs throughout their entire brief- the conflation of the standards governing witnesses with those applicable to criminal suspects.
2. The corrected affidavit does not satisfy the Ninth Circuit's material witness standards.
A material witness cannot be arrested unless there is a genuine reason to believe he would not voluntarily testify or comply with a subpoena. The touchstone is whether the witness has been given the opportunity to do so and has refused or has otherwise taken some affirmative action making it clear that he would not cooperate. Thus, the government may not simply presume that an individual will not cooperate. This principle follows from the most basic rule that individuals must always be given the opportunity to comply with their legal obligations.
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The leading case in the Ninth Circuit on the standards for arresting a material witness is Bacon v. United States, 449 F.2d 933 (9th Cir. 1971). There, the Court ruled that the FBI had failed to establish probable cause of flight risk- despite the fact that the witness had "access to large sums of money," had "personal contact with fugitives from justice," and had fled to an "adjoining rooftop" when the FBI sought her arrest. Id. at 944-45.
The Ninth Circuit emphasized that the witness' access to large sums of money was "at best remotely relevant to her possible recalcitrance." Id. at 944. The Court discounted the importance of the money, even in conjunction with the fact that the witness had personal contacts with fugitives, explaining that it "at most tends to show that ifBacon wished to flee, she might be able to do so successfully. It does not support the conclusion that she would be likely to flee or go underground." !d. (emphasis in original).
The Court also concluded that the witness ' s capture on the adjoining rooftop did not establish flight risk. Notably, the Court did not dispute that an "inference can be drawn that Bacon wished to avoid apprehension" by fleeing when the FBI came to arrest her at her home. I d. at 944. But the Court refused to draw the ''further inference" that the witness would not have complied with a subpoena, explaining that the situation in which the witness found herself:
.. . differs greatly from that in which Bacon would have found herself had she been served with a subpoena. She would then have had an opportunity to reflect on her obligation to obey the process, free from the fear of imminent arrest by pursuing officers. This opportunity is granted to most witnesses .... ld at 945 (emphasis added). InArnsberg v. United States, 757 F.2d 971 (9th Cir. 1985), the Ninth Circuit went even further. There, the officers obtained a warrant only after having made multiple attempts to
8

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subpoena the witness -- looking for him at work and his home, calling his friends, and twice leaving a subpoena with his employees~- after the witness said he would not testify voluntarily. !d. at 974. The Ninth Circuit nonetheless concluded that the arrest was invalid, stating that the facts "only show a man somewhat obstinately insisting upon his right to refuse to appear before a grandjuryuntil personally served." Jd at 976-77. See Mayfieldv. Gonzales, 2005 WL 1801679, at *9 (D. Or. July 28, 2005) (applying Bacon, denying defendants' motions, and permitting discovery on what information was known to agents who submitted warrant regarding "flight risk" for witness). See also Perkins v. Click, 148 F.Supp. 2d 1177, 1183 (D. N.M. 2001) (no probable cause of flight risk where witness had ties to the community and "made no indication to any officer that she would be a reluctant witness").
Under the Ninth Circuit's decisions in Bacon and Arnsberg, the corrected affidavit in this case does not come close to establishing flight risk. Mr. al-Kidd did not exhibit any "recalcitrance'' about testifying- indeed, he was never asked to testify or even alerted to the possibility that he might be needed as a witness. Bacon at 944-45. Nor was he ever asked if he would be willing to postpone his trip or relinquish his passport. To the contrary, Mr. al-Kidd had cooperated extensively with the FBI and never refused any subsequent request for his cooperation. In short, Mr. al-Kidd was given absolutely no "opportunity" to testify voluntarily or comply with a subpoena, as required by Bacon. Jd at 945.
3. Defendants have applied the wrong legal standard. Notably, defendants mention Bacon only in a single sentence. Defs.' Mem. at 18. Indeed, ofthe close to 50 cases cited by defendants in their discussion of Mace and Gneckow's liability, all but a few involve criminal defendants, and the remainder are cited only in passing.
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In particular, defendants contend that United States v. Benevolence Jnt'l Foundation, Inc., 222 F. Supp. 2d 1005 (N.D. Ill. 2002) --a case involving bail for an individual charged with a crime-sets forth the "appropriate framework" for determining flight risk. Defs.' Mem. at 16. Quoting Benevolence, defendants contend that this Court should assess whether Mr. al-Kidd had "the physical means to flee" and whether he had the "mental state (including his motivation to flee) ...." !d. But Bacon, not Benevolence, governs the arrest of a witness. Consequently, all of defendants' arguments based on Benevolence (and other criminal defendant cases) are misplaced.
Defendants contend, for example, that there is no issue as to plaintiff's "physical means of flight" because he was in fact traveling to Saudi Arabia and, among other things, apparently had access to large sums of money. Defs.' Mem. at 18. But as Bacon specifically explained, a witness' capability to flee does "not support the conclusion that [the witness] would be likely to flee or go underground." 449 F.2d at 944 (emphasis in original). The overriding point of Bacon is that an innocent witness is different than an individual charged with a crime and must be given the "opportunity" to cooperate. !d. at 945.4
Defendants also claim that Mr. al-Kidd had the "mental state" of someone who would not cooperate and was intending to flee. Defendants assert, for instance, that it "reasonably appeared that he intended to flee because he had scheduled overseas travel in the aftermath of Al-Hussayen's indictment and arrest," and because he "chose Saudi Arabia as his destination, a country that did not have an extradition treaty with the United States." Defs.' Mem. at 16-17.
But Mr. al-Kidd was scheduled to leave after the date of the indictment. Defendants had no basis
4 Defendants' only citation to Bacon is in this part oftheir brief, and it is cited for the proposition that a witness' access to large sums of money is significant- precisely the opposite of what Bacon held. Defs.' Mem. at 18.
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then, nor do they now, to imply that Mr. al-Kidd first made plans to travel to Saudi Arabia after Al-Hussayen was arrested. Similarly, although defendants attempt to create the implication that Mr. al-Kidd was seeking to avoid legal process, defendants do not, and could not, state that Mr. al-Kidd chose Saudi Arabia because it lacks an extradition treaty. Not surprisingly, therefore, the affidavit did not state, and could not have stated, that Mr. al-Kidd had chosen Saudi Arabia because it lacked an extradition treaty, or that he had first decided to go there after hearing that Al-Hussayen had been arrested.5
Defendants suggest, however, that they could not have taken a chance that Mr. al-Kidd may not have returned for the trial, and given the lack of an extradition treaty, they could not have forced him to do so. But, under Bacon, defendants cannot have him arrested based on the assumption that he might not cooperate. And, of course, defendants could have simply asked Mr. al-Kidd if he were willing to postpone his trip and/or voluntarily relinquish his passport. Had defendants done so, Mr. al-Kidd would then have had what Bacon requires- an "opportunity" to cooperate before being hauled off and arrested. Here, moreover, the failure to give Mr. al-Kidd a chance to cooperate by postponing his trip was especially egregious since he had already cooperated extensively with the FBI and never stopped cooperating -- the FBI simply stopped contacting him. Yet he was nonetheless arrested at the airport -- never having been told not to travel or that he might be needed as a witness. See Bacon, 449 F.2d at 944 (stressing that witness had not demonstrated "recalcitrance").
5 As the Complaint specifically states, Mr. al-Kidd was going to Saudi Arabia to study. Am. Compl. ~~ 15, 42. It is not reasonable to infer that, in the span of barely more than two weeks, Mr. al-K.idd decided to travel to Saudi Arabia, secured a visa to that country, obtained a scholarship at a well-known university, and made all the arrangements necessary for his departure.
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Moreover, even if defendants were tu1willing to give Mr. al-Kidd the opportunity to cooperate (as Bacon requires), they could simply have seized his passpm1, and thereby prevented him from traveling abroad. Notably, that is precisely what the government did in the AlHussayen case with another material witness who was traveling to Saudi Arabia (who, tu1like Mr. al-Kidd, was a Saudi national). Am. Compl. ~ 57.
Ultimately, defendants appear to recognize that Mr. al-K.idd's actions cannot be a sufficient basis to infer he was seeking to flee. Defendants thus ask this Court to examine Mr. al-Kidd's actions in light of the "nature and circumstances ofthe underlying investigation," which, according to defendants, made the "risk of flight much more significant in this case." Defs.' Mem. at 17. Toward this end, defendants outline the indictment against Al-Hussayen and state that"[cJriminal investigations into conspiracies potentially related to international terrorism logically present special flight concerns regarding potential witnesses closely associated with the alleged conspiracy." Id In support of that proposition, defendants again rely on the Benevolence decision involving a defendant charged with a terrorist offense. !d. Defendants conclude by stressing that Mr. al-Kidd "was well aware ... of both the nature of the investigation [surrotu1ding Al-Hussayen] and the FBI's interest in him [al-Kidd]." !d.
Thus, although Mr. al-Kidd was never actually charged with a crime, defendants now claim that it was their very suspicion of him that established a sufficient basis to presume he was a flight risk for purposes of arresting him as a material witness. In particular, defendants argue that because Mr. al-Kidd might have feared being arrested as a suspect (though he had done nothing wrong), he might have had the motivation to flee rather than testify voltu1tarily or comply with a subpoena. In other words, defendants are able to manufacture flight risk. They
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target an individual, and when they fail to find any basis to bring criminal charges, as with Mr. al-Kidd, they can arrest the individual as a material witness in connection with the underlying investigation because any individual in that situation would, according to defendants, undoubtedly have the motivation to flee. Defendants' position simply cannot be squared with the historically-limited purpose of the material witness law. If, under Bacon, a witness who actually flees to avoid the FBI is not presrunptively a flight risk, then defendants cannot plausibly argue
that Mr. al-Kidd should have been considered a flight risk on the ground that he was targeted by
the government and may have been fearful of arrest and may have refused to cooperate had he been given an opportunity to do so.
4. The omissions and false statements were plainly relevant to probable cause. Defendants claim that each of the omissions and false statements is insignificant. But the proper test is not whether each particular omission or false statement, by itself, would vitiate probable cause, but rather, whether all of the omissions and false statements, taken together, would have negated probable cause. See United States v. Stanert, 76 F.2d 775, 782 (9th Cir. 1985) ("The effect ofthe misrepresentations and omissions on the existence of probable cause is considered crunulatively"). In any event, defendants' contention that the omissions and false statements were insignificant lacks merit. (a) Omissions. Defendants argue, for instance, that Mace and Gneckow may reasonably have concluded that it was unimportant to inform Judge Williams about Mr. al-Kidd's prior cooperation with the FBI. But, in the material witness context, the very question before the court is whether the individual would cooperate if given the opportunity to do so. Bacon at 944-45. As the Ninth Circuit has explained, "[by] reporting less than the total story, an affiant can
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manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning." Stanert, 762 F.2d at 781. Defendants also argue that Mr. al-Kidd's prior cooperation was of diminished value because the complaint does not state that he "disclosed any information to the FBI that demonstrated his willingness to testify voluntarily." Defs' Mem. at 21. Yet the FBI never asked him ifhe would
testify. Am. Compl. ~~ t5,54. Moreto fuepoin_t, Mr.al-:-Kiddcouldnothave volunteered to
testify because there was no indictment at that point, much less a trial scheduled.6 Defendants further contend that Mr. al-Kidd's citizenship and substantial family ties
were not "determinative" to the probable cause determination. Defs.' Mem. at 20-21. But, even if not by themselves ''determinative," those are unquestionably facts that a reasonable person plainly would wish to know in making the probable cause assessment- especially given the post-September 11 focus on non-citizens, the fact that the FBI's asserted basis for flight risk was
Mr. al-Kidd's travel, and the fact that he had a roundtrip ticket (not a one-way ticket).
Defendants also note that Mr. al-Kidd had previously traveled abroad for a period of roughly nine months, reasoning that he was thus "capable of a similar stay in Saudi Arabia, which would have enabled him to avoid any involvement in the Al-Hussayen proceedings." Defs' Mem. at 21. Ultimately, the trial did not begin for another 13 months. In any event, under Bacon, the government may not legally presume that one who has the capability to avoid
6 Defendants seek to have it both ways, arguing in the alternative that Mr. al-Kidd' s cooperation was of little significance because ofthe very fact that it did occur before the
indictment. But Mr. al-Kidd did not stop cooperating with the FBI- they stopped contacting
him, and indeed, did not even bother to contact him after the Al-Hussayen indictment. 14

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cooperating is likely to do so. And, again, defendants could have simply asked him to postpone his trip or seized his passport.7
Finally, defendants contend that it is simply not "relevant" that the affidavit failed to note that Mr. al-Kidd had never been asked to testify, postpone his trip or relinquish his passport. Defs.' Mem. at 22. In defendants' view, none of this information was material because the affidavit had not created the opposite impression. Defendants thus state that "had the FBI asked plaintiff to assist it by such things as postponing foreign travel or relinquishing his passport, the agents would have made that clear in the affidavit to demonstrate that he was affirmatively uncooperative and had scheduled travel despite their contrary request." Id. at 22. But, again, in the material witness context, where the determinative question is the individual's willingness to cooperate, these facts could not have been more critical. See Vassallo v. Fox, 2004 \VL 2827517,
at *5 (E.D. Pa. Dec. 9, 2004) ("omissions are made with reckless disregard for the truth if an
officer withholds a fact in his ken that any reasonable person would have known that this was the kind of thing the judge would wish to know").
(b) False Statements. Defendants likewise contend that the misrepresentations regarding Mr. al-Kidd's airline ticket were of little importance. Defendants argue that the only meaningful fact was that Mr. al-Kidd was going to Saudi Arabia, and not whether he was traveling on a one-way, first-class ticket costing roughly $5,000, or as it turned out, a round trip, coach ticket costing roughly $1,700. Yet, in the entire affidavit, there were only four sentences that specifically addressed flight risk (~~ 7, 8), and defendants chose to include those details about the
7 Moreover, if they did allow him to travel, they could have issued him a subpoena before he left (or even while in Saudi Arabia). Mr. al-Kidd certainly had an incentive to return to the United States and obey a subpoena, since the failure to do would have potentially subjected him to severe penalties. See 28 U.S.C. § 1784; 18 U.S. C. § 401.
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ticket. It blinks reality to assume that experienced FBI agents included those details for no reason- especially after September 11th.8
In sum, the corrected affidavit did not establish probable cause of flight risk. Defendants simply presumed that Mr. al-Kidd would not cooperate, without ever affording him the opportunity to demonstrate his willingness to do so. That is precisely what Bacon held was impermissible.9
II. MACE AND GNECKOW ARE LIABLE UNDER THE MALLEY TEST. The Malley test looks at the face of the warrant presented to the Court and asks whether it
was reasonable for defendants to believe the warrant satisfied probable cause. See Greenstreet v. County ofSan Bernadino, 41 F.3d 1306, 1310 (9th Cir. 1994) (denying qualified immunity to officer who failed to use "reasonable professional judgment"). Even without the corrections to the affidavit, the central point remains: under Bacon defendants were required to give Mr. al-Kidd the opportunity to testify voluntarily or comply with a subpoena, or to show evidence of his being unwilling to do so, before arresting him. Thus, even if Mr. al-Kidd had been traveling on a one-way, first class ticket costing roughly $5,000 (as the affidavit incorrectly stated), those facts do not establish that Mr. al-Kidd would not have postponed his trip, relinquished his
8 Defendants alternatively argue that "the error could be due to negligence or innocent mistake," and that the Complaint fails to include facts showing that defendants knew of the mistake or acted recklessly. Defs.' Mem. at 23 (emphasis added). But, as discussed, see supra Section I.A., that argument is misplaced at the motion to dismiss stage. Moreover, in this case, the false statements involved easily-verifiable facts, such as the cost and class ofthe ticket. Plaintiff is clearly entitled to limited discovery on this issue given the clear inference that defendants were, at a minimum, reckless in getting these types of simple facts wrong.
9 The corrected affidavit also failed to satisfy the second prong of the showing necessary to arrest a witness- that Mr. al-Kidd had information "material" to the Al-Hussayen trial. That argument is addressed below in the discussion of the Malley test. See, infra, Section II.
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passport, or otherwise complied with a subpoena had he been given a chance to do so. As long as the affidavit did not state that Mr. al-Kidd had evaded judicial process or been affirmatively uncooperative (which it did not), it did not establish probable cause, and Mr. al-Kidd should have been afforded the opportunity to cooperate before being arrested.
The affidavit on its face also failed to establish that Mr. al-Kidd had information material to the Al-Hussayen case. Indeed, although the affidavit stated that Mr. al-Kidd had "crucial" information for the prosecution, the government never called him as a witness. Moreover, the affidavit did not specifically explain the information Mr. al-Kidd supposedly had that was crucial to the prosecution. Defendants not surprisingly attempt to fill in the gaps in their brief and assert that Mr. al-Kidd could have testified that Al-Hussayen was engaging in "business activities" in violation of his visa. Defs.' Mem. at 14-15. But defendants cannot fill in the missing parts after the fact. Furthermore, the government could have obtained Mr. al-Kidd's supposedly crucial information from numerous sources. Thus it is hardly surprising that Mr. al-Kidd was never called to testify. Ifthe protections of the material witness statute and the Fourth Amendment are to have any meaning, they must prohibit the government from locking up a United States citizen for marginal, cumulative testimony- testimony so marginal and cumulative that it is ultimately never even required. 10
10 Notably, the Justice Department's own definition of a "material witness" is one who has "significant" information about a criminal prosecution that is "necessary" to resolve the matter. See DOJ, Bureau of Justice Statistics, "Compendium of Federal Justice Statistics, 2003" at 124.
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III. MACE AND GNECKOW'S ACTIONS ARE NOT IMMUNIZED BECAUSE THE COURT APPROVED THE WARRANT. The government contends that even if there was no probable cause under the Franks or
Malley tests, Mace and Gneckow are entitled to qualified immunity because a United States Attorney and the Court approved of the arrest. Defs..' Mem. at 24-25. This argument is wholly misplaced with respect to the Franks inquiry and was squarely rejected in Malley itself.
1. Malley Test. The Supreme Court in Malley unequivocally rejected the very argument defendants are making here. Malley, 475 U.S. at 346 n.9 (rejecting officer's argument that Court's issuance ofwarrant "broke the causal chain"). See also KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (" [t]he fact that a judge and a prosecutor had approved the warrant does not make Hall's reliance on it reasonable"); Bergquist v. County of Cochise, 806 F.2d 1364, 1368 (9th Cir. 1986) (holding that officers who unreasonably submit affidavits devoid of probable cause are not shielded from liability by magistrate's issuance of a warrant). 11
2. Franks Test. Defendants do not make clear whether they are making this immunization-type argument with respect to plaintiff's Franks claim, but insofar as they are, the contention is plainly wrong. The Franks inquiry examines probable cause based on facts that were omitted from, or incorrectly stated, in the affidavit. Logically, Judge Williams could not have signed off on facts that were wrong or were never presented to him. Defendants' argument simply has no relevance in a Franks inquiry. See Burke v. Town of Walpole, 405 F.3d 66, 82 (1st
11 Defendants erroneously rely on Arnsberg, 757 F.2d at 981, in support of their argument on this point. Defs.' Mem. at 25. But Arnsberg was decided before Malley, and in any event, Arnsberg is not remotely similar on its facts. The plaintiff in Arnsberg challenged only the execution of a slightly defective warrant, and not the preparation and submission of the affidavit accompanying the warrant. The Court in Arnsberg simply noted that it was not unreasonable for the officers to have executed the warrant without second guessing its validity.
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Cir. 2005) ("a court owes no deference to a magistrate's decision to issue an arrest warrant ... where officers procuring a warrant have deliberately misled the magistrate about relevant information") (internal citations omitted). 12 IV. THE ARREST AND DETENTION WERE UNCONSTITUTIONAL IF DONE FOR
THE PURPOSE OF INVESTIGATION OR PREVENTIVE DETENTION. As discussed above, there was no probable cause, under Franks or Malley, to arrest and
detain Mr. al-Kidd as a material witness. But, even if there had been probable cause, the arrest and detention would have been unconstitutional for the independent reason that it was done for the purpose of detaining and investigating Mr. al-Kidd as a potential criminal suspect, and not to secure his testimony. Am. Compl. ~~56, 57, 112.
Defendants contend, however, that the Court may not look at their actual purpose. Defs.' Mem. at 23-24. They contend that the arrest would be lawful even if it were shown through
discovery that they arrested Mr. al-Kidd for the purpose of detaining and investigating him as a
criminal suspect, thereby circumventing the Fourth Amendment' s requirement that a criminal suspect be arrested only on probable cause of wrongdoing. Not surprisingly, defendants cite no case that establishes that remarkable principle. As the Second Circuit pointedly stated in United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003), "it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause had not yet been established."
12 Defendants' argument is similarly misplaced insofar as they are also claiming that their actions are immunized because an AUSA applied for the warrant. See, e.g., Mendocino Environmental Center, 192 F.3d at 1294 n.8. And, moreover, defendants have not provided an affidavit that the AUSA knew that the agents were submitting incorrect information or omitting critical facts, and yet still submitted the agents' affidavit.
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The only material witness case cited by defendants in support of their argument is In re Alberto de Jesus Berrios, 706 F.2d 355 (1st Cir. 1983), Defs.' Mem. at 24, but that case actually supports plaintiff's position. There, the First Circuit did not suggest, much less hold, that the government could use the material witness statute for the purpose of arresting suspects, but instead found that there had not been any showing of "subterfuge" or that the arrest had been made for the impermissible purpose of bringing a "target before the grand jury." !d. at 358.
The other cases cited by defendants, such as Whren v. United States, 517 U.S. 806, 813 (1996), andDevenpeckv. Alford, 543 U.S. 146, 153 (2004), do not involve material witness arrests and are thus inapposite. Defs.' Mem. at 24. In those cases, involving "ordinary, probable cause Fourth Amendment analysis," Whren at 813, the Supreme Court held only that a criminal arrest supported by probable cause would not be invalidated on the basis of the officer's motivations, thereby ensuring that officers on the street would not be constantly second-guessed about their underlying motives. That is hardly the same as the situation here.
In this case, defendants ask this Court to hold - as a matter of law- that there are no Fourth Amendment concerns raised where (1) FBI officers prepare and submit a material arrest warrant for the purpose of arresting a criminal suspect for whom probable cause of wrongdoing is lacking, or (2) the Attorney General of the United States adopts a policy of using the material witness law to arrest criminal suspects for the purpose of preventively detaining and investigating them, despite the lack of probable cause to arrest them on criminal charges. Defendants' sweeping argument should be rejected.
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Defendant Ashcroft Defendant Ashcroft argues that (1) the Court lacks jurisdiction over him, (2) he has no connection to the events of this case, and (3) he has absolute immunity. All three arguments should be rejected. At the pleading stage, plaintiffs allegations are more than sufficient. V. DEFENDANT ASHCROFT IS SUBJECT TO THE COURT'S JURISDICTION. Plaintiff need only make a prima facie showing where a Rule 12(b)(2) motion is based on written materials. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). The Complaint's uncontroverted allegations must be taken as true. See id. If facts bearing on jurisdiction are disputed or "a more satisfactory showing of the facts is necessary," discovery should be granted. Wells Fargo & Co. v. Wells Fargo Express Co. , 556 F.2d 406, 430 n.24 (9th Cir. 1977) (citation omitted). The test for specific jurisdiction is met here, because plaintiff has adequately alleged "purposeful direction" on the part of defendant Ashcroft. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987).13 For "purposeful direction," the defendant must have (1) committed an intentional act; (2) expressly aimed at the forum state; (3) causing harm that the defendant knew was likely to be suffered in the forum state. See Dole Food Co., Inc. v. Watts, 303 FJd 1104, 1111 (9th Cir. 2002) (test satisfied "even by a defendant whose only contact with the forum state is the purposeful direction of a foreign act having effect in the forum state") (internal quotations and citations omitted).
13 Defendant Ashcroft does not challenge plaintiffs ability to satisfy the other two elements for specific jurisdiction- whether a claim "arises out of or relates to'' contacts with the from and whether the exercise ofjurisdiction is reasonable. Lake, 817 F.2d at 1421.
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On a motion to dismiss involving a non-resident supervisor, the jurisdictional issue "overlaps" with whether the defendant had sufficient involvement to be held liable on the merits. Elmaghraby v. Ashcroft, 2005 WL 2375202, at *10 (E.D.N.Y. 2005). Where personal involvement "is adequately alleged and discovery is required to determine the extent of personal involvement, such discovery will likewise resolve the jurisdictional question as well." !d. (denying Ashcroft's Rule 12(b)(2) and (b)(6) motions in challenge to post-September 11 detention policies, finding that discovery is necessary to determine the extent of defendant's involvement). Accordingly, to avoid repetition, plaintiff refers the Court to the discussion immediately below regarding defendant Ashcroft's connection to this case. VI. PLAINTIFF HAS ALLEGED A LEGALLY SUFFICIENT CONNECTION
BETWEEN DEFENDANT ASHCROFT AND THIS CASE. Contrary to defendant Ashcroft's suggestion, Mr. al-Kidd does not contend that he is
vicariously liable for the constitutional violations, but directly and personally responsible based on his own actions as a supervisor. And, as defendant concedes, it is well settled that supervisory liability can attach in several ways, including where a supervisor adopts a policy that leads to the deprivation of constitutional rights. See Defs.' Mem. at 26-27. Indeed, the Ninth Circuit has stressed that the "requisite causal connection [for supervisory liability] can be established . .. by setting in motion a series ofacts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978) (emphasis added). The Ninth Circuit has further stressed that supervisors can be held liable for their "acquiescence in the constitutional deprivation of which the complaint is made ... or for conduct that showed a reckless or callous indifference to the rights of others." Larez v. City ofLos Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (citations omitted). Furthermore,
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a supervisor may be held liable for failure to take necessary corrective action. Id. at 646. As the Ninth Circuit has generally emphasized, a "supervisor will rarely be directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury." Id. at 645.
1. Defendant Ashcroft contends that plaintiffs allegations are "boilerplate," "insubstantial" and "devoid of any factual content." Defs.' Mem. at 25. But defendant erroneously relies on cases imposing a heightened pleading standard on plaintiffs to survive a motion to dismiss- a standard that has been definitively repudiated by the Supreme Court and the Ninth Circuit. See Swierkiewicz v. Sorema NA., 534 U.S. 506, 514-15 (2002) (rejecting the argument that complaint could not go forward with "conclusory allegations," emphasizing that a "requirement of greater specificity for particular claims is a result that must be obtained by the process of amending the Federal Rules, and not by judicial interpretation") (quotations omitted); Empress LLC v. City and County ofSan Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005) (rejecting "heightened pleading standard"); Walker v. Thompson, 288 F.3d 1005, 1008 (7th Cir. 2002) ("Cases ... which say that 'conclusory allegations' ... are not enough to withstand a motion to dismiss cannot be squared with ... Swierkiewicz"); Elmaghraby, 2005 WL 2375202, at *12 (heightened pleading requirements are "foreclosed by Swierkiewicz"). 14
As the Supreme Court has explained, the concerns embodied in the qualified immunity doctrine can be addressed through summary judgment because a district court has "broad
14 Thus, defendant's heavy reliance on Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348 (6th Cir. 1989), and Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003), is misplaced. Defs.' Mem. at 27-28. Both of those decisions explicitly relied on the discredited heightened pleading requirement. See Nuclear Transport & Storage, 890 F.2d at 1355 ("We see no reason why the heightened pleading requirement ... should not apply to a Bivens action brought against a federal official."); Gonzalez, 325 F.3d at 1235.
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discretion to tailor discovery narrowly and to dictate the sequence of discovery." Crawford-El v. Britton, 523 U.S. 574, 598-99 (1998). That is especially true where, as here, the information necessary to establish jurisdiction or liability is within the control of the defendants themselves. See Strong v. Director ofthe State ofIdaho Dep 't of Correction, 2005 WL 1421445, at *4 (D. Idaho June 15, 2005) ("[P]laintiffs may propound discovery concerning issues that bear upon the qualified immunity defense, such as the actions that the defendant official actually took, if such information is unknown to plaintiffs") (quotations omitted); Elmaghraby, 2005 WL 2375202, at
* 21 (denying Ashcroft's motion to dismiss and ordering discovery, stating that plaintiffs should
not be "penalized for failing to assert more facts [about post 9-11 policies] where, as here, the extent of defendants' involvement is peculiarly within their knowledge").
2. In any event, plaintiffs allegations are hardly "boilerplate," as defendant asserts. As the Amended Complaint alleges:
(a) after September 11, the Justice Department under defendant Ashcroft adopted a new policy and practice under which the material witness statute was used as "a pretext to arrest and hold individuals whom the government lacked probable cause to charge with a crime but nonetheless wished to detain preventively and/or to investigate for possible criminal wrongdoing (i.e. , to arrest 'suspects')." ~ 111. See id. ~~ 112-113, 115-126;
(b) this new policy sought the arrest of suspects regardless of whether there was "reason to believe it would have been impracticable to secure their testimony voluntarily or by subpoena." ~ 127;
(c) the new material witness policy was part of a "broader set of policies and practices concerning individuals whom the government lacked probable cause to arrest on criminal charges
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but wished to hold preventively and/or to investigate for criminal wrongdoing."~ 113. The Justice Department's own OIG report labeled it a "hold until cleared" policy. ~~ 114, 115, 118, 119, 131 (referencing 0 IG Report);
(d) the Justice Department devised and implemented its new material witness policy largely in secret, refusing to provide Congress with specific information and "routinely requesting that records of material witness proceedings be sealed ...." ~ 135. Indeed, the transcript of at least one of the hearings in Mr. al-Kidd's case was sealed;
(e) the Justice Department has "unreasonably prolonged the period of detention for material witnesses,"~ 133, and "routinely" held them "in high security detention conditions, further highlighting their status as terrorism suspects, rather than true witnesses,"~ 129. See~ 131 (citing DOJ report that the Bureau of Prisons often "did not distinguish between detainees who ... posed a security risk and those detained aliens who were uninvolved witnesses");
(f) finally, the Complaint alleges a direct connection between defendant Ashcroft, the Justice Department, the new material witness policy and the events of this case, including allegations that:
-- defendant Ashcroft was a "principal architect of, authorized and set into motion, these policies and practices ... and had responsibility for their implementation and administration," ~ 137;
--the "harm and legal wrong suffered by Mr. al-Kidd was a product of, and caused by" the new policies, ~ 109;
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-- defendant "Ashcroft knew or reasonably should have known that the manner in which the material witness statute was being used would foreseeably result in the unlawful arrest and detention of material witnesses (such as Mr. al-Kidd);" ~ 138;
--defendant Ashcroft "acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference, towards the constitutional and legal rights of individuals arrested and detained under the policies and/or practices (including Mr. al-K.idd)," ~ 141;
-- in the face of widespread reports of abuse, defendant Ashcroft did not take the necessary corrective action. Am. Compl. ~ 141; id. ~ 136 ("Upon information and belief, the Justice Department has issued apologies to 10-12 individuals who were improperly arrested as material witnesses"), id.
Furthermore, and critically, any attempt by defendant Ashcroft to claim that this case was not being addressed at the highest levels ofthe Justice Department flies in the face of numerous pieces of evidence. FBI Director Mueller's congressional testimony, given eleven days after plaintiffs arrest, specifically stated that Mr. al-Kidd's arrest was one of the notable recent "'successes" in the war on terrorism. Director Mueller further stated that the FBI had arrested three other men in "the Idaho probe," and that the FBI was examining links between the Idaho probe and "individuals in six other jurisdictions" See Am. Compl. ~~ 8, 100 (citing testimony, emphasis added). In addition, defendant Ashcroft issued a press release specifically touting the Al-Hussayen indictment. See Press Release, Dep't of Justice, (Feb. 26, 2003), at www.usdoj.gov; see also John M. Hubbell, "Federal raid in Idaho town creates anxiety for Muslims; 100 agents arrest Saudi grad student, question others," S.F Chron. (Mar. 10, 2003).
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Thus, there was absolutely no question that the "Idaho probe" in general, and the al-Kidd
and Al-Hussayen cases in particular, were being addressed at the highest levels of the Justice
Department, including specifically by defendants Ashcroft and FBI Director Mueller. That is
consistent with the finding of the Justice Department' s own internal OIG report, which
specifically noted defendant Ashcroft' s involvement in devising and implementing the post-9111
policies for holding potential suspects by any means necessary, including material witness
warrants, immigration violations or minor criminal charges. See Elmaghraby, 2005 WL
2375202, at *20 n.20 (stating that the OIG Report "suggests the involvement of Ashcroft" in
post-September 11 policies); id (noting that the OIG Report discussed senior Justice Department
officials who "thought the ['hold until cleared'] policy came from 'at least' the Attorney
General"); see also DOJ's OIG Report at 39 (noting that September 11 detention policies
"stemmed from discussions at the highest levels of the Department"). See Am. Compl. ,-r,-r 118,
119 (citing DOJ report). 15
15 Defendant Ashcroft has submitted an affidavit from AUSA Lindquist limited to his Rule 12(b)(2) motion; otherwise it would convert his Rule 12(b)(6) motion into a summary judgment motion. The affidavit states that defendant Ashcroft had no involvement in Mr. Lindquist's decision to seek Mr. al-Kidd' s arrest. But Mr. al-Kidd' s claim is not that defendant Ashcroft specifically directed each U.S. Attorney's office to seek warrants. More importantly, the affidavit is silent regarding, among other things, defendant Ashcroft's involvement in the (1) FBI's investigation of al-Kidd, (2) FBI's conduct in seeking the material witness warrant, and (3) policies and supervisory failures controlling the conditions of al-Kidd's confinement. The affidavit also states (,-r 8) that it is Mr. Lindquist's "understanding that general policy guidance on the use of the material witness statute has been provided by the Justice Department, [but] that guidance was issued after al-Kidd had been released from detention and, as such, did not influence the decision to apply for the material witness warrant in regard to al-Kidd." Plaintiff is certainly entitled to limited discovery to probe this and other general statements in the affidavit. But, even on its face, the statement supports one of plaintiffs primary contentions - that defendant Ashcroft took no corrective measures, including issuing critically needed guidance, despite the mounting evidence ofthe statute' s misuse after September 11. See, e.g., Am. Compl. ,-r 136 (upon information and belief, government has apologized to 10-12 material witnesses).
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In sum, defendant's argument is premised on an impermissibly cramped reading of the Complaint. The allegations here are legally sufficient to establish personal jurisdiction and supervisory liability. Indeed, they are as specific as they reasonably could be at this prediscovery stage, especially given that the information is uniquely within defendant' s control (Strong; Elmaghraby ,· Mayfield), and the extensive secrecy surrounding the use of the material witness statute, Am. Compl. ~ 135. At a minimum, plaintiff is entitled to targeted discovery in light of the Justice Department's own internal report, defendant Ashcroft's press release regarding the Al-Hussayen indictment, and Director Mueller's testimony specifically singling out the al-Kidd case and the "Idaho probe."
Notably, the Justice Department has recently armounced that it has found a sufficient basis to begin an internal investigation into 21 post-September 11th material witness cases. See OIG Report to Congress on Implementation of Section 1001 ofthe USA PATRIOT Act, Mar. 8, 2006, at "WVVW.usdoj .gov/oig. VII. DEFENDANT ASHCROFT IS NOT ENTITLED TO ABSOLUTE IMMUNITY.
Defendant Ashcroft does not enjoy absolute immunity for Mr. al-K.idd's unconstitutional arrest because the allegations are that he used the material witness law as an investigatory law enforcement tool, and was not performing prosecutorial functions. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (citations and quotations omitted).16
An official seeking absolute immunity bears the burden of demonstrating that his activities warrant such complete immunity. See, e.g. , Buckley v. Fitzsimmons, 509 U.S. 259, 269
16 Defendant Ashcroft does not contend that he has absolute immunity regarding plaintiff's conditions claims. See, e.g., Elmaghraby, 2005 WL 2375202, at *17-21 (denying Attorney General's motion to dismiss claims challenging conditions of confinement for September 11th detainees).
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(1993); Burns v. Reed, 500 U.S. 478, 486-87 (1991). Moreover, because qualified immunity already protects officials except when they act unreasonably, the Supreme Court has been '"quite sparing' in [its] recognition of absolute immunity." Burns, 500 U.S. at 487 (citation omitted); Genzler v. Longanbach, 410 F.3d 630, 636-37 (9th Cir. 2005); see also Milstein v. Cooley, 257 F.3d 1004, 1009 (9th Cir. 2001) (noting "limited availability of absolute immunity").
Defendant Ashcroft does not, and could not, argue that a prosecutor is automatically entitled to absolute immunity for all his actions, nor does he argue that the Attorney General is entitled to such immunity by virtue of his position. Buckley, 509 U.S. at 273 (the "actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor''); Mitchell v. Forsyth, 472 U.S. 511, 521 (1985) (finding that Attorney General is not absolutely immune for authorizing warrantless vviretap, even in national security context).
Rather, it is settled that courts must "examine 'the nature of the function performed, not the identity of the actor who performed it."' Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (citation omitted and emphasis added). Under this functional approach, a prosecutor is entitled to absolute immunity only when he "engages in activities 'intimately associated vvith the judicial phase ofthe criminal process."' Broam, 320 F.3d at 1028 (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). When, however, a prosecutor is "performing investigatory or administrative functions, or is essentially functioning as a police officer or detective," he is afforded only qualified immunity. !d. (citing Buckley, 509 U.S. at 273); see, e.g., Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005). In fact, a prosecutor is not entitled to absolute immunity even for giving "legal advice" to police officers regarding whether probable cause exists in a given case. See Burns, 500 U.S. at 493 ("We do not believe, however, that advising the police in the
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Case 1:05-cv-00093-EJL Document 63 Filed 03/15/2006 Page 34 of 36
investigative phase of a criminal case is so 'intimately associated with the judicial phase of the criminal process; that it qualifies for absolute immunity") (citation omitted).
Here, the allegations are that defendant Ashcroft directed and oversaw an investigative law enforcement policy and that he used the material witness statute to preventively detain and investigate suspects. Am. Compl. ~~ 111-113, 116-117, 121 , 123, 125. Buckley, 509 U.S. at 274 ("A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested"). 17
Indeed, unlike a regular prosecutor, the Attorney General directs law enforcement policy as the head of the Justice Department and thus the FBI. Notably, there is no suggestion that agents Mace and Gneckow have any claim to absolute immunity. Defendant Ashcroft should enjoy no greater immunity than the individual agents who had to implement his law enforcement policies. See Burns, 500 U.S. at 495 ("Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice"). Defendant Ashcroft' s claim for absolute immunity should accordingly be rejected.
CONCLUSION The motions to dismiss filed by defendants Mace, Gneckow and Ashcroft should be denied.
17 Significantly, even "a determination of probable cause does not guarantee a prosecutor absolute immunity for all actions taken afterwards" because even then "a prosecutor may engage in 'police investigative work' that is entitled to only qualified immunity." Buckley, 509 U.S. at 274 n.5 (citation omitted); see Genzler, 410 F.3d at 639.
30

Case 1:05-cv-00093-EJL Document 63 Filed 03/15/2006 Page 35 of 36

Dated: March 15, 2006

;r:;;:;d,

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 (208) 788-2427 Fax: (208) 788-3918

LEEGELERNT lgelemt@aclu.org AMERICAN CIVIL LIBERTIES UNION
FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, l81h Floor New York, NY 10004 (212) 549-2616 Fax: (212) 549-2654

KATHLEEN J. ELLIOTT, ISB No. 4359 kj e@hampton-elliott.com TERESA A. HAMPTON, ISB No. 4364 tah@hampton-elliott.com HAMPTON & ELLIOTT 912 North 8th Street Boise, ID 83302 (208) 384-5456 Fax: (208) 384-5476

CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J.
WOOLLEY, PLLC P.O. Box 6999 180FirstSt. West, Suite 107 Ketchum, ID 83340 (208) 725-5356 Fax: (208) 725-5569

LUCAS GUTTENTAG lguttentag@aclu.org ROBIN GOLDFADEN rgoldfaden@aclu. org AMERICAN CIVIL LIBERTIES UNION
FOUNDATION IMMIGRANTS' RIGHTS PROJECT 405 14th Street, Suite 300 Oakland, CA 94612-9987 (510) 625-2010 Fax: (510) 622-0050

JACK VANVALKENBURGH, ISB No. 3818 j ackvv@acluidaho.org AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF IDAHO P.O. Box 1897 Boise, ID 83701 (208) 344-9750 Fax: (208) 344-7201

MICHAEL J. WISHNIE michael.wishnie@nyu.edu 245 Sullivan Street New York, NY 10012 (212) 998-6471 Fax: (212) 995-4031 (Cooperating Counsel for the ACLU)

Attorneys For Plaintiff

Case 1:05-cv-00093-EJL Document 63 Filed 03/15/2006 Page 36 of 36
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 15th day of March, 2006, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
MERLYN W. CLARK
BRAD P. MILLER HAWLEY TROXELL ENNIS & HAWLEY LLP MWC@HTEH.com Attorneys for Defendant James Dunning
FORREST CHRISTIAN CONSTITUTIONAL TORTS STAFF, CIVIL DMSION U.S. DEPARTMENT OF JUSTICE Farrest. Christian@usdoj. gov Attorney for Federal Defendants
JULIE D. READING Deputy Prosecuting Attorney Civil Division jreading@adaweb.net Attorney for Defendant Vaughn Killeen
Lee Gelemt

 
 CaCseas1e::0056-c-v3-600050993-0E8J/0L3-C/2W01D1 DPoacguem: 1enotf3100 IDF:il7e8d40186/7093/1D1ktPEangtrey:17o1f 1

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ABDULLAH AL-KIDD,



Plaintiff-Appellee,

v.



JOHN ASHCROFT, Attorney General,

Defendant-Appellant.



No. 06-36059
D.C. No. CV-05-00093-EJL District of Idaho,
Boise
ORDER

On Remand From The United States Supreme Court
Filed August 3, 2011
Before: Harry Pregerson,1 Carlos T. Bea, and Milan D. Smith, Jr., Circuit Judges.

ORDER
Pursuant to the Opinion of the Supreme Court in Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), the district court’s denial of Defendant Ashcroft’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is REVERSED, and the matter is REMANDED for proceedings consistent with the Supreme Court’s Opinion.

1Judge Harry Pregerson was substituted for the late Judge David R. Thompson. See General Order 3.2(g).
10043

 
 Case:10:065-3-c6v0-50900930-9E/2JL7-/2C0W11D DIDoc: u7m90e7n1t 23201 DFikletEdn0tr9y/:2772/11 PPaaggee: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
SEP 27 2011

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ABDULLAH AL-KIDD, Plaintiff - Appellee
v. JOHN ASHCROFT, Attorney General,
Defendant - Appellant

No. 06-36059
D.C. No. CV-05-00093-EJL U.S. District Court for Idaho, Boise
MANDATE

The judgment of this Court, entered August 03, 2011, takes effect this date.
This constitutes the formal mandate of this Court issued pursuant to Rule
41(a) of the Federal Rules of Appellate Procedure.
FOR THE COURT: Molly C. Dwyer Clerk of Court
Theresa Benitez Deputy Clerk

 
 Case 1:05-cv-00093-EJL-CWD Document 306 Filed 11/07/11 Page 1 of 2

Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314 P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for Defendants Michael Gneckow and Scott Mace

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. 1:05-cv-093-EJL-MHW
DEFENDANTS MICHAEL GNECKOW AND SCOTT MACE’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, Defendants Michael Gneckow and Scott

Mace respectfully move for summary judgment on all remaining claims against them. In support

this motion, the Court is referred to the attached memorandum, statement of facts, and

accompanying exhibits.

Dated: November 7, 2011

Respectfully submitted,
TIMOTHY P. GARREN Acting Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO, JR. Acting Director, Torts Branch

Case 1:05-cv-00093-EJL-CWD Document 306 Filed 11/07/11 Page 2 of 2
/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4373 Fax: (202) 616-4314
CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2011, I filed this motion and the attached memorandum and exhibits electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Merlyn W Clark MWC@HTEH.COM,SLM@HTEH.COM Lee Gelernt lgelernt@aclu.org,mlauterback@aclu.org,hrobbins@aclu.org, Lorna K Jorgensen ljorgensen@adaweb.net Sherry A Morgan smorgan@adaweb.net,civilpafiles@adaweb.net,bmeyers@adaweb.net R Keith Roark keith@roarklaw.com,bert@roarklaw.com,ali@roarklaw.com Michael J Wishnie michael.wishnie@yale.edu Cynthia Jane Woolley cynthia@ketchumidaholaw.com,kathleen@ketchumidaholaw.com
/s/ J. Marcus Meeks U.S. Department of Justice
-2-

Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 1 of 43

Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314 P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for Defendants Michael Gneckow and Scott Mace

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. CV:05-093-S-EJL
DEFENDANTS MICHAEL GNECKOW AND SCOTT MACE’S MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 2 of 43

TABLE OF CONTENTS

TABLE OF EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. THE MATERIAL WITNESS STATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

AGENTS GNECKOW AND MACE HAD PROBABLE CAUSE TO ARREST PLAINTIFF AS A

MATERIAL WITNESS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. There Was Probable Cause to Believe that Plaintiff Possessed Material Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. The warrant application established probable cause to believe that Plaintiff had material testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. Agent Gneckow reasonably concluded that there was probable cause to believe that Plaintiff could provide material testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. Plaintiff’s Imminent Departure to Saudi Arabia Established Probable Cause that He Might Not Be Available to Testify at Al-Hussayen’s Trial... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

II. THERE IS NO EVIDENCE THAT AGENTS MACE AND GNECKOW DELIBERATELY INCLUDED FALSE INFORMATION OR OMITTED MATERIAL FACTS WHEN THEY PREPARED THE AFFIDAVIT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. Agents Gneckow and Mace Reasonably Relied on Information Provided to Them by Other Law Enforcement Officials Concerning Plaintiff’s Ticket to Saudi Arabia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. Agents Gneckow and Mace Included All Material Facts in the Affidavit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

-ii-

Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 3 of 43 C. The Corrected Affidavit Still Establishes Probable Cause to Believe That It May Become Impracticable to Secure Plaintiff’s Testimony at alHussayen’s Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
III. PLAINTIFF CANNOT SHOW A VIOLATION OF ANY CLEARLY ESTABLISHED FOURTH AMENDMENT RIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
-iii-

Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 4 of 43

TABLE OF EXHIBITS

Exhibit 1: Exhibit 2: Exhibit 3:

Memorandum from Asst. Attorney General Michael Chertoff regarding use of material witness warrants
Seattle Post-Intelligencer article regarding federal investigation of Muslim charities
Declaration of Kim Lindquist

Documents from USA v. al-Hussayen, No. 3:03-cr-00048 Exhibit 4: Indictment of Sami Omar al-Hussayen Exhibit 5: Application for Arrest Warrant of Material Witness Abdullah al-Kidd

Exhibit 6: Arrest Warrant for Abdullah al-Kidd in USA v. al-Hussayen Exhibit 7: Documents regarding al-Kidd’s detention hearing and conditions of release Exhibit 8: Documents regarding initiation of al-Hussayen prosecution, trial dates and
continuances, and result of the prosecution Depositions Exhibit 9: Abdullah Al-Kidd Exhibit 10: CBP Officer Jaime Alvarado Exhibit 11: ICE Agent Robert Alvarez

Exhibit 12: FBI Special Agent Norman Brown Exhibit 13: FBI Special Agent Joe Cleary Exhibit 14: FBI Special Agent Robert Davis Exhibit 15: FBI Special Agent Egon Dezihan

Exhibit 16: FBI Special Agent Mike Gneckow Exhibit 17: AUSA Kim Lindquist Exhibit 18: FBI Special Agent Scott Mace

-iv-

Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 5 of 43 Written Discovery Exhibit 19: Response of Defendant Mike Gneckow to Plaintiff’s Interrogatories Exhibit 20: Response of Defendant Scott Mace to Plaintiff’s Interrogatories Exhibit 21: Supplemental Response of the United States to Plaintiff’s Interrogatories Exhibit 22: Plaintiff’s Response to the Federal Defendant’s Interrogatories Exhibit 23: Plaintiff’s Response to the Federal Defendant’s Requests for Admission
-v-

Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 6 of 43
TABLE OF AUTHORITIES
CASES Al-Kidd v. Ashcroft,
580 F.3d 949 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Al-Kidd v. Ashcroft, 653 F.3d 982 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Alexander v. Sandoval, 532 U.S. 275 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Anderson v. Creighton, 483 U.S. 635 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 19, 20
Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Bacon v. United States, 449 F.2d 933 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Barry v. United States, 279 U.S. 597 (1929).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bias v. Moynihan, 508 F.3d 1212 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Edgerly v. City and Cnty. of San Francisco, 599 F.3d 946 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fontana v. Itaskin, 262 F.3d 871 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 7 of 43
Franklin v. Fox, 312 F.3d 423 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Franks v. Delaware, 438 U.S. 154 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Illinois v. Gates, 462 U.S. 213 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 30
Graham v. Connor, 490 U.S. 386 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Harlow v. Fitzgerald, 457 U.S. 800 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 27, 29
Hunter v. Bryant, 502 U.S. 224 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Jones v. United States, 362 U.S. 257 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
KRL v. Estate of Moore, 512 F.3d 1184 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17, 20
Kijonka v. Seitzinger, 363 F.3d 645 (7th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Lombardi v. City of El Cajon, 117 F.3d 1117 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Malley v. Briggs, 475 U.S. 335 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 26, 27
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Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 8 of 43
Ortiz v. Van Auken, 887 F.2d 1366 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pearson v. Callahan, 555 U.S. 223 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Saucier v. Katz, 533 U.S. 194 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Schneyder v. Smith, 653 F.3d 313 (3rd Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 22
Smith v. Almada, 640 F.3d 931 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 29
Tibbetts v. Kulongoski, 567 F.3d 529 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Awadallah, 349 F.3d 42 (2nd Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Castillo, 866 F.2d 1071 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Garza, 980 F.2d 546 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. McVeigh, 940 F. Supp. 1541 (D. Col. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 30
United States v. Nai Fook Li, 949 F. Supp. 42 (D. Mass. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 9 of 43
United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
United States v. Rubio, 727 F.2d 786 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Stanert, 762 F.2d 775 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Ventresca, 380 U.S. 102 (1965).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Willis, 431 F.3d 709 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
White v. Gerbitz, 892 F.2d 457 (6th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 30
Whren v. United States, 517 U.S. 806 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wilson v. City of Coeur D'Alene, No. 2:09-CV-00381, 2010 WL 4853341 (D. Idaho Nov. 19, 2010). . . . . . . . . . . . . . . . 10, 32 STATUTES
18 U.S.C. § 3142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 18 U.S.C. § 3142(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 18 U.S.C. § 3142(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 28 18 U.S.C. § 3144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 20, 21 18 U.S.C. § 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Case 1:05-cv-00093-EJL-CWD Document 306-1 Filed 11/07/11 Page 10 of 43 RULES
Fed. R. Civ. P. 56(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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INTRODUCTION Just eight days after the highly-publicized arrest of Sami Omar al-Hussayen, one of his associates––Plaintiff Abdullah al-Kidd––made arrangements to travel to Saudi Arabia for an extended period. Plaintiff purchased a ticket with no scheduled return date, packed his belongings, and moved out of his home. The lead FBI agent on the al-Hussayen case, Michael Gneckow, learned of Plaintiff’s plan to leave the country just days before his scheduled departure. Agent Gneckow and the lead prosecutor, AUSA Kim Lindquist, viewed Plaintiff as a key witness and feared that he would not be available to testify at al-Hussayen’s trial, which was scheduled to begin in thirty days. Agent Gneckow and AUSA Lindquist discussed the situation, and without any input from anyone at the Department of Justice or FBI Headquarters in Washington, DC, Lindquist decided to seek a material witness arrest warrant. Agent Gneckow drafted an affidavit, conferred with AUSA Lindquist about the affidavit’s contents, and sent it to FBI Agent Scott Mace for presentation to a magistrate judge on March 14, 2003. The magistrate judge issued a warrant, and FBI agents arrested Plaintiff two days later at Dulles International Airport. Plaintiff appeared before a magistrate judge in Virginia the next day and requested that he be transported back to Idaho for his detention hearing. This Court released Plaintiff on March 31, 2003, subject to conditions Plaintiff’s counsel had negotiated with AUSA Lindquist. The legal theory at the heart of Plaintiff’s complaint–that his Fourth Amendment rights were violated because his arrest was a pretext to investigate him–has been rejected by the Supreme Court. See Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011). Thus, Plaintiff cannot recover damages against the two remaining individual defendants, Agents Gneckow and Mace, unless he can show that no reasonable officer would have concluded that probable cause existed to arrest him as a material witness. Plaintiff cannot meet his burden to do so. Plaintiff admits that shortly
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before the scheduled start of al-Hussayen’s trial, he booked a flight to Saudi Arabia with no scheduled return. He also does not dispute that he worked for and was paid by al-Hussayen, which made him a potential key witness in the government’s case against al-Hussayen on charges of visa fraud for engaging in business activities while in the country on a student visa.
Although the affidavit in support of Plaintiff’s arrest misstated the price and class of Plaintiff’s ticket, and listed the ticket as one-way rather than round-trip without a return date, there is no evidence that Agents Gneckow or Mace deliberately provided false testimony or intentionally omitted material information. Indeed, probable cause would exist to arrest Plaintiff even if the affidavit included everything Plaintiff claims it should have. Put simply, fourteen months of extensive discovery has revealed no evidence to support Plaintiff’s claim that Agents Gneckow and Mace violated any clearly established constitutional right. Therefore, Agents Gneckow and Mace are entitled to qualified immunity, and they should be granted summary judgment on all remaining claims against them.
BACKGROUND I. FACTS
In 2001, FBI Agent Mike Gneckow, the lead investigator on the Sami Omar al-Hussayen case, learned that money from al-Hussayen’s bank account had been transferred to Plaintiff. Statement of Facts ¶ 1. Agent Gneckow informed FBI Agent Joe Cleary, the case agent assigned to the intelligence investigation of al-Hussayen, of this development. Id. ¶ 2. Agent Cleary then obtained approval to open an intelligence investigation of Plaintiff on December 13, 2001. Id. The purpose of an intelligence investigation is to gather information and it normally does not have criminal prosecution as a goal. Id. ¶ 3. In 2001, the FBI could open an intelligence investigation of an individual without there being suspicion of criminal activity. Id.
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During the course of Agent Gneckow’s investigation into the activities of al-Hussayen, he determined that the monetary transfers to Plaintiff probably constituted salary for work related to Plaintiff’s employment with an entity called al-Multaqa, a charitable Islamic organization. Id. ¶ 5-6. Indeed, Plaintiff worked with al-Hussayen at al-Multaqa from 1999 to 2001, and alHussayen paid Plaintiff for this work. Id. ¶ 6. Agent Gneckow concluded in 2002 that Plaintiff had not engaged in criminal conduct and ruled him out as a possible suspect for criminal activity. Id. ¶ 7. Likewise, the prosecutor working on the al-Hussayen case, AUSA Kim Lindquist, consistently viewed Plaintiff only as a prospective witness. Id.
As part of the intelligence investigation of Plaintiff, Agent Cleary asked U.S. Immigration and Customs Enforcement (“ICE”) Agent Robert Alvarez to enter a “lookout” for Plaintiff into the Treasury Enforcement Communications System (“TECS”) in order to track any international travel by Plaintiff. Id. ¶ 8. Agent Cleary also interviewed Plaintiff twice in the summer of 2002; each time Plaintiff agreed to speak voluntarily. Id. ¶ 9. After the second interview, Plaintiff spoke to a reporter. Id. ¶ 10. An article subsequently appeared in the Seattle Post-Intelligencer on August 2, 2002, concerning an FBI investigation into Muslim charities. Id. After seeing the article, Agent Gneckow became very concerned that Plaintiff’s communication with the press would jeopardize the criminal investigation of al-Hussayen. Id. ¶ 12. As a result, the FBI terminated all contact with Plaintiff while the al-Hussayen investigation was ongoing. Id.
On February 26, 2003, the government unsealed the indictment against al-Hussayen and arrested him that same day. Id. ¶ 13. Al-Hussayen’s trial date was set for April 15, 2003. Id. On March 6, 2003, Plaintiff purchased a ticket to Saudi Arabia with an “open” return date, rather than a scheduled return date. Id. ¶ 14. Plaintiff and his wife moved out of their apartment in Kent, Washington, and drove to Las Vegas where Plaintiff’s wife would reside with her parents until
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she could join Plaintiff in Saudi Arabia. Id. On March 12, 2003, Customs and Border Protection (“CBP”) Officer Jaime Alvarado
conducted a routine inspection of the passengers on a flight from JFK International Airport to Saudi Arabia and discovered Plaintiff’s name on the manifest. Id. ¶ 16. The reservation information that Officer Alvarado reviewed did not list a return flight. Id. Alvarado also ran each passenger’s name through the TECS database as part of his routine procedures. Id. ¶ 18. When he entered Plaintiff’s name into that database, Officer Alvarado discovered the lookout and received instructions to contact ICE Agent Alvarez regarding any international travel by Plaintiff. Id. ¶ 8, 18. Alvarado contacted Alvarez that same day and told him that Plaintiff had purchased a first-class, one-way ticket to Saudi Arabia that was scheduled to depart on either March 13 or 16. Id. ¶ 19.
On March 13, 2003, Agent Alvarez told Agent Gneckow that Plaintiff had purchased a one-way, first-class plane ticket to Saudi Arabia and he was scheduled to depart within a few days. Id. ¶ 20. It was also Agent Alvarez’s understanding that the ticket cost approximately $5,000, and he told this to Agent Gneckow. Id. Plaintiff’s ticket actually cost less than $2,000 and was a coach-class ticket, even though the airline had told Officer Alvarado that the ticket was first-class. Id. ¶ 21. The ticket also was a round-trip “open” ticket with no scheduled return date, rather than a one-way ticket. Id.
Upon learning of Plaintiff’s flight to Saudi Arabia, a country that does not have an extradition treaty with the United States, Agent Gneckow recommended to AUSA Lindquist that the government seek a material witness arrest warrant. Id. ¶ 22-23. Lindquist agreed with Gneckow’s recommendation and decided to seek a material witness warrant, but he instructed Gneckow to make sure that Plaintiff had left his home in Kent before proceeding. Id. ¶¶ 23-24.
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Once Agent Gneckow confirmed that Plaintiff had left his home, he started preparing an affidavit. Id. ¶ 24. Agent Gneckow also called the FBI agent at Dulles International Airport to confirm that Plaintiff was in fact booked on a flight to Saudi Arabia. Id.
In preparing the affidavit, Agent Gneckow included the information provided to him by Agent Alvarez concerning Plaintiff’s flight to Saudi Arabia. Id. ¶ 25. Agent Gneckow also conferred with AUSA Lindquist about the contents of the affidavit, who advised that the affidavit needed to clearly show Plaintiff’s connection with al-Hussayen and the Islamic Assembly of North American (“IANA”). Id. ¶ 25. At the time, they both believed that Plaintiff could present critical testimony, namely that al-Hussayen had engaged in business activities on behalf of IANA, including work for al-Multaqa, in violation of his student visa. Id. ¶ 27. Neither Agent Gneckow nor AUSA Lindquist received any guidance from FBI Headquarters or the Department of Justice concerning their decision to seek a material witness arrest warrant. Id. ¶ 26.
Once Agent Gneckow finished drafting the affidavit, he contacted FBI Agent Scott Mace, the duty agent in Boise, about presenting the affidavit to a magistrate judge there, as no magistrate judge was available at that time in Coeur d’Alene where Gneckow was located. Id. ¶¶ 1, 28. After conferring with Agent Gneckow about the contents of the affidavit, Agent Mace added an opening paragraph stating that the affidavit is based on information he received from Gneckow. Id. ¶ 28. Agent Mace was not involved in the investigation of al-Hussayen and he had no independent knowledge of Plaintiff. Id. ¶ 29.
On March 14, 2003, Agent Mace and AUSA George Breitsameter presented the warrant application to the Court, and an arrest warrant issued that same day. Id. ¶ 30. FBI agents arrested Plaintiff at Dulles International Airport on March 16, 2003. Id. ¶ 31. When Plaintiff appeared before a magistrate judge in Virginia he requested that the matter be transferred to Idaho. Id.
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Plaintiff arrived in Idaho on March 25, 2003. Id. ¶ 32. After a brief continuance requested by the parties, this Court released Plaintiff on March 31, 2003, under conditions agreed to by Plaintiff’s lawyer and AUSA Lindquist. Id. ¶ 33. Plaintiff never challenged the validity of the material witness arrest warrant during al-Hussayen’s criminal proceedings.
Events in the criminal proceedings caused al-Hussayen’s trial date to change twice, and the trial did not start until April 14, 2004. Id. ¶ 34. As al-Hussayen’s trial progressed, AUSA Lindquist decided not to call Plaintiff as a witness when it became apparent that al-Hussayen was not going to contest that he had engaged in business activities on behalf of IANA. Id. ¶ 35. On June 3, 2004, Plaintiff filed a motion to dismiss the material witness release conditions, which the government did not oppose. Id. ¶ 36. II. PROCEDURAL HISTORY
Plaintiff’s Complaint sought damages against former Attorney General John Ashcroft, Agent Gneckow, and Agent Mace in their individual capacities for alleged constitutional violations relating to his arrest and detention. See Second Amended Complaint ¶¶ 153-58. Specifically, Plaintiff alleged that then-Attorney General Ashcroft implemented new policies and procedures after September 11, 2001 to use the material witness statute as a pretext to arrest and hold individuals whom the government lacked probable cause to charge with a crime but nonetheless wished to detain and investigate. Plaintiff also alleged that Agents Gneckow and Mace carried out this policy by arresting him without probable cause and by providing false and misleading testimony in the affidavit in support of the arrest warrant. The individual defendants filed a motion to dismiss, which Judge Lodge denied, concluding that “[t]he question of whether qualified immunity applies to the officers in this case can not be resolved on a motion to dismiss . . .” Dkt. No. 79, Mem. Order at 18 (Sept. 27, 2006). Discovery then commenced against all
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defendants except former Attorney General Ashcroft, who filed an interlocutory appeal. On appeal, the Ninth Circuit affirmed Judge Lodge’s order in part, holding that former
Attorney General Ashcroft was not entitled to absolute or qualified immunity. Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009). The Supreme Court granted certiorari and reversed, holding that Ashcroft was entitled to qualified immunity. Ashcroft v. Al-Kidd, 131 S.Ct. 2074 (2011). The Court held that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Id. at 2083. In addition, the Court ruled that no clearly established law existed to put former Attorney General Ashcroft on notice that the alleged actions were unconstitutional. Id. at 2084. The Supreme Court remanded to the Ninth Circuit, which issued an order reversing this Court’s denial of Defendant Ashcroft’s motion to dismiss. Al-Kidd v. Ashcroft, 653 F.3d 982 (9th Cir. 2011). III. THE MATERIAL WITNESS STATUTE
An arrest under the material witness statute involves a two-step process. First, a judge may issue a warrant if a party submits an affidavit showing probable cause to believe that the witness’s testimony is material, and that it may become impracticable to secure that witness’s presence at trial through a subpoena. 18 U.S.C. § 3144; Bacon v. United States, 449 F.2d 933, 943 (9th Cir. 1971). Second, after the arrest, the judge is required to “treat the person in accordance with the provisions of [the Bail Reform Act].” 18 U.S.C. § 3144. Under the Bail Reform Act, a judge is to release the witness subject to the least restrictive conditions that will reasonably assure his presence at trial. See id. § 3142(b) and (c). Among the factors a judge may consider are the witness’s family and community ties. See 18 U.S.C. § 3142(g).
As the Supreme Court recognized in this case, the law contains a distinction between -7-

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initially issuing an arrest warrant when a witness “may” be unavailable, 18 U.S.C. § 3144, and subsequently determining the conditions under which the witness “shall” be released, 18 U.S.C. § 3142(b). See al-Kidd, 131 S. Ct. at 2079 (“Material witnesses enjoy the same constitutional right to pretrial release as other federal detainees, and federal law requires release if their testimony ‘can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice’”) (quoting 18 U.S.C. § 3144); see also United States v. Nai Fook Li, 949 F. Supp. 42, 44-45 (D. Mass. 1996) (“The Act as it relates to detention of material witnesses establishes a two step procedure for making the determination that a material witness should be detained”). Only the first step of the material witness statute is at issue in this case, whether a warrant was properly issued for Plaintiff’s arrest. The second step, whether Plaintiff should be released pending trial and under what circumstances, is committed by law to the magistrate judge. Indeed, the arrest warrant for Plaintiff explicitly states that it was issued “for the purpose of setting the methods and conditions of [Plaintiff’s] release.” Ex. 6, Arrest Warrant for Material Witness.
ARGUMENT Summary judgment should be granted to FBI Agents Gneckow and Mace based on qualified immunity. Qualified immunity shields government officials from liability so long as their conduct does not violate any “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The immunity serves an important function by balancing “‘the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’” Tibbetts v. Kulongoski, 567 F.3d 529, 535 (9th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231
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(2009)). The qualified immunity standard provides “ample room for mistaken judgments,” Malley v. Briggs, 475 U.S. 335, 343, (1986), and “[w]hen properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Al-Kidd, 131 S. Ct. at 2085 (2011) (quoting Malley at 341).
In determining whether an officer is entitled to qualified immunity, the “beneficial” two step process set forth in Saucier v. Katz, 533 U.S. 194 (2001), provides the analytical framework. Pearson, 555 U.S. at 236 (Saucier two-step process “often appropriate,” but not required). Under the first step, the alleged facts must show a constitutional violation, otherwise “the plaintiff cannot prevail.” Motley v. Parks, 432 F.3d 1072, 1077 (9th Cir. 2005) (en banc). But if a constitutional injury is shown, even the violation of a clearly established right, a court still must determine whether the conduct at issue was objectively reasonable. Id.; Bias v. Moynihan, 508 F.3d 1212, 1220 (9th Cir. 2007). If so, then the defendant is entitled to qualified immunity. Id.
To obtain a material witness warrant, the government “must establish probable cause to believe that (1) the witness’s testimony is material [in a criminal proceeding], and (2) it may become impracticable to secure the presence of the witness by subpoena.”1 United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003) (citing Bacon, 449 F.2d at 942-43); Dkt. No. 79, Mem. Order at 14. Where questions of probable cause are at issue, arresting officers are entitled
1 The Third Circuit recently held that the Fourth Amendment’s Warrants Clause does not govern material witness arrests because the concept of probable cause can relate only to suspicion of criminal activity. Schneyder v. Smith, 653 F.3d 313, 324-25 (3rd Cir. 2011). Rather, it is the Amendment’s prohibition on “unreasonable” seizures that provides the analytical framework for determining whether the arrest and detention of a material witness comports with the Fourth Amendment. Id. As the Ninth Circuit has used the probable cause standard to analyze the validity of a material witness arrest, see Bacon, 449 F.2d at 943; Arnsberg v. United States, 757 F.2d 971, 976 (9th Cir. 1984), Defendants analyze Plaintiff’s claims under that standard. However, under either analysis, the result would be the same in this case. See fn.7 infra.
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to immunity if they “acted reasonably under the circumstances.” KRL v. Estate of Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). “Law enforcement officials who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). As this Court has explained, “‘officers are immune from suit when they reasonably believe that probable cause existed, even though it is subsequently concluded that it did not.’” Wilson v. City of Coeur D’Alene No. 09-381, 2010 WL 4853341, 5 (D. Idaho Nov. 19, 2010) (quoting Crowe v. County of San Diego, 608 F.3d 406, 433 (9th Cir. 2010)) (further internal quotations omitted) (Lodge, J.).
The Supreme Court has rejected Plaintiff’s assertion that Agents Gneckow and Mace may be held liable because they sought his arrest for the “unlawful purpose of detaining him preventively and/or for further investigation,” Second Am. Compl. ¶¶ 151, 154, 157. See al-Kidd, 131 S. Ct. at 2085 (“We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.”). In fact, the Court observed that “[t]he affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.” Al-Kidd, 131 S. Ct. at 2082. The Court did not, however, consider whether the affidavit actually established probable cause, and some justices expressed doubt that it did. Id. at 2083 n.3, 2087 (Ginsburg, J., concurring), and 2090 (Sotomayor, J., concurring). Notably, those doubts arose “in light of the allegations set forth in al-Kidd’s complaint.” Id. at 2090 (Sotomayer, J., concurring) (emphasis added). On summary judgment, however, Plaintiff can no longer rely on those unproven allegations but rather must come forward with evidence showing a
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genuine issue for trial. See Fed. R. Civ. P. 56(e)(2).
Here, the record is devoid of any factual support for the allegation that gave certain
justices the most concern, that “the Government had no intention of using al-Kidd as a witness at
trial.” Id. at 2090 (Sotomayor, J., concurring). As explained below, the Government had every
intention of calling Plaintiff as a witness at the time it sought the material witness warrant. In
addition, regarding the incorrect information in the affidavit about Plaintiff’s flight, the
uncontested facts now show that this information was provided to Agents Gneckow and Mace by
other law enforcement officers, and courts have long protected law enforcement officers from
liability when they reasonably rely on mistaken information provided by other officers. Finally,
the evidence also shows that the incorrect information was not material to whether probable
cause existed to believe that Plaintiff had material testimony and that it would be impracticable
to secure his presence at trial. For even if the warrant contained everything that Plaintiff claims it should have, probable cause still would have existed to arrest him as a material witness.2
2 The arguments below focus on the Fourth Amendment claim because any other claims against Agents Gneckow and Mace are plainly not viable. First, to the extent Plaintiff contends that Gneckow and Mace are liable for the conditions of his confinement, any such claim fails because Agents Gneckow and Mace were not involved in making decisions related to Plaintiff’s conditions of confinement, nor did they have any supervisory responsibility over officials who made those decisions. See, e.g., Edgerly v. City and Cnty. of San Francisco, 599 F.3d 946, 96162 (9th Cir. 2010). Second, while Plaintiff has alleged a Fifth Amendment claim against the Defendants, see Am. Compl. ¶¶ 157-58, he may only pursue a Fourth Amendment claim against them, as that amendment is the “explicit textual source of constitutional protection against” the conduct at issue. Graham v. Connor, 490 U.S. 386, 395 (1989); Fontana v. Itaskin, 262 F.3d 871, 881 (9th Cir. 2001) (claims arising before or during arrest are analyzed under the Fourth Amendment and not substantive due process). Finally, to the extent Plaintiff is still attempting to bring a separate claim directly under the 18 U.S.C. § 3142 and 1344, see Am. Compl. ¶¶ 150-52 (Count One), that claim fails as neither section creates a private right of action. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (a “private right[] of action to enforce federal law must be created by Congress.”)
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I.

AGENTS GNECKOW AND MACE HAD PROBABLE CAUSE TO ARREST PLAINTIFF AS A

MATERIAL WITNESS.

The Fourth Amendment’s probable cause requirement does not demand “certainty” by

law enforcement officials before they seek a warrant, United States v. Gourde, 440 F.3d 1065,

1070 (9th Cir. 2006) (en banc), or even demand that officers support their warrant application

with “a preponderance of [] evidence.” Id. Rather, probable cause is satisfied where, under the

“totality of the circumstances,” there is a “‘fair probability’” that evidence will be found or that

the correct person will be arrested. Id. at 1069 (quoting Illinois v. Gates, 462 U.S. 213, 246

(1983)); United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir. 1989).

This “practical” approach reflects the reality that officers “formulate[] certain common-

sense conclusions about human behavior” and that the evidence they collect “must be seen and

weighed not in terms of library analysis by scholars, but as understood by those versed in the

field of law enforcement.” Gates, 462 U.S. at 231-32. Indeed, “innocent behavior frequently will

provide the basis for a showing of probable cause.” Id. at 245. An affidavit does not have to meet

“‘[t]echnical requirements of elaborate specificity,’” because doing so would ignore the reality

that “affidavits ‘are normally drafted by nonlawyers in the midst and haste of a criminal

investigation.’” Id. 235 (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)).

The key question is whether the magistrate judge had enough evidence to make a

common sense determination under the “fair probability” standard. In making that determination,

the magistrate judge may “draw such reasonable inferences as he will from the material supplied

to him by applicants for a warrant.” Gates,462 U.S. at 240. “Many warrants are—quite

properly—issued on the basis of non-technical, common-sense judgments of laymen applying a

standard less demanding than those used in more formal legal proceedings.” Id. at 235-36

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(internal citation omitted). When a reviewing court is required to decide whether a warrant application established probable cause, the court’s duty is simply to ensure that the magistrate judge had a “‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). This deferential standard of review requires that “doubtful or marginal cases” be resolved in favor of the magistrate judge’s finding of probable cause. Gates, 462 U.S. at 237 n.l0 (magistrate judge’s probable cause finding is entitled to “great deference”).
Finally, “[e]fficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.” al-Kidd, 131 S. Ct. at 2083. Consequently, if there is probable cause to make an arrest, any subjective intent on the part of the officers is wholly irrelevant for Fourth Amendment purposes. Id.; Whren v. United States, 517 U.S. 806, 812-13 (1996); United States v. Willis, 431 F.3d 709, 716 n.6 (9th Cir. 2005) (once a probable cause showing is made, parsing of law enforcement “motives” is precisely what the Supreme Court “tells us we may not do”). A. There Was Probable Cause to Believe that Plaintiff Possessed Material Testimony.
1. The warrant application established probable cause to believe that Plaintiff had material testimony.
The warrant application provided a “substantial basis” for this Court to conclude that probable cause existed to believe Plaintiff possessed testimony material to the charges against alHussayen. The application states that it is “based upon the Affidavit of Scott Mace, Special Agent, Federal Bureau of Investigation, the Indictment filed herein, and the warrant of arrest filed against the defendant herein.” See Ex. 5, Application for Arrest Warrant of Material Witness at 2. The application and the supporting affidavit both specifically state that the indictment charged al-
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Hussayen with making false statements to the United States and visa fraud. Id.at 1-2, Affidavit of Scott Mace at ¶ 6. Because the application is “based upon” the indictment and the affidavit refers to the indictment and the specific charges against al-Hussayen, id. at 2, Aff. at ¶ 6, the indictment “could certainly be considered by the magistrate” judge, along with the affidavit, in making the probable cause determination. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1566 (9th Cir. 1989); see also United States v. Rubio, 727 F.2d 786, 795 (9th Cir. 1984) (“indictment alone cannot supply probable cause,” but it may “be considered along with other facts by a magistrate in determining probable cause”).
The indictment charged al-Hussayen with nine counts of visa fraud and making false statements. Ex. 4, Indictment of al-Hussayen (hereinafter “Indictment”) at ¶¶ 11-18. Al-Hussayen was charged with obtaining a student visa for the claimed purpose of pursuing studies at the University of Idaho, when in fact he intended to and did engage in unauthorized and undisclosed business activities. Those activities included serving as “the formal registered agent” in Idaho for the Islamic Assembly of North America (“IANA”) starting on May 11, 2001, and serving as “the registrant or administrative contact” for several websites created between August 11, 1995, and July 8, 2002, that “belonged to or were linked to the IANA.” Ex. 4, Indictment ¶¶ 17-19. The indictment also alleged that from January 1997 until his indictment, al-Hussayen received approximately $300,000 in excess of the funds he received for his studies, and that from November 1999 until his indictment he disbursed those funds to IANA and its officers, including a leading IANA official. Id. at ¶¶ 23-24. During the same time, al-Hussayen made payments to other individuals and funded IANA-related travel by individuals between December 1994 and July 2002. Id. at ¶¶ 24, 27. Counts One, Two, Four, Five, and Seven through Ten premise alHussayen’s criminal violations on his undisclosed work for IANA. See id. at pp. 11-17.
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The affidavit, after referring to the indictment and the charges contained therein, states that during the course of the investigation into al-Hussayen’s activities, “information was developed regarding the involvement of Abdullah Al-Kidd with the defendant.” Ex. 5, Application for Arrest Warrant, Affidavit at 2. That information included the following: (1) between March 2000 and November 2001, Plaintiff “and/or his spouse . . . received payments from Sami Omar Al-Hussayen and his associates in excess of $20,000;” (2) upon Plaintiff’s return to the United States in April 2002 from a trip to Yemen, he “met with Al-Hussayen’s associates;” and (3) when Plaintiff emptied a storage locker sometime after April 2002, he left behind a program for an IANA conference held in December 1994 and telephone numbers for IANA and a former director of IANA. Id. at 2-3.
Applying the totality of the circumstances standard to this information contained in the warrant application, the court had a “substantial basis” to conclude there was a “fair probability” to believe that Plaintiff had testimony material to the charges against al-Hussayen. The affidavit supports this conclusion in two ways. First, the timing and character of Plaintiff’s connection to al-Hussayen support a reasonable inference that Plaintiff could testify as to al-Hussayen’s business-related activities. The time period during which Plaintiff or his spouse received in excess of $20,000 from al-Hussayen and his associates—March 2000 to November 2001—is within the time period identified in the indictment when al-Hussayen allegedly disbursed the excess funds he received to “other organizations and individuals.” Ex. 4, Indictment ¶ 24. It was also during the time period when al-Hussayen allegedly made false statements concerning his purpose for being in the United States and failed to disclose his ties to IANA. See id. ¶¶ 5-9, 1213. And this time period, as well as the period in 2002 when Plaintiff met with al-Hussayen’s associates, coincided with the time during which al-Hussayen served as the registered agent for
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IANA, provided web-site services to IANA, and disbursed funds to IANA. Second, the affidavit described documents linking Plaintiff directly to IANA, namely a
program from an IANA conference held in December 1994, a telephone number for IANA and a telephone number for a former director of IANA. Critically, the date of the program for the IANA conference coincides precisely with the time period when al-Hussayen began paying for IANA-related travel for individuals. Ex. 4, Indictment at ¶ 27. And the fact that Plaintiff was in possession of telephone numbers for IANA and a former IANA director as recently as 2002, and that he met with al-Hussayen’s associates in the spring of that year, makes it fairly probable that Plaintiff had knowledge of al-Hussayen’s IANA related activities during that time frame. Id. at ¶ 24. As noted, al-Hussayen’s ties to IANA were the linchpin of almost all the criminal charges against him. See id. at ¶¶ 11-17. The affidavit, read in conjunction with the indictment, provided a substantial basis for the court to conclude that there was probable cause to believe Plaintiff had testimony material to the false statement and visa fraud charges pending against al-Hussayen. See Awadallah, 349 F.3d at 70 (affidavit established probable cause by stating that “at least one of the September 11 hijackers possessed [the defendant’s] home phone number and lived in the same vicinity as [the defendant] for some length of time,” because the piece of paper with the phone number “supports the inference that [the defendant] knew one or more of the hijackers.”)3
3 Plaintiff also faults Agent Gneckow for omitting the purportedly material fact that he worked for the same Islamic charity as al-Hussayen and received salary for this work. Second Am. Compl. ¶ 59-60. But this alleged omission only bolsters the conclusion there was probable cause to believe Plaintiff had material testimony related to al-Hussayen’s business-related activities. Moreover, Gneckow was not sure that payments constituted salary, so he did not characterize them as such in his affidavit. Ex. 16, Gneckow Dep. at 180. Plaintiff simply cannot show that Gneckow acted with “reckless disregard for the truth” and that “the magistrate would not have issued the warrant” but for the omission, as he must to prevail on an omission theory. See Lombardi v. City of El Cajon, 117 F.3d 1117, 1123-6 (1997); see also Section II infra.
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2. Agent Gneckow reasonably concluded that there was probable cause to believe that Plaintiff could provide material testimony. Even if the application did not establish probable cause to believe that Plaintiff had
material testimony, Agent Gneckow “acted reasonably under the circumstances” in concluding that probable cause existed. KRL, 512 F.3d at 1189. Because “the existence of probable cause is often a difficult determination,” the “shield of qualified immunity” is lost “‘only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.’” Id. at 1189-90 (quoting Malley, 475 U.S. at 344-45). “In other words, an officer who prepares or executes a warrant lacking probable cause is entitled to qualified immunity unless ‘no officer of reasonable competence would have requested the warrant.’” Id. at 1190 (quoting Malley, 475 U.S. at 346 n.9). Whether “a reasonable officer could have believed that probable cause existed . . . is an objective [inquiry], based on what a reasonable officer would believe if faced with the facts and circumstances actually known to the officer in question.” Franklin v. Fox, 312 F.3d 423, 437 (9th Cir. 2002) (internal citation and quotes omitted).
Agent Gneckow reasonably concluded Plaintiff had testimony material to the charges against al-Hussayen. Gneckow first learned of Plaintiff when he obtained al-Hussayen’s bank records, which showed “a significant amount of money flow in and out of Al-Hussayen’s account and [that Plaintiff was] one of the recipients of money from his account . . . .” Ex. 16, Gneckow Dep. at 54. By the time another FBI agent interviewed Plaintiff in the summer of 2002, Gneckow’s investigation into al-Hussayen’s activities had “developed information about AlKidd’s relationship with Al-Hussayen . . . . We developed information that Al-Kidd was a member of this gathering organization, this Al-Multaqa, developed information that he should
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have known, certainly should have known about the operation of this website, al-multaqa.com, and other issues like that.” Ex. 16, Gneckow Dep. at 69-70.
At the time Agent Gneckow recommended to AUSA Lindquist that they seek a material witness warrant for Plaintiff, he believed that Plaintiff had information pertinent to the false statement and visa fraud charges then pending against al-Hussayen:
Q: [W]hen you say Al-Kidd had information that was germane to those charges, could you be more specific . . .? A: Al-Kidd would have been able to say that Al-Hussayen was an officer of IANA. He may have been able to say he was the registered agent for IANA in Idaho. He would have been able to talk about salary that he received from Al-Hussayen. He would have been able to talk about Al-Multaqa and the website. Id. at 156-57.4 In explaining his basis for concluding that al-Kidd could testify regarding salary received from al-Hussayen, Agent Gneckow stated it was his belief, “after analyzing the financials,” that the payments al-Kidd received from al-Hussayen were salary payments, a belief Gneckow confirmed when he interviewed Plaintiff after his arrest.5 Id. at 180. Agent Gneckow also testified that it was his “understanding that Mr. Al-Hussayen’s affiliation with IANA would have violated his visa.” Id. On the day he learned Plaintiff was scheduled to leave the country for Saudi Arabia, Agent Gneckow contacted AUSA Lindquist and recommended that the government seek a
4 Gneckow explained that Plaintiff’s knowledge of the website was relevant because “Al-Hussayen can’t possibly be a full-time student [as required by his student visa] if he’s operating 22 websites on behalf of IANA, one of which is al-multaqa.com. * * * [his] knowing . . . the content of the website . . . [and] the amount of work that would be required to build . . . [t]his . . . very intricate website . . . would have been of great assistance to us because it was a big website.” Ex. 16, Gneckow Dep. at 157-59.
5 Plaintiff has admitted that he worked at al-Multaqa with al-Hussayen, and that alHussayen paid him for this work. Statement of Facts ¶ 6.
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material witness warrant. Statement of Facts ¶ 22-23. Lindquist decided to follow the recommendation, although he instructed Gneckow to first confirm that Plaintiff could not be located at his home in Kent, Washington. Id. at ¶ 24. Once Gneckow confirmed that Plaintiff was not in Kent, he prepared the affidavit and made arrangements for it to be presented to the court on March 14. Id. at ¶¶ 24-25, 28, 30. Gneckow consulted with AUSA Lindquist about the contents of the affidavit, who advised that the affidavit needed to clearly show Plaintiff’s connection with al-Hussayen and IANA. Id. ¶ 25. Gneckow could not recall precisely what information he added to the affidavit after speaking with Lindquist, but he thought that he added information pertaining “to the phone numbers of Basem Khafigi [sic].” Ex. 16, Gneckow Dep. at 176-77. The affidavit explains that Basem Khafagi was a former director of IANA and his phone number was found in a storage locker cleared-out by Plaintiff in the spring of 2002. Gneckow testified that he was “relying on [AUSA] Lindquist to make sure we satisfied the . . . elements [of the statute.]” Id. at 187.6 Agent Gneckow’s consultation with AUSA Lindquist is a key piece of evidence that entitles Gneckow immunity, as the Ninth Circuit has recognized that consultation with a prosecutor is objectively reasonable conduct that supports granting an officer qualified immunity. Ortiz v. Van Auken, 887 F.2d 1366, 1369-71 (9th Cir. 1989); Arnsberg, 757 F.2d at 981; accord Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (“Consulting a prosecutor . . . goes far to establish qualified immunity. Otherwise the incentive for officers to consult prosecutors—a valuable screen against false arrest—would be greatly diminished.” (citations omitted)).
6 AUSA Lindquist testified that “from the moment in time [] information was given to me about Mr. Al-Kidd I viewed him as a witness.” Ex. 17, Lindquist Dep. at 26-27. The FBI provided this information to AUSA Lindquist prior to Agent Gneckow recommending that the government seek a material witness arrest warrant. Id. at 30.
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On these facts, Plaintiff cannot show that this is a situation where ‘“no officer of reasonable competence would have requested the warrant,”’ which he must do to overcome Agent Gneckow’s qualified immunity assertion. KRL, 512 F.3d at 1189 (quoting Malley, 475 at 346). Agent Gneckow acted reasonably under the circumstances in concluding there was probable cause to believe Plaintiff had material testimony, and in consulting with AUSA Lindquist about whether to seek a material witness warrant and the contents of the affidavit to support the warrant. B. Plaintiff’s Imminent Departure to Saudi Arabia Established Probable Cause that
He Might Not Be Available to Testify at Al-Hussayen’s Trial. The second prong of the material witness statute, that “it may become impracticable to secure” a witness’s presence at trial by subpoena, is likewise satisfied in this case. 18 U.S.C. § 3144. A material witness arrest warrant may issue if “sufficient facts” provide a “judicial officer [with] probable cause to believe that it may be impracticable to secure the presence of the witness by subpoena.” Bacon, 449 F.2d at 943; see also Arnsberg, 757 F.2d at 976. In this case, the undisputed facts show that at the time the government sought the arrest warrant, it may have been impracticable to secure Plaintiff’s attendance at al-Hussayen’s trial. Most notably, there is no dispute that 1) Plaintiff purchased a plane ticket to Saudi Arabia with no scheduled return date, 2) that he traveled to Dulles International Airport to board that flight, and 3) al-Hussayen’s trial was scheduled to start in just over 30 days. Statement of Facts ¶¶ 13, 15-16, 24. Because he cannot dispute these facts, Plaintiff has made various contentions regarding what the Government should have done. He complains that he should have been given the chance to testify voluntarily, arguing that prior meetings with an FBI agent show that he would have voluntarily agreed to testify at al-Hussayen’s trial. But the Supreme Court has long recognized
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that an individual may be arrested as a material witness even if he was never given an opportunity to testify voluntarily. See Barry v. United States, 279 U.S. 597, 616 (1929) (a court may “issue a warrant of arrest without a previous subpoena, when there is good reason to believe that otherwise the witness will not be forthcoming.”) (citing 18 U.S.C.§ 659, predecessor to the current material witness statute). Consistent with this precedent, this Court has held that the law does not “stand for the proposition that all potential witnesses must be given an opportunity to appear and testify prior to a material witness warrant being sought and executed.” Doc. No. 79, Mem. Order at 14. Likewise, numerous courts have upheld arrests of witnesses despite prior cooperation with authorities. See, e.g., Awadallah, 349 F.3d at 45-46, 66-67; United States v. McVeigh, 940 F. Supp. 1541 (D. Col. 1996); White v. Gerbitz, 892 F.2d 457 (6th Cir. 1989). In these cases, courts correctly focused on whether it may be impracticable in the future to secure the witnesses’s testimony, not whether the witnesses has cooperated in the past. See Awadallah, 349 F.3d at 64 (citing Bacon); McVeigh, 940 F. Supp. at 1562; White, 892 F.2d at 461.
Plaintiff also contends that he was not a flight risk because of his family and community ties in the United States, but Plaintiff’s family and community ties are not relevant to the Fourth Amendment claims against Agents Gneckow and Mace. As noted supra at 7-8, Congress has specifically directed that federal judges—not arresting officers—determine whether a material witness has sufficient community ties to reasonably assure his presence at trial. See 18 U.S.C. §§ 3144 and 3142(e). The issue in this case is simply whether probable cause existed to bring Plaintiff before a magistrate judge to answer that question.
The Ninth Circuit examined the flight-risk issue in Bacon, where an arrest was predicated largely on the witness’s mere ability to flee. 449 F.2d at 944. The court found that evidence to be insufficient, because it simply showed that “if Bacon wished to flee, she might be able to do so
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successfully.” Id. (emphasis in original). Here, Plaintiff did not have just the means to flee, but he
took concrete steps to leave the country by packing up his belongings, moving out of his home,
buying an airline ticket to Saudi Arabia, and traveling to Washington, D.C., to board his flight.
And unlike the witness in Bacon, Plaintiff never challenged the validity of his arrest during al-
Hussayen’s criminal proceedings.
Given the timing of Plaintiff’s attempted departure to Saudi Arabia in early March, 2003,
soon after al-Hussayen’s arrest on February 26, 2003, Agent Gneckow had probable cause to
believe that Plaintiff might not be available to testify at al-Hussayen’s trial. As Agent Gneckow
summarized at his deposition:
. . . there was widespread news coverage of [the detention hearing for alHussayen], and [the information that came out at the hearing was] all laid out in the newspaper articles, on TV. And, of course we knew that al-Kidd was an associate of Sami’s, was involved in al-Multaqa, had knowledge about almultaqa.com, had knowledge about these radical sheiks; that, coupled with his failure to be forthright about the questions concerning Sami Omar al-Hussayen, and the timing of his flight. I mean literally within hours of the completion of the detention hearing [on March 12, 2003], I received information that he is flying to Saudi Arabia. Efforts to contact him in his house failed. All appearances were that he was fleeing from being called as a witness in the trial. So, that was essentially the thought process that went into seeking a material witness warrant.
Ex. 16, Gneckow Dep. at 147-48. Therefore, Plaintiff cannot show a violation of his clearly
established Fourth Amendment rights, and Agents Gneckow and Mace are entitled to qualified
immunity regarding this claim.7
7 Agents Gneckow and Mace would also be entitled to qualified immunity under the reasonableness analysis that the Third Circuit used in Schneyder. The Third Circuit balanced the liberty interest of the individual against the interest of the government in prosecuting its case. Schneyder, 653 F.3d at 325-26. The court found that “a relatively brief period of time” of 19 days in jail to ensure a witness is available to testify at trial would comport with the Fourth Amendment. Id. at 326. In this case, Plaintiff was detained for only 15 days, and nearly all of that detention was due to Plaintiff’s requests for continuances of his detention hearing. See Dkt. No.
(continued...)
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II. THERE IS NO EVIDENCE THAT AGENTS MACE AND GNECKOW DELIBERATELY INCLUDED FALSE INFORMATION OR OMITTED MATERIAL FACTS WHEN THEY PREPARED THE AFFIDAVIT. Plaintiff contends that the arrest warrant affidavit contained false statements and
omissions that were material to the probable cause determination of whether he was a flight risk. Am. Compl. ¶¶ 52-54. To prevail on this “judicial deception” theory, Plaintiff must satisfy both parts of the two-part test set forth in Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995). First, Plaintiff must make a “substantial showing” of a deliberate falsehood or reckless disregard for the truth by Agents Gneckow and Mace. Id. at 788. As applied to allegedly false statements, Plaintiff must make a substantial showing that the agents “submitted an affidavit that contained statements [they] knew to be false or would have known were false had [they] not recklessly disregarded the truth.” Id. (internal quotes omitted). As applied to the alleged omissions, Plaintiff must make a substantial showing that the agents “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading.” Lombardi, 117 F.3d at 1123 (internal quotes omitted). The requisite “substantial showing” is a “heightened proof” requirement that “parallels the threshold showing” a defendant must make to obtain an “evidentiary hearing on a Franks challenge in a criminal proceeding.” Id. at 123-24 (citing Franks v. Delaware, 438 U.S. 154 (1978)). Under that standard, “allegations of negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171.
The second part of the Hervey standard requires Plaintiff to establish the materiality of
7(...continued) 78, Order at 11-12. And for the reasons outlined in the text, it was reasonable for Agent Gneckow to believe that Plaintiff had material testimony and it might be impracticable to secure his testimony at al-Hussayen’s trial by subpoena. Thus, Plaintiff’s arrest and detention were reasonable under the Fourth Amendment.
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the dishonestly included or omitted information “to the ultimate determination of probable cause.” Hervey, 65 F.3d at 789. “It is only objectively unreasonable for a law enforcement officer to deliberately or recklessly misstate [or omit] facts material to the probable cause determination.” Id. (emphasis added); accord Lombardi, 117 F.3d at 1126. False information is material only if probable cause ceases to exist upon removal of the information from the affidavit. 65 F.3d at 790. An omission is material only if probable cause is lost upon inclusion of the omission in the affidavit. 117 F.3d at 1126. The Ninth Circuit has noted the difficulty in determining whether a magistrate judge would have issued the warrant “with false information redacted, or omitted information restored,” and that immunity should attach unless it is “plain” that no magistrate judge would have issued the warrant:
[M]ateriality may not have been clear at the time the officer decided what to include in, and what to exclude from, the affidavit. In such cases, when it is not plain that a neutral magistrate would not have issued the warrant, the shield of qualified immunity should not be lost, because a reasonably well-trained officer would not have known that the misstatement or omission would have any effect on issuing the warrant. Id. (emphasis added); see also Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011) (corrected affidavit must “compel the conclusion” that the warrant would not have issued). A. Agents Gneckow and Mace Reasonably Relied on Information Provided to Them by Other Law Enforcement Officials Concerning Plaintiff’s Ticket to Saudi Arabia. Plaintiff’s allegation that the affidavit contained false information is premised on one sentence that, to be sure, was not entirely accurate. The sentence reads: “Kidd [sic] is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST.” Ex. 5, Arrest Warrant Affidavit at 3. Although alKidd was in fact scheduled to take a flight to Saudi Arabia on March 16, 2003, his ticket was economy (not first class), contained an unscheduled open return date (was not one-way), and cost
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around $2,000 (not $5,000). These minor factual errors, however, do not rise to a Fourth Amendment violation for two reasons. First, neither Agent Gneckow or Mace knowingly included the incorrect information in the affidavit; to the contrary, they reasonably relied on information provided by other law enforcement officers. Second, the inaccurate information was not material to the probable cause determination, as Plaintiff’s flight reservation showed that he was a flight risk regardless of whether his ticket was one-way or open-ended with no return date, how much the ticket cost, or where Plaintiff sat on the plane.
There is no evidence that Agents Gneckow or Mace knew of the factual errors in the affidavit when it was submitted to the Court. The errors originated primarily with CBP Officer Alvarado, who reviewed Plaintiff’s flight information. On March 12, 2003, Officer Alvarado conducted a routine inspection of the passengers on an upcoming flight from JFK International Airport to Saudi Arabia and discovered Plaintiff’s name on the manifest. Statement of Facts ¶ 16. The reservation information that Officer Alvarado reviewed did not list a return flight. Id. Officer Alvarado also noticed that the reservation listed two departure dates, which prompted him to contact the airline. Id. ¶ 17. During this conversation, the airline representative told Officer Alvarado that Plaintiff had reserved a first-class seat. Id.
As part of his routine procedures, Officer Alvarado also ran each passenger’s name through a government database, TECS. Id. ¶ 18. When he entered Plaintiff’s name into that database, he received instructions to contact U.S. Immigration and Customs Enforcement Agent Robert Alvarez regarding any international travel. Id. ¶ 8, 18. Officer Alvarado did so, telling Agent Alvarez that Plaintiff had purchased a first-class, one-way ticket to Saudi Arabia that was scheduled to depart in a few days. Statement of Facts ¶ 19. Alvarado explained that although he was aware that the ticket allowed for an open-ended return, he told Alvarez that “it appears that
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[Plaintiff] has a one-way ticket, it doesn’t show that he has a return ticket.” Ex. 10, Alvarado Dep. at 195-96; see also id. at 194 (“It shows a one-way, we’ve seen it in the past, where passengers will book themselves like that and they will never return”).
The next day, March 13, Agent Alvarez told Agent Gneckow that Plaintiff had purchased a one-way, first-class ticket to Saudi Arabia scheduled to depart within a few days. Statement of Facts. ¶ 20. Agent Alvarez understood the ticket to cost approximately $5,000, and he told this to Agent Gneckow. Id. Gneckow included all the information he received from Alvarez in his affidavit. Id. ¶ 25.
The Ninth Circuit has specifically countenanced this kind of information-sharing among law enforcement agencies. See United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976) (“[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”) So long as an officer has an “objectively reasonable, good-faith belief that he is acting pursuant to proper authority, he cannot be held liable if the information supplied by other officers turns out to be erroneous.” Motley, 432 F.3d at 1082.
Importantly, Agent Gneckow took steps to confirm that Plaintiff might not be available to testify at al-Hussayen’s trial. He first confirmed that Plaintiff could not be located in Kent, Washington, and he then contacted an FBI agent at Dulles International Airport to confirm that Plaintiff was booked on the flight to Saudi Arabia. Ex. 16, Gneckow Dep. at 166-69, 173. Only then did Agent Gneckow prepare the affidavit, which included the sentence containing the factual errors about Plaintiff’s flight reservation. Id. On these unchallenged facts, Plaintiff cannot make a substantial showing that Agent Gneckow deliberately included a falsehood in the affidavit or
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recklessly disregarded the truth. Hervey, 65 F.3d at 788. Agent Gneckow reasonably relied on the information he received from other law enforcement officers, and he cannot be held personally liable because that information ultimately turned out to be erroneous.
Agent Mace also cannot be held liable for the incorrect information contained in the affidavit. Agent Mace was the duty agent in Boise on March 14, 2003, and he signed the affidavit in that capacity, not as an agent with actual knowledge of Plaintiff’s connection to al-Hussayen.8 Statement of Facts, ¶¶ 28-29. Because Agent Mace had no independent knowledge of Plaintiff, he relied on Agent Gneckow’s presentation of the facts as contained in the affidavit. Id. ¶ 29. This reliance was imminently reasonable, as Agent Gneckow was the lead agent on the alHussayen investigation and he had spoken to Agent Alvarez concerning the flight information. Like Agent Gneckow, Agent Mace cannot be held liable for his reasonable reliance on the information contained in the affidavit. See Motley, 432 F.3d at 1082. B. Agents Gneckow and Mace Included All Material Facts in the Affidavit.
Discovery has provided no basis for Plaintiff to make the requisite substantial showing that Agent Gneckow or Mace “intentionally or recklessly” omitted facts “required to prevent technically true statements in the affidavit from being misleading.” Lombardi, 117 F.3d at 1123, 1126. As already explained, Agent Gneckow did not knowingly omit the correct flight information from the affidavit; instead, he reasonably relied on information provided to him by other officers that turned out to be incorrect. This leaves the alleged “omissions” concerning Plaintiff’s citizenship, family ties, and his prior dealings with the FBI. Second Am. Compl. ¶ 54. But these “omissions” have no bearing on the affidavit’s statement concerning Plaintiff’s flight,
8 Because no magistrate judge sat in Coeur d’Alene, Gneckow needed an agent in Boise to swear to the affidavit before a magistrate judge there. Ex. 16, Gneckow Dep. at 138.
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which was the sole basis for Agent Gneckow (and AUSA Lindquist) to conclude that it might become impracticable to secure Plaintiff’s testimony at al-Hussayen’s trial. Indeed, as explained supra at 7-8, the Bail Reform Act governs continued detention, and the factors that a judge may consider are the person’s family and community ties. 18 U.S.C. § 3142(g).
Viewed in this context, Plaintiff’s criticism of the affidavit for failing to state his citizenship and family ties is misplaced, as that question is relevant to his post-arrest detention hearing, not whether there was probable cause to believe his testimony could not be secured via subpoena. Cf. Ex. 17, Lindquist Dep. at 80-81 (citizenship of Plaintiff’s child an issue properly addressed by the magistrate judge, post-arrest). Similarly, Plaintiff’s prior cooperation with the FBI does not undermine the probable cause determination made by Gneckow and Lindquist regarding the impracticality of securing Plaintiff’s future presence at al-Hussayen’s trial. Cf. Awadallah, 349 F.3d at 66-70 (no reckless disregard for the truth where material witness affidavit failed to state the arrestee had cooperated with the FBI prior to his arrest); Ex. 17, Lindquist Dep. at 78-79 (“I’ve got a witness with material information that appears to be heading out of the country indefinitely. Even if the FBI had told me this guy had been cooperative, my response would have been, well, maybe that’s changed; we better proceed this way, and then we’ll sort that out.”)
Because the alleged omissions are not relevant to the flight information, they do not qualify as statements that were “required to prevent [a] technically true statement[] in the affidavit from being misleading.” Stanert, 762 F.2d at 781. Cf. Awadallah, 349 F.3d at 66-67 (affidavit that stated the witness had “substantial family ties in Jordan and elsewhere overseas,” but did not mention that he had three brothers in the United States, including a citizen, was not a dishonest omission). Plaintiff simply cannot make a substantial showing that Agent Gneckow
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acted with reckless disregard for the truth in not including the purported omissions.9 C. The Corrected Affidavit Still Establishes Probable Cause to Believe That It May
Become Impracticable to Secure Plaintiff’s Testimony at al-Hussayen’s Trial. Plaintiff also cannot satisfy the second part of the Hervey standard—establishing that the allegedly false or omitted information is material to the probable cause determination. 65 F.3d at 789. The materiality question is answered by determining whether a “corrected and supplemented” affidavit still “provide[s] a magistrate with a substantial basis for concluding that probable cause existed.” United States v. Stanert, 762 F.2d 775, 782 (9th Cir. 1985); see also United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988). When the correct flight information is substituted in the affidavit for the incorrect information, the pertinent sentence reads (correct information in italics): “Kidd [sic] is scheduled to take a flight with no listed return date, coach class (costing approximately $2,000) to Saudi Arabia on March 16, 2003, at approximately 6:00 EST.” This corrected sentence supplies probable cause to believe that it “may be impracticable to secure [Plaintiff’s] testimony by subpoena.” At the time the government submitted the warrant application, al-Hussayen’s trial was scheduled to begin in just thirty days, on April 15, 2003. Statement of Facts ¶ 13. The cost of the ticket and the flight-class have no impact on the analysis, as either way Plaintiff had a reservation with no return date to a country that has no extradition treaty with the United States. Id.; Ex. 16, Gneckow Dep. at 214. On these facts, “it is not plain that a neutral magistrate would not have issued the warrant.” Lombardi, 117 F.3d at 1126; see also Almada, 640 F.3d at 938.
9 Plaintiff’s allegations regarding omissions as to Plaintiff’s citizenship, family ties and prior dealings with the FBI appear to relate to Plaintiff’s initial theory that the government had to establish probable cause to believe that Plaintiff “would not voluntarily testify or comply with a subpoena.” Dkt. No. 63, Pl’s Opp’n to Fed. Defs.’ Mot. to Dismiss at 7-9; see also Second Compl. ¶¶ 50, 51 and 55. As noted supra at 21, the Court has rejected this theory.
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Nor does including the alleged omissions identified in the Amended Complaint at paragraph 54 concerning Plaintiff’s citizenship, family ties, and his prior dealings with the FBI change the outcome. Amending the affidavit to include the citizenship and family information of which Agent Gneckow had knowledge does not alter the fact that Plaintiff had reserved a flight to Saudi Arabia with no return date.10 Moreover, Agents Gneckow and Mace both testified that in their experience, neither citizenship nor familial ties guarantees that a person will appear in court. Ex. 16, Gneckow Dep. at 193-94; Ex. 18, Mace Dep. at 47-48. See Gates, 462 U.S. at 232 (evidence must be viewed from the perspective of “those versed in the field of law enforcement”); United States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992) (“Law enforcement officers may draw upon their experience and expertise in determining the existence of probable cause.”). Indeed, in Awadallah, the court held that an affidavit which stated that the witness had “substantial family ties” overseas, but did not mention that he had three brothers in the United States, including a citizen, did not contain a material omission. 349 F.3d at 66-67, 68.
The same analysis applies to Plaintiff’s assertions that his prior interactions with the FBI should have been included in the affidavit. Not only do those interactions not change the fact that Plaintiff had reserved a flight with no return date and scheduled to depart thirty days before trial; but numerous courts have upheld arrests of witnesses who previously cooperated with authorities. See, e.g., Awadallah, 349 F.3d at 46, 66-67; McVeigh, 940 F. Supp. at 1449; Gerbitz, 892 F.2d at 461. In particular, the court in Awadallah rejected an argument that a material witness warrant affidavit was misleading because it did not state that the witness had previously
10 Agent Gneckow testified that he “probably” knew that Plaintiff was a citizen, that he was aware Plaintiff had a son but did not know his citizenship, and that he knew Plaintiff’s mother was a citizen but knew nothing about Plaintiff’s father. Gneckow Dep. 116-17, 155-56.
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“been ‘cooperative’ with FBI agents.” 349 F.3d at 66-67, 70. Finally, the alleged omissions concerning the FBI’s failure to contact Plaintiff for six
months prior to his arrest or inform him that he might be needed as a witness do not alter the facts of Plaintiff scheduled flight to Saudi Arabia. Moreover, the FBI had a legitimate basis for terminating contact with Plaintiff during this time—he had given an interview to the press after speaking to the FBI, and Agent Gneckow feared that further contact with Plaintiff would jeopardize the al-Hussayen investigation. Statement of Facts ¶¶ 11-12. As Gneckow explained at his deposition, “any further contact with Al-Kidd after he went to the press was ruled off limits” because of significant concern among everyone involved, including AUSA Lindquist, that future contact with Al-Kidd could potentially jeopardize the case, to include the destruction of evidence. Ex. 16, Gneckow Dep. at 194-95.
An affiant is not “expected to include in an affidavit every piece of information gathered in the course of an investigation,” and an affidavit is not invalid simply because it does not contain “every conceivable conclusion.” Lombardi, 117 F.3d at 1124. None of the purported omissions are material because even if they are included in the affidavit, “it is not plain that a neutral magistrate would not have issued the warrant.” Id. at 1126. III. PLAINTIFF CANNOT SHOW A VIOLATION OF ANY CLEARLY ESTABLISHED FOURTH
AMENDMENT RIGHT. In the end, Plaintiff must show that clearly established law existed at the time to put Agents Gneckow and Mace on notice that their conduct violated the Constitution. Although a case directly on point is not required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Al-Kidd, 131 S. Ct. at 2083. The question in this case is not whether it was clearly established that probable cause must exist to issue a warrant or that
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officers cannot include false or misleading testimony in support of an arrest warrant. That is obvious. See al-Kidd, 131 S. Ct. at 2084 (“[t]he general proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”). Rather, Plaintiff must show it was “beyond debate” that:
a. The flight-risk prong of the material witness statute is not satisfied by a witness preparing to board an international flight thirty days before the trial is to start, with no scheduled return flight;
b. The flight-risk prong of the material witness statute is not satisfied if a witness has previously cooperated with police;
c. Law enforcement officers must independently verify the price, class, and type of airplane ticket before listing that information in an affidavit, even if that information was received from other law enforcement officers;
d. An affidavit in support of a material witness arrest warrant must include a witness’s citizenship and family ties; and
e. An affidavit in support of a material witness arrest warrant must note whether a witness has previously cooperated with law enforcement authorities.
As explained, numerous courts have upheld the validity of material witness warrants where the affidavit lacked some of the same information Plaintiff claims should have included in his affidavit. Even if this Court disagrees with those other decisions, that only bolster’s Agents Gneckow and Mace’s entitlement to qualified immunity: “[Officers] cannot be expected to predict what federal judges frequently have considerable difficulty in deciding and about which they frequently differ among themselves.’” Wilson, 2010 WL 4853341, *5 (granting qualified immunity; citation omitted) (Lodge, J.).
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CONCLUSION For the foregoing reasons, Agents Gneckow and Mace are entitled to qualified immunity on all remaining claims, and summary judgment should be entered in their favor.

Dated: November 7, 2011

Respectfully submitted,
TIMOTHY P. GARREN Acting Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO, JR. Acting Director, Torts Branch
/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4326 Fax: (202) 616-4314

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Case 1:05-cv-00093-EJL-CWD Document 306-2 Filed 11/07/11 Page 1 of 11

Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314 P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for Defendants United States, Michael Gneckow and Scott Mace

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

______D__e_fe_n_d_a_n_t_s_. ____________________)

Case No. CV:05-093-S-EJL
STATEMENT OF UNDISPUTED MATERIAL FACTS SUBMITTED BY THE FEDERAL DEFENDANTS IN SUPPORT OF THEIR MOTIONS FOR SUMMARY JUDGMENT

1. In 2001, FBI Special Agent Mike Gneckow was leading a criminal investigation into the activities Sami Omar al-Hussayen (“al-Hussayen”). Ex. 16, Dep. of M. Gneckow at 5354; Ex. 19, Resp. of M. Gneckow to Pl.’s Interrog. No. 1. In the fall of that year, Agent Gneckow obtained documents indicating that money from al-Hussayen’s bank account had been transferred to Abdullah al-Kidd, the Plaintiff in this action. Ex. 16, Gneckow Dep. at 54. At the time, agent Gneckow was assigned to the FBI’s Office in Coeur d’Alene, Idaho. Id. at 8-9.
2. After Agent Gneckow received documents indicating the transfer of money from al-Hussayen to Plaintiff, he informed FBI Special Agent Joe Cleary, the case agent assigned to

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the intelligence investigation of al-Hussayen. Ex. 16, Gneckow Dep. at 54-57, Ex. 13, Dep. of J. Cleary at 109-110, 112. Agent Cleary then obtained approval to open an intelligence investigation of Plaintiff on December 13, 2001. Ex. 13, Cleary Dep. at 111; Ex. 15, Dep. of E. Dezihan at 53; Ex. 21, Supp’l Resp. of the United States to Pl.’s Interrog. No. 10.
3. The purpose of an intelligence investigation is to gather information about the activities of an individual. Ex. 13, Cleary Dep. at 17-18, 31. An intelligence investigation normally does not have criminal prosecution as a goal and, in 2001, the FBI could open an intelligence investigation of an individual without there being suspicion of criminal activity. Ex. 14, Dep. of R. Davis at 10-11; Ex. 15, Dezihan Dep. at 51; Ex. 13, Cleary Dep. at 30.
4. By the end of 2001, the FBI had an open criminal investigation and an open intelligence investigation for al-Hussayen. Ex. 16, Gneckow Dep. at 54-55. Agent Gneckow was the case agent for the criminal investigation and Agent Cleary was the case agent for the intelligence investigation. Id. The FBI also had an open intelligence investigation for Plaintiff, with Agent Cleary serving as the case agent. Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 10.
5. During the course of Agent Gneckow’s criminal investigation into the activities of al-Hussayen, he determined that the monetary transfers to Plaintiff probably constituted salary payments for work related to Plaintiff’s employment with an entity called al-Multaqa. Ex. 16, Gneckow Dep. at 75-76, 78, 180.
6. Plaintiff worked for al-Multaqa, a charitable Islamic organization, full-time from 1999 to 2001, and received salary for his work. Ex. 9, Dep. of A. al-Kidd at 156; Ex. 22, Pl.’s Response to Fed. Def.’s Interrog. No. 11; Second Amen. Compl. ¶ 60. Plaintiff worked with alHussayen at al-Multaqa, and al-Hussayen paid Plaintiff for this work. Ex. 22, Pl.’s Responses to
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Fed. Def.’s Interrog. Nos. 6 and 10. 7. At some point in 2002, Agent Gneckow concluded that Plaintiff had not engaged
in criminal conduct and ruled him out as a possible suspect for criminal activity. Ex. 16, Gneckow Dep. at 73-75, 77-78. Likewise, the prosecutor working on the al-Hussayen criminal investigation, AUSA Kim Lindquist, consistently viewed al-Kidd only as a prospective witness and never saw any facts that changed this view. Ex. 17, Dep. of K. Lindquist at 25-28.
8. In 2002, as part of Agent Cleary’s intelligence investigation of Plaintiff, he asked Immigration and Customs Enforcement (“ICE”) Agent Robert Alvarez to enter a “lookout” for Plaintiff into the Treasury Enforcement Communications System (“TECS”). Ex. 11, Dep. of R. Alvarez at 18-19, 22-23; Ex. 13, Cleary Dep. at 115-116. The purpose of a “lookout” is to track international travel. Ex. 11, Alvarez Dep. at 19; Ex. 13, Cleary Dep. at 116.
9. Agent Cleary also interviewed Plaintiff twice as part of his intelligence investigation. Ex. 13, Cleary Dep. at 163; Ex. 16, Gneckow Dep. at 65. The interviews occurred in the summer of 2002; each time Plaintiff agreed to speak voluntarily. Ex. 13, Cleary Dep. at 170, 173-74; Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 7; Second Am. Compl. ¶ 15.
10. After Plaintiff’s second interview with Agent Cleary, Plaintiff spoke to a reporter with the Seattle Post-Intelligencer. Ex. 9, al-Kidd Dep. at 231; Ex. 13, Cleary Dep. at 175; Ex. 16, Gneckow Dep at 194, 200. An article subsequently appeared in the Seattle Post-Intelligencer on August 2, 2002, concerning an FBI investigation into Muslim charities. Ex. 9, al-Kidd Dep. at 232-36; Ex. 2, Copy of Seattle Post-Intelligencer article dated August 2, 2002.
11. The article identified one of the sources as “a former University of Idaho football player” who had converted to Islam and was part of a “small Muslim community in Moscow and
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nearby Pullman” between 1992 and 2000 that was the “focus of the FBI’s interest.” The article also stated that the FBI had visited this source “since he returned from a trip to Yemen in April.” Ex. 2, Seattle Post-Intelligencer article at 2. Plaintiff is a former University of Idaho football player who converted to Islam, lived in Moscow from 1991 to 1997 and again from 1999 to 2001, and traveled to Yemen from August 2001 to April 2002. Ex. 9, al-Kidd Dep. at 10, 20, 7071, 80-81, 83. Plaintiff confirmed at his deposition that the reference in the article to the former University of Idaho football player is a reference to him. Id. at 236.
12. After the article appeared in the Seattle Post-Intelligencer, Agent Gneckow became very concerned that Plaintiff’s communication with the press would jeopardize the criminal investigation of al-Hussayen. Ex. 16, Gneckow Dep. at 149, 194-95, 200. As a result, the FBI decided to terminate all contact with al-Kidd while the al-Hussayen investigation was ongoing. Id. at 149, 194-95; Ex. 13, Cleary Dep. at 175.
13. On February 26, 2003, the indictment against al-Hussayen was unsealed and the government arrested him. Ex. 8, Order and Arrest Warrant in United States v. al-Hussayen, Case No. 3:03-cr-00048 (Dkt. Nos. 10-11).1 The indictment charged al-Hussayen with seven counts of visa fraud and four counts of making false statements to the United States. Ex. 4, Indictment, United States v. al-Hussayen (Dkt. No. 1). The Court set a trial date of April 15, 2003. Ex. 8, Minute Entry, United States v. al-Hussayen (Dkt. No. 13).
14. On March 6, 2003, Plaintiff purchased a ticket to Saudi Arabia, where he was to begin a course of study in Arabic and Islamic law. Ex. 9, al-Kidd Dep. at 112-14, 136; Ex 11,
1 For ease of reference, relevant documents from United States v. al-Hussayen are attached as exhibits. The Indictment is at Exhibit 4, documents related to al-Kidd are at Exhibits 5-7, and documents related to other matters in the al-Hussayen case are at Exhibit 8.
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Dep. of J. Alvarado at 179-80, 232-33. During this same time period, Plaintiff and his wife packed their belongings and moved out of their apartment in Kent, Washington. Ex. 9, al-Kidd Dep. at 30, 208. They drove first to California and then to Las Vegas, where Plaintiff’s wife would reside with her parents until she could join Plaintiff in Saudi Arabia. Id. at 207-08.
15. On March 11-12, 2003, the detention hearing for al-Hussayen took place. Ex. 8, Minutes of Detention Hearing, United States v. al-Hussayen (Dkt. Nos. 27-28). Agent Gneckow testified during both days of the hearing. Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 7.
16. On March 12, 2003, Customs and Border Protection (“CBP”) Officer Jaime Alvarado was conducting a routine inspection of the passengers on an outbound flight from JFK International Airport to Saudi Arabia. Ex. 10, Alvarado Dep. at 54-55, 170-72, 180-81. While conducting this inspection, Officer Alvarado discovered Plaintiff’s name on the flight manifest. Id. at 170-72. The reservation information for Plaintiff to which Officer Alvarado had access indicated that Plaintiff had booked his ticket on March 6, 2003, and that he had two reservations for outbound travel to Saudi Arabia—a reservation for March 13, 2003 and one for either March 15 or 16, 2003. Id. at 179-80, 197-99, 232-33; Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 5. The reservation information did not list a return flight. Ex. 10, Alvarado Dep. at 194-96.
17. The portion of the reservation that listed departure dates of March 15 and 16 led Officer Alvarado to contact the airline. Id. at 199. An airline representative confirmed that the flight was scheduled to leave on the 16th, not the 15th. Id. at 199. The representative also told Alvarado that Plaintiff had purchased a first-class ticket. Id. at 206-07.
18. Officer Alvarado also ran Plaintiff’s name through TECS as part of his routine procedures, and information in TECS instructed Alvarado to contact ICE Agent Alvarez. Id. at
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171, 181-82, 184-85. No one instructed Officer Alvarado to specifically look for Plaintiff in TECS, nor did Officer Alvarado have any reason to look for Plaintiff in particular. Id. at 171.
19. That same day, March 12, 2003, CBP Officer Alvarado contacted ICE Agent Alvarez and informed him of Plaintiff’s scheduled travel. Ex. 11, Alvarez Dep. at 30; Ex. 10, Alvarado Dep. at 180, 190-91; Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 3. Officer Alvarado told Agent Alvarez that Plaintiff had purchased a first-class, one-way ticket to Saudi Arabia that was scheduled to depart on either March 13 or 16. Ex. 11, Alvarez Dep. at 43-46; Ex. 10, Alvarado Dep. at 193-96, 206-07; Ex. 21, Supp’l U.S. Resp. to Pl.’s First Interrog. No. 3.
20. On March 13, 2003, the day after al-Hussayen’s detention hearing concluded, Agent Alvarez told Agent Gneckow that Plaintiff had purchased a one-way, first-class plane ticket to Saudi Arabia scheduled to depart within a few days. Ex. 11, Alvarez Dep. at 52; Ex. 16, Gneckow Dep. at 163-65, 170-71, 175; Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 3. It was also Agent Alvarez’s understanding that the ticket cost approximately $5,000, and he told this to Agent Gneckow. Ex. 11, Alvarez Dep. at 43-44, 60; Ex. 16, Gneckow Dep. at 164.
21. Plaintiff’s ticket actually cost less than $2,000 and it was a coach-class ticket, even though the airline had told Officer Alvarado that the ticket was first-class. Second Amen. Compl. ¶ 14; Ex. 10, Alvarado Dep. at 206-07. The ticket also was an “open ticket” that did not have a date for Plaintiff’s return from Saudi Arabia. Ex. 10, Alvarado Dep. at 194; Ex. 23, Pl.’s Response to Fed. Def.’s Req. for Admis. No. 1.
22. Upon learning from Agent Alvarez the information concerning Plaintiff’s flight to Saudi Arabia, a country that does not have an extradition treaty with the United States, Agent Gneckow decided to recommend to the U.S. Attorney’s Office that it seek a material witness
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arrest warrant for Plaintiff. Ex. 16, Gneckow Dep. at 128-29, 165, 214. Agent Gneckow consulted with Agent Cleary before making this recommendation. Id. at 165; Ex. 13 Cleary Dep. at 192-93.
23. Agent Gneckow called AUSA Lindquist to recommend that the government seek a material witness warrant. Ex. 16, Gneckow Dep. at 129, 144, 171; Ex. 17, Lindquist Dep. at 2930. The final decision whether to seek the material witness warrant rested with AUSA Lindquist. Ex. 16, Gneckow Dep. at 128-29; Ex. 17, Lindquist Dep. at 35; Ex. 3, Decl. K. Lindquist ¶ 5.
24. AUSA Lindquist instructed Agent Gneckow to make sure that Plaintiff had in fact left his home in Kent, Washington before proceeding. Ex. 16, Gneckow Dep. at 142-43, 171. Once Agent Gneckow determined that Plaintiff had left his home, he started preparing the affidavit to support the application for the arrest warrant. Id. at 171-72. During this time, Agent Gneckow also called the FBI agent at Dulles International Airport to confirm that Plaintiff was in fact booked on a flight to Saudi Arabia. Id. at 166-69, 173.
25. In preparing the affidavit to support the application for the material witness arrest warrant, Agent Gneckow included the information provided to him by Agent Alvarez concerning Plaintiff’s flight reservation. Ex. 16, Gneckow Dep. at 182. Agent Gneckow also conferred with AUSA Lindquist in preparing the affidavit and provided him a draft to review. Id. at 139-41; Ex. 17, Lindquist Dep. at 33-34. AUSA Lindquist advised Agent Gneckow that the affidavit needed to clearly show Plaintiff’s connection with al-Hussayen and the Islamic Assembly of North American (“IANA”). Ex. 17, Lindquist Dep. at 34.
26. Neither Agent Gneckow nor AUSA Lindquist received guidance from FBI Headquarters or the Justice Department on whether to seek the material witness warrant. See Ex.
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17, Lindquist Dep. at 57-58; Ex. 3, Lindquist Decl. ¶¶ 5-7; Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 3.
27. At the time he prepared the affidavit, Agent Gneckow believed that Plaintiff had information germane to the false statement and visa fraud charges against al-Hussayen, namely that Plaintiff could testify that al-Hussayen had engaged in business activities on behalf of IANA, including work for al-Multaqa, in violation of his student visa. Ex. 16, Gneckow Dep. at 156-59. AUSA Lindquist also viewed Plaintiff has having information pertinent to the charges against alHussayen in that Plaintiff could provide testimony on al-Hussayen’s significant business activities on behalf of IANA, through his work with al-Multaqa. Ex. 17, Lindquist Dep. at 35-37.
28. Once Agent Gneckow finished drafting the affidavit, he contacted the duty agent in Boise, FBI Special Agent Scott Mace, about presenting the affidavit to a magistrate there, as no magistrate was available at that time in Coeur d’Alene. Ex. 16, Gneckow Dep. at 137-38; Ex. 18, Dep. of S. Mace at 10; Ex. 20, Resp. of Def. S. Mace to Pl.’s First Interrog. No. 1. Agents Mace and Gneckow conferred regarding the contents of the affidavit, and Agent Mace added an opening paragraph stating that the content of the affidavit is based on information he received from Agent Gneckow. Ex. 18, Mace Dep. at 25-26.
29. Agent Mace was not involved in the investigation of al-Hussayen and he relied on the information provided to him by Agent Gneckow in presenting the material witness affidavit to the Court; Agent Mace had no independent knowledge of al-Kidd. Ex. 18, Mace Dep. at 1213, 23, 30-31; Ex. 20, Mace Resp. to Interrog. Nos. 1 and 13
30. On March 14, 2003, Agent Mace and AUSA George Breitsameter presented the warrant application to the Court, and the warrant for Plaintiff’s arrest was issued that same day.
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Ex. 20, Mace Resp. to Pl.’s Interrog. No. 1; Ex. 21, Supp’l U.S. Resp. to Pl.’s Interrog. No. 2; Exs. 5 and 6, Application for Arrest Warrant of Material Witness and Arrest Warrant in United States v. al-Hussayen. AUSA Lindquist was not available to present the warrant application to the Court as he was tending to personal matters on that day. Ex. 17, Lindquist Dep. at 32.
31. FBI agents arrested Plaintiff at Dulles International Airport on March 16, 2003. Second Amen. Compl. ¶ 65. Agents from the FBI’s Washington Field Office interviewed Plaintiff after his arrest. Ex. 16, Gneckow Dep. at 189-92; Ex. 13, Cleary Dep. at 206-07. At Plaintiff’s initial appearance the next morning before a magistrate in Virginia, he requested that the matter be continued so that he could be transported to Idaho. Second Amen. Compl. at ¶ 77; Dkt. No. 78, Mem. Order at 11-12.
32. Plaintiff arrived in Idaho on March 25, 2003, and appeared in court that day. Dkt. No. 78, Mem. Order at 11-12. The court granted a continuance at the request of both the parties. Id.; Ex. 7, Minute Entry for Initial Appearance, United States v. al-Hussayen (Dkt. No. 41).
33. Plaintiff’s court appointed counsel, Public Defender Dick Rubin, worked with AUSA Kim Lindquist to determine release conditions for Plaintiff. Ex. 17, Lindquist Dep. at 7071, 101-02; Ex. 7, Minute Entry for material witness detention hearing, United States v. alHussayen (Dkt. No. 45). Under those conditions, Plaintiff agreed to be released to the custody of his wife, to surrender his passport, and to not travel outside the states of Idaho, Washington, Nevada and California. Ex. 7 (Dkt. No. 45). The Court approved these conditions on March 31, 2003. Ex. 7, Minute Entry and Order setting release conditions (Dkt. Nos. 45-46).
34. The Court subsequently vacated Al-Hussayen’s original trial date of April 15, 2003, and set a new trial date of January 13, 2004. Ex. 8, Orders vacating trial date and setting
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new trial date, United States v. al-Hussayen (Dkt. Nos. 59, 120). Thereafter, the government filed a superseding indictment on January 9, 2004, and the Court reset the trial date to April 14, 2004. Id., Superseding Indictment and Order setting new trial date (Dkt. Nos. 378, 395).
35. At al-Hussayen’s trial, AUSA Lindquist decided not to call Plaintiff as a witness. Ex. 17, Lindquist Dep. at 35. Lindquist made this decision based primarily on the defense strategy that became apparent as the trial progressed, which was not to contest that al-Hussayen had engaged in business activities on behalf of IANA. Id.
36. On June 3, 2004, Plaintiff filed a motion to dismiss his release conditions. Ex. 7, Request for dismissal of material witness conditions, United States v. al-Hussayen (Dkt. No. 665). The government did not oppose this motion, and the Court granted Plaintiff’s motion and dismissed the material witness restrictions on June 16, 2004. Ex. 7, Order granting request to release material witness conditions, United States v. al-Hussayen (Dkt. No. 680).
37. The jury found al-Hussayen guilty on some counts, but could not reach a verdict on others. Ex. 8, Order on jury verdict (Dkt. No. 676). The government dismissed the remaining counts upon al-Hussayen agreeing to be deported from the United States. Id., United States’ Motion to Dismiss and Order granting Motion to Dismiss (Dkt. Nos. 683-84).
38. The only written guidance concerning the material witness statute that the Justice Department issued after September 11, 2001, and before Plaintiff’s arrest emphasized using the statute to preserve testimony. Ex. 1, Mem. from Asst. Attorney General Chertoff at 4. That guidance stated once the testimony of a detained witness “is adequately preserved, the warrant will be satisfied and the witness will be released.” Id.
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Respectfully submitted,
TIMOTHY P. GARREN Acting Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO Acting Director, Torts Branch
/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4326 Fax: (202) 616-4314

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 1 of 56
Exhibit 1
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 2 of 56

Hichaei Che2%off<~_ Assistant Attorney General

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Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 4 of 56

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LANGUAGE 1±, 20~_ aznacks on nne World Trade Center and ~n~ has seen necessary rot the Unite@ States %0 wa~ant~ fo~ a nu~e~ of individuals wh$ a~e through which a federal coust can detain an indivi~a~ so pre~e~ e his or her testimony in a criminal pro~e~n~? ~n order for a ~ou~t ~ ~s~u~ ~ucn ~ ~ar_~nt, ~ ~_n~ individ~=ai ~s ~~e~{mcny ismaterial to a cr!mina% ~p~ceeding~ such as a grand jury proceedSng, and {~) it may be~ impracticable to secure that person~s presence by s~oe~. The fact that an individual ~ ~s de~_a"ln=~"e pursuant witness warrant does not necessarily mean that he guilty or suspected of any crime~ Moreover, once the<~Z~Lm¢ny of the individual in ~:estion is ade~aateiy preserved(}~t~e<,~arrant will be satisfied and the wirness will be re!easedi~y
US 81

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 6 of 56
Exhibit 2
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Inquiry targets MusClimasceha1rit:i0e5s i-ncvth-e0P0a0lo9u3se-EJL-CWD Documenhtttp3:0iis6e-a3ttlepFi.nilwesdou1rc1e/.0co7m/,1’p1rintPera2iginede7x.aosfp?5p6loc=b&refer=http:ii...
SEATTLE POST-tNTELLIGENCER http :/!seattlepi.nwsource.corr~/local/8 ! 080_investigation02. shtml
Inquiry targets Muslim charities in the Patouse
WSU and U. of Idaho groups investigated
Friday, August 2, 2002
By SAM SKOLNIK, DAIKHA DRID~ AND PAUL SHUKOVSKY SEATTLE POSTqNTELLIGENCER REPORTERS
MOSCOW, Idaho -- The FBI is investigating charitable donations by Muslim students and organizations at the University of Idaho and at Washington State University for possibte links to international terrorism, according to criminat justice sources.
The inquio: is an integral part of efforts to understand a lab),inthine financial network that the Justice Department betieves funded the Sept. 11 terrorist attacks, said "these sources, who spoke on condition of anon)~ity.
The overwhelming majority of Muslims in the Moscow and Pullman area and around the nation make good-faith contributions as required by their religion to £eed and clothe the needy, the sources said. However, authorities believe a tiny but dangerous minority has secreted itself within the network of Muslim charities to I%,nd terrorism.
Leaders of Muslim student associations at WSU and Idaho, campuses that are only eight miles apart in the Palouse region of Eastern Washington and Northern Idaho, deny sending money to terrorist organizations.
"We have always made sure that the money we send to charity organizations goes to legitimate sources," said Irshad Altheimer, 25, the leader of WSU% Muslim Student Association. "We give money to organizations that address serious needs."
But echoing the concerns of Muslims around the cotmtr).-, Muslims in the Palouse say they are frustrated and afraid that what the)~ consider legitimate charity gro[~ps could be regarded as suspect by £ederal authorities, especially after the Sept 11 attacks.
They point out that The Holy Land Foundation, tbrmerly the largest Muslim charity i~: the United States, had its assets fi’ozen in December by the Bush administration because of" alleged ties to Humus, the Palestinian teKorist organization° The charity has denied that charge.
"It was even registered as a humaitarian organization by the United Nations, and it suddenly became illegal after Sept. 1 i," said Belal Nasralla, a Palestinian-born WSU student who is now an American
Growing suspicion by £ederal authorities of Muslim charity activities has made some people wary about making donations.
"They are afraid of sending money to an organization which could suddenly be labeled by the

1 of 4

124/2007 9:t6 AM

Inquiry targets MusClimasceha1rit:i0es5i-nctvh-e0P0a0lo9u3se-EJL-CWD Documenhttt3p:0ii6se-a3ttlepFi.inlewdso1ur1c/e0.c7o/m1i1prinPtera2giiend8ex.oafsp5?6ploc=b&refer=htvp:ii...
government as supporting terrorism, and they are afraid of being held accountable for that," said Sayed Daud, a WSU pharmacy professor.
Nabil Albaloushi, the vice president of the Muslim Student Association at Idaho, said tocal fund raising is minimal, given both the small number of Muslims and the fact that most are non-affluent students and teachers. Muslims in Pu!lman estimate that they send only a few thousand dotlars a year to charities.
"In Moscow, we don’t have the activity that they have in Spokane and the bigger cities," said Albatoushi, who is studying for a doctorate in food engineering.
The Islamic Center of Moscow, a two-story white house that has been converted into a mosque, serves as spiritual home to the town’s Mustim community of about 50; about 150 Muslims tive in Pullman.
Albaloushi said he was unaware of any investigation into ~and raising in his community. However, a student in Pullrnan said some students in Moscow had been contacted by the FBI several months ago and were uncomfortabIe tatking with the media. The president of the University of Idaho’s Muslim Student Association, Sami Omar A1-Hussayen, a doctoral student from Saudi Arabia, declined several requests for comment.
Charles Mandigo, specia! agent in charge of the FBI office in Seattle, said it is poticy to "neither confirm nor deny whether we are conducting an ongoing investigation."
Locat law enforcement officials said they knew of no investigations or declined to comment specifically.
Whitman County Sheriff Steve Tomson, a member of the Lqland Northwest Joint Terrorism Task Force, which coordinates terror-related investigations in Eastern Washington, Northern Idaho and Montana, declined to comment specifically on any investigations.
But he noted that "taw enforcement for some time has been looking at the activities of terrorist-related fund raising, with links to student communities, around the country. Somewhere along the line, some money gets diverted to terrorist gU’OU~DS.
"We have seen plenty of tic-eat indicators for the state of Washington that give us great concer~ about the threat of terror cells," Tomson said, "That applies to Idaho as well."
But he cautioned that any potential wrong-doers would be a small minority within their comm.~mities.
"The vast ms, jofity of the people who attend these mosques are totally honorable and want nothing to do wita terrorism,~ he said
Among those who have drawn the scrutiny of the FBI is a fo~er Universit)’ of Idaho football ptayer~ an A~erican who conve~:ed to Islam nine years ago~ The man, who now lives in the Seattle area~ was between 1992 and 2000 a part of the small Muslim community in Moscow and nearby Pullman that is the focus of the FBI’s interest. The Seattle Post-Intetligencer is not naming him because he hasn’t been charged with any crime.
This 29-year-old man said FBt agents visited him three or four times since he returned from a trip to Yemen in Aprilo He said he went to the country to study Islamic law and learn Arabic.
"The FBI wanted to know what I was doing in Yemen, why I was there du~ng the Sept. 11 period," he said.

2 of 4

12/4/2007 9:16 AM

Inquiry targets MusClimasceha1ri:t0ie5s -incvth-e0P0a0lo9u3se-EJL-CWD Documenhttt3p:0i"6se-a3ttlepFi.inlewdsou1r1ce/.0co7m/,1p1rintePr2aiigndeex9.asopf?p5lo6c=b&refe~=http:ii...
He said FBI agents also wanted him to identify people tied to terrorist networks or ideologies, as well as speak about fhnd-raising activities.
He said he sti!! has ties to his Muslim friends from Idaho, the majority of whom are Saudi Arabian citizens. He said he and Muslims from Idaho used to be active in a non-profit organization called A1 Moultaqa.
"The goals of A1 Moultaqa were mainly Islamic ’daawa’ (calling people to Islam); we did not have any kind of fund-raising activity."
The organization sold books and tapes and used the money to produce more religious books and tapes.
"When AI Moultaqa organized youth summer camps, we would also collect money, mainly because most of the children w-ho attend our summer camps came fiom poor families and could not afford to pay," he said.
The man said he did Web design for A1 Mouttaqa and attended many conferences on behalf of it but never deatt with the finance work.
A1 Mou]taqa was originally set up in Seattle unti! 1997, this man said, but was closed because of a lack of money. After 1997, Saudi students reopened it in Moscow. He said that among other tasks on behatf of At Moultaqa, he led Muslim prayer in the Washington State Penitentiary in Walla Watla in 1999.
He said that by the time he decided to travel to Yemen, the activities of A1 Moultaqa were atready slowing down. Now the activities have ceased because Moscow’s students do not want to arouse suspicions.
"Saudi students are reatly scared of having problems," he said. "They think if they have any kind of problems with the U.S. goven~nnent, they would also be in trouble when they go back to their country."
When asked about Muslim charities in Moscow, the former football player named a group called Help the Needy -- and indeed signs advertising the group are on display in the mosques in Moscow and Pu]lma~
The organization was established in 1993 and is headquartered in the upstate New York town of DewitU The group’s Web site says it provides food, clothes and lodging %r orphans and families as well as medicines for hospitals.
Help The Needy provides aid to people in traq, according to the Web site° It is also listed on the British Web site of the Victims of War Kund, which reports distributing money to people on the A£ghanistan-Pakistan borden
Ismai! Diab, until recently a Palouse-area representative for the group~ said in an interview that the charity helps ’the most needy people on Earth, the Iraqi children,’ who he said have suffered greatly since the imposition of the United Nations economic embargo on the countuo
Last year, he said, the group raised at least S450,000 from Muslims in the United States, and donated it to Iraq in the form of food. But the money was sent to assist suffering people, not the government.
Diab, 51, said he was not aware of an)’ money raised for the group ending up in the hands of terrorists. "How can you put yourself in that situation, where you know it’s illegal?"

3 of 4

12/4/2007 9:16 AM

Inquiry- targets MuCslaimsech1ar:i0tie5s-icnvt-h0e0P0al9ou3s-eEJL-CWD Documenht t3tp0:i6ise-3attleFpii.lnewdso1ur1ce/0,c7om/1ip1rintePr2aiginede1x.0aspo?fpl5o6c=b&refei=http:i,’...
Other officials with the group could not be reached for comment.
Officials at two organizations that maintain databases on non-profit groups say they could not find any Intemat Revenue Service filings by Help The Needy. Because of its status as a religious-based non-profit operating abroad, however, Help The Needy is not obligated to file income and expenditure records.
As the FBI investigates student fund-raising activities in the Palouse, criminal justice sources say the Inland Northwest Tenorism Task Force is also investigating fhnd raising by the fomaer president of the Spokane Islamic Center -- an hour to the north of Putlman and Moscow.
The man, a naturalized U.S. citizen from the Israeli-occupied rectories, is the target of an investigation, in part because of his alleged support f-or the Palestinian terror group Hamas, these sources say.
Bevan Maxey, the man’s attorney in Spokane, said FBI agents have raised the Hamas angle with different people conmected with the inquiry. But "they’re just fishing for infom~ation," he said. "I don’t think it’s a fair statement that he’s a vocat supporter of llamas."
Maxey said he knows nothing about the investigation into Islamic f~and raising in the Palouse, and he denied that his client has sent any of the $600,000 he raised to Hamas or other groups that have been labeted as terrorists.
"it’s a juicy inference, but I don’t thir~k there is any merit to it whatsoever," he said.
The man has not been arrested or charged with any cimes, though law enforcement officials confim~ pertinent details of the investigation.
They also said the two investigations may be related. Said one: "You’re on the right track."
© t 998-2007 Seattle Pos~-I~eIlige~cer

4 of 4

12/4/200"7 9:16 AM

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 11 of 56
Exhibit 3
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 12 of 56
DECLARATION OF KIM R. LINDQUIST IN SUPPORT OF MOTION TO DISMISS I, Kim R. Lindquist, declare as follows: (1) Pursuant to 28 U.S.C. § 1746, I make this declaration based on personal knowledge and belief and to the best of my recollection. If called as a witness at trial, I would testify to the statements made herein.
(2) I have been an Assistant United States Attorney for the District of Idaho since 1987. (3) Pursuant to my official duties within the U.S. Attorney’s Office for the District of
Idaho (USA~), I served as the lead attorney on a team of federal prosecutors who brought criminal charges against Sami Omar A1-Hussayen in 2003.
(4) Ln the A1-Hussayen prosecution, the FBI requested that a material wimess warrant be issued for Abdullah al-Kidd and the FBI presented sworn facts to the USAID in support thereof. Neither myself nor anyone else from USAID functioned in an investigative capacity regarding the facts supporting the application. I did not personally apply for the material witness warrant. AUSA George Breitsameter of the USAID signed the actual application in my absence. However, in my capacity as the lead federal prosecutor, I was aware of the application and supported the same in securing a witness for trial based upon the facts presented by the FBI and the applicable legal standards set forth in 18 U.S.C. § 3144.
(5) My decision to seek a material witness warrant for al-Kidd was made without any input to me from former Attorney General John Ashcrofl or any other senior Department of Justice (DO J) official in Washington, DC.
(6) I did not notify former Attorney General John Ashcroft or any other senior DOJ official !ocated in Washington, DC prior to al-Kidd’s arrest and detention. I did not receive any

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 13 of 56
instruction or direction from any senior DOJ official located in Washington, DC regarding the decision to apply for a material witness warrant for al-Kidd’s arrest.
(7) With respect to the use of the material witness statute for the arrest of al-Kidd, I did not receive any policy guidance from former Attorney General John Ashcroft or the Justice Department.
(8) Although it is my understanding that general policy guidance on the use of the material witness statute has been provided by the Justice Department, that guidance was issued after al-Kidd had been released from detention and, as such, did not influence the decision to apply for the material witness warrant in regard to al-Kidd.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this ~ day of January, 2006.

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 14 of 56
Exhibit 4
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 15 of 56 Case 3:03-crO48-EJL Document 1 Filed 02/1t~13 Page t of 19

t

1 [THOMAS E. MOSS

UNITED STATES ATTORNEY

2 KIM R. LtNDQUIST

ASSISTANT UNtTED STATES ATTORNEY

3 TERRY L. DERDEN FIRST ASSISTANT UN1TED STATES ATTORNEY

4

mr~d CRIMINAL CH1EF

D1STR~CT OF IDAHO

5 %%LLS FARGO BUILD~G

877 }\~ST IV~IN S~ET, SUITE 201

6 BOISE, IDAHO 83702

TELEPHONE: (208) 334-121t

7 M~L~G ADDRESS:

BOX 32

8 BOISE, 11)AHO 837~)7

9

~0

L,%N]TED STATES DiSTRiCT COURT FOR TI.H~ DISTPdCT OF IDAHO
t2

13 UNITED STATES OF AMEPdCA,

)

Plaintiff,

) INDICTMENT

15

16 SAM~ OMAR ALoHUSSAYEN,

~7

Dcfcndant.

(rio. 18 U.S.C. 1546@); t00t@)(1)and

)

(2), 3237 and 3238)

)

18

19 THE GRAND ~URY CH.a~GES:
20

21 At aH times pertincnt to this Indictment:
22

VISA FP~UD AND FALSE STATEMENT

24

The Student Vi~as

25

26

1. tn order ~%r a ~%reig~ studen~ to study in the United States on an F-1 student visa

27

28

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 16 of 56 Case 3:03-crO48-EJL Document ! Filed 02/1t Page 2 of !9

the student must declare and promise under oath to United States a~at~horkies that the student

seeks a presence in the Up~ited States s~My fer the purpose ~f pursu~Z the s~adent’s 3 ~e~r~e ef s~die~. In relation ~hereto, ene foreign student m~ tva~fialty mad ~ally decl~e Ns 4 ~sodations wiah org~imtiot~ to the appropriate UN~ed S~es Govemmea~ aa~ho~ties in
order for ~aose authorities m ev~ua~e ~y such ~sociation ~d relNed acd~,ities in relation m

:he interes~ of the United States.

7

2. SAMI OMAR AL-HUSSA~N was a citizen of Saudi Arabia. Betw~n about

8 August 7, !994 and September 23, 1998, AL-N~JSSAYEN studied in ~he UNfed Stares as a

9 foreign student< He stud~ed m Bat1 Sta~e University in Mmnde, Indiana, where he oNained a

~o M~sters of Science degree in compumr science; rand a~ Southern MeNodis~ UNversi~’ ~

II DNlas, Text.

12

3. On or about September 23, 1998, AL-N~SSA~N applied ~o ~he UniversiV~ of

13 Idaho at Moscow, Idmho, by submiaing ~ imemationN Application Fo~ requesting iNN he

14 ~ admk~ed to Ne Computer Science Pb~ progr~ for the Spbmg 1999 Semester.

15

4. I~ or abom Jmnua~,, t999, AL-HVSSAYEN w~ admieed ~o the Computer

16 Science P~ program at ~he Universky of Idmho, -,~th an emphasis on computer securiD’ mad 17 intrusion techniques. Unh, ersity of ~ho recor~ indicated tha~ Be bega~ his studi~s the

18 Spring 1999 Semester. At ~e ~ime he published Ns pcrm~ncm address ~ 311 Sweet Ave., Apt, #6, Mosc~w, id~ao.

2o

21

5. On or about May 17, 1999, United States gmmigration m~d Na[ien~izNion (~S)

Fo~ 1-20 was issued by e~e University of Id~ho~ NlowiagA~-H[JSSAYEN ~e study L~ me

23 Computer Science PhD prog~m~’~ beginning no ~a~er th~a A~ag~t 24, !999, m?d eroding no later

24 t~mn Dec.e.mber 17, 2004~

26 27 28

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 17 of 56

Case 3:03-crO48-EJL Document 1 Filed 02/

Page 3 of 19

1

6. On or alxmt July 17, t999, while omside the United States, AL-HUSSAYEN

2 signed the Student Certification of the INS Form 1-20 at section # t !, which read in pertinent

3 part:

I have read and agreed to comply vdth ’;he terms and conditions of my a~Jssion ....

I ce~i~ ~at ~1 ira~rmafion provided on this fo~ rel~rs specificNly to me and is man

5

and co~ect to the ~st of ~ ~aoMedge. I ce~i~ that I seek m enter or ~m~ in ~he

United Sm~s temporally, and se!e~ f~r ~he pu~ese ef pursuing a NB cease ef

study at [the Unive~i~ of 1dab@ I also authorize ~e n~ed ~hool to rele~e tony

info~afion from my records which is n~ded. ~mph~is added.]

~L-IIVSSAYEN falsely made said certification, knowing of his internet and business
8
activities alleged hereai~er. On or about July 20, 1999, the United States Government issaed
9
m t<1 studont visa to AL-HVSSAYEN at Riyadh, Saudi Arabia. The visa was valid for
I0
m, enU-ofour months, or until July 20, 2001. (See Counts One and Two hereafter.)
I!
7. On or about August ] 1, 1999, AL~HU$SAYEN was admitted by ~e Unked
12
States Oovernment into the United States at John F. Kenmcdy international Airport in New
13
York Ci~i, New York, as an F-| studem. AL~HVSSAYEN was admitted into the United
14
States by the United States Govemxnent pursuant to the July 20, 1999 visa a.nd in direct
15
reliance upon AL-HUSSAYEN’s ccrfificaion on the INS Form 1-20 dated July 17, 1999.
16
(See Count TFzee hereafter,)
17

18
8. On or about July 7, 2000, a second 1NS Form 1-20 was issued by g~e University
19
Idaho and designated ’~for Continued attendance at this school" and in order "to add
20
dependant." On or about this same day and in Moscow, Idaho, ALoHUSSAYE signed the

~a~dent Certification of said INS Foma 1-20 at section #11 and wlich read in pertinent

22
7 have read mad agreed to comply vdth the terms r~nd condkions of my admission ....

23

[ oe~.i[~" that ~1 i~ormafion provided on this fo~ reI~rs s>edfica!~y to me and is ~ae

and co~ect m ~e ~st of my knowledge. ~ ce~i~: ~at I seek m enter or remNn in the

24

United States ~empormrily, a~d solely Nr ~he p~rpose of p~rs~i~g a f~]~ co~rs~ of

~t~dy a~ [the U~ive~iV of Idaho]~ t Nso aud~ofize ~he nmmed school t~ Niee~>: may

25

ingormation £rom my recoNs wNch is needed. [Emphasis added.]

26 AL~HUSSAYEN falsely made ~id certification, Lnowing of iris in~ernet and business

27 activities alleged hereafter. (See Counts Four and Five hcreaflero) On or about J@y 9, 2000,

28

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 18 of 56 Case 3:03-crO48-EJL Document 1 Filed 02/1~13 Page 4 of !9

1 AL-!{tJSSAYEN departed from the United States at the John F. Kennedy Internationa!

2 Ai~o~ in New York Ci~, New York.

9. On or about Augu~ 25, 2000, AL-HUSSA~N w~ admJ~d b, to ~he UNted

States by Ne UNted States Government at W~b~ngton, D.C., ~ mn F-I smdem. ~-

HUSSA~N was admk~ed imo ~he United Sm~es by ~e U~fi~ed Smzes Oove~ent p~su~t

to the studeat vi~ &t~ JuIy 20, 1999 ~ previously refe~nced ~d L~ relbmce u~n ~, HUSSAYEN’S codification on ~he ~S Fo~ 1-20 ~ted baly 7, 2000. (See Count Six

8 hereafter.) 9

The year 2002

i0

10. On or abou~ January 10, 2002, o~o}PJSSAYEN departed the United Sm~s at

ii the Jobm F. Kevme@ intematio~a] Ai~oz in New YoN Cib’, New York. On or about

~2 13, 2002, AL-~;SSA~ signed ~d submi~ed to the Uniled States embassy a DOS Fo~

13 DS-156 for the pu~ose of ob;Nning ~o5her F-1 student visa. Secdon 36 of[he form r~ds in

14 pe~inen~

15

[ ceSi~,~ thin I have read ~nd ~dersmnd a11 <he questions set fo~ in this applicmion

~d ~e ~wers ] have furnished on ~is form ~e 5<ae and co~ect to the best of my

L~oMedge and belief. I unde~t~nd that any INse or misbading ~atemem may

h~ 1he pemmnent refus~ of a visa or denial of en<~ into ~e Unimd States. I

17

unders~ad ~at possession of a ~4sa does Ne Unked States of Jmaeric~on m~va] at

naoptoaruetoomf oantiteoN~liyf

entitle the ~arer to he or she is fomnd

enter

18

~nadmissable.

19 At sectioa nineteen of the Form DS-156, AL-~JSSAYEN stated ~at ~he p~ose of Ms

2o h~to ~ae United Sta~es was to %tudy;" ~d, a~ sec~ioa twenty-six, that he would do so at

2i Universib" of IdNao. At secfio~ 20 ge stated Ns permanent address ia th~ United Staaes to

22 31 I Swe< A~e. #6, Moscow, idaho~ 83843. As pa~ of his appticatioa %r the 2-!

23 visa, AL~H~JSSAYEN re~ed ~poa a~/or s~bmk~ed tAe ~NS Fo~ L20 dated J~ly 7, 2000,

previously re~:re~ced~

l i. (M or abo~at Jamam7 14, 2002, the DOS Form DS-156 was 5o~mally s~p~d as received by e~e U~.i~ed States Govermnem at the United States EmbasW ~q Riyadh, Kingdom

27 of Saudi Arabia, However, %e application w~ reBased bacause the bi~h &~ orAL=

28

4

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 19 of 56 Case 3:03-cr- 48-EJL Document 1 Filed 02/10 Page 5of 19

i HUSSAYEN on the visa application and the July 7. 2000 INS Form 1-20 did not ma~ch ~e

2 bi~h date on Ns passpu~,

3

12. On or a~ut ]amu~y 14, 2002, and in co,unction with ~e s~e F-1 student visa

application, AL-~SSAYEN subm~ed a DOS Fo~ DS-157 SuppbmentN Non-immigrant

Visa Application to the U~ted States Government at the U~ited Sates Embassy in Riyadh, Kingdom of Saudi ~bia, which DOS Fo~ DS-157 w~ a~ched m Ne original DOS 7 DS-156 submi~ed o~ J~u~y t4, 2002. Section 13 of the DOS Fo~ DS-157 r~uired applic~i to "[l]ist all Prot)ssion~, Social~imble Organi~tions to ~qfich You Belong

9 (Belonged) or Contribum (Cont~bmed) or ~dN VeNch You WoN (Have Worked)." I0 HUSSAYEN listed "ACM & IEEE." ("ACM" stands for the Association for Compufive

ii Machinery’, and "IEEE" s~ands ~r the Institute of ElecC5cal mud Elec~onic E~gineers.)

12 HVSSAYEN tis~ed no other aNtialio~. AL-HUSSA~N Nlsely and imemionNly did

13 list the tslm~c Assembly of Noah P~erica (hereafter tNe IANA) and other enfities~ (See

14 Co~ts Seven and Eight hero.or0 t3. On or about M~ch 19, 2002, the UniversiV of Idea provided a~ ENS Fo~ 1-20

16 12~r AL-~JSSAk~N ’~r Continued a~nd~ce at Nis school" a~d to "co~m

17 On or a~ut Apri~ d, 2002, AL-H~SSA~N signed the Student Cemification of~e INS

1-20 at sec~on eleven, wNch gamd h~ peminent

19

I have read m~d agreed to compty wifia fi~e te~ns ~d conditions of my ~nSssion

20

21

study at [tSe Universi~’ of ~dah@ t a!so aushorize the roamed schuol to re’ease at%

in~brmation from my recurds which is ~ccded~ [Emphasis added.]

22

ALoHUSSAYEN faise~y made ~he ccrtifca4ior~, krmwi~ug of his imeme~ a~A 5usi~ess

23

acdvkies alteged hereafter~ O~ or shoW; e~e same day of April ~ 2002~ AL-~USSANEN

24

barmaity s~bmitted the INS Yo~ Io20 dated Apit 6, 2002, to ti~e U~ited 8ta~es @overmu~ent

25

at the Umited Sates Embassy ia Riyad2% ~gdom of Saud~ Arabia, a~d the U~ited States

26

Go~’erm~ent issued ALoHVSSAYEN am i< I studem visa in direct reliar~ce t~pom ALo

27

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 20 of 56 Case 3:03-cr 48-EJL Document 1 Filed 02/1~3 Page 6 of 19

ItUSSAYEN’s ce~fications on the DOS Form DS-156 dated Janum’y 14, 2002, and attached

2 DOS Fo~ DS-157, together w~th ~he ~S Fom~ L20 dated April 6, 2002. (See Counts Nine

and Ten

4

14, On or about May 9, 2002, AL-~SSAYEN was admi~ed by ~e Unhed States

Govemmem ~nm abe United Smms at ~e JoNn F. Kemnedy Imerna~onal Ai~ in New York

Ci~, New York, as ~ F-I smdem by vi~ue of~he F-1 student visa issued April 6, 2002, ~d

i~ direct reliance upon AL~USSAYEN~S codifications on ~e DOS Fo~ DS-156 da~ed 8 Jan~o’ 14, 2002, rand a,mched DOS Form DS-157, mge~er wkh the iNS Fo~ 1-20 dated

9 Ap~l 6, 2002. D~ng khe admission a~ the Jo~ F. Kennedy International ~o~ AL~

!@ HUSSAYEN wins inspected by ~S and Customs o~ciNs. D~ng the inswctions, the

Fo~ t-20 dined April 6, 2002, w~ photo.pied by the Customs of~cials, with ~he Customs

12 officiNs re~obning ~he copy ~d ~he odgknal being returned ~o AL-HUSSAYEN. (See

13 Eleven hero.or0

The Web-slte Activit~

15. From at b~t October 2, 1998. umit Ne date of ~his Indic~men%

16 HUSSAYEN engaged in computer web-si~c activities ~ha~ exceeded his ~o~e of study a~

17 Uaiversi)’ of~dahe. These activities included ex~g computer sem4ces, adviee~ ~sis~ce

18 and sappor~ ~o orga~i~tio~ and ~divid~ls, including Ne ~NA, ia ~he form ofweb-si~e

19 regimration, management, adminis~atioa and m~qtenmnce. A m~mber of £rmse web-sites 2O accommoda<ed mme~als ~hat ~dvoca~d rio]once agains~ the UN~ed

21

15. The I~NA was iaeo~ora~ed i~a 1993 in Colorado as a aoa=profi% charitable

22 organima~ioa, k m~n~Nned of}]ces ia ,atom Arbor, Michlgam I~ o£]cial m£ssioa sm~cmem

23 w~ tha~ of De ’:/#a: ~he proselytizing m~d spreading ~hc word of ]slmm~ The ~NA did ~Ns,

24 paS, by providk~g a m~.mber of media omle<s as vehicles i~r >J.voca~iag 1£>m, ss~ch as

25 w6b-sites with ~buttetin boards," int~n?e~ mag~ines~ toiLfree ~.elepho~e lines, ~d a~adio

26 ¢~radio.net") se~ices. ~e IANA solicited asd received donatio~?s of monies both from

27 wi~Nn the United States msd witho~at, rae t~A also hoged regul~

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 21 of 56 Case 3:03-crO48-EJL Document ! Filed 02/1~’3 Page 7 of 19

i ccmferences in the United States, with participation by individuals affiliated with other

2 charitabb organizations also located witb_h~ the United States.

3

17. AL-HUSSAYEN was the formal registered agem for the IANA in Idaho (since

4 May 11,200 I) and a business associate of the I)~NA in its purpose of Da ’,~a (proselytizir~g),

which included tAe web-site dissemination of radical Islamic ideology khe purpose of which

6 was indoctrination, recraitmem of members, and the instigation of acts of violence and

7 terrorism.

8

18. ALoHVSSAYEN wa~ either the registrant or the administrative contact for a

9 number ofintemet web-sites which either belonged to or were linked to the IAxNA. A ~umber

i0 of said iANA-related web-sites were registered to AL-HVSSAYEN direCdy, to tihe IANA or

II to Dar A!oAsr, a Saudi ~abio:n compard’ that provided web hostings on the internet.

12 H USSAYEN registered web-skes on bd~alf of Dar A1-Asr, idenlifTing t~Ja-~aself as the

13 administrative point of c~’mtact for Dar AbAsr and giving his Moscow, tdaho street address

mad Uni,~’ersky of Ida2no e-mail address for reference.

15

19. Of the afore-referenced web-sites, AL-HVSSAYEN was the sob registrant of

16 web-sites ~VoMa~row’~ (created Sepmmber 11, 2000), wW~’oeyberm~aoerg (created March

17 15,2001) mad v,’~~,,.liveMamo~et (created July 8, 2002). Web-sites :<-v~oalaSro~e~ (crea~ed

~8 August 15, t 999).. w~’oa~mawredoeem (created November 1, 1999) a~’ad WW~oheej

19 (Febmao’ 22, 200~) were regismrcd to D~ ,~-Asr, wkh A~HUSSAYEN as ~e

2O admiaislrativc contact persom Web-site ~~~.Mmanar.net (created Oc~o~r 2, 1998)

21 registered to A~-Ma~ ALJadeed Magnate, with AL~B~SSAYEN as th~ adn~aist~ti’~e

22 coa~ac~ ~rsom Iaaa~tmrg (created Aag~st 1 I, 1995) was 5egistered Io ~ANA aad designed

23 aad msintaiaed by the web-site e~ti%’ D~ AI~Asr. Ia~arad~et.eem (crea~d ~ay 25, 1999) 24 was reg:lstered to IANA, whh AL-HUSSAYEN as ~:he head of i~ supervise7 commi~e

mem~r of its ~ecbmica] committee. [~amway~eem (created August 18, t998) w~ regi~e~d

26 m I):NA, witA direc% !bks ~o AL-HUSSAYEN’s web-sites, ~c!ud~g 27 ~.~,’.~’bersma.erg~ The registm~io~ of web-sites ,~<w. i.or~ ~d ~;~w.alhaw~i.com

28

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1 (bo~ created November 18, 2000) referenced A|-Asr and AL-I~IUSSA~z~EN, with AL2 HUSSAYEN as the adminis~tive contac~ for ~’.aihawali,~m, ~ese two web-sites 3 co~esponded to a radical ~he~h referenc~ in paragraph 21 hereafter. We~site 4 -~o<is~xodav.net (created Mmrch !7, 2000) was related to a radical she~ Mso referenced
in p~a~@ 2t hereafter and posted ~icles to some of the D~ ~-Asr rand A~-HUSSA’~N

6 web-sites.

7

20. One of~e afore-referenced we~si~s regi~ed by AL-HUSSA~N w~

8 ~,al~sr.w~, On September I 1,2000, AL-N~SSAYEN registered ~e -~.Nasnws web-

9 site. [n abo~ June of 2001, ~ ~icle entitl~ "Provision of Suicide O~rations" was

i0 publish~ on *~e interact m~ne of the website w~mNsr,w~. The ~ticte w~ -~i~en by

II a radical Saudi sheik. A ~rtion of the ~cle read as ~ollows:

i2

The second part is the rule that the Mujahid (warrior) must Mll himself if he kzaows

13

that this will lead to killing a great number of the enemies, and that he will not be able to kilt them w-ithout killing himself first, or demoIishing a comer vital to r_,~e enemy or

~4

its military force, and so on. This is not possible except by involving !he human element in the operation, in zhis r~ew era, this can be accomplished wi*ah the modem

15

means of bombgng or bringing down an airplane on an important location tl~at will cause the enemy great losses. [Emphasis added.]

16

21. Ww<,malasr.ws and other webosites registered or lb£ed to, or t¢c.bmicMly advised

17 by ALoHUSSAYEN, includhag w,~,~Sslamway.com (previously mentioned), also posted

18 other violentjiht~d (holy war)-retated messages by other radical sheikhs, including those

19 referenced in preceding paragraph 19o

20

21

22, From on or about Augus~ 17, ~ 994, t~r~til the date of this Ir~dicunent, AL~

22 HUSSAYEN, at various times~ maintained at least six United States bank accoants b~ Indiana,

23 Tex~s, I~o and Michigam From at least gan~m2~ 23, i997, until the date of this Indictment,

24 ALd~JSSAYEN used said baz~/< accounts to receive.large su~m~ of monies from within and

25 without the United States, and to trmnsi%r and cause to be transitsrred large s~ms of monies to

26 the iANA and other organizations amd ir~divid~als.

27

28

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I

23. From at least Janua.~" 23, 1997, until the date of this 1ndic~ment, ~L-

2 IPrJSSAYEN received into and disbursed out of his bank accounts approxirnately

3 $300,000.00 in excess of the university study-related fiands he received during the same period

4 of time, such as the monttfly stipend he was given by the Saudi Arabian Government, and the

5 living expenses that corresponded thereto. 7hose excess ~ands included $49,992.00 paid to

ALoHUSSAYEN on September 10, !998, and $49,985.00 paid to him on September 25,

7 1998.

8

24. From at least November 16, t999, to the date of this Indictment, ,4&o

9 HUSSAYEN made disbursements of the excess hands referenced in the preceding paragraph

io to the IANA mad to the IA2~A’s officers, including a leading official of the 1ANA. A portion

of these funds wa~ used to pay operating expenses of the IANA, ir~cluding salaries of IANA

12 employees. Furthermore, in t999, 2000 mad 2001 wire transfers were made from ALo

13 HUSSA’~I~ to individuals in Cairo, Egypt; Montreal, Canada; Riyadh, Kingdom of Saudi

14 Arabia; A~aam Jordar~; m~d islamabad, Pikistam AL-HVSSAYEN also made

15 disbursements to other organizations and individuals associated therev<kh daring the time

16 referenced Lq this parasraph.

17

25. From at Ieas~ November t6, i999, to the date of this ~r~dictment, ALo

18 HUSSAYEN ma~mained frequent business comact with the leading IANA of~ciat referenced

19 above. Not on!y did AL-HUSSAYEN disburse money directly to the official in the form of

2o wire tre~sf~rs m*~d personal checks, their r¢ladoasMp also included the maimena~ce of a

21 checking account in a Michigma ba~k ia AL-H~L~SSAYEN’s ~.ame alone, but with the

22 oftldal’s home ad&~ess arid the oflicia~ ’s apparently exclusive use of the accou~.to Among the

23 deposits into the acco’am ,,v~.~ a $4,00000 wire t~rans~%r Loom ALoH~TSSAYEN.~ 311 Sweet

24 Avenue, Apt d, Moscow, l dgqo, to A LoHUSSAYEN, 219 Fieldcrest Srree% Area Ar~r,

25 Michigan° in addition, mamerous telepho~.e calls between AL~HUSSAYEN and the of B.ciat

~6 were made darir~g d~e time referenced ia this paragraph.

27

28

9

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26. From at least March of 1995 until about February of 2002, the IANA received

2 into its bank acco~ants approximately ~e million dolt~ ($3,000,000.00), includgng
3 f~.ds received from A~-~SSA~N ~ re~renced above, ~nd disbm~ed R~pro~ately Ne
4 ~e amount, The d~posi~ included a ~ee hundred cho~mnd do~]~ ($300,000.00) ~sfer from a Swiss bm~i ac~unt on or about May 14, 1998.

27. From a~m December of 1994 ~o about July of 2002, ~-H~SSA~N ~ve~ed

7 ~d othe~ise band~ travel for o~er {~dividuNs, including ~-aveI relat~ to the

8 through AL-IPdSSAYEN’s bmuk accosts ~d to ~ocatiow in nmmemus states, as well

9 foreign countries.

i0

28. [from at bast Jmn~- 1, 1997, unti~ on or about August 28, 2002, te[epho~s

ii co~es~nd~g to AL-HUSSAYEN had contact with tsbphoncs subscribed ~o individuNs or

12 entities in numerous states, as we1] ~ tbreig~ coun~es. Subscribers co~esponding to or

13 ~sociated with some of the numbers included ~e/ANA ~d ~e so,co of the $49,992.00 ~d

14 $49,985.00 ~ansfers previo~Iy referenced paragrRsh 23.

15 THE ~OLATIONS

16

Ln materiN reti~ce u~n the h~fo~ation con~ned in ~e ~S 1-20 fbnns ~d the DOS

17 Fo~s DS- ! 56 ~d DS-157 as heretofore re~Zrenced, flie Unhed States Gown~mem issued

18 AL-HVSSA~N F< 1 sludent visas mud allowed bNn to cuter and remain in the U~Sted States.

~9 IIowcver, AL-HUSSAYEN emoted into and rcm~3ned in the United States for pu~oses other

20 tbmn that of solely pursuing his studies, including, but no~ limited to, material suppo~

21 L~NA m~d others by mea~s of his we~site and business activitbs, and [~ov.~ngty and w~tNily

22 made false statements m~d omissions to the aNhoritbs of the United St~2es ia r~la~ioa 23 B)~ not ~thfully stating ~d reveaiia8 the navarre m~d extem of his activities m~d affiiiatio~s ~n

24 the United StaIes, AL~B~ISSAYEN thereby dep~.ved ~-~ authorities of the U~i~d States of

25 the knowbdge hhereof ~d the op~o~i~y to evaluate and address the same within the context

26 of fi~ae laws of the United S~es, resuking ~ i~lony violations by the D~f?adan< SAM1

27 O~R AL~HUSSAYEN, consisting of Counts One ~hrough Eleven.

28

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i

COUNT ONE FALSE STATEMENT TO TtlE UNITED STATES

2

(VioIaion 18 U.S.C. !001@)(2) and 3238)

The previous numbered paragraphs one through twenty-eigh* are hereby re-alleged as

4 though set forah in Ba!l hereiA

5

On or about July, 17, 1999, within and as tahe same pertains to be District of Idaho,

SAM][ OMAR AL-H [JSSAYEN, Defendant herein, in a matter witlqin ~e jurisdiction of the

7 Executive Branch of tlne United States Govermnent, knowingly rand willfully made a 8 materially false, fictitious and fraudulent statement and representation to autt~orities of the 9 United States in relation to SAM] OMAR AL-HUSSAYEN’s status as a foreign student in 10 the United States, in that SAM][ OMAR AL-H~JSSAYEN, in applying for mad receiving a 11 student visa, signed and submitted an Immigraion and Naturalization (1NS) fiann 1-20, 12 thereby knowingly and willfu!ly representing to United States Govermment a~athorities that he 13 sought to enter into the United States for the sole purpose of pursuing a full course of study at
the University of Idaho, when, in fact, SAH[ ONIAR AL-I-PdSSAYEN knov,~ngly had

15 was and would be engaged in activities other than his course of study at the Universi%, of 16 idaho, including, but not limited to, his involvement ,~-itta the Islamic Assemb!y of Nor~& 17 America; fa~ violation of Title !8, Up, trod States Code, Sections 1001 @)(2) and 3238. (See 18 previous paragraphs 5 and

19

COL~T TWO

2O

VtSA FRAE~D @/iolation 18 US,C. 1546@) ~d 3238)

21

~%e previous numbered pm~agraphs one t!~ough >wen~cigh~: are hereby re-alleged as

22 though set foAh i~ ball ~creia~

23

Oa or abo~ d@y 17, 1999, m~ti! the date of eqis badictmcm, within aad ~ ~he s~me

24 ~rtai~ to the District of Idaho, SAM10MAR AL~H~JSSAYEN, Det%ndmnt herein, (1)

25 k~owingly made under oath mqd s~bscribed as r~ae to the United S~tes a £atse statemeat wi~Ja

26 respect to a mNerial Nct in an application aaad o~er doc~mmem req@r¢d by the immigratio~

27

28

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I laws and regulations of the United States and (2) knowingly presented such application a~nd 2 other document required by the immigration laws and regulations of the United States which 3 contained a materially false staU:men% in that SAx~,{I OMA_R AL-HUSSAYEN, in applying 4 for and receiving a student ~,’isa0 signed mud submitted an Immigratioa and Naturalization 5 (IN-S) form t-20, thereby knowingly and x~41lfully representir~g to United States Governmem 6 autho~dties tam he sought to enter into the United States for the sole purpose of pursui~ng a full 7 course of study at the University of tdaho, where in fact, SAxM] ONL&R ALdt%rSSA~N 8 kmowingIy had been, was and would be engaged in actbities ohher titan his course of study at 9 the Universi7 of Idaho, including, but not limited to, his involvement with the Islamic t0 Assembly of Nortln America; in viola%ion <)fTi~le 18, United States Code, Sections 1546@)
and 3238. (See previous paragraphs 5 and 6.)

12

COUNT THREE

}qSA FRAUD

13

(Viola<ion 18 U.S,C. 1546(a) mud 3237)

14

The pre-~o~ humored para~phs one t}~ough ~weW-eigN ~e hereby re-a!leged

though se~ fosh in fi~]] herein.

16

On or abou~ August 11,1999, ~ihhjn ~d as tAe same pe~ins ~o ~he Dis~c~ of Idaho,

17 SA?vg ON{AR AL-HUSSAYEN, Defendaat hereia, (1) ~ow~.gly made under oa<h ~nd

subscribed ~ ~ae to ~e Uni~ States a ~htse s~a~emem witA respec~ ~o a ma~mriN fact

application ~d o~her doc~mcm req~Jred by the {mmigrado~ laws and reg@a~ions of Jae 2O United Sm~es, (2) kmowingly presemed such app}ica~]or~ a~i oNer documem r~@red by ~he 22 immig~tion taws and regulations o~ t ~ Uaited Sm~s which con~Mned a materi~Iv 22 s~a<emen< and (3) ~nowingly used a non4mmigrmnt ~’isa obtained by a false s~atemen~ 23 claim, in Nat SAMI O}L~R AL-HUSSAYEN, in en<edng into Ne United State% presented
24

25 ~sd clNm and o~.her doc~men~ con~Nng such fiaise s~a~emer~t and claim; fls viota~on of Tkle 26 18, United Sm~es Code, Sccfioas ~ 544@) ~d 323% (See previous p~agr~hs 5
27

22

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Case 3:03-cr-O8-EJL Document ! Filed 02/1

Page 13 of 19

!

CO].]NT FOL~.

FALSE STATEME~ TO THE UT~ITED STATES

2

(Violation 18 U,S.C. 100t(a)(2)and 3238)

3

The previous numbered paragraphs one through twen)’oeight a~e hereby re-alleged as

though set forth in fu!l herein.

5

On or about July 7, 2000, within and as the same pertains to the Dis~ct oftdaio,

6 SA=MI OMAR AL-HUSSAYEN, Defendant herein, in a matter within tlhe jurisdiction of the

7 Executive Branch of the United States Government, knowingly a~nd willSally made a

8 materially ?[~lse, !icdtious and fraudulent stamment and representation to authorities of the

9 United States kn relation to SAMI OMAR AL-ItUSSAYEN’s stares as a foreign studenl

~O ~e United Sta~es, in that SA]Vll O~%~R AL-HVSSAYEN, in applTing for and receiving a

II smden~ visa, signed and s~abmit~ed an Inamigration and Naturalb’~a~ion (INS) form Io20,

12 ~hereby knowingIy and witttaally representing m United States Goverr~mem authorities 13 sought to emer imo ~Ae Ur~ited S~ates for the sole purpose of pursuLng a full course of study at 14 the University of idaho, when, in fact, SAMI OMAR AL-HUSSAYEN knowingly had been,
was and would be engaged in aclivffies other than his course of s~udy at the University of ~6 idaho, including, bu~ not limited to, his involvement ,~tl"~ t]ie Islamic Assembly 17 ~m~crica; ir~ violation of Title t8, Unked States Code, Sections 1001(a)(2) and 3238. (See 18 previous paragraph 8.)

19

COD~T FIVE

20

VISA FRAU~

(Violation 18 LLS.C. !546(a) and 3238)

21

7]~e previous n~ambcred pm~agraph~ one e~-oa~h tweab~-eight a~e he.by

22

though se~ ~;o~h in 9nil hereim

23

On or aboat J~.ly ~7, ~~i~~ mad as the saa~¢ p~:ai~as to the Oistict of

24

SA5~I OMAR AL-HUSSA

adant h~e~, (t) k~owingly made u~der oaN ~d

snbscibed as tree to the United States a f~lse sm~ememt wkh respect to a mate~a~
26
app]~catiom s~nd o~.her documem: required by fine {rmnipratioa ~a;~’s and r¢g~tafions of the 27

13

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 28 of 56

Case 3:03-cr-~8-EJL Document 1 Filed 02/1

Page 14 of !9

! United States and (2) knowingly presented such application and other documem required by

2 the irmmigration laws and regulations of the Uri, ed States which contained a materially false

3 statemen% in that SANII OMAR AL-IIUSSAYEN, h~ applying for and receivb4g a student

visa, signed and submitted an Irrmig~ation and Naturalization (INS) form 1-20, tlner~by

5 knowing]y and willfully representing to United State~ Govemrnen’~ authorities that he sought to enter into the United States for the sole purpose of pursuing a full course of stud~, at the

7 University of Idaho, when, in fact, SAMI OMAR AL-}:llISSA~i~EN -knowingly had been, was

8 and would be engaged in activities other tha~n his course of study at the University of Ida~ho,
9 including, but not limited to, his invobement with the Islamic Assembly of Nort, h A~merica;

io in violation of Title 18, United States Code, Sections t546@) and 3238. (See previous

ii p~ragraph 8.)

12

COU%~T SIX

13,

VISA FRAUD

Cv’iolation I8 US.C. 1546(a) and 3237)

]t~e previoms numbered paragraphs one tMough twenb,-eight are hereby re-albged

~ou~ set fo~h in f@] herein,
On or about August 25, 2000, wit~n ~]d as the stone ~ahns to the Dis~ct of I~ho, 17
SAM10MAR AL~HUSSAYEN, De~%nd~t herein, (1) knov,4ngly made under oath mud 18
saCbscribed ~ ~m¢ ~o the Uited States a ~%~se statement with respect to a material fact in an 19
application mud other document requir~ by the immi~afion taws ~ad regulations of the 2o
Unhed States, (2) hao,z4ngly prescmed such ~p~ication and o~er document ~quired by the 21
immigration laws and repalations ofd~e United States which contNned a materially fa!se 22
statement and (3) }mowingty used a nondmmigrant visa ob~ned by a false statement 23
claim, in that SAMt ()MAN AL~HUSSAYEN, in entering ime the Ur~ited Sta~¢s, presemed

to United St~es Oove~krncnt authorhies a ~tud~nt visa procu~ed by me~s of a f~ise s~l~ment
and clNm and other doc-mme~t comai~ing such false stat~mem m~d claim; in violation of Title
26
18, Untied S~g~s Cc~e, Sections 1546(a) and 3237, (See pre~dous p~graph~s g aad
27

28

14

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 29 of 56 Case 3:03-cr-! ~8-EJL Document 1 Filed 02/IQ Page 15 of 19

1

COUNT SEVEN

FALSE STATEMENT TO THE UNITED STATES

2

(Violation 18 U,S.C. 1001@)(2) and 3238)

3

The previous numbered paragraphs one through twenry<ight are hereby re-alleged as

4 though set fortt in full hereL,~.

On or about January 14, 2002, within m~d as the same pertains to the District of Idaho:

6 SAaNI OMAR AL-HUSSAYEN, D¢t%ndant herein, in a matter within the jurisdiction of the

7 Executive Branch of the United States Oovemment, knowingly and vdltfully made a

materiMly false, fictitious and fi-audulent staternent and represemation to authorities of We

9 United States in relation to SAM1 O1VL&R AL-HUSSAYEN% status as a foreign student in

lO tihe United States, in flaat SAMe[ OMAR AL-HUSSAYEN, in apptyhag for and receiving a

student visa, signed a~d submitted Depm~maent of State (DOS) form DS-! 56 and ibma DS-

12 157, enereby knovdngty and witfully failing mad refusing ~o inform United States Govermment 13 authorities of his involvement with the Islamic Assembly of Nortt America and ottaer entities;

14 in violation of Tide 18, United States Code, Sections t001@)(2) and 3238. (See previous paragraphs 10 through 12.)

16
COUNT E~GHT ~ISA FRAUD (Violation 18 US.C, i546@) mi 3238)

The previous mambered paragraphs one Uh.rough twen~;-eight arc hereby reoMleged as

20 t~hough se* ~br~h in fult herein.

21

On or about Janum~’ 14, 2002, witb~ and ~s @e smme pe~ains to the District of tdaho,

22 S~%~I OMAR AL~SSAYEN, Defendant herein, (1) Enowing~y made under oath and

23 subscribed as true to the Unked Slates a Pals stateme>2 vvigq respect ~o a martial *%ct m an

2~ applica~:io= ~qd other doc~mcm required by ~e immigraion ~aws aad re~aia~ioem of the

2~ U~ked States aad (2) Mqowi~41y presented such applica~ioa aad oNer doc~me~ required By ~6 the im~ig~fioa laws and regula~ioas of the Uni*~d S~ates v&ich c~n~Nn~d a matcria1~y ~Nse

2~ s~tement, in that SAMI OMAR AL-N~SSA}%N, i~ app!ying for >~d receiv~g a student

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 30 of 56 Case 3:03-cr-O8-EJL Document ! Filed 02/1Q Page 16 of.19

visa, signed and submitted Departanent of State (DOS) form DS-156 and form DS-157,

thereby knowingly and wilfully failir~g a_nd regasing to hWorm United States Govermnent

3 authorities of his involvement wi~h the Islamic AssemNy of Nortah America m~d other entities; {n violation of T{~le 18, United States Code, Sections 1546@) and 3238. (See previous

paragraphs 10 through 120

6

7

COUNT NINE

FALSE STATEMENT TO TIlE UNITED STATES

(Violation 18 U.S.C. t001(a)(2) mud 3238)

9

rne previous numbered paragraphs one through twenty-eigN are hereby re-alleged as

I@ though set forth in fal~ herein.

ii

On or aboul April 6, 2002, wkNn m’~d as the same pertains to the District of Idaho,

12 SAMI OMAR AL-HUSSAYEN, Defendam herein, in a matter wi@in the j,~risdiction of the

13 Executive Branch of the United States Government, knowingly and wiIigally mad= a

14 materially false, fictitious rand fraudulent inurement mad representation to authorities of the

United States in relation to SAM10NIAR AL-H-~JSSAYEN’s stat~±s as a foreig~ s,<mdent in

16 the United States, in that SAMI O,~,IL4B. AL-H~JSSAYEN, in applyh~g for and recelvir~g a 17 student visa, signed and submitted an ]m~Ngratlon and Na~"alization (INS) f’ora~ 1-20,

18 thereby knowingly and willfhtty representing to United Sta~es Ooverm-nent authorities tha~ he

19 sought to enter into Uhe United States %r the sole purpose ofpursuir~g a it! course of sin@ at

2O ~he Univerity of ldmho, when, in ffact, SAN{I OMAR A~HVSSAYEN k~aowingly ~a~ be, on, 21 was m~d wo@d be engaged ~n activities olher ~&an Ns co~rse of stay at ~he UNve~sibv of

22 t~ho, includ~g, but not limited to, Ms involvement "Mth the ~slm~io Assembly of No~A 23 Asacrica; Ln violation of Title 18, United States Code, Sections i00t@)(2) and 3238. (See

24 wevious paragraphs 10 ~hro~gh 13.)

25 26

27

28

16

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 31 of 56

Case 3:03-cr-~8-EJL Document 1 Filed 02/1

:Page 17 of 19

i

COUNT TEN

~7ISA FRALrI)

2

(Violation 18 U.S.C. 1546(a) and 3238)

3

The previous nurabered parag~mphs or~e through twenty-eight a~’v hereby re-alleged as

though set forth in ful~ herein.

On or about April 6, 2002, wkhin ati as the same pertains to the District of tdmho,

6 SANiI OMAR AL-HIJSSAYEN, Defendant herein, (1) knowingly made under oath and

7 subscribed as true to the United States a false statement witch respect to a material fact in an

8 application and other doe~±ment req@red by the immigration laws aaad regulations of the

9 United States and (2) kno~4ngly presented such application and other document required by

i0 tlne immigration laws and regulations of the United States wFJd~, contained a materially false

Ii statement, in that SAM][ OMAR AL-ItUSSAYEN, in applyh~g fbr and receiving a student

12 visa, signed and submitted an Immigration and Nat,dralization {.TNS) form 1-20, @ereby

13 knowingly and wilH’uHy ~epresertting to U~ited Stm.es Government authorities ~hat he sought

14 to enter into the United Sta4cs for the sole propose of pursuing a full course of st:ady at the University of Ida, o, when, in fact, SAM10MAR AL-HUSSA’~N k~.o,~’,4ngly had been, was

16 and would be er~gaged in activities other than Ns course of study a~ the University of Idaho, 17 bcluding, bu~ not limited to, his involvement with the Islamic Assembly of North America; 18 in violation of Titb 18: United States Code, Sections 1546(a) and 32_18. (See previous
paragraphs ] 0 tb.rough 13.)

20 C Oiu~4~ .T ELEVEN

21

~ZlSA FRAUD

(Violation 18 U.S.C. 1546@) ~d 3237)

22

Yh¢ previous nu~mberod p~agraphs one through r.wc~ty-dght ~c hereby re-alleged

23 though set fo~i ia 2%tl hereia

24

On or about May 9, 2002, withh~ ~_~d as the ~.me ~aL~s to ~qe Distict of idaho,

25

SA~ O}’[AR AL-~SSA%~N, Def~nd~n~ hereh% (I) }mowingly made under oa~.

26

s~bscribed as t~e ~o ~e UNted Sta:tes a 5atse ~mem with respect to a material f~t

27

28

17

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 32 of 56

Case

~8-EJL Document 1 Filed 02/1

Page ! 8 of 19

1 application and other document required by the imm~igradon laws and regulations of the

2 United States, (2) knowingly presented such application and other document required by the

3 immigration laws a~’~d regutation_s of the United States which contained a materially false

4 statement, and (3) tc~ow:mgly used a ~on-immigrant visa obtained by a false statement and

claim, in that SAI~ OMAR AL-HUSSA}~N, in entering into fine United States, presented 6 to United States Oovemmenl authorities a student visa procured by means of a false statement

7 and claim and @,her document containing such false statement and c~Nm; in vlolatlon of Title 8 18, United States Code, Sections ] 546(a) and 3237. (See previous paragraphs 10 through

9

~0

Dated this l ~ ¢:~ day o~03.

tl

12

A TRUE BILL

~3
14 i;’OR£P~RSON
15

16

~7
THOMAS E. MOSS 18 UNITED STATES ATTORNEY

19

2O

2i

22

23

24
2~

26

27

28

3_8

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 33 ofP5.601

L~

Case 3:03-cr-0(

DEFS~NDANT’S NAME:

No

DEFENDANT’S STREET ADDRESS:

DEFF-NSE ATTORNEY: ADDRESS:
TELEPHONE NO.:

INVF..STIGATtNG
AGEt~#T & AGENCY: TELEPHONE NO.:

Michael J. Gneckow Federal Bureau of ~nvest~gst!on
(208) 864-5t28

3238 D#~: F~brG~r7 !2, 2003

Tc~egho~¢ Ne,: (2~) ~1211

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 34 of 56
Exhibit 5
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 35 of 56 Case 3:03-cr-0~8-EJL Document 34 Filed 03/103 Page 1 of 5

1 THOMAS Eo MOSS UNITED STATES ATTORNEY
2 DISTRICT OF IDAHO

UNITED STATES COURTS O~STRICT OF IDAHO

3 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF ID~’O
4 WELLS F~RGO CENTER, SUITE 201 877 WEST MAIN STREET BOISE, IDAHO 83702
TELEPHONE: (208) 334-1211 ~ILING ~SS : P. O. BOX 32
BOI~ ID~O 83707 7

8

9

i0

ii

12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
13

UNITED STATES OF AH~Hz~A 15
S~>II O~hR AL-HUoSA~EN,

CR No. 03-048-C-EJL
APPLICATION FOR ARREST WARRANT OF P~TER!AL WITNESS

17

Defendant o

19

The United States of ~erica and Thomas Eo Hoss~ United States

2o Attorney for the District of !daho~ by and through Kim Ro 21 Assistan~ United States Attorney~ with zhis

Warrant of Material Witness, and move %he Court that an arrest warrant
23 be issued for she following material wi%ness: Abduilah A!-Kidd, a/kia

Lavoni To Kiddo

On

13~ 2003~ an Indiczmen% was filed in United States

26 District Court for the District of Idaho alleging violations of 18

APPLIC,~TIONFO~ ABREST}~HR~ANTOFMATE~HL

for Arrest

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 36 of 56 Case 3:03-cr-0~8-EJL Document 34 Filed 03/1~3 Page 2 of 5

1 U.S.C. ~§ 1001{a) (i) and {2), and 3238 - False Statement to the United

2 States; and 18 UoS.C. ~ 1546(a)~ 3237 and 3238 - Visa Fraud. As a

3 result of said Indictment, a warrant of arrest for the defendant was

issued°

The testimony of the aforementioned ma<eriai witness i8 material

6 to both the prosecution and the defendant herein.

7

There is a risk that unless the Court detains or imposes

8 res:riGtions on the travel of said material witness, he will be

9 unavailable at future proceedings in :his case.

i0

This application is fur:her based upon Ehe Affidavit of Scott

ii Mace, Special Agent, Federal. Burea<~ of Investigation, the indictment

12 filed herein~ and the warrant of arresz against the defendant herein,

13

DATED this i~’~day o£ Harch~ 2002.

THOMAS E ~oOSS United S:a:es Attorney
15

16

17

K±m Ro Lindquist

Assis:ant United States Attorney

i9 2O 21 22 23 24 25 26

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 37 of 56 Case 3:03-cr-Q~8-EJL Document 34 Filed 03/1~3 Page 3 of 5

2
STATE AND D1STRJCT OF IDAHO 3
BOISE, ID~HO

)

)

)

Case No. 03-048-C-EJL

6

)

)

7

)

)

8

).)

9 AFFIDAVIT

10
I, SCOTT MACE, the undersigned, being d@y sworn, depose and state as

follows: 12
~ am a Special Agent of the FBI e~arrenvly assigned to the Boise, Idaho, Residertt !3
Agency of the Salt Lake City’ Division. I have been a Special Agent of the FBI for six years
i4
aid t~ave been i~ovolved in multiple investigations involving crimes under Title 18 of the United

States Code~ This Affidavit is based upon facts acquired by fellow FB~ Special Agera Michael
16 James Gneckow m’~d other law en lbrcement officials pertaining to the investigation. On Marc~

14, 2003, SpeciM Agent Michael James Gneckow advised your affim~t oft.he JM1owing: 18
1) Gneckow is a Special Agent with @e Federa~ Bureau of Investigation 19
currently assigned vo the Coe~.):r d’A~ene, Idaho Resident Agency, wk}~n the FBI’s Salt Lake 2O
CiE¢ Division. He has beem a Special Agent wk!~. the FBI for six (6) years mqd has {e~ (I 0)
21
aAditional years of Federal law enforcement cxpc~ence as a SpeciM Ager~t with the U.So Navat 22
Crim{na~ hwes~igative Servi,ce (NCIS). He has a Ma~ers Degree in Naional Securiv Affairs
23
and has sp~ tSe majorky of his career investigating ma~ters relaing to ~he naional sccuri
24 of the United S~a~es.
25 2) Based upon lis ow~ obscrvado~ and ~.hose ofo~her kw e~2%rceme~
26
invob,,ed in the s~bjec~ investigation, this at~Sdav/~ is made ~ s~apport of ~ application
27
arrest warrant of a material witness, r~amety: Abd@Imh Ai-Kidd, a%!a LavoN To Kidd. 28

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 38 of 56 Case 3:03-cr-008-EJL Document 34 Filed 03/1~3 Page 4 of 5

l

3) During the past 16 years Gneckow has been hnvolvext in dozens of

2 investigations involving illegal activities such as terrorism and money laundering, inNuding

the Olympic Park Bombing in Adanta and numerous investigations overseas. During ~he period of 1986 to 1996, he was assigned as a foreign counterintelligence/international terrorism

5 investigator with the United States Nava! Criminal Investigative Service. For t~he past six

6 years, as a Special Agent with the FBI, he has been assigned numerous terrorism investigations

a~nd has been involved in several search warrants, many of" which were related to terror{sin or

8 terrorism-related matters. Dinting his career with NC~S and the FBI, he has worked closely

9 with agents and officers of" many other agencies, inch~dh=lg the CIA, DEA, ATF, C~tstoms

10 Service, tRS, FBI, INS and the various investigaJveiintelligence components of the United

11 States .a~-med Forces, concerning matters relating to the nationa! security of the Unit~ States.

12

4) In addition to his personal experience as above-referenced, he has received

13 specialized training in the area of terrorism and counter-terrorism, as well as economSc-bascd

crime, by attending numerous seminars of I%rcd by the Dcpm-tment of J,astice, FB[, and other

15 agencies. He b~as also participated as an i~struc~or m some of these seminars.

16

5) Gneckow is currency a member ofthe tnland Northwest Joint Terrorism 1"ask

17 Force and as such° works alongside other Federal, state and tocal law er,_forcement officers,

18 including agents of the UoS, immigration and Naturaliza;ion Service (INS) and other persormcl

who investigative document fraud by foreign nationals.

20

6) On February 13, 2003, ar~ Indictment was ±1led in United States District Cottrt

2! ~br @e District ef tdaho alleging violations of i 8 US~C. §§ ~ 001 (a)(1) and (2), mad 3238 -

22 False Statement to the United States; and ~8 UoS~C. §§ I546(a), 3237 and 3238 - Visa Fraud, 23 During the co~4rse of that im/estigation~ information w~s developed regarding the i~volvem~t

2~ of" Abd@lah Pd<Qldd with the defe.~dam. That in~ormatio~ includes that £’om March 2000 to

25 November 20~)I, an bdivid~al ide~died as AbduI1N’~ AloKidd, a<~!a La4~oa{ T, Kid< m~d/or

26 Ms spouse, Nadine Zeg~ra, received payrner~ts ~om Sami Omar Atoi~ussayen m~d Ns

27 ~:ss~oeiates in excess of $20,000o00, ~aAoKidd traveled to Sa~a°a, Yem~, in A~gmst 2001 and 28 remained there anti] April 20(32, when hc returned ~o the United States. Upon his remm to the

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 39 of 56 Case 3:03-cr-Q~8-EJL Document 34 Filed 03/Q3 Page 5 of 5

1 United States, A1-Kidd traveled to Moscow, Idaho, and met with A1-Hussayen’s associates. 2 White im Moscow, A1-Kidd emptied a storage facility which contained personal items

3 belonging to him. Among ~hose persoaat items were docu~n~ents Al-Kidd left behind, which

4 included a conference progrmn~ for the second armual 1ANA c.onference in Dearborn, Michigan, in December 1994; a ho~el receipt from Sacramento, California, dated 4/26/200t, in the name
6 ofAbdulla.h A~-Kidd, listing his ¢ompm~y name as "At-Multaqa;" and. telephone numbers for

LANA (734-528-0006) a~nd Basem 142aafagi (734-481o 1930). Khafagi is a former Director of

8 IANA and former University o~’~daho sludent (graduated m 1988) who was recently arrested

9 in New York.

i@

7) Kidd is scheduled ~o ~ake a one-way, first class fliglat (costing approximately

I1 $5,00£00) to Saudi Arabia on Sunday, March 16, 2003, at approximately d:00 ESr. He is scheduled to fly from Dulles International Airport to JFK International Akq~ort i~a New York

and then to Saudi Arabia.

14

8) Due to Al-Kidd’s demonstrated involvement with the defenda~nt, Sami Omar

Al-H,assayen, he is believed to be in possession ofin~ormat{on germane to this reaCtor which

16 will be crucial to ~he prosecution, tt is belie-red that if A!-Kidd ~ravels to Saudi Arabia, the 17 United S~.ates Gove,.~emt will bc unaJ~le to sec,~r~ his presence at trial via subpoena.

18

Respectfully submitte&

19

2O

SCO~T }4&CE

~

21

Spezlal Agent

£ederal Bureau oi" Investigation

22

Boise, Idalto

23

24
25

26

2?

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 40 of 56
Exhibit 6
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 41 of 56 Case 3:03-cr-000,~JL Document 43 Fled 03/2{ 03 Page 1 of 3

1 THO~AS Eo MOSS

UNITED STATES ATTORNEY

9

DISTRI.CT OF IDAHO ,

3 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO
4 WEr~LS FARC~O CENTER, SUITE 201 877 WEST MA.TN STREET BOISE, IDAHO 83 702
TELEPHONE: (208) 334-1211 6 ~AILI~VG ADDRESS: P , Oo ~OX 32
IDAHO S3707
7

8

9

10

!i

12

13
STATES DIoTRI~.~, COURT ~,OR TA’E DISTRICT OF IDAHO
14

UNITED STATES OF ~ERICA

16 VSo

17 SAMZ OMAR AL-HUSSAYEN=

18

Defendant°

CR No. 03-048-C-EJL
ARREST WARRANT FOR MATERIAL WITHESS

20 TO: THE UNITED STA~ES HARSHAL FOR THE DISTRICT OF !bL~dO:

WHEREAS~ upon the

for Arrest Warrant of Ha%eriai

22 Witness flied by the United States ALtorney for the District of Idaho

and the Affidavit of Special

Scot% Hace, and it

2~ therefrom that the testimony of Abduiiah A1-Kidd, a/k/a Lavoni To Kidd

ZS is, and will be, material in the above-entitled action~

26

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 42 of 56 Case 3:03-cr-00( EJL Document 43 Filed 03/2~1003 Page 2 of 3

YOU ARE, THEREFORE, DIRECTED ~’O ARREST A~dullah A1-Kidd, a/kia
1
Lavoni T, Kidd, and bring him before the Honorable Mikel Ho Williams~
2

3 nited States Hagistrate Judge,~a~

~w-~r---

4 at the united States Courthouse~ Boise, Idaho, for the purpose of

setting the methods~ terms and conditions of release°

6

UPON ORDER OF THE HONORABLE HiKEL Ho WILLIAMS, UNITED STATES

HAGISTR~E JUDGE, UNITED STATES DISTRICT COURT ~’OR THE DISTRICT OF

dated Harch ~ ~ , 2003. 9 10

C~XBRON So BURH8, Clerk United Stases District Court District of idaho

1I

12

13

15 16 i7 i8 19 2O 21

23 24 29 26

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 43 of 56 Case 3:03-cr-000~-EJL Document 43 Filed 03/2~003 Page 3 of 3

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 44 of 56
Exhibit 7
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 45 of 56 Case 3:03-cr-0 .8-EJL Document 4! :Filed 03/2~3 Page 1 of 1

UNITED STATES DiSTRiCT COURT FOR THE DiSTRiCT OF iDAHO MAGISTRATE JUDGE Pv~INUTE ENTRY

CRiMiNAL PROCEEDINGS: ~NITIAL APPEARANCE on MATERIAL WITNESS

t~AGtSTRATE JUDGE: Mike| H. Williams DATE: P,~arch 25, 2003

DEPUTY CLERK: Amy Hickox

3-3:15 pm

E~OiSE, iDAHO

ESR: Vicki Jones

Counsel for: United States {AUSA): Kim Lindq~ist Defendant: Dick Rubin & Tom Monaghan oFedera~ Defender appearing on
ef defendant for today’s proceedings. Probation: ~ike Cruiser
(×) Co{art advised defendant of his Constitutional ~ight~ p~a~ant to Ru|e t5, that of being a materia~ witness,
Warrant,~Appt~cat~o~ and Order issued by the Court (Doco 34o35),
{X}Govt, Fi~ed ~ot~on for Dete~lfJo~q; Deferte~o
(X} ~r. Ruben a~sed he has attempted to contact John ShapirrOo defendant’s counse~ at V~rg~a, b~t wa~ u~-ab~e to do ~o ~ca~e of the t~me d~ffe~e~¢e, Be~da~% wa~ted to
app~cat~o~ to th~s Cou~ for couR~ppo~ted counsel
~} ORDER: Cou~ e~ta~d Order of Tempo~ Detention adv}sing ~t sha[~ set ~s mafle~ for Th~o, ~ARCH 27, 2003° Note: ~ro Lindq#ist adv~s÷d he sha~~ check h~s sched~}e and advise [~e C~erk of the time for Thursday’s H÷ad~g.

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 46 of 56 Case 3:03-cr-0~48-EJL Document 45 Flied 03/:?!~ 3 Page 1 of 1

UNITED STATES DISTRICT COUTRT FOR THE DISTRICT OF tDAHO

CRIMINAL PROCEEDINGS: DETENTION HEARING FOR A MATERIAL W]~1~$8

MAGISTRATE IUDGE: Mikel H. Williams DATE: 313 i/’03

DEPUTY CLERK: Anne Lawron

TIME: .5 HOURS

ESR: Vicki Jones

tn the matter of detention of a Material Witness - Abdulla AbKidd
LUSA v,.Al-Hussayen)
Case No. CR03-48C-EJI, Counse] for: U~ted States (AUSA): ~ LiMquis% Tom Moss
Defiant: Dick Rubm ~oba~on: Bil~ S~11ivmn ~&~TNESSES: ( ) Gove~m~ent

2. ( )
1.

( ) Govt:

( X ) Order - Mr. A1-Kidd was sworn for coup1 appohlted counsel. Coansei appointed - Dick Rabin. Courtsel for the Govemmct~t advised the cou~ they had work~ toge~er ~4th Mr, Rubm a~d had come up with condition of ~elc~e. DeI%~dant released [o 3rd pa~y c~tody of his vdt%, reposing as d{r~te~ s~der a~y p~spo~ (Mvised it h~ been sa~eadered), obtain no ~aew p~spoz< travel res~ictsd ~o idaho, Nev~a, Washbg~o~ m)d California, de~sndam shall reside residence h~ Las Vegas asd shall ~.ot ch~ge residence withou~ ~he approval of~c~a~ Scrdces,
Order eatered~
** MAG~TRATE MINUTE ENx TRY **

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 47 of 56

~AO 199A

Case 3:03-c~048-EJL Document 46 Filed
6/97) Order S~¢~Jng C~ndilions of

~/03 Page ! of 4
Pa~e !

UNITED STATES DISTRICT COURT

Unitexl States of A~merica
Sami Omar AMfussayen t~a re: AbduEa AI-Kidd, a materJ.al witness

ORDER
Case Number: CR03-048C-EJL

IT ~S ORDERED t,ha{ t,he release of ~he defendant i~s subjecl m the fiAh~wing condidons:

(1) ~c defe~xd~t shalt m~t cormmt mqy o{?~nse ~ vlolagon of federal state or t~al taw vi~flc on re{ease m t~s cruse.

(2) ~c defender sba}t i~ately advise ~be com~, defense co~sel and the ~3.S. a~orney m -,~gng ~fore any ch~ge in ad&’ess and tel~hone n’ambcr.

(3) The defe~,d~n~ sb~t[ appear at a~l pr~e~dh~gs as req~d and shall sa~ender fer scvdce of mxy senmncc i~s~ as

directed, V~c defen~ shall appe~ a~ (if N~?k, to be no~%d) on as ditched

US Com~house place

~T IS FUR~qER ()~EE~D t%.at hhe defendm~t be mJe~ed pro,dried g~av:

~ ) {4) The de~Lmd~:: pron~ses to appear at a~ procccdin~ as req~{rcd and ~o sv~e~dcr fi>r sepTice of~y sentence ~poscd.

) (5) ~e det~dant execu~;es an ,m~ec~r~ bo~d bi~dmg the dc)~mda~ to pay thc{ rd~ed Sta>vs the sam of

d~dlars ($

)

~ ~5c cvea~ of a 5~ii~rc to ap~ar as rg:quired or to st~e~dcr as directed iq~ sc~,ice of ~m?,’ semcnce k~osed,

I;qSTRIBUT ©N: COURT DEgENbANT PRFTR~AL SERVICES [.f!. ATTOR2",TEY {.S. MARSH.~.~L

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 48 of 56
TO THE DEFENDANt7: YOU ARE ADVISED OF ~IE FOLLOWING PENALSFLES AND SANCFIONS:

~ ack-,mowledge tha~ [ am ~e dcfcr~da~lt in t,his case and that ~ ~ aware of ~ae conditio>~ of relic, I pm~e m obey all c~mditions of release, to u~ear as dkec~cd, m~d to su~ender %r se~¢ice of m~y sen~cmce i~W~scd. I am aw~e of the penaRics and sancfio~ above,

Addrc~ City ~md State

( ,~ The defendant is ORDERED released aRer prc<essmg. ( ’ ) ~%e Uri~d States m~rsha! is (}F~ERED ~o ke~p the d~fcnda~ in c~stody ~mfil ~otified by ~.e c],~k or judidal officer tha~ the

def~dam has ~:~s~ed D~d ~d,ior c~.m~li~ wilh all o~er coaditi~ms for rcbase, 99~e de~%ada~ sba~ bc prod~c~l be%re the

~propriate judicial ~f~cer at the dine a~d place

Da~e:

~ ~ ~ specified, if s!iil m custody,

~ ~ ~
0

DISTRIBUTK)N: COUR[ DEFENDANT P~TR~AI, SERV1CE U,S. A F{OPdgEY U.$ MARS}LM~

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 49 of 56 Document 46 Filed 0~ /03 Page 3 of~4
Additional Co~ditio~ of
() ( ) d)
) ) ) @) )
( )
D1STIRIBUT{gYN: COURT DEFENDA~NT PRErRtALSERVICES I.S. ATTORNEY U.S. MARStLad~

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 50 of 56 Case 3:03-Q048-EJL Document 46 Filed 0! /03 Page 4 of 4

Urfited States DisU~ict Court for thc
District of Ida~ho
Mm~ch 3 !, 2003

Re: CR 03-48-CoEJL

certify t!~at a copy of the attached document was hm’~d-delivercd, mailed or faxed to t~e following: U.S, Attorney’s Office Federal Defender’s Office U.S. Probation U.S, Mmsha! Sen4ce

Chief Judge B, Lynn Wh~mill Judge Edward J. Lodge Chief Magistrate Judge Larry" iV!, Boyle
Magistrate Judge Mike1 I-I, Williams

Cameron S, Burke, Clerk

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 51 of 56 :ase 3 :,03-~O~Oi~Ji~ AD~_.cu ment 665 Filed 06/0.’. 04 Page 1 of 3

1 Samuel Richard Rubin FEDERAL DEFENDERS OF EASTEP~N WASHINGTON AND IDAHO
2 350 No~t 9L~ Street, Suite 301 Boise, Idaho 83702
3 (208) 388o1600 Fax (208) 388-1757
4 Attorney~ [’or A Material Witness
5 ABDULLA AL-KLDD

6

[_TNITED STATES DISTRZCT COURT

DISTRICT OF IZ)AHO

7

(HONORABLE EDWARD J. LODGE)

8 [.~ITED STATES OF AMERICA,

9

Plaintiff,

CR-03-48-CoEjL

t0

11 ABDULLA AL-KIDD,

12

A MatcriaJ Wimess.

~QUEST FOR I}ISMISSAL AS TO ALL CONDITIONS OF A MATERIAL %VITNESS

13 TO: TOM MOSS~ U~’t~D STATES ATTORNEY

14

KIM L~DQUIST, ASSISTANT UNITED S2ATES ATTORNEY

15

FACTI]AI. BACKOROIU%~D

16

On March !4~ 2003, an a@davit was submitted to lfnitcd States Magistrate Judge Mik¢i H

17 W~itiams rcq~esth~g a~ a~e~t w~rm~t for a material witness, Abdulla A1-Kidd,

I8

I9 @plication sugg~sled that }~#, Ai-Kidd ~s a marshal witne. ss, matero~oattn ~o ~Ec prosec@ion 20 a~d ~e defends& ~ad that ~icss the co,m~& devained or imposed rcs~zrictions on @e ~ravel of the

21 material wkness, ~e would ~ot be a,~,aiiaNe ~ furore proceedings.

22

_&n ~’5~vit %~oompm~Scd Nc appIicat~io~ ~}om SpcciN Agent Scot! Mace b~t was based

23 upon info~Nion Nvcn to Mr. Mace by S~cial Agest Michael J~nes Gneckow.

24

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 52 of 56 Case 3:03-cr-0004: JL Document 665 Filed 06/01 04 Page 2 of 3

1

In the a~Sdavit, in addition to the backgrom~d information about Mr. Gmeckow,

2 information was described tha~ ostensibly had been developed regarding the invotvemen~ of Mr.

3 Al~Kidd with ~he defendant.

4

The govermment indicated that it believed thin if Mr. Al-Kidd traveled to Saudi ~abia, the

5 United S~t~s Oovem~ent would ~ unable ~o sec~c Ns p~esence a~ ~al via subpoena.

6

}d~r. Al~Kidd, ~ a resMt, was a~es~ed by ~he government h~ khe E~tem D~s~rict of

7 Virginia prior to M~eh 16, 2003 and has been hetd ~ a material wimess shnce ~hal ~te~ A

8 pretrial services re~ w~ filed on MaNh t7~ 2003 ~om One Eastern Dis~ic~ of Virg~a

9 recommendk~.g release rand is believed to be a pa~ of the co’ag rotor&

10

~OUMENT

11

Mr. Kidd has lived uMer ~he conditions set by the Co~ since M~ch 3 I, 2003. As a

12 resuh ~e has been limited in his t~vel, limited in ~s emptoy~e~ opporm~es, IN, ted in his

I3 edacadonN op>omanities, mad these conditions have caused personN m:d domestic difficulties 14 for N~~, Kidd who was requir~ to live wE~in ~c home of t~is in-laws (~is condit%n h~ now

15 be~n modified). Previously N~. Kidd requested ~.hat his deposNon be taken ~d tt~at he be

16 disch~ged from custody although the gover~maent agreed to ~is retease ~om c~as~o@ the?;

17 decided ~aot ~o rake his deposi~io~ and rather ,~;a~ted Nm to b~ a-vai~aq~e for triat.

18

Mr. Kidd wv;s r~ever sab~e~_acd for triN; ~aever called as a wimess; ~e,~er advised t2?N he

would no~. be tailed as a vvimess ~or was his eo~ansel so Mvised. ~qe evidence i~. this tziai has 19

20 ~ow boca concl~ded ~d it does not appear that Mr. Kidd’s ~:estimor~y was necessary or relc~’a~t

to the detemNna~ioa a~ to the ~ailt or imaoce~sse o£ the dct:e~adaat in this case. 21
Based upon the forgoing Mr. Al-Kidd requests t~at m~y l~s arid conditions impo~d

~n h~ be ex~ingN~hed; that ~c be dismissed ~om ~his procecdi~ag as a mNeria] wimess; that 23

24

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 53 of 56 Case 3:03-cr-00048~L Document 665 Filed 06/03~04 Page 3 of 3

1 Ns passport be returned to him; and that l~c be dismissed from any barther involvement in these

2 proceeding.

3

Respectfully subdued this "~ day of June, 2004.

5

Samuel Richard R~tbLn

6

Federal Defenders of Eastern Washington and Idaho

Attorneys for Materi’~ Witness Abdulla Al-Kidd

7

8

9 CERTIFICATE OF SERVICE
10 I hereby certify that on this ~ day of J~&ne, 2004, i served a tmc and correct copy of
11 t~he foregoing REQUEST FOR DISMISSAL OF ALL CONVDITIONS AS TO MATERL&L
t2 WITNESS upon Kim Lindquis~.. Asst. U.S, A~tomcy, P.O. Box 32, Boise, Idatao 83707 m~d m David Z. Nevin, Esq., P.O. Box 2772, Boise, ~ 83701 by first class UoS. ma~l, postage prepaid.
I3

14

15

16

17

18

19

2O

21

23 24.

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 54 of 56 Case 3:03-cr-000,~EJL Document 680 Filed 06/1 :004 Page 1 of 3
LN TIlE UNITED STATES DIST~CT COURT FOR THE DISTRICT OF CASE NO: CR03-048-C-E~L ORDER
Pending before thc Court {n ~he above entitled action is a request fbr disn~ssa~ as to all co~ditions of a material wimess. Mr. Abdu~la A1-Kidd, a!kin Lavoni %Kidd, has been detained as a ma~crial witness in ~his case and su.tocct ~o certain restricth:ms. TEe ~fiaI in this ma~cr conck~ded on Jane !0, 2004 with Mr. Al-~dd mX having bec~ catted as a wimess_ While t}~e ~riaJ did ~ot reso}ve aiJ o~" ~hc comets m the action, the Gove~u~cn~ 5as notified the Comx that it has no oppositio~ to rcicasi~ng Mr. AI-Kidd as a mate~a] witness and liRing the conditions imposed upot~ hh>. as a resuit of his ma~crial witness status in this matter.
Bascd oil the forcgoklg and the Couix beff~g fhlly aduiscd in the prc£1ises, the Cou~ H E~BY G~NTS Lhe request (Docket No. 665)~ Mr. At-~dd {s rclcased o~’all ~erms and conditions imposed

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 55 of 56
Case 3:03-cr-000Z~JL Document 680 Filed 06/i 004 Page 2 of 3
ja
United States District Court for the
District of Idaho June 16, 2004
CLERK’S CERTIFICATE OF ~-~.ILING ~ *
Re: 3:03-cr-00048

I certify that I caused a copy of the attached document to be mailed or faxed to the fo~l©win~ named persons:

Kim R Lindquist, Esqo US ATTORNEY’S OFFICE
Box 32 Boise, ID 83707

1-208-334-1413

David Z Nevin, Esq. HEVIN BBNJ~I~IN & P0 Box 2772 Boise, ID 83701

1-208-365-8274

Scott McK&y~ Esq~ NEVIN BENJ.~MIN & HCY~.Y PO Box 2772 Boise, ID 83701

1~208-345-8274

Charles F Peterson, Esqo PETERSON L~.W OFFICE 913 W River St #420
Boise, ID 83702

1-208-336-2059

Joshua L Dratei, Esqo
14 Wall St, 28th Floor New York, NY 1O00S

U~S~ Marshal ~{D DELIVERED

Probation ~2{D DELIVERED

Chief Jmdge B~ Lynn Winmiil

_~

Edward J.

__Chief Magistrate Judge Larry

Magistrate Uud~e Hikel H~ Williams

V£siting Judges:
Judge David O~ Carter
Judge John Co Judge Thomas S.

Case 1:05-cv-00093-EJL-CWD Document 306-3 Filed 11/07/11 Page 56 of 56 Case 3:03-cr-0004 JL Document 680 Fited 06/1 )04 Page 3 of 3
Ca.meron S. Burke, Clerk

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 1 of 135
Exhibit 8
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt13006-F4ileFdil0e2d/2161/037/1P1agPea1geof22of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt13006-F4ileFdil0e2d/2161/037/1P1agPea2geof32of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt13106-F4ileFdil0e2d/2171/037/1P1agPea1geof41of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt13306-F4ileFdil0e2d/2171/037/1P1agPea1geof51of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt23706-F4ileFdil0e3d/11/037/1P1agPea1geof61of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt23806-F4ileFdil0e3d/121/037/1P1agPea1geof71of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt53906-F4ileFdil0e4d/161/037/1P1agPea1geof83of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt53906-F4ileFdil0e4d/161/037/1P1agPea2geof93of 135

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 53906-4FileFdile0d4/1116//0073/11PaPgeag3eo1f03of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt132006-4FilFeidle0d71/310/0/073/11PaPgaeg1e o1f14of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt132006-4FilFeidle0d71/310/0/073/11PaPgaeg2e o1f24of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt132006-4FilFeidle0d71/310/0/073/11PaPgaeg3e o1f34of 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt132006-4FilFeidle0d71/310/0/073/11PaPgaeg4e o1f44of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag1eo1f524of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag2eo1f624of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag3eo1f724of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag4eo1f824of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag5eo1f924of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag6eo2f024of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag7eo2f124of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag8eo2f224of 135

CaseC1a:0s5e-c3v:0-030-c0r9-030-E0J4L8-CEWJLD DDocoucmumenetn3t 73806-4FileFdile0d1/1019//0074/11PaPgeag9eo2f324of 135

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CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g1e o2f52o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g2e o2f62o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g3e o2f72o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g4e o2f82o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g5e o2f92o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g6e o3f02o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g7e o3f12o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g8e o3f22o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea1g9e o3f32o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea2g0e o3f42o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea2g1e o3f52o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea2g2e o3f62o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea2g3e o3f72o4f 135

CaseC1a:s0e5-3c:v0-30-0c0r-9030-0E4J8L--ECJWL DDoDcoucmuemnetn3t73806-F4ileFdil0e1d/0191/047/1P1agPea2g4e o3f82o4f 135

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt339056-4FilFeidle0d11/213/0/074/11PaPgaeg1e o3f94of 135

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Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 52 of 135
Exhibit 9
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 53 of 135

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,
Plaintiff,
vs.
ALBERTO GONZALES, Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) No. CV:05-093-S-EJL ) ) ) ) ) )

The deposition of ABDULLAH AL-KIDD, taken pursuant to the Federal Rules of Civil Procedure of the United States District Courts pertaining to the taking of depositions, taken before Lisa R. Lisit, a Notary Public within and for the County of Cook and State of Illinois, and a Certified Shorthand Reporter of said State, taken at 219 South Dearborn Street, Suite 500, Chicago, Illinois, on the 11th day of December, 2007, at the hour of 9:35 a.m.

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 54 of 135

1 APPEARANCES:

2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

IMMIGRANTS' RIGHTS PROJECT

3

BY: MR. LEE GELERNT

125 Broad Street

4

18th Floor

New York, New York 10004

5

(212) 549-2619

6

On behalf of the Plaintiff;

7

UNITED STATES DEPARTMENT OF JUSTICE

8

BY: MR. J. MARCUS MEEKS, and

MR. BRANT S. LEVINE

9

1425 New York Avenue, N.W.

Washington, DC 20005

10

(202) 616-4176

11

- and -

12

FEDERAL BUREAU OF INVESTIGATION

OFFICE OF THE GENERAL COUNSEL

13

BY: MR. HENRY R. FELIX

935 Pennsylvania Avenue, N.W.

14

PA-400

Washington, DC 20535

15

(202) 220-9328

16

On behalf of the Defendants.

17

Also Present:

18

Ms. Pauline Nguyen, Paralegal, and

19

Mr. Patrick Toomey, Law Student

ACLU Immigrants' Rights Project

20

21 * * * * * *
22

23

24

25

Page 2

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 55 of 135

1

A. She would explode without being provoked.

2

Q. And by "violent," do you mean verbal or

3 physical --

4

A. Both.

5

Q. -- or both?

6

A. Both.

7

Q. And to whom was this directed?

8

A. Me.

9

Q. What about your son?

10

A. There was one incident, yes.

11

Q. Would you say that you ended the marriage

12 or that you sought a divorce?

13

A. Yes.

14

Q. When did you convert?

15

Did you convert to Islam at some point in

16 your life?

17

A. Yes, sir.

18

Q. When did you convert to Islam?

19

A. Sometime between 1993 and 1994.

20

Q. So this was while you were married to

21 Ms. Williams?

22

A. Actually it's in the period of time in

23 which I separated from her.

24

Q. I just want to clarify what you mean. Do

25 you mean that you were in the process of separating

Page 10

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 56 of 135

1

Q. So how did you not get credit for those

2 payments?

3

A. I wrote a letter stating how much money

4 that I had paid from specific times, which I can't

5 recall, had Ms. Williams sign it, and I turned it

6 in to the child support office in Lewiston, Idaho.

7 And they didn't give me credit for it.

8

Q. You were at the University of Idaho; is

9 that correct?

10

A. Yes.

11

Q. And when did you play football? What

12 years?

13

A. I played from 1991 to 1996.

14

Q. And when you refer to yourself as a

15 "student athlete," are you referring to your time

16 as a football player for the University of Idaho?

17

A. Yes, sir.

18

Q. So other than during the times in which

19 you were a student athlete and other than this

20 period which you've stated you were irresponsible

21 and didn't get credit, are there any other times

22 you were unable to make child support payments to

23 Ms. Williams?

24

A. Yes.

25

Q. What were those times?

Page 20

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 57 of 135

1

A. Yes.

2

Q. Let's go back to Ms. Abdu. You were

3 married in December of 2002. Where did you and

4 Ms. Abdu live at that time?

5

A. In Kent, Washington.

6

Q. What type of living situation was it? An

7 apartment? A house?

8

A. We had an apartment.

9

Q. How long did you live in Kent,

10 Washington?

11

A. Until the beginning of March of 2003.

12

Q. So you and Ms. Abdu lived in an apartment

13 in Washington from December of 2002 to the

14 beginning of March 2003?

15

A. Yes.

16

Q. And then from the end of March 2003

17 through December of 2004, where did you and

18 Ms. Abdu live?

19

A. In Las Vegas, Nevada.

20

Q. Did you make or promise to make a mahr to

21 Ms. Abdu?

22

A. Yes.

23

Q. And was it a promise or was it an actual

24 payment of some sort?

25

A. It was a promise.

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1

A. Kmart dramatically started downsizing,

2 and every time I was promised a store the store

3 would close.

4

Q. So you were an employee, however, during

5 this training period?

6

A. Yes.

7

Q. And then did Kmart eventually have to

8 terminate you because they didn't have a position,

9 or how did it end?

10

A. No, I quit.

11

Q. And when was that? When did you quit?

12

A. I want to say around spring of 1997.

13

Q. So after you switched to a general

14 studies major, how did you go about taking the

15 necessary classes or fulfilling the requirement to

16 obtain a degree?

17

A. Once I moved to Moscow in 1999, I took

18 classes to get my degree.

19

Q. Were you enrolled full-time or

20 halftime -- I'm sorry. Strike that question.

21

What was your enrollment status?

22

A. I just needed five credits.

23

Q. So how did you obtain those credits?

24

A. I took direct study, which means, you

25 know, you get a packet of homework and assignments

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1 that you have to do and I did them.

2

Q. How long did it take you to finish those

3 requirements?

4

A. Maybe -- as I best recall, I think maybe

5 two or three months.

6

Q. Where did you move to Moscow from?

7

A. Las Vegas.

8

Q. And did you move to Moscow for the

9 specific purpose of finishing your education

10 requirements?

11

A. That was one of the motivations.

12

Q. What were the other motivations?

13

A. I was asked to come work for al-Multaqa.

14

Q. Who asked you to come work for them?

15

A. Dr. Abdul-Rahman al-Ghannam, A-b-d-u-l,

16 dash, R-a-h-m-a-n. The last name is a-l, dash,

17 G-h-a-n-n-a-m.

18

Q. I believe you testified earlier that you

19 were living in Las Vegas from '97 to '99; is that

20 correct?

21

A. Yes.

22

Q. Why did you move to Las Vegas in 1997?

23

A. I had gotten into club promoting and

24 talent management and executive producing music

25 acts.

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1

A. Just praying.

2

Q. And so at some point presumably after

3 July of '99, you started to seek employment; is

4 that right?

5

A. Actually around the time that I wanted to

6 seek employment, I was contacted.

7

Q. Contacted by whom?

8

A. Dr. Abdul-Rahman al-Ghannam.

9

Q. Contacted to come work at al-Multaqa?

10

A. Yes, he told me to think about it.

11

Q. And how long did you think about it?

12

A. Probably for about a month.

13

Q. So what month is this?

14

A. This is in August.

15

Q. So you did not work -- you were not

16 working during that time period?

17

A. No, I was not working.

18

Q. Obviously you decided to go work at

19 al-Multaqa?

20

A. Yes.

21

Q. And so you moved to -- did you move to

22 Moscow to work at al-Multaqa? I think that's what

23 you testified earlier.

24

A. Yes.

25

Q. And that was in September of 1999; is

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1 that correct?

2

A. It was in August.

3

Q. August of '99, okay.

4

So I just want to clarify. You were

5 unemployed in August of '99, and going -- let's

6 work backwards to July and June -- how many months

7 were you unemployed?

8

A. I don't know, maybe a couple of months.

9

Q. What was your last job in the music

10 industry?

11

A. Urban Tongue and Marcus Quates and Funk

12 Daddy.

13

Q. And you stopped working at you said Urban

14 Tongue spring of '99. Do you remember a month when

15 you stopped working for these entities or

16 individuals?

17

A. Well, the crest of my decision that was

18 making my head spin was through my -- my best

19 project was Marcus Quates, and I had let some

20 wealthy people listen to his music.

21

And I was basically by a multimillionaire

22 given a blank check, and when that happened I was

23 like, whoa. And that's when I turned off my phone

24 and I didn't answer any calls.

25

Q. I'm sorry. I didn't want to cut you off.

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1

What do you mean you were given a blank

2 check by a multimillionaire?

3

A. A person offered to invest in my project.

4

Q. And did you accept that offer?

5

A. No, I did not.

6

Q. Why not?

7

A. Because I didn't want to become this

8 famous music mogul.

9

Q. Why did you not want to become that

10 person?

11

A. Because that's not my goal in life.

12

Q. What is your goal in life?

13

A. To be a good human being.

14

Q. And so did you inform this

15 multimillionaire -- presumably you informed this

16 multimillionaire that you were not going to accept

17 the offer; is that correct?

18

A. I just didn't answer any phone calls.

19

Q. And when was this period that you weren't

20 answering any phone calls?

21

A. In these months prior to August '99.

22

Q. So are we talking about June and July?

23

A. June and July, mm-hmm.

24

Q. So did you just -- strike that.

25

So you started to work at al-Multaqa in I

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1 think -- I just want to clarify -- September of

2 '99?

3

A. It was in August of '99.

4

Q. That you moved to Moscow and started

5 working there?

6

A. Right.

7

Q. And how long did you work there?

8

A. Up until August of 2001.

9

Q. And then you went to Yemen; is that

10 correct?

11

A. Yes.

12

Q. And you were in Yemen until April of '02;

13 is that right?

14

A. Yes.

15

Q. You came back from Yemen, and what did

16 you do in terms of employment?

17

A. Probably in late June or July I got a job

18 at YouthCare.

19

Q. So you were looking for employment

20 from -- strike that.

21

Were you actively seeking employment from

22 April of 2002 to June or July of '02?

23

A. Yes, I was.

24

Q. And in what field, what areas of

25 employment were you looking?

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1 home I have no money.

2

Q. Where does all your money go?

3

A. It goes to bills -- electricity, that's

4 behind. Heat bill, that's behind -- my basic

5 necessities.

6

Q. I think I understand now. I'm just

7 trying to clarify.

8

So you had that period where you had no

9 income --

10

A. I had no income.

11

Q. -- and you had bills that accumulated?

12

A. Yes.

13

Q. And you are now paying off those bills?

14

A. Yes.

15

Q. Okay. That makes sense.

16

What was the purpose -- you had planned

17 to go to Saudi Arabia in March of 2003, correct?

18

A. Yes.

19

Q. What was the purpose of that trip?

20

A. I wanted to study Islamic law.

21

Q. And you had a scholarship at a

22 university; is that correct?

23

A. Yes.

24

Q. And was that scholarship specifically to

25 study Islamic law at a particular university?

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1

A. Yes.

Page 113

2

Q. How long were those studies going to

3 last?

4

A. When you mean "studies," what do you

5 mean?

6

Q. Your study of Islamic law. Was there a

7 program? Was there a set time period for that

8 program?

9

A. Well, it's a university just like any

10 university. I would have been first in the

11 language program, but there's a semester break.

12

I would have returned to the United

13 States and then returned back to Saudi Arabia and

14 then entered into the semester.

15

Q. Was there any specific time period? Was

16 it a two-year program? A three-year program?

17

A. Well, the Arabic program is a two-year

18 program which -- yes, the Arabic program is a

19 two-year program. And then after that, you enter

20 into the university.

21

Q. So by "Arabic program," do you mean study

22 of Arabic language?

23

A. Yeah, in the university everything is

24 taught in the Arabic language so you have to go

25 through the Arabic course before you can enter into

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1 the university.

Page 114

2

Q. So does this mean you would have had to

3 take two years of Arabic language studies before

4 you could begin taking the Islamic law studies?

5

A. Exactly.

6

Q. And then how long was the Islamic law

7 study program?

8

A. If I had decided to keep that as my study

9 as a bachelor's degree, a bachelor's degree is

10 approximately four years.

11

Q. So you were looking at about six years of

12 study in Saudi Arabia; is that correct?

13

A. Well, actually I planned -- my intention

14 was to go and try to get a doctorate.

15

Q. How many years would that take?

16

A. Approximately ten years.

17

Q. This is on top of the two years?

18

A. No, including the two years.

19

Q. So four more years?

20

A. Yes.

21

Q. But presumably that was contingent upon

22 how your four years went --

23

A. Sure.

24

Q. -- the grades you got? If you liked it?

25

A. Exactly.

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Page 136 1 been some small details, but that's pretty much it,

2 the police report and the medical -- the

3 medical testing that I had to go through.

4

Q. So earlier you testified that there

5 were -- strike that.

6

So then after you received the letter of

7 acceptance, how soon after that did you make your

8 travel arrangements?

9

A. Probably three weeks from that

10 point -- approximately three weeks from that point.

11

Q. Do you recall --

12

A. I made the flight -- do you mean the

13 flight arrangements?

14

Q. Yes.

15

A. I made the flight arrangements in the

16 first week of March, to the best of my

17 recollection.

18

Q. Did you have to be in Saudi Arabia by a

19 particular day or time?

20

A. As I best recall, yes.

21

Q. When?

22

A. I don't recall now but I -- I don't

23 recall the specific date, but if I'm not mistaken,

24 it was like a two-week or a month period.

25

Q. Two weeks or a month from what?

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1

A. At different places.

Page 156

2

Q. Within one state? Within the state of

3 Washington or outside?

4

A. Outside -- sometimes outside the state of

5 Washington.

6

Q. And then you went to work for al-Multaqa

7 after that again?

8

A. Between -- I worked for three months in

9 1994 consistently. After that -- which was in the

10 summer.

11

After that time of that summer, I didn't

12 do anything for al-Multaqa other than work the

13 youth camps up until 1999, as I best recall.

14

Q. And then in 1999 --

15

A. After 1999, I worked as like a full-time

16 role.

17

Q. And that was from '99 until --

18

A. -- August 2001 --

19

Q. -- when you left for Yemen, correct?

20

A. Yes.

21

Q. And what did you do at al-Multaqa --

22 al-Multaqa?

23

A. al-Multaqa, yes.

24

Q. -- al-Multaqa? And what did you do

25 during this time period?

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1

You can answer.

2 BY THE WITNESS:

3

A. Can you repeat the question again?

4

Q. Did Mr. Rubin set up a meeting between

5 you and -- to address the foundation

6 objection -- certain government employees on

7 February 28, 2003?

8

MR. GELERNT: That actually wasn't the

9 foundation objection.

10 BY MR. MEEKS:

11

Q. You can answer. There's no reason you

12 can't answer.

13

A. February 28?

14

Q. I'm sorry. March 28, 2003.

15

A. Again, repeat your question, please.

16

Q. Did Mr. Rubin set up a meeting between

17 you and certain federal government employees on or

18 about March 28, 2003?

19

MR. GELERNT: I'm going to object to

20 foundation grounds.

21

You can answer.

22 BY THE WITNESS:

23

A. I don't know if Mr. Rubin set that up or

24 not.

25

Q. Did you have a meeting with certain

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1 federal government employees where Mr. Rubin was

Page 185

2 present on March 28, 2003?

3

A. Yes.

4

Q. Who was at that meeting in addition to

5 you and Mr. Rubin?

6

A. Briefly U.S. Attorney Moss, Kim

7 Lindquist, Special Agent Gneckow, and Agent Joe

8 Cleary.

9

Q. Did Mr. Rubin tell you that you did not

10 have to meet with these FBI agents and the AUSA but

11 that it was in your best interest to do so?

12

MR. GELERNT: I'm going to instruct the

13 witness not to answer.

14

MR. MEEKS: On what grounds?

15

MR. GELERNT: Attorney-client.

16

MR. MEEKS: He's waived the attorney-client

17 privilege.

18

(al-Kidd Deposition Exhibit

19

No. 5 marked as requested.)

20 BY MR. MEEKS:

21

Q. Take as much time as you need to look at

22 this document.

23

MR. MEEKS: For the record, this document is

24 labeled 000120 through 000127.

25

(Witness viewing document.)

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1

Q. What is this document?

Page 207

2

A. This is the pretrial conditions. I guess

3 that's what it is.

4

Q. If you look over to the third page, which

5 is labeled 01783 at the bottom, at the top in

6 paragraph 6 it says, "Defendant is placed in the

7 custody of . . ." Do you see that?

8

A. Yes.

9

Q. And then who is that person listed there?

10

A. My ex-wife.

11

Q. And that would be Saadia Abdu?

12

A. Yes.

13

Q. And what address is there?

14

A. That's 4805 Farthington Drive.

15

Q. And was that where Ms. Abdu was living at

16 the time?

17

A. Yes.

18

Q. And is that her parents' address?

19

A. Yes.

20

Q. Why was she living with her parents?

21

A. Because I was -- because I was intending

22 to travel to Saudi Arabia.

23

Q. So had you all made the decision that she

24 would live with her parents until she could join

25 you in Saudi Arabia?

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1

A. Yes.

Page 208

2

Q. I believe you testified earlier you had

3 an apartment in Kent?

4

A. Yes.

5

Q. And then did you terminate the lease?

6

What did you do in terms of your lodgings

7 in Kent, Washington?

8

A. I packed up all of my things in a moving

9 truck and I drove to California first.

10

Q. But was there a lease that you

11 terminated? I mean, was your lease month to month

12 and so it expired on its own, or did you need to

13 terminate a lease?

14

A. Actually, I don't even recall that far

15 back. It may have been month to month. It may not

16 have been. I'm not sure.

17

Q. When you drove to California, was that

18 with Saadia or did she do something different?

19

A. No, she was with me.

20

Q. And then how did she get to Las Vegas?

21

A. We drove from Kent to California, from

22 California to Las Vegas.

23

Q. And then you dropped her off at her

24 parents?

25

A. Yes.

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1 about?

Page 231

2

MR. MEEKS: Let's say January 1, 2001 up

3 through your arrest.

4

MR. GELERNT: While he was playing football --

5

MR. MEEKS: I understand.

6 BY MR. MEEKS:

7

Q. Let's say January 1, 2001, which I think

8 is after you graduated, up through the time of your

9 arrest.

10

A. To my best recollection, I talked to one

11 journalist.

12

Q. And who was that person?

13

A. She was an Algerian or Moroccan

14 journalist working with Seattle P.I.

15

Q. And when did you talk to her?

16

A. Sometime in the spring or summer

17 of -- not exactly this time -- actually scratch

18 that -- but sometime after I came back from Yemen.

19

Q. Did she contact you or did you contact

20 her?

21

A. I was contacted by a third party who had

22 been in contact with her.

23

Q. Who was that third party?

24

A. A Ph.D. student.

25

Q. Where?

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1

A. At WSU.

Page 232

2

Q. Washington State University?

3

A. Yes.

4

Q. What is that person's name?

5

A. Urshad.

6

Q. Urshad?

7

A. Urshad.

8

Q. U-r-s-h --

9

A. -- a-d.

10

Q. -- a-d? Does he have a last name?

11

A. al-Timeir.

12

Q. a-l T-i -- do you know?

13

A. I don't know exactly. I always just --

14

Q. And so then did you contact this

15 Seattle -- this reporter or did she contact you?

16

A. I don't recall.

17

Q. What did you talk to this reporter about?

18

A. I was -- we talked about the effects of

19 Islam and new converts in a specific region of

20 Seattle called the Central District.

21

Q. Anything else?

22

A. Off the record she asked me -- what I

23 assumed to be off the record, she asked me several

24 questions about Islamic charities in the Palouse

25 area.

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1

Q. Anything else?

Page 233

2

A. She asked me about the activities of

3 al-Multaqa, and generally that's it, what I recall.

4

Q. Were there things you told her off the

5 record that you understood to be off the record

6 that later appeared in print?

7

A. That's correct.

8

Q. If you could refer back to 002334,

9 paragraph 6, do you see where it says -- there are

10 a few things there.

11

There's something that says, "difficulty

12 finding jobs until being hired by YouthCare," and

13 there's a name or some word. And then it says,

14 "the false Seattle P.I. reporter."

15

A. Yes.

16

Q. Is that statement in reference to this

17 particular reporter you're now referring to?

18

A. Yes.

19

Q. Why did you use the adjective "false"?

20

A. I can't -- I say that in this outline,

21 but you know, I can't say for certain that she was

22 a false P.I. reporter. But that's how I felt.

23

Q. Because she had printed things in a news

24 article that you thought had been off the record?

25

A. No, it's -- I mean, that, and I was

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1 speculating about some other things.

Page 234

2

Q. What were those other things?

3

A. I mean, it's purely speculation so I'd

4 rather not say if I don't have to.

5

Q. I'd like for you to say, please.

6

A. You know, after the article ran, I

7 questioned her and she told me that it wasn't even

8 her article.

9

Q. When you say you questioned her, you

10 actually called her and asked her questions?

11

A. I e-mailed her.

12

Q. Okay. You communicated with her?

13

A. Yes.

14

MR. GELERNT: Let him ask a question. If

15 you're finished, let me him ask it.

16 BY MR. MEEKS:

17

Q. You can go ahead if you have something

18 else to add.

19

What did you say in that e-mail?

20

A. I don't recall.

21

Q. Has that e-mail been produced to us?

22

MR. GELERNT: We'll look into what's been

23 produced. I mean, if we have it, we will look into

24 it.

25

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1 BY MR. MEEKS:

2

Q. What was her response to your e-mail?

3

A. She told me that it was not her article.

4

Q. Did she say whose article it was?

5

(Discussion off the record.)

6 BY THE WITNESS:

7

A. What was the question?

8

Q. Did she say whose article it was?

9

MR. GELERNT: You can answer that.

10 BY THE WITNESS:

11

A. Okay. She said that she was forced to

12 hand over her notes to her editor and that some of

13 the -- most of the information came from a federal

14 agency's press release.

15

Q. Did you see this article?

16

Did the article subsequently appear? I

17 think we have established that, right?

18

A. (Nodding.)

19

Q. Did you see this article?

20

A. Yes, I did.

21

(al-Kidd Deposition Exhibit

22

No. 8 marked as requested.)

23 BY MR. MEEKS:

24

Q. Take your time to look over this

25 document, if you need to.

Page 235

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Page 236

1

(Witness viewing document.)

2 BY MR. MEEKS:

3

Q. Can you just generally describe this

4 document that's marked as Exhibit 8?

5

A. This is the Seattle Post-Intelligencer

6 article.

7

Q. Is this the article that you just

8 testified -- or is this a fair and accurate

9 representation of the article you just testified

10 you recalled seeing that was a result of your

11 meeting with the reporter from the Seattle

12 Post-Intelligencer?

13

A. Yes.

14

Q. If you turn to page 2, towards the

15 bottom, in fact the third paragraph from the

16 bottom, it says in the first sentence, "Among those

17 who have drawn the scrutiny of the FBI is a former

18 University of Idaho football player, an American

19 who converted to Islam nine years ago."

20

Is it your understanding that that's a

21 reference to you?

22

A. Yes.

23

Q. We may have already identified this

24 person, but I'm not sure. Who is -- I'm going to

25 spell this -- O-u-l-l-a, Oulla, perhaps, Mansowr,

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Page 252

1

CERTIFICATE

2

3 I, LISA R. LISIT, a Shorthand Reporter and a Notary

4 Public, do hereby certify that the foregoing

5 witness, ABDULLAH AL-KIDD, was duly sworn on the

6 date indicated, and that the foregoing is a true

7 and accurate transcription of my stenographic notes

8 and is a true record of the testimony given by the

9 foregoing witness.

10

11 I further certify that I am not employed by or

12 related to any party to this action by blood or

13 marriage and that I am in no way interested in the

14 outcome of this matter.

15

16 In witness whereof, I have hereunto set my hand

17 this 26th day of December, 2007.

18

19

20

21

22

LISA R. LISIT, CSR, RPR

Notary Public, Cook County, Illinois

23

24 C.S.R. No. 084-004297

25

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 80 of 135
Exhibit 10
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 81 of 135
.]aime A. A~varado

1

2

UlqlTED STATES DISTRICT COD~RT

FOR THE DISTRICT OF IDAHO

3

Case No o CV:05-093-S-EJL

4 ABDULLAH AL-KIDD,

5

Plaintiff

6

VSo

7

ALBERTO GONZALES, Attorney General

8 of the United

et alo~

9
Defendants°
I0

Ii

12

13

14

DEPOSITION OF JAIHE Ao ALVAR~O

15

New York, New York

16

November 7~ 2007

17

18

19

2O

21

22 23 Reported by: 24 Toni

,25 JOB NOo 198421

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1

2

3

November 7, 2007

4

I0:40 aomo

5

6

Deposition of JA!ME Ao

7

held at the offices of American Civil

8

Liberties Union Foundation~ 125 Broad

9

Street~ New York~ New York i0004~

i0

to Notice, before

ii

Toni Allegrucci~ a

Public of the

12

State of New York.

13

14

15

16

17

18

19

2O

21

22

23

24

25

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]aime A, A~varado

1

2 APPEARANCES:

3

4

AHERICAN CIVIL LIBERTIES D%~tON FO%%~ATION

5

Attorneys for Plaintiff

6

125 Broad Street

New York, New York 10@04

8

BY: O~R Co JADWAT, ESQo

9

LEE GELEP~T, ESQo

10

11

12

D~ITED STATES DEPARTMENT OF JUSTICE

13

Civil Division Torts Branch

14

for Federal Defendants

1425 New York Avenue N.Wo

16

Washington~~om Co 20044

17

BY:

B~T So LEVINE~ ESQ~

!8

i9

20

21

22

23

24

25

~ge3

ESQU~[RE DEPOSITION SERV~[CES, LLC, 1-800-~-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 84 of 135

]aime A, Alvarado

1

2 APPEARANCES:

3

4

UoSo DEPARTMENT OF HOME~BYD SECURITY

UoSo Customs and Border Protection

6

for Defendants

7

One Penn Plaza llth Flro

8

New York, New York 10119

9

BY: MELA3~IE ACEVEDO, ESQo

i0

!i ALSO PRESENT:

12 SONIA I<TJ~oR, ALICY%~ COOLEY, ED~~ICE LEE 13 ~v~ERIC~N CIVIL LIBERTIES %%[ION FOTS~DATION

14

!5

16

17

18

19

20 2~

22

23

24

25

~ge4

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]aime A. AJvarado

i

ALVA~ADO

2 J A I M E A L V A R A D O, called as a

3 witness, having been duly sworn by a Notary

4 Public, was examined and testified as

5 follows:

6 EXAHINATION BY

7 MRo JADWAT:

8

State your name for the record,

9 please

i0

A Jaime Ao Alvaradoo

ii

State your business address,

12 please

13

Ao JFK International Airport,

14

75, Room 206, Jamaica, New York

15 11430°

16

Qo I~m Omar Jadwato

i~i1 be

17 your deposition today°

18

Ao

Sure°

19

Could you state your name for the

2o

please°

21

Ao

Hy name is Jaime AlvaradOo

22

Have you been deposed before?

23

No, this is my filst time°

24

Okay° There’s a Jew ground rules I

25 want to go over

before we

started or

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]aime A. Atvarado

1

ALV~DO

2

through JFK; is that correct?

3

Ao Right.

4

Qo Would you -- if it was a flight

5

that was an interesting flight, in the sense

6 that it historically had given you seizures,

7 or there was another reason to pay attention

8

to that flight, would you check -- at what

9

in time would you check that flight?

10

A. Depending on the time of the

11

from four hours prior, six hours

t2

sometimes days prior°

13

Qo Okay° Was your work at PAU, did it

14 start -- at the outgoing part of

15

start by looking at a floor or did you

16 sometimes start by looking at a particular

17

!8

Ao We

started

19 flight°

2O

Qo And then, so again~

21 monitor would give you a list of

22 on the flight; is that correct?

23

Ao

Right°

24

Qo What would you then do wl~n that

25 list?

did it at the

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1

ALVAR~O

2

Ao Every single name was checked out

3 against our internal database°

4

Q~ So you would manually type each

name into an internal database; is that

6 correct?

7

Ao That’s right°

8

Qo How did you access the reservation

9 monitor

i0

Ao User name~ password°

ii

Was it --

12

Ao You have to have access to PAU to

13 retrieve information out of the reservations

14 systems°

15

Qo Was there a

machine that

16 you used, a separate machine that you used to

i7 check the internal databases and reservations

18 monitor?

19

Ao Noo

2o

Qo You had access to both at the same

2i time on one machine?

22

Ao

program°

23

Qo

program" but one physical

24 computer~ is that correct?

25

Ao Right, yes°

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1

ALVAP~O

2

Qo Okay° Thank you°

3

(Off-the-record discussion heldo)

4

Qo So if the person had a TECS record

and their passport was swiped, would that

6 generate an e-mail to the TECS record owner

7 saying that a query had been made?

8

Ao Yes°

9

Qo Did you discover a reservation of

i0 ~duilah Ai-Kidd on March i2~ 2003?

ii

Ao Rephrase that again°

12

Qo On March 12, 2003~ did you become

13 aware that Mro Ai-Kidd, Abdullah Ai-Kidd had

a reservation for an upcoming flight or

!5

16

Ao On March 12th, after

17 several passenger lists, I did come across

with the passenger by the name Abduilah

19 Al-Kidd, yes°

2O

Qo Was that the first time that you

21 had come across a reservation for

22 Hro A1-Kidd?

23

Ao Yes°

24

Qo Okay° So can you just tell me how

25 you actually discovered his

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I

ALVA~A~O

2 reservation?

3

Ao As I mentioned to you before, in

4 the outbound side the

are not set up

5 like we have them on the insidel for the

6 inbound° In the outbound~ due to the

7 reservation systems which we have access

8 we’re able to pull up the manifest passenger

9 list way ahead of time° We can do it weeks

I0 prior, days prior~ so to the day of

ii departure°

12

My job was to -- my assignment at

13 that time was to take the last name and the

14 first name and query that name through TECSo

15

Qo Did anyone ask you to look for

16 Hro A1-Kidd in particular?

17

Ao MOo

18

Qo Did anyone -- was there any reason

19 that you would have looked for Hro A1-Kidd --

2O

Ao No°

21

Qo -- in your systems? Did any

22 alert you to Hro A1-Kidd~s reservation?

23

Ao NOo

24

did you look at the

that

25 Hro A1-Kidd had a reservation on?

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1

ALVAR~O

2

Ao That flight was among the many

3

flights that we were assigned to look for.

4

Qo So there was a list of flights that

5 you -- of specif±c flights that you were

6 supposed to check?

7

Ao There was no list. There was just

8 another flight for us that we had interest

9 ino

i0

Qo Okay° Were you the one that

ii determined you had interest in that flight,

12 that Customs had interest in that flight?

13

Ao I was one of them, right°

14

Qo Were there other

that

15 determined, as well, that you worked withe to

16 determine that that

was of interest?

17

Ao

management, right°

18

Qo Who would that be?

19

Ao One of them was -- want me to

20 mention names?

21

Qo Yes°

22

Ao Weli~ Bill Bowe you have already,

23 who is the assistant chief~ and the chief~

24 Bill Ferrio

25

Qo So Bill Bowe, Bill Ferri and you

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1

ALV~RADO

2

Qo With often hundreds of passengers

3 on each flight?

4

Ao Yes°

Qo And you would manually key in each

6 of those passengers?

Ao Right° Believe it or not.

8

Qo Yeah, that’s rough.

9

Ao Unfortunately we didn’t have the

10 databases like we do on the inbound° Oust to

11 keep

on this,

I got a guy

t2 that was able to create

and that

13 helped us a little bit°

14

Qo Did you have

--

15

Ao Not during that time°

16

Qo There were no scripts in March of

17 2003 --

18

Ao No~ not for outbound°

19

Qo -- it was all manual°

20

Do you know when the information

21 about that

that Hro AI-Kidd was on~

22 when that information entered the reservation

23 monitor

24

Ao I recall the

being made on

25 March 6tho

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ALV~DO

2

~d would that, that booking have

3 been available in reservations monitor

immediately after it was made?

Ao It would have been available

6

through the airline reservation, right°

But you would Have been able, if

8 you had been tooking~ you would have been

9 able to view that reservation on Harch 6th?

t0

Ao If I would have been work±ng on

that flight on that day I would have 12 came across~ right°

13

Qo Was Harch 12th the first time you

looked at that

Ao

I believe so°

16

Qo Was there a reason you looked at it

on Harch 12th?

18

Ao No, it was just

my routine°

19

~o

You just happened to be --

2O

Ao

-- selecting passengers for --

2i

Qo -- on your list for that

22

Ao Right°

23

Qo This was a fi±ght that was, at

24 least for Dulleso

Mro A1-Kidd, was departing out of Do you know wb~y you were the one --

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AL~RADO

2 why the JFK unit was checking the flight?

3

Ao I was asked~ and because the flight

4 stops at JFK to do also selection out of

5 Dulles because they didn’t have the manpower

6 also to do ito

7

Qo Okay°

8

Ao

~q_d because it was -- it stopped at

9 JFK~ and my responsibility was to also select

t0

the passengers out of our port~ and who was

tt

through ~FK, and then on to

t2

wherever they were

13

Qo Okay° Did

-- so you --

14 you were

at the flight because it was

15 a flight of interest~ and then you found

16 Hro A1-Kidd~s reservation on the flight, I

i7

mean~ you found Hro A1-Kidd was one of the

18 names on the passenger list~

i9

Ao

Right°

20

Qo What did you do after that?

21

Ao

I would take the last name and

22 first name and run it

TECSo

23

Qo Do you recall what happened at that

24

25

A o Yes o

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1

AL~PARA/90

2

Can you tell me?

3

The record came up.

4

What record came up?

5

TECS record°

6

And what did it say or what did you

7 learn from the record?

8

Ao To notify certain individuals°

9

Qo Can you tell me who those

i0 individuals were?

ll

Ao Welt, to notify JTTF that the

12 subject was of the interest of JTTF, to

13 notify Special Agent Alvarezo And then there

was another name there, special

Lori,

15 don~t recall his last name, so I

did

16 whatever the remarks told me to doo

17

Qo Did you see any other -- were there

18 any other records that came up regarding

19 Hro Ai-Kidd~ other than his TECS record?

2O

Ao No~ I didn’t, I didn’t see any

2i other, I just concentrated on those, on that

22

because it was

23 recently put in the

24

Qo Did you see -- do you recall how

25 recently it had been put in the system?

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i

AL~P6R~O

2 information about Hro Ai-Kidd, do you recall?

3

Noo I don~t remember seeing it,

4

5

So do you -- so are you saying that

6 you are not sure about whether you saw an

7 NCIC record?

8

Ao Noo l kind of focused on the

9 remarks, to do what it was telling me to doo

i0

So you are not sure?

ii

Ao No, I~m not sure°

12

MRo JADWAT: Can we take five

13

minutes°

14

(Lunch recess taken 2:31o)

15

AFTERNOON SESSION

16

noted: 3:25 pomo)

17 J A i H E A L V A R A D

resumed and

18 testified as follows:

19 E~~INATION BY <Cont’do}

2o HRo JADWAT:

21

Qo So we were talking about Hatch 12~

22 2003, when you discovered Hro AI-Kidd~s

23 reservation?

24

Ao Right°

25

Qo So you found Mr~ Ai-Kidd~s name~

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1

ALVAiRA~DO

2 ran it through the TECS database, saw his

3 TECS record, those were the first steps you

4 took; is that correct?

5

Ao Well, when you say ~found,~ I mean,

6 you see the list of names and you start with

7 name number one, you work yourself down°

8 It{s not that° He

happened to be the

9 first one because his last name, and they go

i0 alphabetical order, but yeah, you start with

Ii passenger nu~~oer one and work myself down to

12 the last one on that flight°

13

Qo Okay° So you started with him and

14 you ran his name in TECS, what did you learn

15 from TECS about him?

~6

TECS system retrieved the TECS

17 record°

18

Do you recall what you learned from

19 the

irom looking at the record?

2O

Ao ~ can just remember

~subject

21 interest of JTTFo~ And says to copy some

22 information about the passenger, contact

23

Aivarez, and the other

24 listed on the TECS record°

25

Qo I think earlier you

you

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]aime A, A~varado

~

1

ALVAP~O

2

Right~

3

The first name is Elvira?

4

A. Right° Last name. First name

5 Noel.

6

Qo Oh, sorry. The person’s first name

7 is?

8

Ao Noel. Last name Elvirao

9

Can you

spell that last name

10 for me?

tl

Ao

Last name?

12

Qo Yeaho

13

Ao

I think it’s E-L-V-t-R-A, and it

i4

be

on one of these papers that I

15

saw.

16

Qo So you went to Noel E!vira and what

did you

18

Ao That this subject is the interest

19 of JTTF and i needed to make some

20 calls°

21

Qo Do you recall where~ which JTTF?

22

Ao

that Z don’t know° Z think

23 it s Spokane JTTFo

24

Qo ~i~d then~ what did Noel Elvira then

25 tell you to do?

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1

ALVARADO

2

A o Said to do what the remark was

3 telling me to do, that is to get in toucln

4 with the agent°

5

Okay° So what did you do after

6 that?

7

Ao

Called the agent, Alvarezo

8

Qo Called agent Alvarez?

9

Ao Right, to let him know that this

10 person,

it’s in your record°

11

Qo What did you tell agent Alvarez?

12

Ao That the subject was

13 reservation in the flight SV 34°

14

Qo Is that all you said is that there

15 was a reservation for flight SV 34?

16

Ao In the beginning that’s all it was~

17 right, because we needed to

i8

information that I had come across with°

19

Qo Whe~ you told agent Alvarez that

20 Hro Ai-Kidd was

a flight~ a

21 reservation for flight 34~ how did he

22

23

Ao He wanted me to make sure the

24 flight number, what time and what day of

25 departure°

a the

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1

ALVARADO

2 aware, in talking to the airlines also, that

3 that was a mistake, that it was that airline

4 departs Thursdays and Sundays and not on

5 Saturday, like it was listed in the

6 reservation.

7

Q. Did you tell Mr. Alvarez anything

8 else about the reservation in that phone

9 call?

10

A. I mentioned to him about the legs

11 departure, dates. And then there was an open

12 segment there that there was no return.

13 There was another leg there of departure

14 date, right, but it didn't show the return,

15 so immediately I assumed that they had no

16 return, there's no return on the reservation.

17

Q. Okay. So you told him that there

18 was something confusing about that

19 reservation --

20

A. Right.

21

Q. -- in that it showed a flight for a

22 day that the flight didn't usually depart on,

23 right?

24

A. Right.

25

Q. And you also told him that there

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1

ALVAKAD0

2 was several segments on the reservation; is

3 that correct?

Ao On the reservation, right°
Qo ~m~d did you tell him that one of

6 those segments was for a return, but it
7 didn’t have a date associated?

8

Ao I said that there is

9 there, but it has no date of return° It’s an

10 open, we call it an open ticket°

11

Qo What does an open ticket mean?

12

Ao They have no return date°

13 return anytime they want°

14

Okay°

Ao !t shows a one-way, we~ve seen it

t6

in the past, where passengers will book

themselves like that and they will never

They can

18 return° it’s

shown as a space within

19 the

but it doesn’t give you a

2O date of -~ ~ .... ~o

21

But your

is that an

22 open ticket -- can you

explain to me

23

what an ~open ticket~ means?

Again, l~m not an expert on this°

25

Sure°

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t

ALVAP~O

2

A~ But i believe that they have a

3 one-way ticket but sometime, I guess, I don~t

4 know~ in the future they may return° That’s 5 my understanding° I don~t know if that’s 6 accurate°

7

Do you know if it means they’ve

8

for a return, you know, and then can

9 choose to take it at whatever time?

I0

Ao NO, I don~t know that°

11

Qo You don~t know?

12

Ao NOo

13

Qo Okay° And so you

to

Hro Alvarez verbally that -- can you just go

15 over one more time what you

to Hro

t6

Alvarez

about the reservation?

17

Ao

I mentioned to him that the subject

!8

was

a reservation to depart on that

19 date~ Hatch 13th, out of Dultes~

2O

Qo You also explained about the

21 additional 22 23

and the need for --
Right° -- for further research into what

24

25

A o Right° I mentioned to

you

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1

ALVAP~O

2 know, it appears that he has a one-way

3 ticket, it doesn’t show that he has a return

4 ticket° Qo

Did you mention to

6 Mro Alvarez that there was an open return 7 segment?

8

Ao

I mentioned that -- I don~t recal!

9 that, but ! must have told him that°

10

Qo You would have told him that

because --

12

Ao I wrote it down on the form that !

13 was working on, I wrote down one-way ticket°

Qo But you would have told him about

the other segment, and the return segment?

16

HRo LEVlNE: Objection~ calls for

t7

18

Qo You told him about the return

19

2O

Ao

i wasn’t sure about that° I think

21 ! must have told him that it was

a

22 one-way ticket because there was no return

23 date on the reservation°

24

So what did you do after you had

25 this conversation with Mro Alvarez?

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1

ALV~igSzDO

2

Ao Since the subject had the

3 reservations for, again, the 13th and 15th

when the flight actually departed on the

16th, that just told him that I would keep my

6 eyes on the reservation to see if there was

any changes°

8

Qo Okay° The 15th was a --

9

Ao Saturday°

10

Qo Which means the t3th was a

tl

12

Ao ! think so.

13

Qo So he was holding reservations on

14 the Thursday and the Sunday -- sorry, and the

15

i6

Ao Saturday, right°

Qo And you

that the

i8 reservation was somehow weird because there

19 wasn’t a fiicnt on the

2O

Ao Right°

21

But there was a flight on the

22

23

Ao Right°

24

Qo Okay° So what was your

understanding of what Hro Al-Kidd~s travel

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.]aime A, A~varado

1

ALVAR~O

2 plans were after looking at the reservation?

3

Ao

I don~t know°

Qo You didn’t know?

5

Ao

t don~t know what plans he had°

6 mean, 2 can speculate, but I can’t because

7 don~t know°

8

Well, what did you think it meant

9 that he had this -- the reservation that you 10 viewed?

11

Ao Nothing° I mean, to

i

12 guess~ that has their own dates on the

13 reservation° You can make anything you want~

make anything Upo

15

Qo so it didn’t mean that he was going

16 to travel on the 13th?

17

Ao It only meant that the airline or

18 somebody made a mistake~ because the

19

date~ again~ should have been on

2O

the 16th and not on the 15tho

21

Qo Did Hro Alvarez ask you to do

22

further regarding the reservation

23 envelope you said you would keep track of?

24

Ao MOo Just keep my eye on it~ to let

25 him know if there were any cancellations°

Page 198

ESQUIRE DEPOS1KION SERV]:CES, LLC~ 1-800-9¢~-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 105 of 135 ]aime A. Atvarado

i

2 That’s it.

3

Qo Did you do anything to try to clear

up your confusion about what was

5 with the flight on the 15th?

6

Ao Well, t spoke to the airlines to

7 make sure that~ you know, which day is the

8 right date, is it the 15th or 16tho

That’s

9 about it~

io

Qo When did you do that?

ii

Ao Hust have done that on a Wednesday

12 or Thursday°

13

Qo But did you do that before speaking

14 with Hro Atvarez or afterwards?

15

Ao Afterwards°

16

Qo Okay° Did that clarify for you

17 anything about the reservation?

18

Ao Well,

it from the airline~

19

that they were certain that the flight

2O

on Sunday instead of Saturday~ that

21 just made it more confirmed for me to believe

22 that the airlines,

they know better

23 thrn ! do~

know when their

24 depart°

25

Qo So you were then more certain that

Page 199

ESQUIRE DEPOSITION SERVICES, LLCo 1-800-944-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 106 of 135 ]aime A. A~varado

i

2

Ao I don’t know every day, once or

3 twice during the day.

4

Qo ~ind then did you comm~anicate with

5 Mro Alvarez

6

Ao No~ he had all the information he

7 needed° There was no need for me to be in

8 touch with him°

9

Qo So your only communication with

i0 Mro Alvarez was that one phone call --

Ii

Ao It was to let him know --

12

Qo -- right after you got the

13 reservation and spoke with your

14

Ao Right°

15

Qo Did you say anything to Mro Alvarez

16 about how much the ticket cost at that point?

17

Ao No°

i8

Qo Did you say anything about what

19 class the ticket was?

2o

21

Q o Yeah ~

22

A o ! don’t know if !

to him

23 about that° Z don’t remember writing and

24 circling the letter Fo The airlines~ at that

25 time they mentioned to me that that was a

Page 206

ESQUIRE DEPOS~ON SERVICES, LLC, 1-800-944-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 107 of 135 .]aime A, Atvarado

1

ALVA~R~O

2 first class ticket°

3

Qo Okay° So you spoke to the airlines

4 about Mro Ai-Kidd~s reservation?

5

Ao .mi0out the reservation, right°

6

Qo So you actually asked him questions

about Hro A1-Kidd~s specific reservation?

8

Ao I needed to know, right, t needed

9 to know if that was economy class ticket or

10 first class ticket°

ll

Qo Did you also ask them whether it

12 was a one-way ticket or return ticket?

13

Ao No, t didn’t ask him that°

14

Qo Why not?

15

Ao i had no interest at that time°

16

Qo You had no interest in whether or

17 not it was a return ticket?

Ao NOo

19

Qo But you told Hro Alvarez that it

2O was a one-way ticket?

21

Ao Right°

22

And you had no concern about

23 whether that was actually correct?

26

HRo LEVINE: Objection~

25

argumentative, mischaracterizes his

Page 207

ESQU:][RE DEPOSFGON SERV:[CES, LLC 1-800-944-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 108 of 135

i

ALVAP~%i)O

2

Qo But could you understand any of the

3 other information on here?

4

Ao Noo

5

Qo So the line that begins ~XLC

6 1700/10 ~.R auto~~ what is that referring to?

7

Ao t don~t know°

8

Qo The line that begins ATEYQ --

9

HRo LEVlNE: Objection° He{s

i0

already said he doesn’t understand

ii

what’s on here° I think we can move on

12

to

elseo

13

HRo J~WAT:

14

Qo Does the last line mean anything to

15

16

HRo LEVINE:

17

answered°

asked and

18

Ao Don~t know°

19

Okay° So could you determine from

2O

at this when the booking was made?

21

Harch 6tho

22

At what time?

23

Ao

and I~m guessing here~

24 21:01o I~m not sure°

25

How do you know that the booking

ESQUIRE DEPOSN~ON SERVICES, LLC~ 1-800-944-9454

Page 232

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 109 of 135
.~aime A~ A~varado

1

ALV~,ADO

2 was made on March 6th?

3

Ao March 6th, if you look at the

4 reservation you will see it on the very

5 first -- if you go back and look at Exhibit 6

6 on top, right on top, you will see also

7 March 6th, which is also the booking date° t

8 was advised that that is when the passenger

9 for this particular airline, when they make a

10

that day, gets recorded on top~ and

11 it gets recorded at the very end of the

12 history°

13

Q. Who advised you of that?

14

A. The airlines°

15

Qo 9~nd did they advise you -- when did

16 they advise you of that?

17

Ao I don~t know when, but this is

18

to Saudi Airways~ not on

19 this particular passenger but other

2O passengers°

21

Qo So over the years that you were

22

in the

when you were talking to

23 Saudi you realized that their practice was

24 that the booking would appear on the

25 there?

Page 233

ESQUIRE DEPOSITION SERVICES, LLC. 1-800-944-945~

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 110 of 135 ]aime A. ANerado

1

ALVAP~O

2

Qo To your knowledge, were there any

3 other occasions in which the work you did in

4 the PAU ended up or resulted or contributed

5 to somebody being arrested as a material

6 witness?

7

Ao I don~t recall that°

8

HRo J~WAT: Okay° That’s ito

9

Thank you°

10

-o0o-

tt

(Whereupon, the deposition of

12

JAIHE Ao ALVAR~O was concluded at

13

5:42 pomo)

14

15

16

JA!HE Ao ALV~m~DO

17

i8 Subscribed and sworn to before me

19 this

of

2O

, 2007°

2!

22

23

24

25

Page 266

ESQUIRE DEPOSKION SERVICES, U_C~ 1-800-944-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 111 of 135 Jaime A. Alvarado

1

2

CERTIFICATE

3 STATE OF NEW YORK

4

: SSo

5 COD~~TY OF NEW YORK

6

7

I, Toni Allegrucci, a Notary Public

8

within and for the State of New York, do

9

hereby certify:

That JAIME Ao

the witness

1t

whose deposition is hereinbefore set

forth, was duly sworn by me and that

such deposition is a true record of the

given by the witness°

! further certify that I am not

related to any of the parties to this

17

action by blood or marriage, and that

am in no way interested in the outcome

19

of this matter°

2O

IN WITNESS WHEREOF~ i have hereunto

set my hand this 27th day of Novemioer,

22

2007 o

23

24

TONI ALLEGRUCCI

25

Page 267

ESQUIRE DEPOSITION SERVICES, LLCo 1-800-944-9454

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 112 of 135
Exhibit 11
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 113 of 135 Page i

CASE AB~U~AH AL-KiDD,
P!ain~iff, VS. A~BL~ GONZALES,

@ s - ~v-~ 9 3-EJL-HHW

THe Laws 44 Wes~ m~

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November 9, 2007

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Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 114 of 135

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Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 115 of 135

3
1

2

ROBERT ALVAREZ

3. was~=~.~~ as a witness andl

been first duly

4

~::~ WaS exa~lRe@ ant testifAec as

BY HR.

Qo Good morning, Mr o Alvarezo My n~e is Lee 8 Gelernt and I will be taking your deposition°

9 counsel for the plaintiff in this case° You know you

i0 are not a defendant in this case; is that correct?

Yes°

12

Have you ever had your deposition taken

i3 before?

Ao

NO.

Qo Has your attorney gone over the procedures

16 with you?

!7

Yes o

Qo i will ~ust ~ickly go over the~m with you°

19 You need to answer out loud because the court

20 reporter won~ t take down hand signals or head

21 gestures,

if there’s

that is unclear

22 to you~ a qNaestion I

let me know~ and I will

23 and rephrase° If you want to correct

that

24 you have given~ let me know and I will give you an

25 opportunity° If you want to take a break, we will be

The

Group 800-305-LAWS

==ws-group. com.

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 116 of 135

Page 18

i

information but ,

you can answer ~hiS mue~stlon ¯

2

without ~.~ so, ~ ~~ ~o

if you can answer

3

without doinc so, miease doo

4

Ao Why Ai-Kidd was ~he subject of an

investigation?

6

Qo Of a JTTF investigation°

7

Ao Of a JTTF ~nvest~ga~ono ~ ~ ±ook a~ my

8

9

Qo At some point I will probably show you that

report~ but for now I would like you to try to answer

i! without the report in front of you.

i2

HRo~x~~ ...~:. ~< .~..7.~. ~ust~ like ~o no~~ for

13

the:~~:~ that ~ witness is

an

inordinate amount of ~ime to answer cues~ionso
15

17 sub-ec~ of an inves~igation~ perhams an

18 inves~iga~iono

!9

Qo Did the B! tell you why they were

2O you to put a lookout for him?

21

HRo HEEKS: Again~ i need

witness no~ to disclose law enforcemen~

23

privilege informa%iOno Bu~ go ahead and answer°

24

THE WITNESS: Sir~ can you res~a~e tha~

25

question°

Group 800-305-LAWS wwwolaws-groupoCOm

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 117 of 135

i

2

sir

3

G~estLo~_ was reo_c ~_< my

4

5

6 ~he DUrDOSm Of the for

7

Q. W~ere did you place that lookout, if

8 an~here ?

9

A The lookout was ~ aced in the Treasury

i0

!!

Qo

Is %hat sometimes referred to as %he TECS

12

sys tern?

13

Ao Yes, sir°

14

Qo If I refer to it as the TECS system, you

will understand what I ~m talking about during the

16

17

Yes~ sir°

18

Do you recall who at the FBI asked you to

19 do that?

2O

A

Joe Clearyo

21

Did he work in the s~m~e building as you?

22

A

Yes, sir°

23

The s~me office?

24

A

Yes, sir°

2S

Q

Did you speak with Agent Clearx- often about

The__

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Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 118 of 135

Ao i Q~on~t recall any oc~e~ ~e~r~..o..~..i ~K~

22 ~ me

2 to do anytKingo

3

Qo Other than placing that lookout, that is

the last time you had anything to do with Mr o

~ A1-Kidd?

6

Ao

tha~ i~ not what i a_~_

7

Q o Okay. What are you saying?

~

Ao

~ was as~<ec 1o Di=~e a

9

about a

~!iLLe ~ ~

i0

Q.

I understand~ sir~ and I appreciate how

!i long ago it is~ l~m just trying to ~-

12

A~ !t~s just~~=~{=~" if i

~ have no~=s~ %o

~ ~

refer %o ;~~ ~i~.e @v_@ ca~es ~ s wh~t ~ s ~ ~ .......

t

~

you wan~ ~kk~ to sna~

like that~

nry£ng to

~ ~ ~es~ i can~ ant you ~ accusing

i7

Q~ I understand ~

i9

Q~ Okay~ i understand, sir~ ~.d I ~m not

20 asking you to come up with specific dates or times 2! without your notes~

22

Let’s do it this way: You were asked in

23 2002, to the best of your recollection~ to post a

24 lookout on TECS by Agent C!eary; is that correct?

25

A~ 2002, yes~ sir~

Tine Laws Group 800-305-LAWS www. laws-group ~ com

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 119 of 135

Page 2 3 Q o Did Agent Cleary subsequently ask you to do

anything with regard to Mr o A1-Kidd that you recall?

A. Sir, any~h~

Clarification1 please°

Anything? i don~< understand what you mean

5 ~anything o ~

6

Did he ever ask you to post another

? lookout?

8

Not that ! recall°

9

Qo Did he ever ask you to make a phone call

!0 with regard to H~o Ai-Kidd?

ii

Ao Hake a

call with regard ~o Hro

i2 A~-X~s

Not that i recall, sir

13

Qo Did he ever ask for any information from

14 you about }~o A1-Kidd?

i5

16 <hat i recall°

17

Qo Did you ever have a discussion after you

!8 posted the lookout with Agent Cleary about H~o

19 A1-Kidd?

2O

o _ .... any discus ~,

21

Q o So your

is~ to the best of your

22 recollection~ you had one conversation with Agent

23 Cleary about H~o A1-Kidd~ and that is when he asked

24 yOU to post the lookout in 2002?

25

Ao No~ sir° i jast don~t recall a lot of the

Laws Grou~ 80 www, laws-group, com

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 120 of 135

! informed by Agent Gneckow that ~ro Al-Kidd was

arrested as a material witness in N~rch -- strike

3 that.

4

You mentioned earlier that you were aware

5 that Mro A1-Kidd was arrested as a material witness

© in March of 2003, correct?

Yes .

Qo ~d that Mr. Gneckow informed you of that?

Ao

Yes°

Qo Prier to Mr. Al~idd~s arrest~ were you 12 aware that the FBI was seeking his arrest as a 22 material witness?

A

V~s

Qo How did you become aware of that ~

Ao

i received

Qo -- as best you can recall?

~

~ re~eK~er

~o£C or ~-~ ~ed ~hat

By whom were you advised?

2

inspector

Jai~e -~ ....

~

22

later?

23

Ao

How do you recall that this many years

Basically by ~~, ....

~ my remoru~°

24

Qo Are you aware that in order to obtain a

25 material witness warrant~ the FBI had to put an

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800-30S-LAWS

WWWo maws-~ro~~

o CO~.

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 121 of 135

i the conversation?
2 3

Q o ~nd you said that you think you had a 5 subse~aent telephone conversation with Inspector

Alvarado, at least one other conversation?

~-~ ’~ve i ha~ ~~-~ co~ve-~sat~on with

8 Hro A!varado o

9

Q o On the telephone? You never had any

10 in-person conversations with Inspector Alvarado?

ii

A. No~ in person, no.

Q o So the second conversation you would have had with Inspector Alvarado would have been on the 14 telephone2 is that correct?
15

16

!7 about?

18

Ao

i9 abou~ o

Do you recall what that conversation was

_- don’~

=~:~:~:-~r exac~!/ wha~ we talked

21 %aiked about ~he mrice of <he cicket and it heine a

22 first-class ticket,

23

Okay~ Tell me what you recall ~out the

24 conversation with respect to the price of the ticket?

25

A. After taikinc with i~<-~=~ A!varado~ my

The Laws Group 800-305-mA~s~~ g_~upoCOm

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 122 of 135

was that the price of the ticket was

And he gave you that information?

~ s what my undo~~

our

conversation°

6

Qo He told you it was a $5~000 ticket?

Ao That was my understanding after talking to

8

that it was a -- that it would have cost $5,000.

9

Q. ~nd what specifically do you recall about

i0 the conversation with respect to the class of tlne

ticket?

i2

Ao

13 understood

What ! re~il is~ i~.~on~ t think that he iL seemed like he wasn’t, when he read

the i5 himself on ~= ~ ~e ~- ....

{~

But ~ ..... t know

16 what led me ~o believe ~hat~ !~s

just, i~ was a

~

firs:-ciass ~icke~ ~ <=~ one

~

For

18 whatever reason uha< was my imoression

i9

Q~

I understand~

2£

Was he uncertain~ as far as you can tel!,

2i ~out what day Mr~ Ai-Kidd was

the

22 ceuntry~ as best you recall?

25 b=<t as i can ~=K:be< and ....
800-R~v~o<-~<A~wS www~ laws-group, com

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 123 of 135

45 Q. Was there uncertainty about when Mro

2 A1-Kidd was scheduled to return?

3

Noo

Did he talk at all about whether or not

there was a return ticket?

6

A. MOo ~~y~-" unders~andinc was from what he

7

~ and i e’o~~q recai± exac~i-y-_ what he told me,

8

was a one-way t~cie~ to Sauc~ ~Rd~

9

~nd did he use those words, or you can’t

recall?

i!

A o !~haE is what !~m saying° ! may nave

!2 misunders~~m,o~. what words he ~ <=~,

~-,

~ e ~= ....

or wb_at he sa~d

~-~ i ~ even

14

Was your impression that Mr. A!-~idd did

5 not have a specific date on which to return to the

United States?

~

ye<

18

Q~ Did you know one way or the other whether

Mr~ Al-i6idd had purchased a ticket to return, an

without a date?

21

_ con~t recall

~<~_.~~ ..... ~- ~het~ ~ ~,~ ~_

23

So you weren~t certain of whether he had

24 bought a ticket~ an

return ticket?

25

Laws

800-30~-~P~Wc~ ~,~

wwwolaws-groupocom

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 124 of 135

~_~ ~ cerr~a~n ~hat he Durcnaseo ~ne t~cket
2 himse_f,

P~ a6

3

Q. Were you certain that he did not have a

return ticket?

A.

unders~~.=~ was,

6 was a one-way

_ z~:~~K=~~. i didn’t

7 re~urn ticke~.

from Aivarado, was it "Know

aD~ou: a

8

Q, Did Inspector Alvarado say to you he does

9 not have a return ticket?

A~ ! don’t remember hit.

r.e that~ i~

ii

was a one-way uicke~, so i don~% know ~- ~

,miy ne would

i2

i3

Q~ Earlier you said you weren~ t sure what

exact words Inspector Aivarade used, correct?
i5

16

Q~ So you are net certain that he used the

!7

!8

19

20

2i

22 that iu was a

2~

Qo But you are not certain he used that ter~?

T~ Laws Group~ WWWo iaws-@rouo o co~

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 125 of 135

Page 52

He told me to advise

Gneckowo

2

Did he tell you to advise anybody else?

3

_< ~t remember if e:-=-~~~ was

4 ~ cou±c nave ~e=n Cieary, but ! just ~=mse-~

elseo

to advise Gneckow.

6

~hnd did you advise Gneckow orally?

~- s~oke~ ~o Gneckow o-~yo

8

Did you advise him in writing?

9

Ao

.......

co~ t remember advising

!0 him in writing°

Qo Do you recall what you told Agent Gneckow?

12

Ao Yes°

13

Qo Could you tell me.

14

Ao

i5 Dulles ~o Saudi Arabia°

i passed %hat information ~o

16

17

Qo Wqnat specifically did you tell him?

i8

Ao Passing ............. that wss

i9 from lnsoec~or Aivaradoo

2O

Q o Do you recall specifically what you told

21 him on that first conversation with Agent Gneckow?

22

23

24 was
25

%o Saudi A~sm_:~a on t<~e da~es and

Laws Group 800-305-LAWS WWWolaws-groupocom

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 126 of 135

Page 60 But i know that the information i provided to him was S~ 000 And that was ar~er, on :~.e later

conversations that < had with Mro Aivarado.

Qo Okay° Do you recall having a second

5 conversation with Agent @neckow about H~o Al=Kidd~s

6 travel?

Ao A second conversation? i believe that’s

8 w~ i yes~ ! provided additional information°

9

Qo And what was that additional information,

as best you recall?

Ao i believe that at some point~ i don~t know

i{ it was the second one, i don~t know which point i:

is, what date, what time, but i

i4 Gneckow :na~ ~.~ cost of tha~ t~cket wouiC nave been

15

~0 and :nat

that he was on a

first-class ticket°

17

Qo And any other information?

Ao

~

=e~,~ ~;=~ any other

’ =

2O

Qo De you recall Agent Gneck©w asking you to

de any further research ~out the ticket?

22

~: him asKinc me anyEni~

23

He may have~ i

don{t remember°

24

You had mentioned earlier that you

Group 800-305-LAWS WWWolaWs-groupocom

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 127 of 135

i
2
3 STATE OF FLORIDA ~uN ~ ~ OF

5

i, the undero:,s .....

6 :or: - the State of Florida,

Notary ......

, in

~_~-~:~-:fy~= 9ha~ .... ROBERT

A~vAR~Z 8

~ ....... ~ sefore me and was

9

i0

WITNESS my h_and and ~ o~:::cisaeial this

c~y of

2007,

12

13

14

DALE W TICE RPR

±/
18

2O

~ 22 23

25
Laws Group 800-S00-LA~~ wwwoiaws-grOUpoCOm

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 128 of 135

REPORTER’S DEPOSKTiON

STATE OF FLORIDA COUNi~Y OFsA~

6

DALE ~ .... TTCR ~

eO

ce .... y

7 cnan i was authorized to and ciid s ..... 8

~ ~.~

y

9
i0 =Le~~t IR’oR_y Giver_ ..’..
and ~ng of t:~ ~ ....

~ witness, and" ~ka~

~l

tion were not wa

13

i6
!7

i9

2O

sa°3ec ~his ~an day of - ....... ~-< 2807

21

22

23

24

25

The

800-305-T~AWS

WWWolaws-groupoCOm

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 129 of 135
Exhibit 12
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 130 of 135
Norman C. Brown, 12-13-2007

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

______________________________________________________________

)

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

No. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney

)

)

General of the United States, )

)

et al.,

)

)

Defendants.

)

______________________________________________________________

DEPOSITION UPON ORAL EXAMINATION
OF
NORMAN C. BROWN ______________________________________________________________

1:05 p.m. December 13, 2007
100 South King Street 360 Seattle, Washington 98104

JACQUELINE L. BELLOWS CCR 2297

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 131 of 135
Norman C. Brown, 12-13-2007

1 2 3 4
For the Plaintiff:
5
6
7
8 9
For the Defendants:
10
11
12
13 14
15
16
17 18
19 Court Reporter:
20
21 22 23 24 25

Page 4
APPEARANCES
ROBIN GOLDFADEN American Civil Liberties Union
Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111
BRANT S. LEVINE U.S. Department of Justice Constitutional & Specialized Torts P.O. Box 7146 Washington, D.C. 20044
HENRY R. FELIX Federal Bureau of Investigation Assistant General Counsel 935 Pennsylvania Avenue NW, PA-400 Washington, D.C. 2054535
JACQUELINE L. BELLOWS VAN PELT, CORBETT, BELLOWS 100 South King Street, Ste. 360 Seattle, WA 98104
* * * * * * * * * *

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 132 of 135
Norman C. Brown, 12-13-2007

Page 5
1

2 NORMAN C. BROWN,

having been first duly sworn

3

by the Notary Public, appeared

4

and testified as follows:

5

6

7

E X A M I N A T I O N

8 BY MS. GOLDFADEN:

9 Q Good afternoon. I know we introduced ourselves, but let me

10

formally introduce myself for the record. My name is Robin

11

Goldfaden. I'm one of the attorneys representing the

12

plaintiffs in this matter.

13

Would you state your name and address for the record.

14

A Norman C. Brown. I reside in Spokane, Washington.

15

Q Can you give the street address, please.

16

MR. LEVINE: Your can just use your business

17

address.

18

A It's 316 West Boone, Suite 250, Spokane.

19

Q (By Ms. Goldfaden) Have you been deposed before?

20

A No.

21

Q Okay. Well, basically you're under oath as if you were in a

22

courtroom; and everything that we say while we're on the

23

record is going to be taken down. I will be asking you

24

questions; and, if at any point you don't understand

25

something that I'm saying, please let me know and I'll try

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 133 of 135
Norman C. Brown, 12-13-2007

Page 182

1 A It was to gather information and intelligence.

2 Q About what subjects?

3 A The ongoing investigation on Sami Al-Hussayen.

4 Q So was the information and intelligence being gathered for

5

the criminal investigation?

6 A Yes, I believe it was.

7 Q Was it being collected just for purposes of being used in a

8

case against Mr. Al-Hussayen?

9 A For prosecution, yes.

10

Q Was the intelligence and investigation being gathered for

11

any other purposes?

12

A It's not unusual for us to interview associates when an

13

arrest is made, to gather information on a primary subject

14

and other -- to get other intelligence about the individuals

15

themselves.

16

Q Would such interviews be used to gather information and

17

intelligence about other subjects, not the one being

18

arrested?

19

A Yes.

20

Q Would that generally be for criminal investigations?

21

A Or intelligence investigations.

22

[Deposition Exhibit No. 9 marked.]

23

Q (By Ms. Goldfaden) Have you seen this document before?

24

A No.

25

Q Were you involved in any way in the decision to seek a

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 134 of 135
Norman C. Brown, 12-13-2007

Page 183

1

material witness arrest warrant for Mr. Al-Kidd?

2

A

No.

3 Q Were you aware of the decision being made to seek a material

4

witness arrest warrant for Mr. Al-Kidd?

5 A I learned of that decision.

6 Q When did you learn of it?

7 A I believe shortly before he was arrested.

8 Q Had the warrant already been sought when you learned of the

9

decision?

10

A It was very, very close to that time frame.

11

Q Who informed you of it?

12

A I believe either Agent Gneckow or Agent Cleary.

13

Q You don't remember which of the two?

14

A No.

15

Q Did agent -- whichever agent it was, were you informed after

16

the fact; or were you consulted in any way? I'm sorry.

17

Strike that.

18

Were you informed after the decision had been made that

19

the decision had been made to seek the warrant?

20

A I believe so.

21

Q Were you consulted in any way about the decision to seek the

22

warrant?

23

A No.

24

Q Were you involved at all in the process of seeking the

25

warrant?

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-4 Filed 11/07/11 Page 135 of 135
Norman C. Brown, 12-13-2007

Page 205

1

C E R T I F I C A T E

2 STATE OF WASHINGTON )

) SS

3 COUNTY OF KING

)

4

I, Jacqueline L. Bellows, a Notary Public in and for

5 the State of Washington, do hereby certify:

6

That the foregoing deposition was taken before me at

7 the time and place therein set forth;

8

That the witness was by me first duly sworn to

9 testify to the truth, the whole truth, and nothing but the

10

truth; and that the testimony of the witness and all

11

objections made at the time of the examination were recorded

12

stenographically by me, and thereafter transcribed under my

13

direction;

14

That the foregoing transcript is a true record of

15 the testimony given by the witness and of all objections made at

16

the time of the examination, to the best of my ability.

17

I further certify that I am in no way related to any

18 party to this matter nor to any of counsel, nor do I have any

19

interest in the matter.

20

Witness my hand and seal this 3rd day of

21 January, 2008.

22

______________________________

23

Jacqueline L. Bellows, Notary

Public in and for the State

24

of Washington, residing at

Arlington. Commission

25

expires October 19, 2010.

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 1 of 162
Exhibit 13
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 2 of 162
iN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF~Tm~H~n~

VSo
ALBERTO ~ONZAmEZ, Attorney Genera! of the United States; et aio,
Defendant°

Case No. 05-CV-@9~-~<-~W

DEPOSITION OF JOSEPH CLEARY

TAKEN ON BEHALF OF THE PLAINTIFF

AT COEUR D~ALENE~ IDAHO

NOVEMBER

2007~ AT I0:@0 AoMo

qotary m~>~ ic

Coeu~ d’A one, Idaho Ho~the{n Offkes 208.765.] 700 ] .800.879S 700

Spokane, Washington 509 455.4515 1.800.879.1 700 vzgv~p& ~ ~cot~ Ft co m

Southern O~kes 208.345.96]] 1.800.234.96]]

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 3 of 162

i

APPEARANCES

2

HRo LEE

3

Liberties Union

at Law~ of the ~.erican Civil im~s~igrants~

125 Broad Street, i8th Floor, New York, New York,

4

10468, appearing for and on behalf of the

HRo BBr~NT So LEVINE and HRo Jo PqS_RCUS

6

at Law~ of the United Sta~es Department of Justice,

Torts

Civil ~ivision, PoOo Box 7146, Ben

7

Franklin Station, Washington, DoCo 20@44,

for and on behalf of the Federal Defendants°
8

9
ALSO PRESENT~ Hro Henry Ro ~ix Hso Sonia Kumar
Hro Patrick

12 13 14
15 K6
17

Project, A~torneys

19
2O
21

23 24
25
H & H Court Beporting Service,

i-800-879-1703

Page 2
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 4 of 162

THE DEPOSITION OF JOSEPH CLEARY, was taken

2

on behalf of the plaintiff on this 28th day of

3

November~ 2007, at the offices of H & M Court Reporting

4

Service, inCo, 816 Sherman Avenue, Suite V, Coeur

5

d~AAene, idaho, before H & H Court Reporting Service,

6

inCo, by Patricia Lo Puiio, Court Reporter and Notary

Public within and for ~he State of idaho, to be used in

8

an ac%ion pending iN the United States District Court,

9

for %he Dis%rict of idaho, said cause being Case

i0

No. 05-CV-O93-EJ~-MHW in said Court.

AND THEREUPON, the following testimony was

12

to wit:

13

having been ~irs~

JOSEPH ...... ,*, sworn to teiA the .....

whole cru~N, ane nothing but the .... eh reia%ing to

~ the

_6

said cause, deposes and says:

i_7

i8

i9

Q o ~ ~ ~,~=~ Cou£d you c~iease state

2O name for the

21 r~ ~-~ ~ i~m one of the lawyers for
22

23

:£he %si_ainti f f ¯

24

Yoa know you’re no~3 a defendant in %his case?

2S

A o Yes o

H & H Court Reporting Service, inc.

5
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 5 of 162

i

sure actually°

2

Qo Was he somewhere in the state of

3

Ao i~m not sure if we had a task force ~heno i

think we were physically located in Liberty Lake° But

i~m not sure° He --

6

Qo Sorry° if you couid~ can you just say where

?

each place is and what state°

8

Ao Sure°

9

Liberty Lake is in?

~_0

Washington°

ii

Okay°

i2

Yeaho Sorry°

i3

And individuals on a O~fTF can conduct

i4

inL e~~g~n6c~m.,..~. {nvestl atlons9 g ~- .

Ao

Yes.

i6

Wo ban they also conduct ~riminai

17

inves~ima~ions?

18

Ao

Yes°

i9

a

~nat~s t~ diffe~n~ ~,~ ....

~ an

2O

inves~imat{on and a criminal inves~ima%ion?

2!

A

22

2~

n*-r~ case

24

25

Yes ~ =~ s~ ~ not criminal in na~ure~

Co:art Reporting Service, inc.

i-800-879-i700

Page 17
8LEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 6 of 162

i

investigation is just like what it says, in a sense, is

2

to coiiec~ intelligence on an individual°

3

Qo Can it possibly turn into a criminal

investigation depending on what intelligence is

5

6

Ao That’s what the criminal -- ~here~s usually a

7

corresponding criminal investigation, and Chac is the

8

vehicle for the criminal investigaciono in%ei

9

investigations, in my understanding, remain or

i0

that’s the intent is ~o remain intelligence only.

Qo is there always a

criminal

_2

investigation with an intelligence ±nvescigacion?

13

Ao MOo

!4

Qo in Harch of 2003, do you recall who your

suoervisor was?

i6

Ao

! -- noo But i believe it was

Dezihano

i7

We have -- there was a change°

Noel Brown

~ec~ su~erv~sor sometime in ~o4 or Ueo

i9

oe~Aeve ic was

20

T f

Dez±hano would you mind soe

2i

first name° ~s~ihan is

22

D-e-z-2-h-a-n o

Dezihano He~s co~ bv Dez

23

Qo

Thanks°

24

You were the lead case

on che

25

investigation of Hro

is that

Court Reporting Service, !nc.

1-800-879-iV00

28
SLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 7 of 162

believe you knew the criteria for opening them?

Yes° I can’t recall the exact criteria now.

But yes ~

Qo Can you open an intelligence investigation of
an individual if you have no bel~=÷ that the person has

6

com~,itted criminal

A.

i believe so~ yes°

8

Qo But you’re not sure?

9

A.

i De’±~!eve you can ooen an

_

’ ’ ~li@~n~ case

You could

back then.

!i

Q

Not any ]o~ =r°

12

Right.

13

have changed?

14

Yes,

How did that change come about?

16

T~=~,~ was a merger -- ~here was a -- the~o

i7

case and the criminal case were separate,

i8

and uhey merced in%o one uerrorism inves~igationo So

i9

there’s -- i~s outdated~ the ~erms now that which we

2O

were

you

which we had back in ~01

21

and ~’ and ~c~R

22

Qo And when did that

occur?

23

~o Semtember of ~03~ i beiieve~ approxima%eiyo

24

Qo What’s the

implications of ~hat?

2<

Ao Before it was ~n~e±

worked just the

H & H Court Reporting Service, inco

1-800-879-1700

3O
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 8 of 162

intei case. And there didn’t need to be a

2

corresponding criminal case like i mentioned earlier.

3

But sometimes there were oftentimes there were. And

4

if there were, the con~.unication was separated in a

5

sense, iney were almost two semara%e tracks for

6

investigations. It’s been

Q. What was the purpose of an intelligence

8

investigation?

Ao bEric~±y to collect in~e!iigence Not

i0

criminalev~o~n~e--{ ~= ~ as

a focus -- as -- as the foc~,q~ of a

i!

~r~n~l~.~v~s~~n-~ ~igation it’s just to

~o_i~nc,]e~l ;~ + .....

12

who is this person meeting with, who are they talking

13

to, you know

Qo And if there was a

criminal

:~v~±g~<ion, would the

agen~ handling the

i6

i7

smeciai agent

18

~ke

investigation be in contact with the

tb.e

investigation--

invesuiga~ion?

A o You could be in con~ac~o

2O

~o Ant wouie you ~< a m~trar Of ~rac-£ice in vour

2-.

exmerience?

22

Ao

Yes. Worked on ~%he same task force~ yes°

23

Q o How co~<:m~on was i~ %0 open an r_nEe±iigence

in a terrorism-reiaEed maz.ter?

25

Ao

iE was co~o~o

~ Reoortinm Service, inc.

1-800-879-1700

Page ~
C~EARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 9 of 162

I

reasons are?

2

Ao Yes° it’s Mr. ai-Kidd’s ~~n~.n~±a_ ties to

3

Hro Sami ai-Hussayen, checks going from Sami and others

to Hro ai-Kiddo

Qo Were you working on ~he ai-Hussayen

6

investigation prior to becoming the lead

7

on the ai-Kidd investigation?

8

Ao

The answer is i don~t know°

9

Qo Because you don~t recall?

i0

Ao

! don~t recall the dates°

i was the case

amen~ on Sami ~]-~ ~Hu~ssy.yell s intei case

n~,~ i don~t

12

know ~ 9~a9 came ~=: -~= ~o~ or after

_3

÷m{nk~=~, ~m ~ne tameo And= < forge~ what :Ame

you asked me, :T became

14

case agen~o

15

Qo so le~~ me sust ~hen se~e if i understanc

~Ao t

16

one ~oin~ you ~r~,,~_~ a case

on the

~e±±Agence

investigation of ai-Hussayen?

Ao Yes°

19

Qo ~_ ~hen a~ some poin~ you became ~he case

2O

~=~: on %he al-~s~ {~÷=~~-= inve

2!

A

V=ah i don~ recall which one came

22

m

.m....n~cn ~nt eiiimence investiga%ion

first?

23

Ao

Right~ right°

24

Qo The ai-Kidd investigation you said -- the

25

~n~~=~ investigation AnACAaceC in ~ ....

~e b~nt~e r of

X & H Co=rt Reporting Service, inc, 1-800-879-i700

109
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 10 of 162

i

701; is that correct?

2

~0i, right.

3

And you said you became aware of Hro ai-Kidd

October/November of ~01; is that correct?

5

That’s correct°

6

And that was through certain payments?

7

Yes°

8

And those pa}~~enrs were part of the

9

investigation?

i0

criminal ~--~-~ga~iono

ii

:~nc so you think that intelligence may have

_2

come about after ~h~ crimi~a± investiGat!on r

A~ it may have~ i don~t wan: to missta:e~ !

was case agen: on both, i don~t know what came first~

So were you simultaneously the case

on

i6 both?

17

Ao Yes°

i8

HRo HEEKS: Just clarify ~botho~ Do we know

which both?

2O

THE WITNESS: Yesh A]-kidd ~:~s al-Hu

HRo HEEKS:

that what you meant?

22

23

HRo HEEKS:

BY MRo GELERNT:

25

Qo Were you the lead case agen~ on the

Court Reporting Service, inc~

1-800-879-1700

Page i i~ ~
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 11 of 162

i

ai-Hussayen intelligence investigation?

2

Ao Yes°

3

Qo So that a you were the lead on both

4

intelligence investigations?

Ao Full p!ate~s an unders~atemen~o Yes°

Qo And it was your decision to open the

7

investigation of Hro ai-Kidd?

8

Yes°

9

You wrote the EC?

i0

MOo i did not draft

Were you the one who signed

12

Headquarters?

13

Ao Yes°

Qo Okay° So you were the one who was

15

~~..~... ~ ~ermission to o~en~

16

Ao Yes°

17

Qo Who drafted it?

28

TP~ TN~ Objec~ .....

on law

19

orivii~e grounds° This goes co the

~sec~2on we raised earlier°

2i

H~ Oka~ We disagree with that

22

23

Bv MR GELERNT:

24

Qo So i jus~ want 2o make sure

25

~ ~ i~nCo i~s possible the a2-n~s~ayen

H & ~-’ Court Reporting Service, inc.

i.-800-879-1700

211
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 12 of 162

i

intelligence investigation formally began after the

2

ai K~.e ~l_~e~jenc~ investigation?

3

~ s possz~e; yes. Yeaho

Q. Were you part of the criminal ai-Hussayen

5

investigation?

6

Ao No.

?

Qo

the

8

investigation began after the ai-Kidd intelligence

intei~ ~ ~_gen~

9

investiga~ion, how would the information abou~ the

i0

to Hro al-Kidd have come ~o your attention?

ii

A.

From theag~nc~ ~ working zne criminal ~

ma~÷e~r .

12

Q.

Of ai-Hussayen?

i3

A. Hnm-hm~.o

And that was Agent Gneckow?

Ao Yes°

i6

Qo Why would he have

~hem to you?

i7

HRo LEViNE: Objec:ion~ calls for

18

s©ecu/stA

THE WiTNESS:

would he ...n.~ v e

them to

2O

me? Because i was going %o be the agen~ %o work any

ln~el ma~%erSo

22

BY HRo GELERNT:

23

24

were

So that had already been decided 5ha5 you
to work the intei matters

25

A. Yes°

H & H Court Reporting Service, inc.

1-800-879-i700

1i2 CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 13 of 162

instruct the witness not to answer based on law

2 enforcement privilege grounds°

3

MRo GELERNT: Okay° We disagree ~ ...... w~en ~h~

4 asser:iono

5

7~d like :o mark this as Piaintiff~s

6

(Whereupon, Deposition Exhibit No° 4 was

7 marked for identification°)

8 BY MRo GELERNT:

9

Qo Take as much time as you need :o refresh

~0

your o.o

A~ ~m-hm~.o Okay°

12

Q. So you were one of the contac~ people for

13 this TECS entry?

14

A. That’s correct° ! was the case

case on ai-Kiddo

for the

16

MRo LEViNE:

can we

17 record that Exhibit 4 is UoSo i027

i8

MR G~T,~RN~¯ v=s

for the

BY HRo GELERNT:

2O

Qo Did you ask Agent Aivarez %o enter <his TECS

record?

22

So - think thi~ was years

23 i~~ he -- ~~e suggested that as a -- sometx:~±nc %hat they

2

25

i concur°

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CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 14 of 162

i

Qo Do you recall why you concurred?

2

Ao Like i said earlier, i’m intei agent on this

3 matter and i like to know as much as K can about ~he

4 individual°

5

Qo Wha~ would this information -- what would i:

6 have

you?

7

Ao Like I said earlier too, i~m not an expert on

8 TECSo

9

Right°

!0

Ao So it would have given me whatever --

ii

whatever Agent Aivarez told me it would have given meo

12 And i ~ .... _

T’m ~ecu~a~ng here

But -

13 think it’s -- ! don’t know if that’s privileged or nolo

14

Qo Would it have told you ~n,~: he was

or

the United States?

Ao it’s my understanding; yes°

i7

Qo Does it tell you what date it was entered up

on the ~om

corner?

19

it says 3/12/03o i assume that’s the da-ae~

2O

_ don’t know what tha~ means°

2!

Have you, ~~-~.-~~:"seen. ~P_is c.o" cumen-~ ~o=e~:~- r"’e:

22

Ao

23

No?

24

Ao

25

Qo How about without the ~’---{~ ~o

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 15 of 162

i

Qo Okay. You said you had two interviews with

2

Hro ai-Kidd in his home; is that correct?

3

Ao Yes.

4

Qo Do you re,a_± whether it was his home or a

family member’s home?

6

Ao

K doo

7

Qo And what?

8

Ao

i believe ~s his mother’s home and he was

9

living there°

i0

Qo And was anybody else present when you were

over there?

12

Ao i =hink his mother was there°

And his

there’s a son there too° His son°

i4

Qo Do you recall wha~ --

Ao Which time?

16

Qo We!i~ that’s ~~ne o Le~s -- you’re

there ~o focus me on that° The first ~ime you wen=

i8

over ~here was his mother there?

19

~

i be~=~=

o

2O

~o Was h~s son ~here ~he first

2!

.~ ....

e±ieve so o

22

~ The second time, was his mother ~here°

23

A < don~t remember if his mom was ~here

24 second time° She may have been°

25

Q How about his son ~he <= ~ ::~

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163
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 16 of 162

i

And he was there?

2

Yes°

3

You went to his house on that first

occasion J--

Yes.

6

-- and he was there?

7

Yes.

8

And you interviewed him?

9

Yes.

i0

And did you identify yourself as an FBI

ii

agenc?

12

Ao Yes.

13

And Agent Donovan was there this time with

14

~ R

Ao Yes.

~6

Q

Ane did you inform him that he ’~ not have

17

co talk with

18

i believe so, yeaho

19

He

co caik with

2O

2i

Do you recall how long the interview ias~zed?

22

~ don~c recall°

23

24

_ oA Moo,, ~- was mor~eth~art ~

o it was less t~an

two hours and more ~han five minutes.

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CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 17 of 162

i

Yes°

2

You told him that he did not have ~o talk

3

with

4

Ao Yes°

b

Qo And you told him it was clear to him ~hat

6

he didn’t have %o answer any questions he didn’t want

7

to?

8

Ao i ~oid him he didn’t have ~o talk to meo

So

9

i presume he knows he could

i0

Qo

Ao -- didn’t have to answer any ques~ionso

12

He agreed to talk to

13

Yes°

14

Qo How did the second interDviiedw come

15

you this ~ime~

formed a reiationshi~ wi%H him,

i6

call him %his ~ime in advance?

7

Ao

i believe SOo ~ believe SOo

i8

Qo And you asked if you could come over and ~alk

with him again?

- believe s~ yeah i<~s hard for me %o

21

r sDec:z~cai±yo ~ut that <ounCs right°

22

And so you wen% over :~e~e ~he second time?

23

24

25

lasted

~,-~ do you recall whether that interview the same

as the first one?

Court Reportin@ Service, inc. 2-800-879-1700

CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 18 of 162

i

Ao i can’t remember how long that one lasted

2 specifically° it was -- I wasn’t -- i have no

3

recollection h

t~.a~ was ~o~g or _~ was very

4

short° i~ was just a talko

Q. ~m-hm~.o But was i< less than five minutes?

6

Ao No.

Qo <t was a significant talk?

8

¯ ~a~ o

9

Qo And~

he understood he didn{t have to

~0

answe:~ Guest, ’ q i{ he d:iei~~+ " ~ to?

i!

Ao Right°

That was my understanding, yeaho

it

12

was voluntary°

i wasn’t

him° He wasn’t under

i3

arrest.

14

Qo Okay°

A And he liked to talko

i6

And so he volunteered a ioc of information?

17

Ao

Qo Okay. Ks that a yes?

i9

Ao Yes. i~m sorry.

Did you ever ask co interview him again after

2_

Ao

recoiieccion is when ~ left ic with him

23 thau can - ~ k %o you can i call you

he said

24

sure° it was amicable.

i elQn~t set a

25

go

And -- but you never had any furCher contacs

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Page i74
CLEARY ~ JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 19 of 162

1

him until the Ada County jail?

2

Ao That’s correct°

3

Q. Do you recall why you didn~ con~.~~÷ him

4

5

Ao

Yes°

6

Why was that?

Soon after i talked to him the second time, i

8

was feelings~r~t~"~ good abou~ i~o You know~ we had,

9

~x~ou~n~ ~ snruck up some kind of rapport°

grea~o But i know we were amicable to each o~hero

it’s my understanding that he contacted the

i2

Seattle Post ÷ ~ ~ ~-±n~e!~gen~er and provided an interview

13

and mennioned that he had been contacted by me non

14

by meo i don~t think i was named nersonaiiyo But by

someone from the FBio And that i decided after that

16

that i should not contactn~ ~ agaAno¯

Qo Okay You don~t know whether he ~ ~ s

18

she paper or the paper contacned

do

i9

Ao i believe he

But

2O

non cer~aino

2~

~ny do you ~eii~eve ~hat?

22

co~i t £now why i

23

Qo Okay° Do you recall Hro ai-Kidd saying chat

ai-HultaGa had a transienn leadership?

25

Ao i remember him

was

H & H Court Repor~ins~ Service, inc.

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CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 20 of 162

Qo What did he tell you?

Ao First-class ticket

i~m trying to remember°

it all gets jumbled because ! -- i~ve learned things

since° But i think it was something about a ticket to

5 Saudi Arabia, ~~~~s booked :~±cor -- you know ooo

6

Qo

else you can recall --

7

Ao HeWs leaving°

8

Qo Anything else?

9

Ao No.

Qo Do you recall him talking ~o you about when

Hro ai-Kidd was going to return?

12

Ao No,

13

Qo Did he say it was a one-way ticket or did he

i4

noc ~e .... on9

Ao ! don~t remember him saying one way or round

i6

: ~4 O or

i7

Qo ~w-ere you co~ce:~e .~...~. a that Mr ai-Kidd was

18

co Saudi Arabia?

Ao

Yes. He was leaving, Yea

2O

Wha~ was your concern?

2

Th.aT. we’re

to lose a wi7.ness

22

Qo P ~ ~ for what?

23

Ao

For ehm ai-Hussayen~_~-~se

24

Why were you concern~H~ you~o. i~<=~ a wiuness?

25

Ao

~o~n~’-= he was leaving -- or

a

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CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 21 of 162

i

witness was leaving°

2

Qo But you didn’t know how long he was

3

for~ is that correct?

Ao Yes; that’s correct°

Qo And so if he was

6

would you have lost a witness?

back in two days,

7

Ao Nopeo i would say noo

8

Qo Was ~hac -- when Agent Aivarez informed you

9

of the ticket, was chat the firss you had Heard that

Mro ai-Kidd was thinking about going %o Saudi Arabia? Ao First time ! heard he was going so go to

12

Saudi Arabia~ yes° That’s my recollection that’s %he

13

firss time i heard he was

so Saudio

Qo Do you remember giving Agent Gneckow --

!5

strike that°

16

Did you ever give Agent 6neckow your view on

i7

whether he should seek a maseriai witness warrans or

K8

i9

Yes°

~wna~ e~e’~ ~ you tell Him?

2i

Ao

said ~ ~k

22

And why was that?

23

~se He needed Him to %escify

26

i said it was -- it was -- it’s His cai

25

~we~~, actua

iiy it was the prosecu%or~s call

o But He

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192
Ci~EARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 22 of 162

i

asked me what my opinion°

2

Qo Agent Gneckow asked you your opinion or you

3 volunteered?

Ao Noo He asked me.

it’s my understanding, my

5 recollection°

6

again, it’s not our decision°

it’s the

7

prosecutor’s decision°

8

Qo But you said you

should because

9

Hr. ai-Kidd’s testimony would be valuable in the

ai-Hussayen trial?

Ao Hro ai-Kidd~s testimony would be1 yes,

invaluable o

i3

You

it would be invaluable?

14

Yes o 7t_ would be very

Okay° And your concern was that if

i6

Mro ai-Kidd was in Saudi Arabia he couidn~t testify at

the trial?

18

~o i ~eiAeve ....

we couldn’t ensure h~<

i9

2O

~~o

But a~ that ~int you ~~- ’,~,

~c no --s~rike that°

2i

When you offered th~r

~p~ N~n~

22

know the criteria fors~eK~i~g~ ~ ~ a materiai -~:~nessw:

23

warrant,

.u~c you:

24

Ao

i did not°

25

Qo And you didn’t know ~+~=~ m< a~-X~dd

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1-800-879-1700

Page i 93

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 23 of 162

i

on traveling to Saudi Arabia?

2

Ao No.

3

Did you

learn?

4

Ao Yes°

b

Q. And what’s your understanding of that?

6

Ao

From an -- an interview°

7

THE WITNESS: Can i consult really fast?

8

MR° ~~LSRNi: Sure°

9

<Brie~ ~ pause°)

i0

THE WITNESS: All right, i know your answer~

Lee o i2

HRo GELERNT: Do you wan~ that Guestion read

13

back?

14

WITNESS if you could.

15

(Record read as requested.)

16

THE WITNESS;

17

was his plans in Saudio

~8

BY HRo GELERNT;

i9

Qo And you’re no~ sure how you learned?

Ao

Hy recoiiec~ion~ i learned i~ =~ ~

1~o~. <he 302

2i

-~kat eke WFO agents wro%e wl<’_en %~-ey irLLerviewec him in

Du!ies.

23

WFO is the Wasl’~ington --

24

Ao

field office,

25

Q o Okay° And you learned wka%?

H & H Coirt Reporting Service, inc,

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CLEAPr , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 24 of 162

i

Ao

That he was going to go ~o school in Saudio

2

Qo Did you ever talk with those Washington field

3

office agents after they interviewed him?

4

Ao i don~t recall i did° i believe Hike may

5

have° But i don~t remember ! did°

6

i know i talked to them before on other

7

ma<terso

8

Qo On other matters?

9

Ao

Because i~m familiar wi~h

i0

Qo Hatters other than ai-Kidd or

yeaHo

Ao

Yes°

i2

Q~ Did you ever talk to them before or after

13

Hro ai-Kidd~s arrest abou~ ai-Kidd?

i4

Ao

Did i ?

15

Yes o

16

MOo

17

But

Gneckow did?

i8

Ao

i beiieve he did°

And K believe He told me

i9

abou~

2O

c~a~ ~ tell you a~ ....

÷ it?

How his ....... ~o~ was ~ the

of %~e 302°

22

Qo And do you recall what He said?

23

Ao MOo i can read the 302°

24

Okay°

25

i ~nK he was pissed°

i think

M & H Court Reporting Service, inc. 2-800-879-i700

207
CL8ARY , JOSSPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 25 of 162

I

Ao

Yes°

And is it of your second interview

3

Hro ai-Kidd?

4

Ao Yes°

HRo ~LERN~ Okay° We may Be done° But

6

we’re going to take a f~ve-~nu~e break jus~ ~o be

7

sure°

8

(A short break was taken°)

9

HRo GELERNT~ We’re concluded°

i0

THE CO~R~ REPORTER~ Would you ±~ke him

ii

read and sign?

12

HRo MEEKS~ Yes~ we want to read and

13

Whereupon, the deposition was concluded

14

b

Signature remuestedo)

16

i7
i8

19

2O

2i

22

23

24
25

H & H Coart Reporting Service, inc.

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2i9
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 26 of 162

That ~ am the witness named in t:he foregoin~ d:epesition; that I have read said deposition ~nd kn~ the c:ontents tbmt the questions conta£nedltherein we~eprepeunded to me; and that the answers there±n con~ined are true and c~rrect, emcept for any ~has~es that I may have lis~ed on the Chan~e Sheet attached
DATED this ~ day of

SUBSCRIBED AND SWORN to before me ~his

d:ay of

N~HE OFNO

"

NOTARY PUBLIC FOR

HY C©HIIISSI©N EXPIRES _

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 27 of 162
Exhibit 14
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 28 of 162

IN THE UNITED STAi~S D~R!b~ COURT

FOR THE DISTRICT OF IDAHO

ABDULLAH

Case Noo 05-cv-09~ =~= ~HW

vso
ALBERTO ~ONZALLS, Attorney General of the United States, et aio,
Defendants°

DEPOSITION OF ROBERT DAVIS

TAKEN ON BEHALF OF THE PLAINTIFF

AT 115 SOUTH SECOND

COEUR D~ALENE, IDAHO

NOVEHBER 30, 2007, AT i0:00 AoHo

Coeu~ d A~ene, ~daho No~thegn Offices 208 765.] 700
] .800.879.] 700

Spoha~e, Washingtor~
509.455.4515 1.800.879,1 700

Boise, daho Southern Offkes 208.345.961
] .800.234.961

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 29 of 162

APPEARANCES

2

3

LE’E- G~mL~RN~~2, Attorney at Law, of_the £~ r

~2~m -- ~ERiCAoNf

b±ViL L~BSR2~s~ UNION FOUNDATION, i25 Broad Street~ !8th

4

Floor, New York, New York 10468, appearing for and on

behalf of the Plaintiffs°

5

BBJ~NT So LEViNE, Attorney at and Jo ~!~RCUS HEEKS,

6

Attorney at Law, of the firm of UNITED STATES DEPARTHENT

OF JUSTICE, Post Office Box 7146, Ben Franklin Station,

7

DC 20044, appearing for and on behalf of the

Defendants°
8

HENRY Ro FELiX, Attorney at of the FEDEK~L BUREAU

9

OF INVESTIGATION OFFICE OF THE GENEraL

936

Pennsylvania Avenue NW, PA-4@0, Washington, DC 20535,

i0

appearing for and on behalf of the witness°

ii

Also Present:

~_~_~ COOLEY

12

ZAC HUDSON

i4

i6 i7
i8
19
2O
2i 22 23 24
25

H & H Court Reporting Service, inc. 1-800-879-100

Page 2 DAVIS, ROBERT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 30 of 162

i

THE DEPOSITION OF ROBERT DAVIS, was taken on

2

behalf of the PLAINTIFF, on NOVEHBER 30, 2007, at the

3

COEUR D~ALENE RESORT, 115 SOUTH SECOND STREET, COEUR

D~ALENE, IDAHO, before H & H Court

Services,

5

inc~,

JULiE

Court Re~orter and Notary

6

Public within and for the State of idaho, to be used in

7

an action pending in the United States Distric~ Court

8

for the District of idaho, said cause being Case MOo

9

05-cv-093-EJL-HHW in said Court.

i0

AND THEREUPON, the following %estimony was

adduced, ~o wit;

i2

ROBERT DAVIS,

13

having been first

sworn to tell the truth, the

14

w~o~ ~ truth, and nothin@ but the

relating to said

cause, deposes and says~

16

EK~2diNAT iON

i7

BY HRo GELERNT;

i8

Q~

~~oso~rKni~o ~g~ s ..... ~ ~ ~ name’s Lee Geiern~

i9

and ~~m one of ~he iawyers for th=

2O

case~ i ~rr~ : ~

you’re io~ a celenoan~ in <3his case~ Coffee_?

22

Correct°

23

Have you ever had your c~c~si~ion %aken

24

before?

25

Ao

i have nOlo

H & H Court Reporting Service, inc.

1-800-879-i700

Page 4
DAVIS, ROBERT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 31 of 162

I

NO.

2

Okay° in February of -- strike ~hato

3

Were you ever Agent Gneckow~s supervisor?

Yes°

5

Do you recall what period?

6

i don~t recall specifically, but Agent

7

Gneckow was reassigned from the Coeur d~Aiene office to

8

~he JTTF somewhere

that period of ~imef a~ which

9

time i ceased to supervise him on a daily basis°

i0

Qo

Okay° Do you recall roughly when ~hat

ii

12

Ao

i don~to

Qo

Okay° So when he became

you no

14

longer supervised him?

Ao

Correct°

16

Qo

Would you be able to

i7

~ ~

yearo

it within a

i8

A

- would only be s~ ....

~{~

~oq

Okay° So you couidn~ even say whether i~

2O

was 2001

or 20~

21

o

Z don~t know i @on~ .....

~o

22

Q°

Okay° So ~-~ ....

s~rike that°

Are JTTF

23

~ a differen~ ~ ~ ~’ ~ng?

24

Ao

Yes.

25

Qo

i just wane to ask you some general

H & ~i Court Reporting Service, lnc.

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DAVIS, ROBERT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 32 of 162

based on your

career at the FBio WhaE~s

the difference between a criminal investigation and an

in~eiiigence investigation?

Ao

Criminal investigations are generally

poin:ed cowards prosecution° Normally intelligence

6 investigations have other goals°

7

Okay. What are some of <hose other goais,

8 if you know?

9

A.

Weli~

virtue of the name of~,~ to

i0 develop

information°

ii

Okay° So you ask a stupid questionl you

12 get -- can there be an intelligence

13 without a

criminal investigation?

14

Ao

i guess it would depend on the time frame

you’re

about°

change°

Qo

have changed at the FBi~ you’re

18

have°

i9

2O

period be?

Okay° And so wha~ would the reievan~ <ime

Ao

22

l~m nou sureo

23

Qo

Okay° But you had some reason for

24

would deoend on the time frame?

25

A

We~ years ago~ in ~he 8~u-o~~...h...=. r~ were

M & K Court Bepor~in@ Service, into 1-800-879-1700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 33 of 162

i

supervisor?

2

Ao

Supervisors advise° If something is

3

amiss, they will say ito

They’re to supervise the

agent° if an agent is

a course that is not in

5

keeping with FBi policy or there’s some reason, they~ii

6

make it known°

7

Qo

Okay° But you wouidn~ -- okay° So i

8

wan~ to -- if Agent Gneckow

a material witness

9

warrant for Hro A1-Kidd when he was part of the JTTF in

i0

Hatch of 2~3, who would have been the supervisor that

ii

he would have gone to? Would that have been you --

12

Ao

No, it would not have been meo

i3

Qo

-- or Norm Brown? Norm Brown?

4

Ao

Norm Brown°

15

Q.

So you would not have been the person

16

who -- strike that° So you would not have been invoived

17

in the decision to seek the --

Ao

i wou±~ have been a~vASe~o

would have

i9

been told tha~ i~ was goinc to :ake place°

2O

yOU ~~u ....~...m...h.ave not been ~he one ~

21

coilcu_r ?

22

Ao

i couid have input°

23

Qo

mO yo~ recami ii~V~ii~

24

Ao

! do no~ recall°

25

Qo

And you don~t recall

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 34 of 162

i

decision?

2

A

~ don’t recall

3

recall whether i did or not.

4

But the details would have gone to Norm

Brown?

6

Ao

Most ±~ ±k~ e~y.

7

HR. GELERNT: Okay. i~d:=~ke to mark this as

8

Plaintiff’s io

9

(Exhibit i was marked.)

i0

HRo GELERNT; For the record, this is the Response

i!

of Defendant Hichaei Gneckow to Piaintiff~s First Set of

12

in~errogatorieso

13

And i don~ want to ask you about all of

14

it. ! just wan< to turn your attention ~o

No. 3 on page 4 and

ask you about one line in

16

~~e:-~~o itnhe

answer about

it says,

~< .... ~<orv S~ Robert A Davis (~=:~red),’~ and it says

i8

in ~ ..... ~=<es ~’SA Gneckow’s suoervisor~ who concurred

i9

in ~he decision to seek a ma~eriai witness arres~

wa~_~ :or Piaintiffo~

2!

Ao

Okay°

22

is that correct?

23

i don’t remember par~icuiar discussions°

it’s likely that they took place° i jus~ don’~ remember

25 ~hem at this

in ~imeo

H & M Court Repor~zing Service, inc.

1-800-879-1700

49
DAVit

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 35 of 162

CERTIFICATE OF ROBERT DAVIS

OPdGtNAL

I, ROBERT DAVI$~

first duly sworn~

That i am the witness named in the

that i have read said deposition and know the contents thereof;

that the questions contained therein were propounded to me; and

that the answers therein contained are true and correct~ except

for any changes that ! may have listed on the

attached hereto°

~ATED this

day of

~

and say: Sheet

~BsCR~B~ AND SWORN to before me ~nks ~ 2007°

day of

N~E OF NOTARY PUBLIC NOTARY PUBLIC FOR RESIDIN6 AT

1-800-879-1700

M & M COOLRTRE]]OR- TING

INCo

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 36 of 162
Exhibit 15
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 37 of 162
Egon Dezihan, 12-14-2007

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

______________________________________________________________

)

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

No. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney

)

)

General of the United States, )

)

et al.,

)

)

Defendants.

)

______________________________________________________________

DEPOSITION UPON ORAL EXAMINATION
OF
EGON DEZIHAN ______________________________________________________________

9:54 a.m. December 14, 2007
100 South King Street 360 Seattle, Washington 98104

JACQUELINE L. BELLOWS CCR 2297

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 38 of 162
Egon Dezihan, 12-14-2007

Page 2

1

INDEX OF EXAMINATION

2

Page

----

3

Examination
4

By Ms. Goldfaden ----------------------------- 5
5

By Mr. Levine -------------------------------- 247
6

7

8
No. 9 ---

10

1

11

12

2

13

3

14
4
15

16

5

17

18

6

19

20

7

21
8
22

23

24

9

25

INDEX OF EXHIBITS

Description -----------

Marked ------

Electronic Communication, "Michael J. 84 Gneckow - sami.ec, 4-6-07,US 3114 -3132

EC, 12-11-01, US 2724 - 2726

90

EC, "Michael J. Gneckow - Lead.wpd,"

95

4-10-07, US 3137 - 3190

Identified ----------
84
90 95

Affidavit, Scott Mace, 3-14-03,

187

US 2951 - 2953

"Prepared Statement of Robert S.

208

Mueller, III, Director, Federal

Bureau of Investigation," 3-27-03,

"Interviewee Priority List,"

216

"Subject to Protective Order,"

US 2019 - 2035

FD-302, 12-17-01, "Subject to Grand

224

224

Jury Protective Order," US 3240

E-mail, "Michael J. Gneckow - re

225

226

Moscow 285 case link to Salt Lake,"

12-18-01, "Subject to Protective

Order," US 3135 - 3136

E-mail, "Michael J. Gneckow," 1-8-02, 226

227

US 3158 - 3174

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 39 of 162
Egon Dezihan, 12-14-2007

1
2
No. 3 --4 10
5
11
6
12
7
13
8
9 14 10 15 11 16
12
17
13
14 18
15
19
16
20
17
18 21 19 22
20
21 23 22 24 23 25
24
26
25

INDEX OF EXHIBITS

Page 3

Description -----------

Marked ------

1-A Envelope, cover, "Subject to

228

Protective Order, 1-24-02, US 1902

Identified ----------
228

EC, 1-26-02, US 2779 - 2781

230

230

EC, 1-29-02, US 2803 - 2807

230

231

EC, 1-8-02, "Subject to Protective

232

232

Order," US 2727 - 2731

EC, 2-4-02, US 2831 - 2834

233

233

EC, 2-13-02, US 1870 - 1874

236

236

Letterhead Memorandum, 4-5-02, US 1866 - 1869

237

237

E-mail containing EC, 10-10-2, US 3480 - 3488

239

239

Document to U.S. Attorney, US 2693 - 240

240

2695

EC, 1-15-03, US 1997 - 2002

242

242

EC with FD-302, 3-24-03, "Subject to 242

242

Protective Order," US 2687 - 2692

LHM, 4-5-02, US 1866 - 1869

243

243

Annual Letterhead Memorandum, 4-3-03, 243

244

"Subject to Grand Jury Protective

Order," US 3540 - 3551

EC, 4-7-04, US 1848 - 1863

244

244

EC, 5-13-04, US 1677 - 1679

244

246

Affidavit, Joseph M. Cleary, "Subject 250 to Protective Order," US 1580 - 1583

Agent Dezihan's handwritten notes

(to be provided by counsel)

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 40 of 162
Egon Dezihan, 12-14-2007

1
2
3 For the Plaintiff:
4
5
6
7
8 For the Defendants:
9
10
11 12 13
14
15 16
17 Court Reporter:
18
19 20 21 22 23 24 25

APPEARANCES

Page 4

ROBIN GOLDFADEN American Civil Liberties Union
Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111

BRANT S. LEVINE U.S. Department of Justice Constitutional & Specialized Torts P.O. Box 7146 Washington, D.C. 20044
HENRY R. FELIX Federal Bureau of Investigation Assistant General Counsel 935 Pennsylvania Avenue NW, PA-400 Washington, D.C. 2054535
JACQUELINE L. BELLOWS VAN PELT, CORBETT, BELLOWS 100 South King Street, Ste. 360 Seattle, WA 98104
* * * * * * * * * *

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 41 of 162
Egon Dezihan, 12-14-2007

Page 51

1

terrorism versus international terrorism is privileged

2

information. I'm going to instruct the witness not to

3

answer that question.

4

MS. GOLDFADEN: My standing disagreement.

5 Q (By Ms. Goldfaden) Is it correct that the JTTF conducted

6

intelligence investigations?

7

A

Yes.

8 Q And is it correct that the JTTF conducted criminal

9

investigations?

10

A Yes.

11

Q And can you explain what a criminal investigation under the

12

JTTF would be?

13

A I can explain what criminal investigations would be from a

14

broad perspective.

15

Q Why don't we start with that, then?

16

A Okay. Criminal investigation would be the investigation

17

where the end outcome anticipated would be criminal charges

18

under the laws of the United States to be charged against

19

individuals.

20

Q And intelligence investigations?

21

A Intelligence, from a broad perspective, would be a matter

22

that didn't necessarily involve criminal charges but had

23

bearing on the national security of the United States or its

24

citizens.

25

Q Is it correct that the FBI conducts non JTTF intelligence

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 42 of 162
Egon Dezihan, 12-14-2007

Page 53

1

A

Yes.

2 Q (By Ms. Goldfaden) Okay. For a JTTF intelligence

3

investigation -- is it correct that Mr. Al-Kidd was the

4

subject of a JTTF intelligence investigation?

5

A

Yes.

6 Q And were you aware of when that investigation commenced?

7 A December of 2001.

8 Q Were you aware at the time it was being commenced?

9

A

Yes.

10

Q Did you have any involvement in the decision to commence the

11

intelligence investigation?

12

A Yes.

13

Q What was your role?

14

A As a supervising authority on the opening of an

15

investigation.

16

Q Did you have to approve the opening?

17

A Yes.

18

Q Did you need to seek anyone else's approval for the opening

19

of the investigation?

20

A We would provide the fact that we were opening a particular

21

investigation to FBI headquarters.

22

Q "We" being whom?

23

A I would. The Seattle division would provide that

24

information to FBI headquarters, to the ITOS that we've

25

referred to, the International Terrorism Operations Section.

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 43 of 162
Egon Dezihan, 12-14-2007

Page 251

1

C E R T I F I C A T E

2 STATE OF WASHINGTON )

) SS

3 COUNTY OF KING

)

4

I, Jacqueline L. Bellows, a Notary Public in and for

5 the State of Washington, do hereby certify:

6

That the foregoing deposition was taken before me at

7 the time and place therein set forth;

8

That the witness was by me first duly sworn to

9 testify to the truth, the whole truth, and nothing but the

10

truth; and that the testimony of the witness and all

11

objections made at the time of the examination were recorded

12

stenographically by me, and thereafter transcribed under my

13

direction;

14

That the foregoing transcript is a true record of

15 the testimony given by the witness and of all objections made at

16

the time of the examination, to the best of my ability.

17

I further certify that I am in no way related to any

18 party to this matter nor to any of counsel, nor do I have any

19

interest in the matter.

20

Witness my hand and seal this 3rd day of

21 January, 2008.

22

______________________________

23

Jacqueline L. Bellows, Notary

Public in and for the State

24

of Washington, residing at

Arlington. Commission

25

expires October 19, 2010.

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 44 of 162
Exhibit 16
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 45 of 162

rN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLA AL-KiDD~ Plaint±ff,
ALBERTO GONZALES, Attorney General of the United States; et aio~
Defendant.

NO. 05-CV-093-EJL-HHW

DEPOSITION OF HiCHAEL Jo GNECKOW TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D~ALENE~ IDAHO DECEHBER i~ 2007~ AT 9:00 AoHo
Charlotte Ro Crouch~ oq~b~~Ro~ 192 Public

Cee~.~" d’Alese, {daho Northern Offices 208.765.1700
1.800.879.1 700

5poka~e, Washing[o~ 509.455.4515 1.800,879N700

Boise,{daho Southern Offices 208.345.96]] ~.800.234.96]]

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 46 of 162

I APPEARANCES
2

3

Hro Lee Geiernt~ Attorney at

Civil Liberities Union

4

i8th Fioor~ New York, NoYo 10468,

Dei~aii of the Plaintiff°

5

As.erican 125 Broad Street~
for and on

6

Hro Jo Harcus Heeks~ Attorney at Law, UoS~

of

Civil Division~ Ben Franklin

Station, Po Oo Box 7146,

DC 20004

appearing for and on behalf of Defendant°

8

9

Hro

Ro Fe!ix~ Attorney at Law~

Federal Bureau of !nvestigation~ Assistan~ General

i0

Counsei~ 935 Pennsylvania Avenue NoWo~ PA-400,

DC 20535~ appearing for and on behalf of

ii

~he Defendant°

i2

H_o Brant So Levine,

at Law,

13

United States Department of Justice~ Civil Division

1425 New York Avenue NoWo, Po Oo Box 7146,, Wasi<ington~

14

DC 2~~5’~,

for and on behalf of the

ezenean~ o
i5

i6 ALSO

Ms.

and Mro Zac Hudson,

assisting Hro Geiernto

i8
19
2O
21 22 23 24 25

v & H ~ ..... e Reporting Service~ inc,

i-800-879-i~;00

2
GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 47 of 162

i

THE DEPOSITION OF HICHAEL Jo GNECKOW, was

2

~aken on behalf of the Plaintiff, on this !st day of

3

December 2007, at The Coeur d~Aiene Resor~, ~i5 So

4

Second Street, 7th Floor, Boardroom MOo

5

Coeur d~Aiene, idaho, before H & H Court

6

Service, inco, by Charlotte Ro Crouch, Court Reporter

7

and

Public within and for the Sta~e of idaho,

8

~o be used in an action pending in ~he United SKates

9

Dis~ric~ Court for the District of idaho, said cause

i0

being Case Moo 05-cv-093-EJL-HHW in said Court°

ii

AND THEREUPON, the following testimony was

12

~o wit~

13

MIbHALL

14

been first

sworn ~o tell the

~ R

whole

and no~hing but the

the relating

16

said cause,

and says~

i7

EK~i%~iNATiON

18

BY HRo GELERNT~

Qo Good morning° Would you s~a~e your name

2O

for ~,~ -~ ~ ~

Ao

Hichaei James Gneckowo Last name spelled

22

23

Qo Thanks°

name is ~ee Geiernto i~m one

24

of ~he lawyers for the Plaintiff in %his case°

going to be

you questions°

H & H Cou.rt Reporting Service, inc.

1-880-8

GNECKOW, KiCHAE~ J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 48 of 162

i

Qo Did you get into any details about what the

2

deposition was about?

3

A. No,

Qo i assume you’ve testified in court before,

but correc~ me if i~m wrong°

6

Ao Yes°

7

Qo And were those in your capacity as an FBi

8

9

Ao As an FBi agent~ and as an agent with the

i0

Naval Criminal investigative Service°

Ii

Qo Approximately how many <imes have you

i2

~estified in court?

13

Ao

Hore than twenty, !ess ~han fifty°

Were you ever the Defendant in any of those

cases?

16

Ao No, sir o

17

Qo i just want to briefly go over your

i8

employment back,groundo Where are you

i9

em-ci~y~d~

2O

........... y

at -- in the Sai<£

2i

Lake City S~Bi Field Division a~ the Coeur d~Aiene~

22

idaho Residen~ Agency~

23

a

is that as a S~eciai

24

A~ V=s

25

And how ion@~ have you been a

~<m=<{~,~_~ Agent

H 6 H Court Repor~ing Service, inc. 1-800-879-1700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 49 of 162

i

in the Coeur d~Aiene office?

2

Ao Since Hay of 2000°

3

Qo And prior to that~ were you

4

FBi?

5

Yes°

6

And where was that?

7

i was in the Albuquerques~sion,

8

New Mexico from the fail of ~97 <o the

9

spring of 2uu0o

±U

Qo

Was that as a Special

ii

Yes°

12

And

~o that, were you with the FBi?

i3

Yes°

14

Where was that?

!5

i was in the Atlanta Field Office from ~96

i6

i7

Was that also as a Smeciai

18

Yes°

Anc prior ~o %hat?

2O

Ao i wa< wi~h the Naval Crimi~-~

21

Service in

South b~ro!ina in 92

ll

23

And wha~ capacity were you?

24

Ao

25

Qo An FnY Smeciai ~ ....

o

Court Reporting Service, inc.

i-800-879-i700

Page 9
3NECKOW, HiCHAE[ J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 50 of 162

i

be used?

2

Ao A letterhead memorandum is a document that

3

is designed for dissemination outside the FB!o So it

4

has multiple -- it has multiple uses° So, a criminal

5

inves~ga~lon that has ~n~ormacion ~ = -

~ that

~h~ FBi would

6

want to have disseminated outside of the FBi can be

7

documented in a letterhead memorandum°

8

Qo When you say outside the FBi, do you

9

actually mean outside the government~ or jus~ outside

i0

~he

ii

Ao it depends° it can be both° if you wanted

12

do disseminate something to a

government, for

exam~ie, that would potentially be ~he ~h~{~ ~o do

14

~hato

HRo ~L~RN~s kay° Let’s take a Kxve

16

minute break, if that’s all right°

17

HRo HEEKS: Sure°

18

~ ©fief recess was oaken

i9

xv HR ~P~ ~N~

2¢

uo~

~Wnen .c.i.~. i .....you

£4r~t Hear abo~Rt someone named

2!

Abduiia,~-xqdd°

22

Ao i% was in she fail of 2

23

remember

24

su you remember the PsrCU~’scence tXat lee

25

you co becoming aware of him?

Court Reporting Service, inc. i-800-879-i~:00

Page 5 3 {iCHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 51 of 162

i

Ao

Yes°

2

What was that?

3

in my criminal investigation of Sami Omar

Ai-Hussayenr there were documents that were

from UoSo Bank, and in those documents there was a

6

significant amount of money flow in and out of

7

Ai-Hussayen~s account, and one of the recipients of

8

money from his account and from another individuai~s

9

accoun~ was directed to a person who was identified as

i0

Abduiia Ai-Kiddo ~!na~ would be the ~::~ ~:~me that

-

ii

became aware of him°

12

Qo That was fal! of ~0i?

13

A

Fail of ~0i, yes°

Do you remember who that other person was?

i5

~

The o~h=~ bank accoun~ ~erson?

i6

Q

Yes°

~ s name is A~Qui±a

i8

so, at that ~oin~ there was~::~-<=~s~o.! a

!9

Cr{m{na] investigation of Hro Ai-Hussayen?

2O

~x~-~ correc~o

2!

Qo Was there also an inteiiigence

22

invest!marion of~m~<::o :~.=~-Hussayen~ a corresmondi:~ JTTF

23

intei ±~±gence invest! -~ ~

×~-n~<sayen?

24

Ao

Yes~

25

Qo Which one began firstr ~he criminal or the

H & !4 Court Reporting Service, inc. 1-800-879-100

GNECKOW, {iCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 52 of 162

inteiiigence investigation of Hro

2

Ao The intelligence°

3

Qo Do you know whether it was ever a JTTF full

4

intelligence investigation of Mro Ai-Kidd?

Ao Yes.

6

Qo And ~!la~ was a full intelligence

?

investigation?

8

Ao Yes°

9

Qo Do you know who the case agent was on that?

i0

Ao Yes.

Qo Who was that?

i2

Ao That was Joe Ciearyo

13

Do you know whether

14

that intelligence investigation with Agent Cieary?

else worked on

HRo HEEKS: Objection ~o the exten~ we~ve

16

withheld names°

i7

THE WITNESS: Yes°

i8

BY HR o..e.s.~.s.R.N.i

19

Qo W~<~ there

~ ream~ ~ worki~ on that

20

2i

i don~t think so

22

Hro Clearly jus~ received the assistance

23

~< ~+~=-~ individuals?

24

A

Yes

25

Qo Do you know if Agent Aivarez was one of %he

Court Reportin@ Service, inc.

5 MICHAEL J

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 53 of 162

i

people he received assistance from?

2

Ao i’m sure he did, yes°

3

Q

Do you know when ~h{s ~

4

investigation of Hro A!-Kidd began?

5

Ao

but if -- i don~t know specifically

6

what day or what date it began, but it would have had

to have began after i received the financial

8

±nLorm~tiono

9

Qo Was it your idea to open an

i0

investigation of Hr. Ai-Kidd?

A

Moo

12

Q

Whose s idea was that?

13

A

i ~ n~t know°

14

Q

You didn’t ~articipate in that decision?

15

A

Moo

16

Q

When you received the bank records

17

o A~ K ....

s name, did you oass those

%o

18

someone who %Hen mav~ Have ma@e a .... =~ion to ~F~=~ an

i9

~+=iiimence invest{~ion?

2O

Ao Yes°

21

Q~ Who d{d you pass them =~ ..... ~

22

23

we~ve withhe~ certain names

24

BY HRo GELERNT:

25

Qo Just about what office?

Within JTTF?

H & H Court Reporting Service, inc.

1-800-879-1700

~6
GNECKOW, MICHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 54 of 162

I

Ao Yes°

2

Q. Okay° And at some

a decision was

3

made to open an intelligence investigation of

4

Hro Ai-Kidd?

Ao

yes°

6

Qo But you weren’t involved in that decision?

7

Ao

i was not involved°

8

Qo Do you know whether the bank records were

9

one of ~he factors in leading ~o the initiation of an

i0

intelligence

of Hro Ai-Kidd?

Ao Yes°

12

Qo And that was toad to you by whoever opened

13

the intelligence investigation of Hro Ai-Kidd?

14

Ao

i~m not sure how he knew, but ~ know°

15

Qo Do you know whether the JTTF in%eiiigence

16

investigation of Hro Al-Kidd was ongoing on Harch i4~

2003?

i 8

Yes o

19

was?

2O

2i

20@~

22

23

MR HB~KS~ is tAa~ ->~ .....

~ ...........

24

or was =E -- do you know wha~~o~_~.~=<~ian he

25

answered?

Court Reporting Service, inc.

1-800-879-1700

Page 57
GNECKOW, HiCHAEL J

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 55 of 162

i

but i don~t know°

2

Qo On both occasions?

3

A~ On both occasions°

4_

@o Do you recall what Agent Cleary told you

5

about the

f~rsc~ ~ interview with~ Mro Ai-Kidd?~

6

A~

Not specifically.

7

Qo How about generally?

8

Am Yes°

9

Qo What was that?

A o i was -- wei~~, when Joe ~~n~~=~r-v~ew=~~c Ai-Kidd

ii

it was mart of Joe~ investimation i was mrimariiy

12

interested ~n i ~ ~{ n that dealt with Al-H~<sayen

13

because that was the : ~--

14_

inceresto

i know fhaf Joe -- there were a number

of issues that Joe was going to discuss with A1-Kidd

i6

~ the inr~÷~ ~-~ ~,~o He

and then he discussed what

i7

~he results of those inquiries were with meo

19

Same ’~’~nin@ ~o~low-um :~~ the f~<<~

2O

2i

Do you remember any

22

Am if i had Joe’s remorc~ in

:ro~c ~ .... of me, _-

23

would obviously remember better, buc i do recail

24

chat -- my disappointment in the lack of informa%ion

25

and confirmati"on on i’ssues _re±~~-e+.s..~. Ai-Hussaye_no

M & H Court Reporting Service, inc.

1-800-879-1700

65
GNECKOW, MICHAEL g.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 56 of 162

Qo And would he have had a choice not to talk?

2

Ao Again~ i don’t know the circumstances of

3

how the interview was structured°

Qo So~ you never had that discussion with

5

about whether the interviews were

6

voluntary or no~?

7

Ao it’s not something that i would have

8

d~..s.c..u..s.sr~v,~witvhoJluone:tawrya?s ~he ~n~ - ~ew

9

Qo You earlier had said that Mro Al-Kidd

i0

didn’t hide

certain!nzorm~’ =

~=ion =~unaL~ you were

ii

interested in?

12

A Correc~

13

Qo You also said that you

Hr. Ai-Kidd

14

refused to divulge information --

15

Yes

i6

Qo -- that you believe ~ ~ ~

n~ nac but didn’t wan~

17

18

Ao

~Tha%’s correct.

~9

~Wo

Okay° -w-h~y did you iievbeehe had tha~

29

2i.

Ao

Hei!~

22

qnvesrAqa~ ~

23

=~ ~,~_u.~. S ~aiaElonSHl©

~he course of the A1-Huqsayen information ~ou~
with A] -HUSS~’,=an q~ we knew

that there was a reiationshi~ there We

25

informaEion that Ai-Kidd was a member of

Court Reporting Service, inc,

i-800-8V9-i~00

69
..... ’K~ }~TCHAEL J,

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 57 of 162

1

gathering organizationl this Ai-Hultaqa, developed

2

information that he should have

3

should have known about the operation of this webs±re1

certainly

ai-multaqaocoml and other issues like that, none of

5

which he cared to divulge to Joe

%he interview

6

excep~

in the most

terms, and refused ~o

7

identify Ai-Hussayen by name° in fact~ refused to

8

identify anybody by name involved with Ai-Hultaqao

9

Qo Do you know exactly how ~he questions were

i0

asked by Agent Cieary?

ii

Ao

No, i don~t know how the questions were

12

asked°

13

you’re basing i: solely on

14

conversations with

and his ~;r~+~w~~.... ~ noEes

!5

of the interviews?

16

Ao MOo i wouidn~t say that’s ~- ~ ~o .... ~

! know Joe. ~’ve been involved in inserviews --<~

i8

Joe and l~m comfortam~= with his

19

%echnicueso So i would say iu would be a combination

2O

Of my COnverqat~on~

my exoerience wi~h

with him, ~ ~ ~nc h~i< reoorm o

22

O_o Okavo Vo~± ~ said that you were c~,~.u~g-~-~-~ a

23

criminal inves~a+:~ ~on of

correct~

24

25

Qo Were you also

-- s~riKe that°

H & H Court Reporting Service, inc.

]-800-879-i700

7O
GNECKOW, MICHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 58 of 162

i

Qo Would you say that in 2002~ any part of

2

2002r would you have characterized Hro Ai-Kidd as a

3

possible co-subject of a criminal investigation?

4

Ao Yesr it’s en~ireiy possible he may have

5

been charac%erized as that early on, but so were other

6

people that had money flow going to them because we

7

didn’t know° We didn’t know where they fit° So~

8

wherever ~hat money was going~ those people were

9

possibiii~ies~ yet they could very easily have not

I0

or could have been° We

didn’t know° Big

i!

question mark°

12

Qo So~ then is it fair to say ~hat in 2002 he

had not -- Hro Ai-Kidd had not been defini<iveiy ruled

ou~ as

engaged in criminal

i_

HRo HEEKS: Objection; mischaracterizes his

i6

testimony°

17

You can answer°

18

THE .w....±. <iN~ mM~Oso: We ’~ ~ rule him ou~

We

19

did rule him out for criminal activity, a~ ieas~ to

2O

:he extent %hat we didn’t feel %hat he was in~o~ved in

~he crux of our investication of Ai-Hussayen

22

23

Qo ~ did you ruie him ~?

24

Ao ~ don~t know° At some

bu% un%il we

25

couid get answers about this money fiow, and not

< & < Court Reporting Service, Inc.

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GNECKOW, MICHAEL J~

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 59 of 162

i

understanding where it was going1 what its purpose

2

was, we had a lot of questions° It was eariy~ early

3

on in the inves~’ ~

clgac±o~, and we had a lot of

unanswered questions about the money°

5

You said you did rule him out eventually?

6

Ao Yes.

7

Qo

~Sut you used the words ruled

8

’~the crux of our investiga:iono~ i~m no~ sure

9

understood whattnac~ - meant°

I0

Ao

that’s an ~~r~r word for me

i!

use° And this kind of goes back again to what K was

12

saying w.~.<=..t.h.e n~~s~~=~ga.t.i..o.n is or ~ne activ~y~ and

i3

the activity here centered around what Ai-Hussayen was

14

doing° And as the money flowed, and as the links to

these websites were

we were iooking a~

tha~ were ~ied in one way or another to ~he

various activity in ~rying one determine wna~ did it

.......... ~ =~ mean°

And so, ear

numerous ~~eomie"who w"e had no £cea~ why is %~n..s.<. person

, we nae

2O

%hi< ~~nousanes of ’ ~iars ....co~

, ~

is this

22

didn~ know, So ...u.~.c:i we could

Enose answers,

23

ever%~hJn@ was jus~ a big Guestion mark

24

Qo And ~he~ y~u said at some

you

25

ruie m~m out as a suspect for crlmAnai activity; is

M & H Court Reporting Service, ins.

1-800-879-1700

Fage 7 4

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 60 of 162

!

that correct?

2

Yes°

3

And do you recall when that was?

i don~to

do you recall whether wha< year it

6

was?

7

A i’m ~,,r= it was in -- i don’t recall

8

smecificaiiy, but i~m sure 4~ was

9

Q o Would there be any documen:ation

i0

that he had been ruled out?

Ao There wou!dn~t be a need for documentation

12

to rule him out because he was never ruled in~

13

mean ~ ~~s ~a double negative~

14

Q~ <~~ou~~~e he have been taken o~_~{ the

line of your ECs?

i6

because as i men%ioned before, the

in 2qa°
So~ i ~um}ec~

17

names ~hat appear on the title block, the

18

i9

.... s~ maki~ sXe aiAecasions~ associases And

~U

2i

of ~u~y, because he :~

-- ......

he was

22

associa-3e of Ai-Hussayen, .......

he nao

23

about the~ccors ..... tha~ we were q nw~stima~ing,

24

remainee on %he iis~, as

did a ......

~

25

Q~ Do you know why Hr A]-Kidd <~ =~

M & H Court Reporting Service, inc.

1-800-879-1700

75
GNECKOW, MICHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 61 of 162

I

pa}<ments ?

2

Ao Yes i think I have an unders~and_ng for

3

that°

4

Q o What is that?

5

A o He was receiving those pay~.en~s as a salary

6

for working at A_~-Hul~aqa on behalf of Ai-Hussayeno

7

Q o When did you come to understand that?

8

Ao i~m not sure exactly° i definitely knew {t

9

~he~ time he was interviewed in Ada County.~ but ~_

i0

think i knew it we!l before that°

ii

Qo Well before his arrest?

i2

A o Yes o

i3

Well before the warran: was

for his

14

arrest?

Ao Yes°

16

Qo Do you know if there was ever physical

i?

surveillance of Hro Ai-Kidd?

i8

Yes~ i do know tharo

i9

Do you know who ~hat was conducted a~ the

2O

behes~ of?

21

22

the

24

2R

names~ certain names°

Court Remo-~tin@ Service, inc

1-800-879-i700

Oa~= 76 GNECKOW, R’I CHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 62 of 162

i

BY HRo GELERNT:

2

Qo Le~ me ask you specific a name that’s

3

already come out~

Do you know whether Agent Cieary was

involved in the decision to surveii Hro Al-Kidd

6

physically?

7

Ao i don~t knowr but i think he probably would

8

have been since he was the case agent on the in~ei

9

case°

Qo Do you know whether Hro Ai-Kidd was ever

ii

physically surveiiied as

of the criminal case of

12

A!-Hussayen?

13

Ao

No,

14

Q,

~e was not?

15

Ao

No.

16

Q o

Or you don~t know?

i7

7,

M~ was ~.O~

And that would have been my

18

caii o

19

Q,

Earlier and

2O

~ ~ beN ieve you ~aid that a-- some

i don

22

23

~your Al-Hassayen criminal i n~sriGa~2

26

25

A, Yes ~

H & H Court Reporting Service, inc.

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 63 of 162

I

Q. Do you know whether he was ever ruled back

2

in?

3

No. i mean -- is the question do i know?

4

Yes.

Yes.

6

You know?

7

i

but the answer is no.

8

He was never ruled back in?

9

Right°

i0

Okay. What led you to rule out Hro Ai-Kidd

i]

as a suspect for criminal

12

Ao Discussions° We had discussions among --

13

with the UoSo

~s Office abou~ whether there

was anything of interest° i mean once -- ! ~hink once

we determined what that money_ ~ow .... was a!l aDou~,~ ~ we

i6

said, weal, ~n~:e doesn’t appear to be

17

eoesn~ appear co be a~y~h{~m~ ~.~ ~ r~x - ~ ’~ ......

18

~nw-~ here as far as %k~ mor, ey r~ ~.

i9

co~c~:~co ~i’~aE was pro©amly our m~ggesn concern°

2O

Qo And earlier you said be~ause you learned

21

nnan ~the money was

for .~_~ ...... s

22

23

Ao Exactly° And the money

~o be

26

salary° i mean it was

every monc~

25

so i~ made sense°

& H Court Reporting Service, inc.

1-800-879-1700

Page 78
GNECKOW, HICHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 64 of 162

confusing names.

2

HRo HEEKS: Can i just ~ ~J to him real ~a~k

-

3

quick?

4

HR. GELERNT: Okay°

5

(Brief pause in the proceedings.)

6

BY HRo GL~ERNi

7

Q o Does that suggest you knew he converted to

8

islam, Hro Ai-Kidd?

9

Ao i~m sure i knew tnat o i mean at some ~.o~n~

~0

i~m sure i knew that.

ii

Qo i~m just -- you wouldn’t refer ~o him as a

12

Black Husiim unless he had converted, or would still

13

have called him a Black Huslim?

Ao i~m sure i would not have called him a

Black Husiim were he no~ a Black Husi~mo

16

Qo So you were aware in 2a~

uu~, a~ some ~oint in

2002~ that he converted?

A

yes i~m sureo

i9

Q o Yoa were aware that he was a U o So citizen?

2O

A o

i think i would lave known ~3ha-~ ke was a~

2i

leas% a U o So mersono

22

Q

~ ~ ©erqon ~ans?

23

Ao it means a U o So ci<~izen, a recis~ered

~-~ resident ai~en, in that .... -~ -

25

Q o

the r~ime you sought the warrant for his

k" & M Cos.rt Reporting Service, Inc.

1-800-879-!700

Page i i 6 GNECKOW, <iCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 65 of 162

arrest, did you know he was a UoSo citizen?

2

Ao Probably, i did° Probably°

3

Q. Native born UoSo citizen, did you know

that?

5

A o Probably, i did°

6

HRo GELERNT: Hark this as Piaintiff~s 16o

7

(Deposition Exhibit Number 16 was marked

8

for identification o)

9

BY MR ~_~T~

i0

Q o Have you ever seen this document before?

ii

Ao i~ve never seen this document, noo

12

Qo Do you know what type of document it is?

13

_~ .... T- looks like an NCiC prin~outo

i4

Q . From any ~

pa~uicuiar part of the NCIC~

.

15

HR. HEEKS: Objection; foundation~

i6

BY ~-4R G~T.m~N~ :

_7

~.~ __T~ yOU know.

18

A~

~ don" t ~

i9

Q~ Do you know who i~ relates

2O

MR ~smmK< ; Ob/ec~~ ...........

ion~

2.

BY HIS.. GF_LERNT :

Based on " =ookin~ at

A~ i can re- you the name on the

is

24

25

Q:

The third__ ~Ane’ ~ from the ~ot~om,~ ~o~o~s~ ~ iE say

H & H Coirt Reporting Service, inc.

i-800-879-1700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 66 of 162

i

A. You know, it’s difficult to say. I mean if

2

we were in the throws of trial prep in the A1-Hussayen

3 matter, I would have been busy doing other things. So

4

it’s entire I possible that he may have done something

5

like this, but I mean it was never -- nothing ever

6

came out of this. It was just a draft, so I don’t

7

know what the purpose of it is.

8

Would he have drafted it without your

9

input?

i0

A. Well, I’ve never seen this document.

ii

Q. Do you recall that he was thinking about

12

possibly submitting an affidavit in support of a

13

search warrant?

14

A. I do recall that there were conversations

15

about that, but I don’t know where that ever led,

16

other than I know that was never a warrant obtained.

17

MR. MEEKS: Are you okay? It’s 12:30.

18

(A discussion off the record.

19

(A lunch recess was taken.)

20

BY MR. GELERNT:

21

Q. In March of 2003, did you still have some

22

lingering suspicion about whether Mr. Ai-Kidd was

23

involved in criminal activity?

24

A. No, I don’t think so. I mean in March of

25

2003 we had arrested Sami A1-Hussayen, and the

M & M Court Reporting Service, Inc. 1-800-879-1700

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GNECKOW, MICHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 67 of 162

investigation was all about him° i mean and for a

2

period of -- a !ong period of ~ime up to that even°

3

Qo Prior to March 14i 2003r had you ever

4

received any training on how to use material witness

law?

6

No.

7

How about

to that?

8

i don~t think so.

9

on how to seek a mareriai

witness warranE ?

A.

NO.

Q. Under what circumstances to seek one?

i3

A. Moo

Q. so you know the standard zor obtaining a

ma%eriai witness warrant?

16

Ao Nor i don~to i mean --

17

Qo Did you know in March of -- did you know on

i8

March i4~

2003 wha~ the s~andard was?

9

Ao No.

2~

Qo Other than in ~he Al-Kidd man,err had you

21

ever soumh~ a material witnesswar=~÷~.

22

2~

to ~h~ A!-Kidd matter have

2

25

you ~he one who mace ~ne decAsion ~o

H & H Court Reporuing Service, inc.

1-800-879-1700

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i

seek a ma~e_~al witness warren~ for Mr Ai-Kidd?

2

Ao Not exactly°

3

Q~ Could you explain what you mean?

Ao

i made a recom=mendation to the

Attorney’s O~±ce that we should~o~ee~~ ~q~ ~ ~ ge~ng’ ~ ’ a

material

witness warrant° So it was no~ my decision,

but i made

a recoms~endationo

8

Q.

You initiated the conversation about the

9

material

witness warrant?

Ao

With the UoSo Attorney’s Office°

initiated with the UoSo Attorney’s Office?

Yes°

i3

Do you recall who in the UoSo Attorney’s

14

::~ce you

with?

i5

Ao

Yes°

16

Who was that?

17

Ao

Can i say his name?

i8

HRo MEEKS: Sure°

THE WITNESS: it was Assis~an~ ~ ~

2O

2i

22

Did you .... ~u~:c ~ thereever.y.c.~.a.ti.me when

23

you

24

A NOo

25

Did you consult w~:n anybocy else ~mou~ ~he

Court Reporting Service, inc.

1-800-879-1700

129

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 69 of 162

m ~~rqal witness warrant?

2

Ao When you say consult --

3

Qo Let me rephrase: Have discussions with

4

anybody else about seeking a material witness warrant

for Ai-Kidd?

6

Ao Yes.

7

Who was that?

8

Ao

i~ was --

9

MRo MEEKS: Again --

I0

THE WITNESS: Just the names that we can?

il

HRo MEEKS: Right.

i2

THE WITNESS: Joe .... b~ea:y, a~nd others

o

13

BY HR. GELERNT:

i4

How about Agent Aivarez?

i don~t think so.

i6

How about Norm Brown?

Quite possibly° i don~ recall

18

s~eci~ v bu~ cui~e p~ossibiyo

i9

Qo Now about Rober~ Davis?

2O

2

+~~~ we’re dea ...........

rney i~fice~ es

22

2~

Ta~ chat sort of

he would be involved in

24

that chain %o some

25

Qo £~m sorry.

ust warm to check° ~He~

K & H Co:rt Reportins~ Servise, inc.

1-800-879-i700

i30
GNECKOW, HiCHAEL J~

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 70 of 162

Davis?

2

Ao Davis, yes.

3

HRo GELERNT: For the record, i jus~ want

to make sure i understand° My understanding from the

5

governmen: is that you were going :o

us names

6

aims of people involved in the decision to seek the

7

warrant So ~he:~ shouldn’: really -- as %o the

8

Gues~ion, ~hat~s what i’m

now. So <hose namel

9

there shouldn’t be anybody that he can’t tell us

i0

about?~~<< tha~_ correct, or do you have a differen~

I!

understanding of where we are now? It may be tha~

12

he~s given us an exhaustive iis~, but i just wasn’~

13

sure about the conversation, of what you had pu: on

14

the record°

i5

MRo MEEKS: We have disclosed all the names

16

ofo~~< who were involved in the s=~sion-making

i7

process ~o obtain ~he material witness warrant°

18

Now -- okavo T,~~ 2~ leave i~ at

.... RN~: Okay° secause i just didn’t

2O

wan~ him ~o have a misimpression from you ~ha~ even if

Ehe ~=~<on~,~:~ was invol--veo’ in ~he~ c~c±sAon~ : ~ ~-~

seek a

material Wirn~<< W .......

2~

o~mouh ~hat oersono

he wasn’t, ai~ ....

24

HRo HEEKS: All righto _A~’s_~. ! think there’<

25

some confusion here° There’S a difference be%ween the

H & M Court Reporting Service, inco !-800-8)~9-i700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 71 of 162

1

And he was in your office as well?

2

Yes,

3

Okay° So you would have sought -- you said

you likely would have sought information from him to

5

include in the affidavit?

6

Ao Correct°

Qo Did you exchange information

8

hand? i~m just --

9

Ao i doubt that it would have been by e-maii

i0

because his -- again~ his desk is very close° it

ii

probably would have been face-to-face cos~unica~iono

12

Qo Do you recall whether he reviewed a draft

i3

of the affidavit?

i4

Ao i don~t recall him reviewing a draft of the

affidavit, nOo

16

Qo

Did you ever read him a __aft o: t

17

affidavit?

18

Ao

Co~ C recall°

~.9

~o

You @on~c recaii ~0~ CXaC?

2O

A~

2.

assu~e you x~ ~

~-

22

wi~h ~ ..... t ~ce recardin@ the affidavit?

23

Ao

Correct°

24

How did Chat conversa~tion occur?

25

We don~t have a mamis~ra~e cha% sits Umo

Court Reporting Service, inc.

137
GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 72 of 162

Qo i’m sorry?

2

Ao We don’t have a Federal magistrate that

3

sits north of idaho° So~ in order to have the

a~±ea~ sworn to in front of a magi-~-~

~e~ we had to

5

have an agent ~resent ~o do that, and so Scot~ was the

6

duty agen~ in Boise for that day° So ~ can’t recall

7

if i spoke %o him telephonically, or spoke ~o his

8

supervisor, and then a~ some poin~ i e-maiied to him

9

the affidavi~ minus the initial ~araGrash that he

i0

would have had to put in ~o identify himself for the

Ii

judge.

12

Qo Just so we’re on the same page~ is i~ fair

13

~o~ me to call that first paragraph a preamble°

14

Ao

i think that’s a fair characteriza~iono

Qo

~ i say

~ preamble" you’ll know

K6

what i’m ~aiking about?

17

Ao

Righ~o

i8

Qo Do you ever recall s~eaKing to Agen~ Hace

19

on ~ ~ele~hone about ~he warrant°.

2O

~o i~m sure i s~o That wo~ld be

so

2~

22

Wo

s~ ....

ever r~c~ii revising

23

in~eq©ons~~ ~ ~ to anything Agent Hace raised?

Ao MOo

25

Qo Do you ever recall

the af~idavi~

H & .~s Co:irt Reporting Service, ]nc.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 73 of 162

i

in response to anything Agent Cieary raised with

Ao No.

3

Q. Do you ever recall

the affidavit

4

in response ~o anything Agent A~~v,a~:~z said to you?

5

A. Moo

6

Qo Do you ever recall revising the affidavit

7

in response ~o anything Supervisor Brown said to you?

Ao Moo

9

Qo Any -- do you recall ever revising the

i0

affidavi: ~~ response ~o anything Supervisor

i!

might have said to

12

Ao NOo

13

Qo Was there

~ha: you showed to people?

HRo HEEKS:

i6

BY MRo GELERNT:

founda~iono

Q~ Let me just -- obviousiy~ your -- s%rike

that°

i9

Are you tyoinc the affidavi~ on a

2O

2!

22

~ype; {< that :~~ ir?

23

A. Yes°

24

Q, Did you ever show

a version of uhe

2R

affidavit thae .... was different than ~o~--~ goz

Court Reporting Service, inc. !-800-879-i700

i39
GNECKO% , MICHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 74 of 162

i

to court, putting aside the opening preamble, which

2

obviously know Agent Hace added?

3

A. Yes°

4

Who did you show ~hat to?

5

Ao That would have been Assistant UoSo

6

Kim Lindquisto

7

Qo Did you

r~v~ the affidavit in r~onse

8

Assistant UoSo Attorney Lindquist?

9

i ~±~eve K did~ yes°

i0

Do_ you know how many revisions

±

through?

12

Ao

Not specifically, but there had to have

13

been a~ lease one revision.

14

And you would have saved che prior version?

i eouD~ c~ac i wouic nave savec r~ draft

You would have just~s~ ~s~ over it?

i8

Do you recall wha~ revisions he

19

you make?

2O

21

pa-~cular_~

s~s~s~ i believe he wanted added ~o the

22

23

P~o Okayo Do

~vou recall generally what that

24

oaracraoh was about?

25

A. l

be able Eo recall if i had the

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 75 of 162

i

affidavi~o i might be able to pick it

but l~m

2

not sure i could specifically identify it,

3

Q. Do you recall whether the

was

4

to Mr o

or was it in relation to your

prior experience?

6

A o Oh, it would have been -- in would have

7

been not dealing with my prior experience°_~<~ would

8

have been more substantive informa~iono

9

Q. Do you recall what day it was when you --

i0

strike that°

!

Was the first person you contacted

i2

.... rH~n~ the mossibiiity of seeki~m ~he ma<eria]

13

witness warrant for Mr~ Al-Kidd~s arres: the Assistant

i4

U~ S ~

Lindquist ?

15

A

No, i don’t ~ ’ ~

.

16

Q~ Who would it have been?

A.

iu probably was Joe -- Joe

and

18

i9

.M.o.~. c have been contact within the si ~ ~-~==or %o

2O

con~aac~ing Kim Y~{~dc~ist~

2!

~

Ant eariAer i asked wneLner you ~.~<ce~. a

22

~:~mm<:~.~ um~ thumbs down %o seek that~ Y~d~_ ~,~ need

a

23 would yo~ need a thumbs urn, ~R~- x

- oo~<~ the

25

U~S~ Attorney as an initiai matter?

M & H Court Reporting Service, inc~

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GNECKOW, MICHAEL J~

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 76 of 162

i

Ao The supervisor -- the supervisor would have

2

to agree with

to go forward with ito

3

Qo Before you contacted the

4

Ao Before we contacted the U.So Attorney’s

5

Office, right°

6

Qo Do you recall what Agent Cleary~s reaction

7

was when you told him you were thinking about the

8

possibility of

a ma<eriai witness arres~

9

warran~ for Hro Ai-Kidd?

i0

Ao i believe he wa~

of

ii

concurred with the effort to try to get the material

12

witness warrant°

i3

Qo Do you recall whether Supervisor Brown had

14

any ~ n~ about seeking :he .......

No. i don~ recall anyone

any

16

concerns o

i

Qo How about UoSo Attorney Lindquist?

iu

He raised an initial concern %hat deai~

i9

wi~h ~a~..~.. K=~ sure

that A1 .... -KieC nac ~ fact l=ef~t

2O

Washing%on, tha~ he was no% s~ill at home°

2i

When did vo~ learn ~ha< -- wh~< you say not

22

do you mean ii~eraiiy no~ in his hou<e°

23

Ao <~ evidence ~h~÷ h= was <%iii staying in

24

at his mother’s

or

25

like

H & H Coart Reporting q=<vice, inc.

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i

And you assured him this he was no longer

2

staying there?

3

Ao No. As a matter of fact, we took efforts

to answer that

for him°

5

Q o You had not taken efforts

6

A~ Nor no o The call to Kim Lindquist was

relatively Guickly in the se@uence of events that

to that?

8

occurred o

9

Qo So ~rior to calling Kim ~ ....

I0

were no efforts to locate Hr~ Ai-Kidd?

~ ~ ~h~

ii

That’s correct.

12

And then af%erward, in response co his

13

concerns~ you made some effort to --

14

A. That’s correct~

15

m~

s~o you recall why he ....

~,,,~.~ you to try ant

16

17

A~

He may have said why~ i~m not i don~c

i8

remember if he said why, but b_e said, ~Let~s make sure

i9

2O

Q~ Left?

tkat he meant Kent?

21

A

Can D@ iocaEe@ ~ w]la~=~<~-

22

Ti~at l<.e ~ ~ b~

23

24

Ant .....

your responses to dis~x=~’-~

25

you canno% recall the s~eci~{~ ~ -~ you_

e:Aorb

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i

to locate Mr.

is that correct?

2

Ao Right.

3

Qo it could have been asking someone to do a

4

5

Ao

That’s correct°

6

Could have been someone making a

7

cai-?

8

Ao

That’s correcro

9

Qo Do you recall at this point any other

i0

specifics about the effort to locate Hr. Ai-Kidd?

ii

Ao i do1 but~ ~ think that

_is a law enforcement

12

...... ~_ Fa~

of an answer°

HRo HEEKS: We eo~ t disclose any

i5

.M...R. ~c E~,~LTL..~.. N:: For ~h=

we disagree

i6

with that as<=~+{

17

BY HRo GELERNT:

18

Qo Do you recall wha~

in was when you

cted ~

2O

.... eon~t reca±i %he specific Cate~ but in

2!

waR~ %he same date that

~Kom’ Ai~v,~a:r6efz:!e.c..~. me of ~he

22

nrave± ~r~r-=raryo

23

Q .....W.. as it wieh~n a few ........

2~

1o seek ~he arrest warran~ and ~ ~ ~ ....

@~ys oi

~o co½r%

WO~iC li3 nave meen

25

within a few days?

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Hi CHAEi J~

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 79 of 162

1

all was the:~c~:- ’ ~ha~ we had

concluded this

2

lengthy detention hearing. Lots of news media

3

present, lots of media coverage,

newspaper, lots

4

of articles, We!~ ,~ 7 ~ ~ ±-pum~icized were the facts that

was being investigated for ~errorism

6

related charges, even though he wasn’t charged with

7

terrorism° There was a lot of information about

8

tna~ were recovered from his computer tha~

9

dealt withS~p~emmer= ~ ~ ~=, airmianes~ crashing into the

i0

Trade Center, and so on~ A lot of images of radical

ii

Saudi and middle eastern sheikhs were

12

At the detention hearing the jihadis~

13

websites tied to the ~±s7~a=m=~~ Assembly- North A:merica,

i4

and to -- and specifically from ai-mui~aqa.com, were

±b

presented at trial -- or presented a~ the detention

16

17

~~o iS that ~ ~ ~

isiamic Assembly o~ ~-<~

_ N~ ....

18

is sha< abbreviated somesimes as iANA?

19

A v~< it is

2O

s~ the~ was widespread news ,~’-~=-~G=

2i

of these fa~ and

were all laid ou% in ~h~.~

22

23

Cha< Ai-Kidd was an associate of <~<{ ~s, was involved

24

25

had knowledge about these radical sheikhs;

H & H Court Reporting Service, inc.

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GNECKOW, MICHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 80 of 162

coupled with his failure to be forthright abou~ the

2

questions concerning Sami Omar Ai-Hussayen, and the

3

of his flight° i mean literally within hours

of the comple~ion of the detention hearing, i received

5

information that he is flying ~o Saudi Arabia°

6

Efforts to contact him in his house failed° All

7

appearances were that he was

from ~~~n~Ca

lied

8

as a witness in the trial°

~hat was essentially

9

the thought process ~hat went into

a material

witness warrant° Qo Okay° ~id you know a~ ~he ~ime whether ~he

12

United States had an extradition %rea%~ with Saudi

14

Yes°

And who informed you of that?

i6

it would ~v~ b~n

17

~-~--~-~-~ ~s up wmcn c~.=Te=s~ons wi~h other JTTF

would have

18

i9

~!ou wouie have known

2O

Yes ~

21

-- seeking-~~.~ warran-a?

22

!iie~ s correcr.

23

24

think you us~,~ .... wor~e ~h~

~ failure

Hr ~’~Kidd~s

25

to be forthright, and you were r@~rr nC %O at

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 81 of 162

~he interviews w±th Agent Cieary?

2

A.

That’s correc~o

3

Q.

So~ if he had been generally cooperative,

4

tha~ would have mattered ~o you in your it would

have been a factor that would have entered into your

thought process on whether to seek the warrant?

7

Ao

i mean if he had been

cooperative in those interviews with Joe

if he

9

had not gone to the press and claimed that the FBi was

_0

hassling him~ had he not jeopardized the Ai-Hussayen

!!

investigation by going to the press~ chances are we

i2

would have maintained contact with him° But instead,

i3

because he, by going %o the press was jeopardizing the

14

integrity of the Ai-H~ssayen investigation, we had to

i5

stop contac~ with him for fear ~hat the entire

i6

investigation would go in the toilet°

i7

Qo But when you said forthright before~ you

mean~ his fortSrightness in responding %o Agen~

~s ques~ions~ is that correct?
2~

2i

Qo And you also mentioned the ~iming was a

factor in your thought process of whether ~o seek a

23

warrant; is that correct?

24

Ao Yes°

25

Qo Did you know at the ~ime you

the

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GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 82 of 162

i

statement°

2

Q~ And subsequent to Mr. Ai-Kidd’s arrestr the

3

indictment was superseded and a new charge

was added; is that~~~

5

A~ That’s correct°

6

Qo Do you recall what ~na~ charge was?

Ao

The superseding indictment =n~=ue~d three

8

new charges, and they were all reia%ed <o the 2339{A~

9

or

i0

~n~ material summort?

±±

Ao

ir is~ yes°

12

Qo At the time you

:n~ warrant, did you

i3

know much about Mr, Ai-Kidd~s

Ao What do you mean by

i5

Qo We±=, did you know ~na~ he had a sonr

i6

A~ Yes°

i7

_o ~mc you ~now wheL~er

~:~h~< son was a Uoc~o

i8

citizen or no~?

A o.... _ @±@ not ~Know o

2O

~

~

~

~ke~k~_

i

:rom your

i aqr cues~ion, mu~,~_=~_ ..... .........me if i~m wrong~ %hat you

22

knew he was ~iv{n~ wi~h his mother?

23

A

And thau was in Kent~ Washinm%on?

25

Correct°

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 83 of 162

Did you know what his ~ ~

2

mother was a UoSo citizen?

~o~er -- whether his

3

4

positive°

K think i knew that she was, but i’m not

Did you know anything about his father?

6

Ao MOo t knew nothing about his father°

7

Qo Did you know that he had attended the

8

University of idaho?

9

Yes.

I0

Did you know that he played football there?

Yes°

12

How did you know that?

13

i’m nor sure ~ know how i knew tha~ but i

14

!s it pooo:~=~ ~r was :rom sources outs~ee

the FBi ?

i don’t mean anything sussicious by that°

17

mean like a newspaper

on a :o~ma±~ game?

18

Ao

i~’s

but somehow ~ knew tha~o

19

O

Okay When you ~ ~ the ~ ~ ~

29

mo%enciaily seek a material witness warrant for

informa%ion ~hat was germane to Ai-Hussayen~s trial?

23

Ao

Yes.

24

And -w-~n~-a~information was %sa99

~

25

He had information that was mer~inent %o

Court Reporting Service, inc. 1-800-879-i700

~age i56 GNECKOW, HiCHAEL J,

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 84 of 162

i

the arresT, the charges against Ai-Hussayen in

2

February of 2003, the visa fraud and the false

3

statement.

Q~ And in particular, what information would

5

he have had?

6

Ao He would have had information that was

to AI-Hussayen~s s~us as a

as a

8

student here on an F-! studen< visa°

9

Qo Were there restrictions as far as you

i0

understood at that ~ime on A1-Hussayen~s visa, and

ii

what He could or could no~ do on tha= visa?

12

Ao

Yes°

i3

Qo And was one of the restrictions that he

could no~ work?

A

V~s

16

Q

And when you say Ai-Hidd ~

17

tha: was

~:~n~ to those

could you be more

18

mec~

on ~ you mean~< by that~ if Dossi~ie?

i9

Ao ~=~-Kidd would have been

2O

....Ai-Hussayen was an offi~,~ of iANAo He ~y ..... have

2~

ab!~ to

say he was :~ <~c{ <farms ~- .....

~or rANA in

22

idaho° He ....~..u ....~m h~.o.._..,.~ ~een ie ~aob~ai-k about saiarv

23

that he

received 6 ....

A]-Hussayen He would have

24

ab~ uo talk about ~i-~.~= and %he websit~

25

Qo is the websitre~=~~=..~.. to the vi~<~ r~aise

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 85 of 162

i

statements or visa fraud?

2

Ao

it iso

3

Qo What way is that?

4

Ao Because under an F-~ student visa, the

student is required to be a full-time student°

6

Ai-Hussayen can’t possibly be a full-time student if

7

he~s

22 websites on behalf of iANA, one of

8

which is ~-~a~÷ ~.~aqaocomo So~t ~ was related to

9

sort of face,so

Qo So, if i~m understanding you correctly, it

ii

wouien~~th~ave been the ~on~,_~n~ of the websitesr but

i2

the fact that he was

so much time on them?

13

Ao That’s part of it, yes° He would also, or

14

should

have known what that conten~ of those

websites were°

16

Qo

Ai-Kidd?

17

A

Yes,

i8

But how would that have been germain ~o the

i9

r .....

~ ~e sLatemenE

2O

Ao

Because

21

websi~= i~ and

what the ccn~en~ of the

~ the extent k~i~ ....

~

22

amount of work that

would be remuired to build a

23

..... ~ .... i mean if you ..... ~usL a c:nKy little

24

websi~e, it’s not going to take a whoie lot of ~imeo

25

This was a very~~=-~+~:=w~ebsite o <o~

the

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GNECKOW, MICHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 86 of 162

1

content, that would have been of great assistance to

2

us because ir was a big websiteo

3

Q. To show that it was elaborate?

4

Ao Exactly°

5

Qo And it would have ~aken a lot of time?

6

A R~ ht

7

Qo i didn’t mean to interrupt you° Was there

8

~ny~±~g else you were going to say about what Ai-Kidd

9

could have testified to at the Ai-Hussayen trial that

would have been germain to either the visa fraud or

Ii

i@!~e statement charges?

i2

Ao Probably° i can’t think of them off the

i3

tom of my head° Those are the core ones°

]4

Qo Did you ever --s~rike that°

15

You did no~ personally go into cour~ on the

16

warrant; is that correct?

17

the material witness

i8

the Al-Kidd warrant°

]9

~or_ ec t

2O

And as far as you

2i

22

Ao

Correct°

23

Do you know ~he Assistant UoSo Attorney’s

24

name?

25

Ao i think it’s

rel~smelner

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GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 87 of 162

I

Qo So,

to you seeking the warrant in

2

court -- i don~t mean you personally seeking the

3

warran:v but prior to the warrant being sought in

cour: on the i4rh, all contact you had with Agent

Aivarez was verbal?

6

Ao Correct°

7

Qo Did he show you any reservation monitors?

8

As MOo

9

Any paperwork abou~ Ai-Kidd’s itinerary?

MOo

Did he show you anything from the TECS

12

System?

A.

_4

Qo Do you recall what he told you when he

ammroached you ~m~u~ _ o Ai-Kidd~s ~neraryv r<av~

16

i~inerary?

17

i8

Q o Wlnat did he

i9

_a.o : was sea~eo~ a~ my ces~<~ He walked

~rounc.

2O

a sar~iz.~-~ ~ was s~.iii sea-~ed, he was s~ans_ng~ ant.

21

22

2~

$9ic. oN:e way, first-c!ass reservaEio:<s %o ~.=

24_

w=~=~ ~ next cou~ie of Cays Ant a-3 som.e on

25

told me what the approximace cost of the ticket was~

H & H Court Reporting Service, inc.

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GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 88 of 162

Qo Okay° Do you know why he came to you with

2

that information?

3

Ao Well, i don~t know specifically, except

4

that was my first day back at the JTTF after being

5

gone for pro~a~iy ten days in prep before the

6

detention

doing the detention hearing, ane so

that was my first day back° So i don~t know

he

8

specifically came ~o me, and i don~t know if o~her

9

people knew about it either°

i0

Had you ever talked to Agent Aivarez abou~

i!

Ai-Kidd prior to that time?

12

Ao i don~t think soo

~3

Qo And so before you talked in that

~4

he said to you tha~ Ai-Kidd was

~raveiing to Saudi Arabia, and it was a one-way

i6

ticketl and i~ was first class?

17

Ao That’s what He said, yes°

18

Qo And any o~her ~ ....

~o~ he Gave before

you responded?

2O

Ao

i~m pretty sure of ~he cos~, wha% the

21

cosc of the tqoker was°

you recall wna~ ne said

23

cos% was F

24

25

he was ~pposee±y going

He o_~c aiso s~y rice

H & H Coirt Reporting Service,

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GNECKOW~ HiCHAET= J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 89 of 162

What airport was it?

2

That was Duiles International Airport°

3

Did he tell you when he was scheduled to

4

depart?

Ao He -- he gave a range of days° i think he

6

said within two or three days, and he may have given

7

specific dates as wello

8

Qo When you say specific

9

date %o ~rave±?

more ~han one

i0

Ao No o it ~ou±~ have been more like he wouie

be demarting between such-and-such a

and

i2

such-and-such a dayo ±< think that’s what i mean when

13

i sa~"’e he gave speci :±~ dates

Qo Do you recall how you responded?
Ao -We±±,~ i{d.... i mean -- T mean ! don~

16

reca!i the exact words that i sale, but i express~o.

17

....... You know, i im:mediateiy grabbed Joe~ and

~..±.c.~.. What are we

~o do amou~ this?~ And

i9

within a :eM manures i came up with the s ..... simon

2O

2~

22

and tha~ wa< within .........

s of Rob Aivare~

23

meo

24

2R

with you and

Agent Aivarez wasn’t in -~c~_ c:scussion about what should we do?

Court Reporting Service, inc. 1-800-879-1700

i65 GNEC~OW, MICHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 90 of 162

i

Ao He may possibly have overheard it, but he

2

certainly was not involved in the active discussion°

3

He~s not FBil is he?

4

Ao No, he~s not°

5

Qo When you say you expressed concern~ you

6

meant you expressed concern to Agent Aivarez and then

7

went to

Ciearyl or did you have some kind of

8

conversation with Agent Aivarez after he gave you that

9

information?

i0

HRo HEEKS; Objection;

Ii

6o ahead°

12

THE WITNESS; i may have remarked

13

to Agent Aivarez~ but it wasn’t -- it wasn~ an active

14

e~scuss~o~ with him as what we should doo

~v HRo GELERNT;

_6

i~ wasn’t substantive?

]7

Ao Moo

18

~±~ you ask ~{m any specific

19

~ou~ the ~cKe~ -- sorry° The ~ravei ~neraryr

2O

Ao

i ~m sure ic~c’~ ’ o i ~m sure~ ~Are you sure~ ~

2i.

or ~What dates are we talki_nc ~,~ ~ ~

]i ke

%Halo B}it

K don~t s~ecifica%iy .....

23

Did you ask him to do any

2~

research on it?

25

Ao

No i ~ook ~a u~on my~ by

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i

the -- the FBi at Duiieso

2

Q. And so was that -- did that conclude

3

~arez s ±nvo±vemen~ ~n relation ~o the Ai-Kidd

material witness arrest warrant?

5

Ao i may have, and i

did, go back to

6

Aivarez at some point after i had drafted the

7

affidavit, and maybe asked for some dates, or

8

something like that° And any exchange we would have

9

had a@ain would have been verbal°

i0

Qo Do you recall if you actually showed him

i!

~h~ 6~r~ affidavit~

12

Ao ! don~ recai~

him the a~fidavit,~

13

nOo

14

Qo So, ~ y~ou went back to P~_~m, it would" have

been ver©a± .....

~r~a ......

you nard witi~. him?

i6

A o

yes o

Q o And i~ would have been in relation

i8

of the itinerary?

19

ro make sure ~ha~ wha~ Z

2O

he~ was correc~s~

2~

And you said ~ did yoc~ call

22

...... after

23

A~ i bei£eve that K called the agents

24

Dulies after we determined that Ai-Hidd was not

25

Kent, a~e a6%~r~_ speaking wish Kim Li~dc~ {~ ~,qu and the

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 92 of 162

i

ca7~~m was

made 1o uu~~es

2

Qo Then you called an FBI agent at Duiies, or

3

some other type of government employee?

Ao

FBio

Qo Like a counterpart?

6

Ao

Right,

7

~

Do you recall who you spoke with?

8

Ao

i didn’t until recently, and i believe i

9

know the name of

out there° Butt

I00 percent sure°

ii

Qo Can you tell me that name?

i2

MRo MEEKS:

13

THE WITNESS:

i~m not

or Risling?

i5

BY HRo ~ ....

_6

Qo And you said you recently learned that

17

name?

18

Ao

we±i, i knew the name meZore~ bu~ i ~-~

19

forgotten ito

2O

you knew it when you were

21

22

Ao

Exac%iyo

23

is there any smeci~,~ .......

24

~ ~-~ him, or was he like on ~ ~-~ ’ ~

25

Ao Weli, he is the at the magor

~.~-~

you something?
a~rmorts,

H & i Court Reporting Service, inc.

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168
GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 93 of 162

or probably at most airports, we have FBi

2

assigned to those airportsl and he~s the Dui!es -- he

3

was ~he Duiies Air~port~ agent

Qo So he was the natural person to call?

5

A~

Right°

6

Qo Do you recall what you actually asked him?

Ao We probably had multiple calls between each

8

other, but

the first call was to ask him to check the

9

manifests for -- and at that

i

had

smecific flight numbers, and so i provided --

ii

~ .... Th~9~S~ from Agent Aivarez

i2

Ao

From

i3

Ane so i provided ~._a~ to him

a~ some po::n~ called back and said that Ai-Kidd~s_ name

Ane then ne

did appear on one of the manifes~so

i6

Qo Aod it was on a manifest for a

that

had not

taken off?

i8

Ao Correc~o

i9

Did he confirm the

of the ~icket?

2O

Ao

N o o

2i

o mi~ you ask him to confirm the price of

ticke~?

23

Ao NOo

24

Did he confirm whether i~ was a firs~-ciass

25

e{ck=~ or no~°

H & M Court Reporting Service, inc.

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Page i 69 GNECKOW~ MICHAEL d.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 94 of 162

NO,

2

Did you ask him to do that?

3

No.

Did he confirm whether it was a one-way

5

ticke~?

6

Ao

NO,

7

@o Did you ask him to do that?

8

Ao No.

9

And i want you to correc~ me if i~m wrongr

i0

but the sequence of events is basically the

and i definitely am not trying to sort of change your

12

i just want to make sure i understand°

13

You were informed verbally by Agent Aivarez

14

of some travel itinerary in reia~ion to Ai-Kidd?

15

Ao

Yes°

i6

Qo And that was the

after you got back,

~he day after the detention

ended?

i8

That’s correc~o

19

Does Harch 13 sound correc~ for that?

2O

That,s

--

2i

22

if the detention hearing did end on March

23

i2r then ti:~at was probably ~v ....

~ i~

t~-’_en i~3 ........

24

25

Q o Okay. Yo~ then went to Agen3 ~=

b±~ary~

H & H Court Reporting Service, inc.

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G~ECKOW, HICHAE]~ .7.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 95 of 162

~:a.~’- instormed, and you had the idea maybe we should

2

seek a material witness warrant?

3

A R~

4

Q o And the next step was then to go to draft

5

~=~--~ or to go to your

6

Ao

Sum~ ervisor .~ex~, tnhe~n ~ ~he

call ~Lo~ ~ Kim

7

Lindquist. Kim said make sure he~s not at home~

8

Couidn~t ioca~e him there.

9

Qo Okay°

i0

Ao Called back to Lindquist~

started preparing

ii

~he affidavit~ called to Duiieso

12

Okay° And so the firs~ ~ime you called

i3

you had no~

s~arted preparing the

14

15

ThaLes correct°

16

! jus: want ~o make sure because earlier i

i7

you rime sai@ you revised the

18

~{~< %o taikin@ to

Ao That’s correct° There was more ~han one

2O

call between Lindmuis~ and myself°

21

Qo So~ let me just make sure Lhat

22

unders~andingo i

for ~inc

23

24

i~inerary in rmlAa{on to A~i-Kidd?

25

< & <Coart Reporting Service, inc~

1-800-879-1700

sage
GNECKOW, HICHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 96 of 162

I

Qo You then spoke with Agent Cleary,

2

~r~±ns~o~med a lm~±e, you had ~he idea of possibly

3

seeking a material witness warrant?

Ao Correct°

5

Qo You then contacted your supervisor?

Ao

Correct°

7

Qo He okayed a call to Lindquist?

8

Ao Correct°

9

Q.

You spoke with Lindquis~! and at that

i0

you had not started ....

eral~±ng

the azf ~ ±davit?

ii

Ao Correct°

12

Qo Lindquist told you to make sure ~ha~

13

Ai-Kidd was no

in Kent?

A° Correct°

Qo You informed Lind@uis~ that you could not

i6

locate him in Kent?

17

Ao

Right°

18

0

He ~o7S you ~o s%art draf~inc an affidavit?

19

2~

~

v .... s~s an affidavit?

2i

Ao

Yes°

22

~o

wna~

next?

23

Ao

- think what i would have ~ ~

specifically remember this~ but what K ...... ~s .~ave ~a~

25

is faxed ~ ....

draft of the affidavi~ to Linc@a±s~ ~ ~-~ ....

Court ReportiRg Service, Knc.

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~ ~ H~ Pame i72

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 97 of 162

I

would have reviewed it, had suggestions for

2

corrections, deletions, whatever; either would have

3

gone over that ~{~

w~n me on

the telephone or would have

faxed his correction back°

Qo ~o you recai~ w~ether he faxed it back?

6

Ao

i don~t recall°

7

Qo And %hen you would have then inputted them,

8

or you would have inputted them?

9

Ao

i wo~Id have done tha~o

i0

Q

~_.en the call to Dulies came az~er that

i!

ca~ about the revision? You kae a cal± wi~

12

in which revisions were

13

made ~nemo ~ Then the ca~ to ~ii~b~~]

and you

Ao ! don~t know in that -- i don~t know in the

c ........

16

...... ~-~

c~e affidavit when the call co Duiies T us~ don~t ~ ~ =r ~ ......

of that

17

Do you recal lin~ askinc~ Agen~

~h~<~:-=z=~.~ ~rior_

to submitting --

co seeki<~ the warrant, do you

recall_ asking

Aivarez for

2O

co <he

t_

×

No

Qo i jus~ want %o clarify one ocher thing°

23

You said you took it from :here from~-~-~A@mS~r Aivarez

24

25

Ao Right°

i73

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i-800-879-i700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 98 of 162

!

Ao Right.

.Hl~~came and he either said "He’s

2

leaving in a couple days~’ or "He~s leaving between

3

such-and-such a date, and such-and-such a date°" it

was something :iKe that°

5

Qo Okay° And did he have any paperwork in his

6

hand when he came to tell you that?

7

A. No~

8

Qo Okay° When you called -- when you went

9

back to Agent Alvarez ro jus~ gen some specifics like

~_0

~he ~ :~ight information, was that before you called

ii

Duiies?

12

Ao i believe it would had to have been before

~3

I called Duiles

because he would have had to have

known what flight manifest ~o check.

Qo You mean --

16

Ao

~_~ agen~

17

Qo Agen~ Risin@?

18

Ao Right°

i9

Q

~d Agen~ Aivarez say why he ......

2O

you and exac% date of wn~cn Hro Ai-Kicc was tr~ve::nc?

2i

Ao

he ~s~t say

22

0

~s~~c you fi ic nd

~ ~ ~-k--- ~,~ said

23

K .... is ~ravei~nc in a ---~ ....

of cays?

24

Ao

!c wasn’t the first -- i< wasn’t my first

2R

co~cerno

H & M Court Reoorting Service, inc.

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GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 99 of 162

i

HRo GELERNT: I want to mark this as

2

PiaintiffTs 18o

3

~sepos~ion Exhibit ~

NumB~er 18 was marked

for identification°}

5

BY HRo GE~ERNT:

6

Qo Do you recognize this?

7

Ao Yes, i doo

8

Qo This US 2951 ~o 2953° is ~his the

9

a~fidavit you ~ ~ ~ erasure from the Ai-K~dd matter wi~t_h the

10

addition of Agent HaceTs~oream~ie

~oaracraoh~_ ~ ~ .

Ao Yes°

i2

And at the end, Judge Wiiiiam~s signature?

i3

Ao That’s correc~o

14

~ Does this refresh your ....m~:y in any way

i5

abou~ what revisions Mro

may have suggested

16

~r ~ ~=~ed?

17

<~ you~ii c{v= me a moment

18

Sure°

but -- and ~

20

would have so smeculase~ i think

21_

bu~ l~m noc compie%eiy sure°

22

don~t want

23

was you ~ - ~ ane mro

invoived in the

24

conversation° T~ you have a decent sense of

25

me know° And i don~t want a i00

guess,

~ & H Cos.rt Reporting Service, inc. 1-803-879-i700

Page
GNECKOW, HiCHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 100 of 162

i

obviously°

2

Ao it seems to me that the information

3

pertains to the phone numbers of Basem Khafigi~ and

stuff like ~hato

Q.

in

6?

6

Ao

Yes° I~m sorry°

in Paragraph 6o

Q o Okay° T£anKso

8

Ao

And again~ i~m not absolutely sure°

9

Qo Do you recall ~sny you pu~ she paragraph in

a~o~ Hro Ai-Kidd~s travel to VemenO

ii

Ao

Which paragraph is ~h~’-°~_~

12

Q o

i~m sorry° it’s in

6 at the very

i3

botsom o~ Page 2o

A o MOo T can~t think of

15

÷h .... a~ ~h~ time

i6

Qo .... you now think of a reason?

17

MR HBEKS~ Did vou read ~ ~

Just make sure that you’ve h~d ~ime to

i9

read every%hingo

2O

!~HE W~TNESS~ i believe chere~s the

2!

in April 2002 ssecifically

22

~o make she soint that upon His resurn He %raveied so

23

.....

’

~7~ Ai-Hussayen~s associa~eSo

24

BY HRo GELERNTs

25

Qo And

is shat reievan~ to she Ai-Hussayen

Court Reporting Service, inc.

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Page 177

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 101 of 162

He~s then in Yemen unrii 2002, at which

time he reest~±=shes contact i+

w_~h -Hussayen’s

associates in Hoscowo

Q. And was your understanding that

Hro Ai-Hussayen~s affiliation with iANA would have

6

violated his visa?

7

8

Q~ And this does not mention that

9

Hro Ai-Kidd~S pa}~.ents were for his em~i

oy~ for

i0

....... u~s~.y~n and Ai-Huitaqa, does it?

Ao No, it doesn~to

12

Qo And earlier you had said you believe that

i3

you concluded at some point

the end of 2~’02

what the payments were for?

A

Right That’s what we be~{=~~=

16

Qo Lo you recall why you didn’t=~:~H~ that

17

information in the affidavit?

~ W=~, i think i sor~ of ~ns~erec ~his

19

e ~..:.i. ....ier, and that was a~ th= time of the i

~:~iew a%

2O

-}~ AdS

jail we .... ~~ ÷~ =~ -

21

were saiary. Shat~s wha~ we

~ey were after

analyzing ~8~ financiais~ m~÷ i certainly wasn~

23

comfortable enough with it to mu~ it in affidavit that

24

~+ was saiarVo That’s ~.~ i~ ked iike~ so we

25

i~ at jus~ ~he raw dollar figures°

M & M Coart Repor~3ing Service, inc.

180
GNECKOW, MICHAEL

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 102 of 162

I

Qo is that correct?

2

Ao i don~t know°

! don~t know if he ever

3

asked the Guestiono

Qo Do you know

you included the cost of

5

the

cost of the ticket in

7?

6

you recall why you did that?

Ao ! included it because Rob Aivarez provided

8

~he information ~o meo it’s jus~ as simple as tha~o

9

Qo is that same ~he answer for why you

i0

included th~_~ first class~_

ii

Ao Exactly° He identified the ticket as

12

one-way, firs~ ciass~ costing $5,0u0o

~

So ~a~ s Row

i3

it go~ in there°

~~±he~

use the word .... ~pFrox~

or

you add that?

16

Ao

He used the word approximate°

17

Q o ~mo you know now ......... wh~e~r

any o f ~he

i8

4-~6~..... eia~ in

~ was incorrec~°

i9

Ao

K do know now~

2O

~

Was any of i~ incorrect?

21

Ao

Yes° it’s my

%he informac~on

22

a .©..O..u~ .... rh~~ E icket

was incorrect°

23

Q

Okay° w}~,-<~;~ .... ~< ~ ic if any? Wkich

24

25

Ao

i~s my unde ~ ’ ....rscandxng tha~ ~h= uicke% was

H & ~l Co:s.rt Reporting Service, inc.

1-800-879-1700

i82
G.~ECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 103 of 162

i

that were he still at his home in Kent1 Wa

sh~ng~on, it

2

may have made a difference°

3

Qo Were you ~ ~ ~ ~ n~~n]~eFen~e~_y assessing whether

the standards for a material witness warrant were met1

5

or were you relying on Him

for that?

6

A o i was

relying on Kim

7

to ~.~Ke sure that we satisfied the -- whatever

8

eiemen~s were necessary°

9

~.n~ i gather that you -- ! know ~ha~ you

i0

met -~w± ~ _Mro_ Ai-Kidd at the Ada County Jail after his

arrest; is that correct?

12

Ao

That is correct°

13

Qo Was

Cleary there?

14

Ao Yes°

Q

Was U S

16

Ao Yes°

~ ~’~ there?

17

s±d Hr Ai-Kidd have an

i8

Ao Yes° s~uK Rubin was ~nereo

i9

Q

~~-s that

the fuii ~- ....

-~ of ©eo~ie9

2O

.... am ....

]eso i~m sure tha~ was

~ha~ was

22

Qo Was some sor~ of deal acr~d upon ~ha~

23

24

Ao

You

i don~t know° i don~t know the

25

conversations that took place between Kim and Dick

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1-800-879-1700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 104 of 162

I

Hro Ai-Kidd being released as long as his passport was

2

taken?

3

Ao And whatever oHher restr±ctionso He was

4

restricted ~o certain states, and that sort of

Qo What was the purpose of interview at the

6

Ada County jai!~ from your s~andpoint?

7

Ao Weii~ from my

the purpose was

8

%o -- and i had never interviewed Ai-Kidd previously°

9

Joe had done all the interviews° So the purpose of

i0

~he interview was ~o sit down and talk about

!!

Ai-Hussayeno Now~ that’s not to say that Joe didn’t

i2

talk about other stuff, bu< my interest was to sit

13

there and talk about the Ai-Hussayen case and ~o

confirm wha~ i already believed that Ai-Kidd knew°

Q o Okay° Do you know if Ai-Kidd was

i6

interviewed by FBi

upon his arrest at Ouiies?

17

Ao He was, yes°

i8

Qo Do you know which agents did <hat?

19

Ao

Yes°

2O

Were those Agents

and ~ ......

2i

22

Qo

o yOU £n~w w£at

talked 1o A1-Kidd

23

about?

24

Ao

25

remember off the

of my head°

H & H Court Repor%ing Service~ inc~ 1-800-879-1700

i89
GNECKOW~ MICHAEl

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 105 of 162

!

Q. And correct me if !’m wrong~ but l~m

2

assuming they are not involved in the A!-Hussayen

3

mnvestigation prior to that time?

4

Ao That’s correct~ right°

Qo And they were not involved in the Ai-Kidd

6

prior to that time?

7

Right.

8

How did ~hey know wha~ no quesnion Ai-Kidd

abou~ ?

Ao

They were not involved in the Ai-Hussayen

invesnigation, but those guys are -- ~hey~re terrorism

i2

ou~ of

out of Washington field

13

officer and we~ve had nrevious contac~ with those guys

14

based on unrelated matters°

i can’t remember the

sequence of events~ but when we learned ~hat

16

from Washington field office were

~o go over

± /

there after Jeff Rising made the arresn and conduct

i8

either Wyr~an or Hamuiia called either

19

myself or maybe Joe~ but pro~a~±y me because i nhink i

seem no remember the conversation winh them~ and we

2i

gave %hem Kind of a narameter of~ you

%hese are

22

~he sor~ of issues of in~eres~o

~ do believe tha~

23

nhey did ~aik to Joe as weii?

24

Qo Joe and you?

25

Ao

i think SOo i can~ be posinive about Joe°

v & v Court ~enortirG Service,

1-800-879-1700

190 GNECKOW, ’iiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 106 of 162

I

They definitely spoke to me, though.

2

Q. Would that be coms.on for an arres~ of a

3

ma~eriai witness for them to

him there?

4

HRo MEEKS: Objection; speculation.

5

THE WITNESS: i don’t know. i’ve never

6

done a material witness warrant before, so i can’t

7

begin to say what would be com~.Ono

8

BY HRo GELERNT:

9

Qo They were not told Mr. Ai-Kidd was a

i0

suspect, were they?

HRo HEEKS: Objection; speculation.

12

THE WITNESS: i doubt that because i mean

13

they would know that 4t was a material witness warrant

14

versus, you know, an arrest warrant for criminal

15

or t~zngs ii~e that° They wou±~ ~ve K~o~n

~hat the ~ur~ose of the met-win was ~o -- was because

~h~ was a witness

~4~ the Al-Hussayen cas~o i mean ~y~

i8

~ ~ ~

~i~to i mean ~ @@@i~ioii

any

i9

conversation we would have

they would have known

2O

22

23

.... A__ K~. ~ ~.e wa< arrested 4~s2 as a witness in

your case?

25

A. You

i can’t recall why. i can’~

Court Reporting Service, inc.

i-800-8~ 9-i’-~00

19i
GNECKOW, HiCHAEL S.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 107 of 162

I

reca±± why the interview took place° I mean, i

2

Qo Did they tell you they were goin@ ~o

3

.... ew him?

4

A. Yes°

Qo Did you say that was okay?

6

Ao

i~m sure i did.

7

Qo Did you ask them to interview him?

8

Ao

We may have° ~ can~ recall°

9

Qo And why would you have asked them to

~n~erview him?

Ao i can’t recall the s~ecifics~

o i~m ~r~n

12

~hey would have tried ~o understand why he was leaving

the country,

like tha~o

14

s~c you review any documents ~n preparation

for this deposition?

i6

Ao A couple, a

of redacted documents.

Qo Would you tell me wn~n ones those were? i

i8

co~ ~ wan~ ~o know about conversat~ons~ ~you ~_had a~ouc

19

~he docaments with your counsel° i jus~ wan~ ~o know

2O

~he n~mes ~ @o

,

oes~

know u~i~ names, or

2i

des~dnrions?

22

Ao Well, they ~=-~ ....

%here .......~_~ a couple of

2~

24

sb~ that you had dra~t=d°

25

A o

i think they were ones that i had ’ ~raLte~

H & H Court Reporting Service, inc.

i-800-879-1700

Page i 92
GNECKOW, <iCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 108 of 162

i think we I went over some of the interrogatories°

2

interrogatories responses from you?

3

Right.

Would you have gone over interrogatories

5

responses from anybody else?

6

MOo

7

Okay°

8

i think chat -- that’s basically qto There

9

were

a

other documents roiled in there

i0

as wello

ii

Did you go over the affidavit?

12

Ao No, i did not°

How about the Complaint in this case?

14

A

MOo

Have you ever seen the Complains in this

16

case?

Ao

i think i have~ yes°

18

Okay° Was there a

!9

~he af .......iieGyi~ did

reason why

Ao

iu didn~u mat%ero

22

i~ didn’t matter ~o

23

MOo i mean we have people that flee the

24

country all the time that are UoSo ci~izenso

25

Qo Was there a par~icu!ar reason why ~he

H & ! Court Reporting Service, inc.

i-800--879-i700

i93
GNECKOH, ,,:ICHAEL o.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 109 of 162

affidavit didn’t me~.~ion that Hr Ai-Kidd had a U S

citizen son

Ao Again°

O_o -- ~iving in the United States?

Ao MOo It didn’t matter° i mean we have

6

fugitives

that leave the

all the time that

7

leave wife

and family behind and never come back° So

8

it’s not

-- didn’t seem material ~o meo

9

Qo Was there a reason why the warrant didn’t

i0

mention that Hro A!-Kidd had no~ been told not to

ii

travel outside the United States?

12

Ao MOo i mean,

that doesn’t seem

13

material to meo

14

Qo Was there a specific reason why the

15

~~er~rv~~ ~~.-..~.. ~

t say that no one ~ told Hro Ai-Kidd

16

to contact the FBi if he intended to travel?

i7

HRo HEEKS: i~m going to object as

18

muc Go ahead°

19

THE WiTNESS: You have %o look at the

20

~~={rcums%ances of Ai-Kidd ~-

go~c to the news media

the second interview with Joe ~=~

22

was -- we all -- anyone ~ -- lved .....

±nvo

i~ tni q particular

23

~se, whether it was AoU ~oAo

or

24

investigators, were very concerned that with Ai-Kidd

25

going to the press it would jeopardize the

H & M Cou.rt Reporting Service, inc.

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Page 194
GNECKOW, HiCHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 110 of 162

investigation~ that evidence would be destroyed,

2

~hings of that naturer before we had an opportunity to

3

execute search wa~ra~!cs an@ conduct arrests~ and so

ono So~ any further contact with

A~-Kldd ~fc~ he

5

went ~o ~he press was ruled off limits because there

6

was ~he concern that future contact with Ai-Kidd could

7

iaily jeopardize -- further jeopardize the case°

8

BY HRo GEEERNT~

9

Qo So that answers you didn’t make contact

i0

with A~-~ ~K~c~ ~ an~oreo i just .... ~n~ to know~ was there

ii

a reason

you didn~ but in~the

ai!~@av~ tna~ you

12

e’idn~t tel~l Hro Ai-Kidd to contac~ you ~= he intended

13

to travel?

14

MR. MEEKS: ~je~ ; conDecturai

Go ahead°

i6

~=~Nsss: i still %n~nK that

i mean

17

! s%~±± ~nK ~na< suggests to A~ ~:

18

movemencs are signm:mu~u

Lo ~q,

" in

o

l{n~ of mues~onlng rmG’ ard{’ nG Ai-Hus

- ....

og±cam

2O

conc±~slon he -~ ’ ’ ~- from

2i

in coing ............q. ~r-~rh{n~ w~ith Ai-Hussaven,

_

about ~o make statements like rhar or remues%s like

23

%hato

24

BY ~R GELERNT

25

Qo Okay. i’m hearing what you’re

but

H & ~ Court Reporting Service, inc.

1-800-879-1700

Page i 95
MICHAEL J~

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 111 of 162

i

A. i~m not aware of anyone who told him not to

2

speak to the press, that’s correct,

3

Qo But he went to the press, and do you know

4

whether he initia~ed that press contact or the press

5

initiated i~ with him?

6

Ao i have no idea°

7

Qo Did you know which media outlet that was

8

with?

9

A, T believe

±z~~ was the Seattle P-TI- the

~a~ Post-intelN{@enc~ but i~m not iO0 ~ercent

sure°

i2

Qo And you felt ~ ~

~na< was potentially

13

jeopardizing your ongoing investigation about

Ai-Hussayen?

i5

L~so!uteiyo

i6

You were angry about him going ~o the

17

press?

18

A, i wouldn’t say -- i don~t ge~c angry very

i9

often°

~ was concerned°

2O

±~ tha~ sugges~ to you -- s%rike tha~o

2i

~-~ said Kim m~n~G~±S~ reviewe~

22

a draf~ of the affidavit?

23

24

Qo He suggested some revisions~ and you made

25

those revisions?

H & H Court Reporting Service, inc.

i-800-879-1700

Page 200
G~ ~’~ iICHAEL J.

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 112 of 162

!

Q~ Earlier you said that -- wel!, let me just

2

ask you because l’m not sure i recaii your

3

precisely.

Would it matter where someone -- did

matter that Ai-Kidd was going to Saudi Arabia as

6

opposed to some other foreign country, in your mind --

7

MRo MEEKS: Objection; vague°

8

BY HRo GELERNT:

9

Qo -- for purposes of seeking a material

i0

witness warrant?

ii

Ao

it potentially

12

Qo Why would that be?

i3

Ao Sauei Arabia doesn’t have an

with the United States° Once a person en%ers

into Saudi

it would be extremely difficult, if

16

not imposs{m~=~ £or the United States to uniia

17

be_~,=~m~= ~o @e~ that

~:~o~ back~ even with the

18

assistance<,~:: host ~n~t~-o Other cou~n;t=r~ie.s.i.~.s......

no~ cuite as big an issue° if the merson tha~ we were

2O

~o±~ Eo

a co~n~ry

2i

an extradition trea%y~ with

with ~i law enforcement~ we couii

whom .... ~ essen~ia±±y meet

23

the ~~:-~~o~~ we were interested in when

24

o~=a~s

somethi~go mere are a =~ more --

25

there’s a lot more flexibility with certain countries

H & H Court Repor%~ng Service, inc.

1-800-879-1700

214 GNECKOW, ~TCHAEL j~

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 113 of 162

Z, CHARI,Oi~PE R. CROUCH, Certified Shorthand

Reporter, do ~

ner~y ce~tLfy:

~_a_ ~h~ foregoing oroceedings were taken before

me ac the time an@ p~.~a,.~ ...... %herein se-£ forth, at which

That the %estAmony and

were recorded sLenograpn~c’a:’."y by me and were

:hereaf-~-~r transc:.{~=~_,_,~..~. bv~ me

That :he foregoin@ is a trae ard correct

6

record of allK.ost~i~’ony

~..,~, ~{ .....

7

~< T am noL a relative or employee of ary

a-~e:.~n.]=.v. or of as.y of the marries, nor am

8

interes:ed in the acti.on~

9

hand and seal %his

2ug~

CHARLOTTE R.

92

Public

816 Sherma~ Aver, Suite 7
Coeur d’ALene, iD 83814

13

~ 4

...... ssion Expires Sanuary ip 20~3

i6 i7

20
22 23 24

Court Reporuing Service,

800-{79- ] ; 3 ;

222

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 114 of 162
Exhibit 17
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 115 of 162

1

IN THE D~ITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF IDAHO

3

4

ABDULL~I AL-KIDD,

5

Plaintiff,

6

VS.

: Noo 05-cv-093-EJL-HHW

7

ALBERTO GONZALES, Attorney

8 General of the United States,

9 et

10

Defendants°

11

12

13

DEPOSITION OF K!H

14

Wednesday~

2008

15

Washington~

16

1:04 pomo

17

18

19

2O

NOo 1-117718

21

Pages: ! -

119

22 Reported by: Janet Ao Hamitton~ RDR

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 116 of 162 DEPOSKION OF KIM L~DQUIST
CONDUCTED ON WEDNESDAY, JANUARY 9, 2008
2
Deposition of KtH L!NDQUiST, held at the offices of:
2 American Civi! Liberties Union Legislative Offices
915 15th Street, N.Wo
D~Co 20005

9

10

1i

Pursuant to suDpoe~a by and before Janet A o

12

Hamilton, Registered Dip!omate Reporter.

13

14

15

16

i7

18

19

21 22
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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 117 of 162
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

APPEARANCES

2

3

ON BEHALF OF THE PLAINTIFF:

4

5

LEE GELERNT, ESQUIRE

6

American Civil Liberties

Foundation

7

Immigrants’ Rights Project

8

125 Broad Street, 18th Floor

9

New York, New York 10004

10

212-569-2500

11

12

ON BEHALF OF THE DEFENDANTS:

13

14

Jo MARCUS HEEKS~ ESQUIRE

15

UoSo

of Justice

16

Ben Franklin

17

PoOo Box 7146

18

Washington, DoCo 20004

19

202-616-6176

20

21

22

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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 118 of 162
DEPOSITION OF KEM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

4

1

A P P E A R A N C E S

{continued)

2

3

HENRY R. FELIX, ESQUIRE

Federal Bureau of Investigation

5

Office of the General Counsel

6

935

Avenue, NoWo

7

PA-400

8

Washington, DoCo

20535

9

202-220-9328

10

11 ALSO PRESENT:

12

13

Lee, Equal Justice

Fellow

14

Traverso, Paralegal, ACLU

15

!6

17

18

19

2O

21

22

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CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

25
Harch 16 is the date that the material witness warrant was

removed°

3

Yeah. I~tl state it for you as clearly as I can.

4

Your attorney can obviously correct me if i misstate

because I know that the dates can get confusing°

Ao

i~m sorry~

Q.

Mr. Ai-Kidd, the warrant was ~ugh~ on March 14

2003.

He was arrested on Harch 16, 2003°

A.

Okay°

10

Q.

He was then at some po±nt released from detention

tl

and placed under certain restrictions°

12

Ao

Correct.

13

Qo

Travel restrictions, among other things°

14

travel restrictions were lifted on June 16th~ 2004.

Those The

15

relevant date for purposes of me asking you the

16

this litigation is June ~6th~ 2004, the date the restrictions

17

were lifted for purposes of ~he relevancy of ~his litigation°

So that’s ~He only reason i threw that date in.

19

A~

Okay°

2O

Qo

So i wasn’t sure which dates you were referring %o~

21

if we could just go back° At some point you sa±d you opined

22

that he was not an identifiable

is that correct?

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DEPOS~ION OF KE\4 L~DQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

26 A. Yes.

Q. Let me just make sure I understand because that may

be U.S. Attorney parlance that I~m not quite familiar with.

Identifiable defendant means what?

5

A.

An identifiable defendant is someone that i view is

6 worthy of being charged by virtue of the facts at hand.

Q.

Okay. And at what point did you opine -- did you

reach that conclusion?

HR. HEEKS: Objection; vague.

!0

i reached the conclusion that he was not a

i! de f endant.

12

Q. Do you recall when you reached that conclusion?

13

A. i don~t recall at what

in time, but it was

14 well before June 16 of 2004°

15

Q

Do you recall whether ~> was before he was

16 arrested as a materia! witness?

17

~

Yes

i8

Q.

And was it?

19

A o Yes ~

2O

Q o Do you recall how much before that?

21

Ao i don~t recall exactly how much before that. I can

22

say that from the moment in time that information was given me

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CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

27 about Hr. Ai-Kidd i viewed him as a witness.

2

Q. ~nd are you saying you never viewed him as a

potential defendant?

Ao I viewed him as ! would any subject coming up in an

investigation who is involved that there is that potentia!,

but in my mind that potential was never reaiized~ Therefore,

I viewed him consistently as a witness recognizing that at any

moment something might be revealed that would change my

9 opinion in that regard°

ever was.

i0

Would it be fair to say you viewed him as a possible

ii co-subject?

12

MR. MEEKS: Objection; mischaracterizes testimony.

13

Qo

T~m not trying to characterize your testimony° i’m

14

just askz~ignwould it be fair to say at some point he was a

15

co-subject of the prosecution?

16

MRo MEEKS Objection; mischaracterizing ..... zmo~~yo

i7

Ao

NOo

18

Qo

That wash

t

your ~estimonvo

19

was just asking you a

2O

Ao

Yeaho

21

Qo

Would you say he was a possible co-subject of a

22

criminal

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DEPOSITION OF KDd LtNDQUtST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

28
HR. MEEKS: Objection; vague.

2

A.

t really can’t answer that because the only criminal

investigation i was involved with was that of Hr.

and in that regard I did not deem him to be a defendant.

Q. Was there someone else in the U.S. Attorney’s Office

assigned to investigate Hr. A1-Kidd?

HR. HEEKS: Objection; foundation.

A.

Not to my knowledge, no.

9

Q.

And you said though that although you, and correct

10

me if I~m mischaracterizing your testimony, that although he

11

never reached the point where you viewed him as an

12

identifiable defendant you did view him as

13

A.

As potentially a danger ~o the community, yes.

i4

Q.

As someone who would do physical harm to the

15

16

Ao

As someone who could be involved in or instrumental

17

in physical harm ~o the community, yes.

28

Qo

And tha~ would be terrorism related?

i9

Ao

Yes.

2O

Qo

Did you initially before meeting Hr. Ai-Kidd believe

21

that he

should be held in detention without release on the

-

22

material

witness arrest warrant?

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DEPOSITION OF KEM LtNDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

Ao

Yes.

Q.

You had earlier mentioned that a colleague of yours

actually went before the magistrate to seek the warrant; is

4

that correct?

5

A.

That’s correct,

Qo

Okay. But I take it you were involved in some

capacity in the decision to obtain, to seek the warrant?

Ao

That is correct,

9

Qo

Okay° Could you describe what role you played?

t0

A,

I received at least a telephone call from the FBi

!1

regarding the situation and provided input telephonically°

12

Qo

So the FBi initiated the discussions about the

13

material witness warrant?

Ao

Yes°

Qo

Okay° Do you recall who the

16

Ao

Not specifically°

Qo

Okay° Was it from an

18

Ao

Yes°

19

Qo

Do you recall whether it was an agent who was

2O

involved in the A1-Hussayen investigation?

21

Ao

Yes~ it was° It would have

22

meaning to be evasive~ it was either Joe Cleary or Hike

29
call was from? and ii again~ not ....

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CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

3O
Gneckow.

Do you recall anything about that first phone call

conversation?

A.

! don’t recall specifics.

Hy general recollection

5

is that the event was imminent.

6

And by event you mean?

A.

His leaving the country, the event was imminent/ and

the FBi ~~ling~that a material warrant,

material witness

warrant shouid be sought given his status at that particular

10

time.

!1

And by status they meant what?

12

Well, I meant that.

13

Oh.

14

Heaning the information that I was informed that he

had regarding Hr. Ai-Hussayen and the islamic Assembly of

16

North Amer±cao

17

And was that information you had prior to that phone

~8

call?

19

A o

Yes o

2O

Q o

Do you recall whether tb_.ere were any

21

conversations about

22

A.

I don~t have a specific -- you mean --

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DEPOSITION OF KEM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

32
prior to that.

2

Heaning a week?

Ao

No. Less than a week i believe.

Q.

Okay°

Ao

i can’t be precise, but that’s my general

recollection.

Q. Okay°

Do you recall whether it may have been the

same day that the warrant was sought?

9

It’s possible.

!0

And do you ~ecali why you did not personally seek

the warrant?

12

A.

Yes, i doo

Alter -- on that particular day i was --

13

I have to give you a little bit of an explanation° Hy father

14

had just passed away° He had been living with me~ my mother

25

as wello We had moved them from their nom~ in Wyoming to our

16

Homei and following his passing ! was in the ~rocess of moving

27

my mother back to her home in Wyoming~ and so on those

18

particular days i was getting her to Wyoming°

19

Qo

Fair enough° i don~t want to mangle his

2O

name~ Hro Bre±~smeister?

21

A.

Breitsametero

22

Qo

Breitsameter?

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DEPOSITION OF KIM LENDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

33

Ao

T_ ’II try to -~pe!"~i it; B-R ~--

think.

Q. Do you recall whether he was involved in the

discussions about whether or not to seek a warrant for

Mr. A!-Kidd?

A. To my knowledge he was not.

Q. So he

the function of going before the

magistrate at the end of the process?

9

Ao

Yes.

10

Q.

But was not involved in the substantive discussions?

!1

Ao

That is the knowledge that i have now.

12

Q.

When you received the call from the FBI agent~ had

13

they already drafted an affidavit, if you recall?

14

A.

i don~t recall.

15

Qo Did you ever review a draft of the affidavit?

16

Ao ! do not have a specific recollection, but i think i

17 probably did~

18

Qo

Okay° Do you recall making any changes to the

19 affidavit?

2O

A~ i don~t recall that°

21

Qo

Or suggesting any changes?

22

Ao

I don’t recall that. It might very well have

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DEPOSITION OF KEM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

happened. i don’t recall.

Q.

If you had made suggestions to change the affidavit,

would there have been a standard protocol that you personally

4

would have used to change it on the document, fax, hand

changes, tell them over the phone?

A. Not a standard protocol, i would have communicated

the information over the phone probably.

All right. You don’t recall whether you did that or

not?

!0

A.

i don~t have a specific recollection of doing that.

ii

The thing that i have -- what i do recall is I believe in that

i2

initial conversation was just telling whoever that was~ and I

13

think it was Hike Gneckow that the affidavit needed to clearly

14

show his connection with Sami A1-Hussayen and the Islamic

15

Assez~iy of North America.

16

Qo

Do ~ou recall giving the agent any other advice?

17

Ao

i don~ recall.

Q.

Did you know where Hro Ai-Kidd was at ~hat time when

19

you received the call from the agent?

2O

A.

Y don t reca±i having knowledge as to where ne was

21

at that particular time.

-

22

Q.

Do you recall whether you asked the FBI

34
where

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CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

35
he was at that time?

2

A.

i don’t recall.

Q.

At some

~ gather the government made a

decision not to call Hr~ A1-Kidd as a witness?

A.

Yes°

Q.

Was that your decision?

A.

~t was.

Q.

Okay. Do you recall why you made that decision?

9

Ao

Yes. As we -- yes, ! do recall.

10

Q.

And why was that?

i!

A.

As we got into the case~ particularly the

12

government’s case-in-chief

the cross-examination, it

13

became more a~arent ....

every day that the deiense strategy_ _ ~y wax~

14

not to deny Hr. Ai-Hussayen’s involvement with the Islamic

15

Assembly of North America~ rather to characterize it

16

differently than we were 6haracterizing it.

17

Qo

Okay. Do you recall -- i mean is it fairto say you

18

signed off on seeking the warran~ for Hro Ai-Kidd~s arres>?

19

A.

Yes~

2O

Qo

When you signed off on >hat~ what information did

21

you believe Hro A1-Kidd had that was pertinent to the

22

A1-Hussayen prosecution?

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CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

36

A.

I can’t be specific. I can give you the general

idea, and that was that he was associated with Hr.

in a business way at the University of idaho in endeavors that

related to the islamic Assembly of North America° One

endeavor in particular, if i recall the name, A1-Hultaqa,

which demonstrated to me that there were significant business

7

ties between Hr~ A1-Kidd, Hro

in relation to the

8

Islamic Assembly of North America.

Qo

And that would have been relevant to which charges?

10

A~

it would have been relevant to a!l of the charges.

ii

Qo

Do you recall what charges had been brought

12

Hr. A1-Hussayen at the time Hr. A1-Kidd was arrested?

13

Ao

Generally, yes. Visa fraud, false statement~ and i

14

don~t recall if at that particular time the material support

15

were included in the indictment, but i do know that

16

from the

of visa fraud and~faise statement i viewed

17

it as being particularly pertinent°

i8

Qo

And when you say business reiations~ip~ what do you

19

exactly mean?

2@

Ao

That Hro AI-Kidd and Hro Ai-Hussayen were engaged in

21

22

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CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

37

A.

Business activities,

Q.

P~d those business activities would have been

relevant to the visa fraud?

A.

The visa fraud and the false statement and

5

ultimately as to the material support charges as well.

6

Q. Are you familiar with the term JTTF investigation?

7

A,

!’m not sure that -- those terms together, ! don~t

know that !’ve heard that as common. I know what JTTF is.

know what an investigation is.

10

Q.

Okay. In Harch of 2003 were you aware that the FB!

i!

had both intelligence and criminal investigations?

12

HR. HEEKS: Objection; foundation.

13

A.

Yes.

14

Qo

Do you know whether Hr. Ai-Kidd was the subject of

15

an FBI investigation of any sort?

16

Ao

I hesitate with your use of the term in%estigationo

17

I know that the FBi had information about Hro Ai-Kiddo That

was

to meo i’ve referenced ~hat to you as far as my

19

evaluating him as

a witness~

2O

Qo

But you don~t know whether he was under an

investigation as such as that term --

22

Ao i don~t know°

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

57
(Plaintiff’s Deposition Exhibit No. 4 was marked for

2

identification.}

A.

i’ve looked at it.

4

Q.

Have you ever seen the document before?

A.

! don’t recall having -- I don’t recall having seen

this. K might have, but i don’t recall having seen it.

Q. Okay.

HR. GELERNT: i~d like to mark this as Plaintiff’s

i0

(P!aintiff~s Deposition Exhibit No. 5 was marked for

±@ent i ~icationo )

12

Take as much time as you want to look at it, but i

13

assume you’re familiar with ito

~Tt~s your declaration

14

A.

i have seen this, yes.

15

For the record, it’s US Bates stamp 52 and 50

actually i ~on~t -- this is not Bates s~ampedo

17

Ao

i was going to say, i don~t recall this being part

i8

of our Bakes documentation but

19

Q.

Okay° i~d like to ask you abou~ paragraph

2O

Ao

Uh-huho

Qo

You there say it was made without any

22

from former Attorney General John Ashcroft or any other senior

to me

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DEPOSITION OF KtM LLNDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

Department of Justice offlc~a in Washington, D.C.

58
Was it

made with

from any nonsenior DOJ official in Washington?

A. No.

i recall no

from someone in Washington,

from anyone in Washington.

Q.

Paragraph 8, i think this may be some ground we’ve

covered already, but you say although it is my understanding

7

that general policy guidance on the use of the material

8

witness statute has been provided by the Justice Department,

that guidance was issued after Ai-Kidd had been released from

10

detention.

Have you ever actually seen that general policy

11

guidance?

12

A.

NO.

13

Q~

Okay. And that is what you were saying you had seen

14

referenced before?

15

Ao

!~ve heard reference to that.

26

Q o

Okay° Do you ~ow ’~-~ --{~ what ~r~ that guidance came?

17

i don t.

18

Okay° Do you know w}:~rh~ it was written or oral

i9

2O

A.

i don t know°

21

Qo

Were you aware of ~e use of the mater~ai witness

22

statute in other terrorism-related

around the

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69
HR. GELERNT: Can we go off the record for a moment?

(Discussion off the record.}

/A recess was taken.} YOU had earlier mentioned that you met with

Hr. At-K±dd in a meeting that Dick Rubin was present at? Yes.

And you don’t recall whether anybody else was there,

but you thought maybe some FBi agents were there?

A.

Oh~ ! know that there were FBI agents there because

10

they were the ones that did the questioning, and my

Ii

recollection was it was Joe Cleary and Hike Gneckow.

12

Q.

Did you do any questioning?

13

Ao

You know, i don~t recall asking any specific

questions, but K probably did.

15

Q. What was the purpose of that meeting; do you recall?

16

A. From m~ perspective the purpose of the meeting was

17 for Mr. Ai-Kidd under advice of counsel toprovide information

18 to the FBi in order to confirm or deny his status as a

19 witness°

2O

Qo Does that mean the FBi wasn’t sure at that point

whether they had pertinent information?

22

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DEPOSITION OF KIM L~DQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

7O

information

from the horse’s mouth with regard to

potential testimony at trial.

Q.

Was meeting with you and the FBI agents a condition

of Hr. Ai-Kidd being released from detention?

Ao

Noo It might have been in conjunction with

negotiations that ! had with Hro Rubin about that° ! don~t

7

recall the specific chronology° It probably was in

8

conjunction with those negotiations, but to say that it was,

9

in other words, if he talked to usj he could get out, i don~t

10

recall that.

i1

If he didn’t talk to you~ could he have gotten out?

MRo MEEKS: Objection~ speculation°

13

Ao

Hy ~ r~coilection was that the release conditions

!4

proposed by Hro Rubin were reasonable and that given them

IS

there was every reason to believe that he woul@ Be available

!6

!or trial° So i guess i would have to say even had he not

to us~ given the ....

±n~orma~ ion Drovleee me and the

18

potent~ai oz my ~ ’ ~ ~ %ha~ ~#~’~- ..... ~o ........ trial

19

would have been .......... ~s ....

~s by his ~ ~v~<~ released on those

2O

conditions that Hr. Rubin suggesEedo

21

Qo

Okay° And you said the release conditions seemed

_

22

reasonable to you~ is that correct?

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71
Hm-hmm.

What were those release conditions?

Well, again, I don~t recall specifically, but

Hr. Rubin proposed that he live in a particular location, my

recollection was ! think in Nevada with in-laws, that he be

allowed to travel to particular states as part of his

anticipated work° i think that we talked about him

surrendering his passport and he stay in contact with the

9

probation office, and knowing Dick Rubin to be the not only

10

capable defense attorney but a very straight shooter1 that

seemed, that seemed very reasonable to me. He also assured me

12

that Hro Kidd had no desire to be leaving the country now or

13

meaning at that time given those circumstances°

14

Q.

Do you recall ever ~aking the passport of someone

15

who you potentia!ly needed as a witness who had plans to

16

_ .~ ou~_ee the country?

17

Ao

in the Ai-Hussayen case?

i don~t recall at ~±~

18

point°

19

Qo

Yes° Have you ever done that?

2O

A.

Have i personally done that?

21

Q~

Yes°

22

Ao

Noo I~ve asked judges to order that°

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73
Yes. t later learned that the circumstances

2

associated with his leaving were perhaps different than what

was characterized in the affidavit.

Qo

In what respect?

Ao

That the affidavit said one way and that the

ultimate -- that the ticket as ultimately identified said

open, and again, I don~t necessarily view that as a mistake

because from the standpoint, from my standpoint of

availability open, one way, person~s unavailable, but that

i0

distinction of fact, yes~ i later learned of that°

11

Qo

Would you have wanted to know that at the time you

12

were signing off on seeking the warrant/ that fact?

13

Ao

I

want to have the facts as complete and

14

truthful as possible° So the answer to that is I

15

would rather~ would always rather have the actual facts~ yes°

16

Qo

would yo_u have a~s_ked ~ ~

~n~ FBi

the

i7

affidavit to

the phrasing from one way to open round

28

29

Ao

Yes° Yes~ although,

from the standpoint of

2O

availability, after the fact ~ don~t see a

distinction

22

22

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76 Because of the information that made him a material

witness~ yes.

Q. And I’m not sure I understand this. Because that

information went to pertinence of his information or to

availability, the connection to Ai-Hussayen and IP~NA?

A.

Both°

Q. Both?

Ao

In other words, given his relationship with Sami

A1-Hussayen, the Islamic Assem!siy of North Americai his going

10

on a one way ticket to Saudi Arabia, could I rely upon giving

11

him a subpoena and relying upon him saying,, yes~ sirj I~it be

12

back when you need me! absolutely not°

13

Q o

Okay° So I guess what I was trying to ask in an

inartful way is if you had an individual for which there was

15

no question they had pertinent information, so that part of

16

the material witness statute was satisfied~ and the

17

question was avaiiabiiity~ and they had a one way ticket to

18

Saudi Arabia~ would that alone be sufficient to sa~aisfy the

19

availability in your mind; the one way ticket to Saudi Arabia?

2O

Possibly~, yes~ but what confirms it is the related

21

information that the witness has and how ~hat bears on the

22

availability°

can’t be completely divorced~ but i will

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say, generally speaking, if I have a witness that has

information and I’m told that that witness has a one

way ticket to Saudi Arabia, we’re probably looking at an

application for a material witness warrant we’ll go before

the magistrate, we’ll put the cards on the table, and we’ll

see what will actually suffice.

Qo

Okay. So, you know1 I think you ve been

clear here~ I just want to make sure, but the connection to

Ai-Hussayen and i~iNA bear on availability !n your mind?

10

A.

It is pertinent~ yes°

i1

Q.

Would it have mattered to you if you had known that

12

Hro Ai-Kidd was a US citizen? Would that have been relevant

!3

information that you would have wanted to know?

14

Ao

!~m not sure how relevant it would have been.

!5

assumed he was°

16

Qo

Why would you make that

Ao

Because ! had no indication to ~he contrary°

18

Football player a% the University of idaho, i mean K had no

19

indication that he was not a US citizen~

2O

At the time you sought the warran< would you have

wanted to know whether he had any US based family?

22

Ao

The answer is yes~ and as ! review one of these

77
i

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78
documents here, i recal! now that he had a wife, and I was

aware of that at the particular time. But relevant? Yes°

Relevant to change these circumstances seeking the warrant?

No.

Q.

Okay. Just would it have mattered if the FB! said

to you Hro AI-Kidd has been generally cooperative up to this

point in your making an assessment about availability?

8

Ao

Again1 you’re asking me to speculate, but under the

9

circumstances as a prosecutor taking the case to trial wanting

10

to make sure that material witnesses are available~ i would

have probably outweighed that in favor of this information

12

that he was headed out of the country with no indication of

13

his returning~

14

Q.

But is it fair to say you would have wanted the 7Bi

to tel! you that information if

had had that view?

16

A

!t wou!dn~t Have been unwelcome°

17

HR~ HEEKS: Objection°

18

Q

Okay°

19

A

And I don~t say that to be face~iouso i say that to

2O

make the point° i~ve got a witness wi~h materia! information

21

22

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DEPOSITION OF KtM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

response would have been, well, maybe that’s changed; we

better proceed this way, and then we~ll sort that out°

Q.

Okay° Would it have been information you would have

viewed as relevant to know when his trip to/ Hro Ai-Kidd~s

trip to Saudi Arabia was planned?

Ao

K~m not sure that -- looking at it right now I~m not

sure how pertinent that would have been°

8

Q.

Looking at it right now you said you’re not sure how

9

it would have been to know when Hro A1-Kidd~s trip

10

to Saudi Arabia had been p!anned~ but would it have been

11

information you would have suggested to the FBI to include in

12

the affidavit to give the magistrate a full sense of the case?

13

HR. MEEKS: i~m going to object on foundation

14

grounds°

15

A~

You know1 i like to provide the magistrate with as

much information as possible° We can sit ~r~ and

17

all~÷~r~,~_~oo~-~ about information that might h~ ~ been ~u~ in

18

there that could Have been He!~fui to the magistrate~ but

19

at it right now, the circumstances as

2O

just doesn’t strike me as being terribly pertinent°

21

Qo

How about if you were told Hro Ai-Kidd Had been

22

generally cooperative up until that point~ would you have told

79
were, it

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

8O the FBI to put that in the affidavit and at least allow the

magistrate to have that information in making his

determination?

4

A.

Probably --

5

MR. MEEKS: Objection; foundation.

6

A. Yes. Again, speculating, I probably would have,

7 probably would have still sought the material witness warrant

8 and allow that to sort itself out.

9

Q. Okay.

i0

A. However, again, I don’t see that as particularly

ii pertinent because if that’s the case, especially with capable

12 counsel like Dick Rubin, that’s going to come out in the

13 process.

14

Q. After the arrest?

15

A. After the arrest, but again, as far as I’m

16 concerned~ even with the fact, the hypothetical fact that

17 Mr. Ai-Kidd had been cooperative, here’s a fellow with

18 material information that’s headed out of the country with no

19 apparent return. I’m still going to go after the material

20 witness warrant, and then we sort that out with the

21 magistrate.

22

Q.

Did you know whether Mr. Ai-Kidd -- correct me if

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

81
I’m mischaracterizing. I believe earlier you said you didn’t

believe Mr. A1-Kidd had any children at the time you sought

the warrant.

A.

I just don’t recall.

5

Q.

If you had known at the time you sought the warrant

6

that Mr. A1-Kidd had a native born US citizen child, would

7

that have been something you would have included in the

8

affidavit to give the magistrate a fuller picture?

9

A. Perhaps, but not necessarily. Once again, that

i0

information would invariably be brought out in conjunction

ii

with the magistrate’s attending to the application, and so I

12

think that would have been perhaps nice to do that but

13

certainly not necessary.

14

Q. When you say attending to the application, you mean

15

post arrest?

16

A.

Yes, yes. °

17

Q.

And earlier you said that you didn’t-know at the

18

time you sought the warrant whether the FBI had ever told

19

Hr. A1-Kidd he should not travel abroad?

20

A.

That’s correct.

21

Q. If you had known that they had never told

22 Mr. Ai-Kidd to travel abroad, would that have also been

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tol
HR. GELERNT: How about we’re going to take a five

minute break.

MR. MEEKS: Sure.

THE WITNESS: Okay.

5

(A recess was taken.)

6

Do you know now whether the US has an extradition

treaty with Saudi Arabia?

A.

i don~t.

Q.

Did you know at the time you sought the warrant?

10

Ao

i don’t recall.

Q.

You don’t recall

that?

12

A.

! don’t recall knowing that.

13

Q.

Did you consider the possibility of

14

Hr. A!-Kidd’s deposition after he was arrested?

15

Ao

Yes° That was discussed with Dick Rubino

Was that his suggestion?

17

" Dick Rubin -- we talked about ito

He also suggested

18

that, he indicated that Hro Ai-Kidd was no

desirous of

19

abroad and that if we could fashion conditions of

2O

release that would allow him to stay that would be

21

satisfactory in lieu of the deposition, and that’s when we

22

discussed, he actually proposed the conditions to meo

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102
Had you already rejected the possibility of a

2

deposition?

A.

No. That was -- it was a ~opic of negotiation with

Hro Rubin.

Qo

Would a deposition have been sufficient in your

view? Ao

i don’t like -- I don~t like depositions, generally

speaking° i like to have the witness at trial~ and again, I

9

don~t recall the specifics of the discussion with Hro Rubin.

10

! might have, you know, I might have expressed my general

ii

reluctance for depositions because I like the witness there,

12

but i do recall Hro Rubin

that Hr. Ai-Kidd was

13

satisfied to be available if we could fashion conditions°

14

Qo After Hro A1-Hussayen was indicted in February of

2003 did you at that time have a witness list prepared?

16

Ao

Yes° Afterwards at some

in time I would have

17

had a witness list prepared°

18

How far afterwards?

19

i don~t recall° i know that the procedure for the

2O

district is that we submit witness lists either seven days or

21

three days at that time beiore the trial~ and so there would

22

have been a witness list at that time°

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DEPOSITION OF KtM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

115
with the FBI?

A.

Yeah,

the fact that the information that they,

that they had provided, and again~ ! can’t articulate any

particular information that they had been in contact with him

which you’ve inquired about previously°

g o

Did you view Hro A1-Kidd as going to Saudi Arabia as

him

8

A.

No. t viewed him going to Saudi Arabia potentially

9

to pursue development of his beliefs with regard to islam°

10

Q.

And so why did you believe he wouldn’t honor a

subpoena and come back?

12

A.

Because of his affiliation with Sami Ai-Hussayen,

13

the islamic Assembly of North America and the activities that

!4

they were involved ino

15

Q~

Okay° Smything else?

26

Ao

Th&t~s essentially it~

17

HRo GELERNT: Okay° i thinkwe’re done°

i8

HRo MEEKS:

We want

19

(Whereupon,

not been waived, the

2O

deposition of Kim Lindquist was concluded at 5:00 pom.)

2!

22

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DEPOSITION OF KIM LtNDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

117
CERTIFICATE OF SHORTI~ND REPORTER

2

i, Janet Ao Hamilton, Registered Diplomate Reporter,

before whom the foregoing deposition was taken, do hereby

certify that the forego±hE transcript is a true and correct

record of the testimony given; that said testimony was taken

by me stenographically and thereafter reduced to typewriting

under my direction and that ! am neither counsel for, related

to, nor employed by any of the parties to this case and have

no interest, financial or otherwise, in its outcome.

10

IN WITNESS WHEREOF, I have hereunto set my hand this

1i

25th day of January, 2008°

12

13

14

15

16

17

i8

2O 21 22
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Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 147 of 162
Exhibit 18
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 148 of 162

IN THE UNITED STATES DISTRICT COURT FOR THE D~S~RiCT OF IDAHO

ABDULLAH AL-KiDD, Piaintiff,

Case Noo 05-CV-093-EJL-MHW

AL~mR~O GONZALES, General of the United States; et a!o,

DEPOSITION OF SCOTT MACE TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D~ALENE~ IDAHO NOVEMBER 29, 2007~ AT 9:30 AoHo

REPORTED BY:

PATRiCiA Lo

CSR

NOt~rV m~ ~

Coeurd’A~ene,~daho He.hewn O~kes 208.165,1700
1.800.879N700

Spoka~e, Washingto~ 509,455,4515 ~.800.879.1700

$ou[her~O~ices 208.345.96]] ].800.234.9611

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 149 of 162

i

APPEARANCES

2

HRo LEE GELERNT, Attorney a~ Law, of the ~k~.erican Civil

3

Liberties Union Foundation, Is~igrants~ Rights Project,

i25 Broad S~reet, 18th Floor, New York, New York 10468,

4

appearing for and on behalf of the Plaintiff;

HRo B~NT So LEViNE and HRo Jo ~~A~RCUS

6

at Law, of the United States

of Justice,

Torts

Civil ~ivision, PoOo Box 7146, Ben

7

FrankLin Station, Washington, DoCo, 20044

and on behalf of ~he Federal Defendan~so

8

9

ALSO PRESENT: Hro Henry Ro

Hso Sonia Kumar

i0

Hro Patrick

ii

12

i4
15
16

i8 19 29 21

23 24
25

H & H Oourt Reporting Serv±ce, inc.

i-800-879-!700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 150 of 162

i

THE DEPOSITION OF SCOTT

was taken on

2

behalf of the plaintiff on this 29th day of November,

3

2007, at The Coeur d~Alene Resort, 115 South Second

Street, Coeur d~Aiene, idaho, before M & M Court

Reporting Service, inc ~--

~, ~y Patricia ~o Pulio, Court

6

Reporter and Notary Public within and for the State of

7

idaho, to be used in an action pending in the United

8

States District Court for the District idaho, said cause

9

being Case MOo 05--CV-093-EJL-HHW in said Court°

i0

AND iHEREu~ON, the following ~est~mony was

ii

12

SCOTT b£ACE,

13

been first

sworn to tell the

the

i4

whoie

and nothing but the

relating to said

i5

cause, deposes and says:

16

EXAMINATION

17

QUESTIONS BY HRo ~ .....

b~n yOU state your name for ~= recorCo

i9

bco~t Mace°

2O

~~o

M_y name is Lee Geiernt

, and i~Kk one of

~e

21

~e ain~ in 9h{< caqeo Have you ever

22

nc:c vour ©~e~osltAon %aken mefore?

23

Ao

in this matter?

24

Qo in any ~÷+ ~

25

A

v~s

H & w Court ~eoortinc Service, inc.

i-800-879-i700

Page 5 Y_ACE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 151 of 162

that normally wasn’t really my function° But i do

2 recall that i did a few° I would say probably ten or

3 fewer°

4

Qo Okay° Ever done a material witness warrant in

5 your capacity as a

po_]~~oefficers

6

As No, sir°

7

Qo Had you ever done a material witness warrant

8

to this matter?

9

As

No, sir°

Qo Have you ever done one since?

ii

_2

Qo Had you ever served is the same type of

13

function

you served in this case, where you went into

14

court in

someone else’s case to present the application?

15

A

v~

16

Qo About how many times have you done that?

As You know, there’s no record of that° But it

i8

was no~ infrequent And i would ~ueq< tha~

i9

from 25 to 50 times during my

2O

2i

in some

ou~er -- strike

is %here a term for wha~ you c:c used by the

23

FBi?

24

As Not one that’s, i mean, an official FBi term

+~a~ i~m aware of

Court Reporting Service, inc.

2-800-879-i700

Page i 0 YACE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 152 of 162

i

Ao Yes. The Salt Lake City division covers all

2

of

idaho and Montana. And then to further break

3 down the structurel there’s supervisors in certain

4 cities. And ~hey in turn supervise some of the smaller

offices° Soi for

there’s a supervisor in

6 Boise who~s responsible for the agents in Boise; Twin

? Falls, while it was still open as an office; Pocate!io

8 and idaho Fails.

9

Qo Do you recall in March 2003 who your

i0

was?

Ao

Yes° Dominick Venturio

12

if it’s

could you spell that for the

!3

CO.rE

i4

Ao Sure° Dominick is a com:~.on smeiiin@o

And

Ven~uri is V-e-n-t-u-r-io

16

Do you recall the:::~:-~<~ time you heard the

17

name ai-Hussayen?

18

i9

~

Was it

2O

21

Yes°

22

Q

Do you recall why you may have ~earned of that

23

24

Because it was

i don~ want to say

25

but known

<he office in Boise ~ha~

M & M Court Reporting Service, inc.

1-800-879-1700

Oa@= 12
MACE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 153 of 162

i

this

was going on that invoAved

2

Hro ai-Hussayen in Hoscow.

3

Qo What was your understanding of the

4

investigation? Was it an intelligence investigation?

A

understai~e~ng was i~ was -- it had

6

to do with terr~orismo

That’s really all i

7

knew°

8

Q~ Did you work on that investigation?

9

A. Not prior to seeking the -- or sresenting the

i0

affidavit°

Qo Okay° When is the ~ ~ rime ~Ars~ ~

you .....h~arS of

i2

Hro ai-Kidd?

13

Ao

believe i~ was when i received that

14

affidavit°

Qo You’re not sure though~ you had

~_~h~a~d~ of him

16

before?

Ao

i don’~ recall

of him ~rior ~o that°

i8

Okay°

Ao

Other than i may have been vaGueiv aware of

2O

~im as a foo~baii player at the University of idaho°

2i

okay°

22

correc~ me if i~m mischarac%~izinG~ .......

23

your~ ~{or .... testimony i ~e±~eve ~ you ~ ~ tha~ ~he

24

m~riai - :~w±~ness warran~ you’ve ever been ......

with

25

was the Hro ai-Kidd warran~ in this case?

H 6 M Court Reportina~ Service, inc. 1-800-879-1700

i3
?~CE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 154 of 162

I

the

Nothing rose to the level of needing

2

supervisory approval or anything like that°

3

Qo So as far as you knowr Agent

the UoSo

4

a~orney and somebody at ~he court were %he only people

you had contact with about this?

6

Ao Yes° And the UoSo attorney° i~m sorry°

Assistant UoSo attorney°

8

Qo Do you recall whether the assis~an~ UoSo

9

a~%orney was a male or female?

i0

Ao i do not°

ii

Qo What was your first -- strike that°

12

Prior ~o the ai-Kidd warrantr had you ever had

13

any contact with Agent -

4

Ao

Yes°

Qo Had you worked on a case with him?

i6

Ao

Other than perhaps

as a proxy prior to

i7

for him~

noo But by virtue of him being in Coeur

i8

d~Alene ~c me ~

Boise~ no Too far

19

work~ dif£~<~nt

Ly©es of ma%ter<

2O

Qo But you

knew him?

2i

A

22

~o what was ~he firs< contact you ~-" ’ w~n Agen%

23

Gneckow in reia~ion to this ai-Kidd matter?

24

Ao When he asked me to serve as proxy for ~his

25

M & H Coirt Reporting Service, inc.

1-800-879-i~i00

23
MACE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 155 of 162

i

You weren’t sure how he contacted you, but you do recall

2

him

you to serve as a proxy in the ai-Kidd

3

matter?

4

Ao Yes, sir°

Qo What was the next thing that

after

6

that contact?

7

A~ He provided me with a copy of the affidavit°

8

And < don~ recall ~f he did i~

fax or by e-maiio

9

it was by fax° Aithough~ i don~ specifically

i0

remember that°

ii

At which point i would have reviewed the

a::=davito in fact

or maybe i: was

o

i3

Because ={÷i ~:~ne: myself

or him -- although, i think i~ was

me -- inserted the paragraph, you know, stating my

15

~nc- ’ that, _you know~ the information in the

16 affidavit was provided by Agent ~~cK~O~w-o

Then reviewed

17

you

after i~ was

i8

And -’C~~c -- i -~o reca ii that ~ called A~=n~ Gneckow ~o

i9

discuss it

you

c~ar{~v some

~_o

Okayo And then after~ you caiw~~C-~O’~..-<.....ifv

2!

some ~hings, was ~ aff~4-

’

22

Ao i don~t believe SOo !

use -- as i

23

say~ i, you

not being familiar with the things

24

tha~ were be4~ ~ ~ ~nves~igated e~en~t know what !ANA was

25

or what the significance of that was and, you

the

M & H Court Reporting Service, inc. 1-800-879-17 3"3

25 4ACE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 156 of 162

i

other ~:~n,gs that, you know, i’~±: recall when ~ -look at

2 the affidavi:o

3

Qo So the conversation

so !et me just make

sure < understand o You got ~h~ a ff=eav!~ you m ....ve

5 e-ma~__o You’re not a hundred ~_ercent m_os~i=~=_v~o And you

6

inserted a paragraph at the top

o is it

!~~=r to call

~

7

that a ~ream~ie paragrapno

8

Ao Yes°

9

Q~ And that basically

i0

%~ar correc~9

said who you were; is

12

Qo And then you called Agent Gneckow to

a

13

few things?

14

Ao Yes°

Qo Do you recall whether

Gneckow

i6

some revisions to the affidavit at that point?

i7

Ao

! don~E~ nOo

18

~o

so ! guess wna% i~m

is you i ......

~~

.... =~m~~= ~o wha~ Agent ..... uiieCKOm senL 1~ you

You ~co not

2O

any ........ ons %o the

21

affidavit?

22

o

woui~n~t }~ in a w,o~:

-uo make re,sls±ons

23

because i didn’t know about %he inves~qmation that led

24

~o ~he fac~So

25

Q Ane do you know whether Agent ~ ~ made

H & M Court Reporting Service, inc.

1-800-879-1700

Pace 26
!’OAC E ~ SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 157 of 162

!

you about one sentence toward almost the very end of

2 your answer°

3

Ao

examining document°) Okay. i~ve

already reviewed uh~o

Qo So~

just one part of ito The

6

sentence says, ~’SoAo Mace does no~ recall the spe

questions that he asked of SoAo Gneckow, but he does

8

recall tha~ SoAo Gneckow and he discussed the contents

9 of the a=~ea~ in enough depth that S.Ao Mace was

i0 comfortable that the facts were accurate and that he

ii

understood :t~±~e facts we~~

to artA’cuiate to the

12

Magistrate Judgeo~’

i3

So in terms of you m={~ ~mf~:~+~m~= that the

facts were accurate, again, that was

the

15 affidavit and making sure there was

16 inaccurate?

i7

Ao That

you know, i~m sure during my

i8

conversations with Agent Gneckow he gave me a brief

i9

qynos<{s of ~he investigation that lead <o the

2O deveiomment of the facts that were laid out in

21

22

Q

And would that have ...... ~ ~o whether ~he facts

23 were accurate or just to

you a descrimtion of

24 facts and <he investigation?

25

HRo MEEKS: Objection, vague°

H & H Court Reporting Service, inc. 1-800-879-1700

~_AC E, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 158 of 162

i

THE WITNESS: i don~t think i would know

2

whether they were accurate or not~ i didn’t quiz him as

3

to the voracity of the i took it on face value that

4

what he was telling me was true°

5

BY HRo GELERNT:

6

Qo Okay°

7

A~er speaking with Agent Gneckow did you

8

have any doubts that pro~a~ie cause was satisfied?

9

Ao NOo

i0

Qo Did Agent Gneckow ~e±_ you any in~or_~ion

ii

that was no~ con~a~nee in ehe a~

~ !i~davit?

12

Ao As i say, I don~t

~e~ ~ sDecl~ic

13

conversation i had with SoAo Gneckowo So i’m not sure

14

wna~ exactly he ~o1~ me,

i5

Did he tell you ~he source o~ the information?

i6

Weii~ the qource oz e~ 4nzorma~Aon wouic have

17

been ~he inves~igationo

18

Qo Do you recall him telling you anything more

19

s~ecific than that?

2O

Ao MOo

Qo Do you recall that par% of the affidav~

r~£~r~nceN a ~lane ticket of Hr~ ai-X{dd~s?

23

~

Yes i do

24

Qo ~ you retail ham teiiin@ you the source of

the ±n~m~c~on about one ~iane ticket9

H & ’4 Coirt Reporting Service, Inc. 1-800-879-!700

31 SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 159 of 162

i

~en important whether he ignored a prior subpoena

2

Ao You asked me to speculate, so i was

3

specuia~ingo

Qo in making an assessment about probable cause,

5

would it have mattered ~o you if you knew that

6

Hro ai-Kidd had a UoS, citizen son in the United States?

HRo H~KS: Objection, ~ ~ ~aiis for

8

and vague°

9

THE WITNESS: i~d like to clarify that i did

i0

not know that Hro ai-Kidd had a son° And,

ii

on my prior experience, no, i~ve seen people walk away

12

from their children to avoid cour:o

13

BY HR .... ~

14

Q o How about if you~ ~ ....

na~ known that Mr ai-Kidd

15

had a U o So citizen wife~ would that kave made a

16

difference in your assessment of ~srobabie cause?

based

18

HR~ HEEKS: Objecnion, specuiation~

19

THE WITNESS: No~ s=:~

2O

2i

O~

n~ { < ~hat because ....

22

<keir wives ~_~ avoidcour_?

23

MR MmmKS ~

~ .... e walk away from 6 .... ~ ~ ~ You can

24

answer°

25

THE WITNESS:

yes° i~ve arrested

M & H Court Reporting Service,

i-800-879-1700

Page 47
YACE, SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 160 of 162

1

scores of people on failure to appear charges.

2

BY HRo GELERNT:

3

Q. Would it have made any difference to you in

assessinG_. ~ whether_ _~robable cause existed~ you had

5

known Hro ai-Kidd was a native-born United States

6

citizen?

7

HRo MEEKS: Objection~ calls for speculation°

8

THE WITNESS: No, sir°

9

BY MRo~L~~TR~~: N9

i0

And why is that?

ii

Ao it jus: didn’t enter into my thinking that

12

tha~ was a relevant_$act to

wne<-~r he would a~mear_~ to

13

testify°

14

Qo What did you understand the

15

o ~m -Hussayen at the time

~o be _~you souml<t. %he

16

warrant?

Ao

i~m not sure that there actually were any

18

Hro ai-Hussayen a~ that ~imeo

19

Qo So when you were

whether

2O

~ a!-Kidd had .....

~

2i

ba~ %hat de%ermina%{~ on?

wna~ were y~u

22

23

a~out this case~ ~hat

mecause ~hat s all that i Knew that,s e~ only sF~. ......

24

information i knew abou~ the case°

25

Qo But you didn’t know " ~=~ ~ mr ~ w::~:e .....

Ai-Hussayen

48

4 & ~f Coart Reportin@ Service, inc.

i-800-8~£ 9-i700

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 161 of 162

i

Ao 18 UoSo Code Section i00i(a) (I) and (2) and

2 3238, False Statements to the United States; and 18 UoSo

3 Code Section 1546(a), 3237 and 3238, Visa Fraud.

4

MR. GELERNT: And jus~ for the record, i would

jus~ add tha< Agent Mace is

He wasn~ ooo

6

H~ WITNESS: i~m reading that from the

7 affidavit, yes~

8

BY HRo MEEKS:

9

And at the time you signed the

wha~

i0 was your understanding as to who

as ~o against whom

ii

these

were?

12

Ao Sami ai-Hussayeno

13

MRo MEEKS: That’s aiio

i4

MRo GELERNT: We’re good°

THE COURT REPORTER: Would you like him to

16 read and sign?

17

HRo MEEKS: Yes°

i8

<Whereupon, %he deposition was conciudec a~

19
2O

2i

22

23

24

25

M & H Court Reporting Service, inc.

1-800-879-1700

93
SCOTT

Case 1:05-cv-00093-EJL-CWD Document 306-5 Filed 11/07/11 Page 162 of 162

CERTIFICATE OF SCOTT MACE

ORIGINAL

i, SCOTT MACE, being first

sworn, depose and say:

That i am ~he witness named in the foregoing deposition;

that i have read said deposition and know ~he con%ents thereof;

that the questions contained therein were

chat the answers therein contained are true and correct, except

for any changes that - may have listed on %he Change Sheet

autached hereto°

to me; and

eay of

2007.

SCOTT HACE

PUBLIC

1-800-879-1700

M & M COURT REPORTING SERVICE,

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 1 of 58
Exhibit 19
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 2 of 58

Brant S. Levine brant.levine@usdoj.gov D.C. Bar 472970 J. Marcus Meeks marcus.meeks@usdoj, gov D.C. Bar No. 472072
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

U~rNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

Case No. CV:05-093-S-EJL
RESPONSE OF DEFENDANT MICHAEL GNECKOW TO PLAINTNF’S FIRST INTERROGATORIES

Pursuant to Federal Rules of Civil Procedure 26 and 33, and Local Civil Rule 26.1,

Federal Defendant Michael Gneckow hereby responds to Plaintiff s First Interrogatories.

GENERAL OBJECTIONS

Defendant Gneckow states the following General Objections to Plaintiff’s First

Interrogatories, which are hereby incorporated in and made part of each of the following specific

interrogatory responses.

1. Defendant objects to Plaintiffs First Interrogatories to the extent that they seek to

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 3 of 58
impose obligations that exceed the scope of the Federal Rules of Civil Procedure. 2. Defendant objects to Plaintiff’s First Interrogatories to the extent that they require
answers that are not relevant to Plaintiff’s claims or Defendant’s defenses nor reasonably calculated to lead to the discovery of admissible evidence.
3. Defendant objects to Plaintiff’s First Interrogatories to the extent that they require the disclosure of grand jury information that may not be disclosed absent a court order under Rule 6(e) of the Federal Rules of Criminal Procedure.
4. Defendant object to Plaintiff’s First Interrogatories to the extent that they require the disclosure of information protected from disclosure by the la~v enforcement privilege, the investigation files privilege, or the official information privilege.
5. Defendant’s responses to Plaintiff’s First Interrogatories are made without waiving:
(a) The right to object to the competence, relevance, materiality, or admissibility as evidence of any information, or the subject matter thereof, in any aspect of this civil action or any other matter;
(b) The right to object at any time and upon any grounds to any other discovery requests; (c) The right at any time and for any reason to revise, supplement, correct, add or to clarify these responses; (d) The right to amend or supplement these responses if the Federal Defendants discover additional information; and (e) Any applicable privilege, including the but not limited to the attorney!client privilege, the law enforcement privilege, the investigation files privilege and the official information
2

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 4 of 58
privilege. INTERROGATORIES
INTERROGATORY NO. 1: Please describe any knowledge you had of any investigation(s) or surveillance of Plaintiff at any point up until the completion and filing of the Affidavit in support of the Application for ~m’est Warrant of Material Witness Abdullah al-Kidd. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: Special Agent (SA) Gneckow was the case agent for the criminal investigation of Sami Omar A1-Hussayen. During that criminal investigation, SA Gneckow and other law enforcement officials developed information that Plaintiff received an unusually large number of regular pa~yrnents from A1-Hussayen and A1-Hussayen’s close associate Abdulla Mohammed Aljughaiman and was known to have direct information about A1-Hussayen’s official connection with the Islamic Assembly of North America (IANA) and A1-Hussayen’s operation of the website www.al-multaqa.com.
SA Gneckow also was aware that an email sent to A1-Hussayen from another Saudi student at the University of Idaho included photographs of Plaintiff seated with many of A1Hussayen’s associates inside the apartment from which the www.al-multaqa.com website was operated and maintained.
SA Gneckow is aware that Plaintiff was placed under surveillance by the FBI.
INTERROGATORY NO. 2: Please describe your involvement in any investigation(s) or surveillance of Plaintiff.

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 5 of 58
OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: See answer to Interrogatory No. 1. SA Gneckow was not involved in any surveillance of Plaintiff.
~TERROGATORY NO. 3: Please identify and describe the role any persons you are aware of having participated in or been advised of the decision to seek Plaintiffs arrest as a material witness. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: The following individuals were involved in the decision to seek Plaintiff’s arrest as a material witness, with their roles noted in parentheses: SA Gneckow (provided some of the factual basis to the U.S. Attorney’s Office to support the application for the mater~al witness arrest warrant for Plaintiff and prepared an affidavit in support of the application); Supervisory SA Robert A. Davis (retired) (SA Gneckow’s supervisor, who concurred in the decision to seek a material witness arrest warrant for Plaintiff); SA Scott Mace (SA duty agent in Boise, who swore the affidavit filed in support of the material witness arrest warrant for Plaintiff); SA Joseph M. Cleary (provided some of the factual basis to the U.S. Attorney’s Office to support the application for the material witness arrest warrant) and Assistant United States Attorney Kim Lindquist (the lead prosecutor on the A1-Hussayen matter, who made the decision to seek the material witness arrest warrant for Plaintiff).

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 6 of 58
INTERROGATORY NO. 4: Please identify all persons whom you are aware of having had information referred to or referenced in the Affidavit filed in support of the Application for Arrest Warrant of Material Witness Abdullah al-Kidd or who supplied any information referred to or referenced in the Affidavit filed in support of the Application for Arrest Warrant of Material Witness Abdullah al-Kidd. OBJECTIONS: Defendant Gneckow objects to the terms "had," "supplied" and "any information referred to or referenced in the Affidavit" as vague and over-broad. Defendant Gneckow answers this interrogatory subject to this specific objection and the General Objections noted above. ANSWER: SA Gneckow obtained information supporting the contents of the affidavit for the material witness arrest warrant for Plaintiff from the criminal investigation of Sami Omar A1Hussayen and from the following law enforcement officials: Senior Special Agent (S/SA) Robert U. Alvarez, a United States Customs Service agent assigned to the FBI, Seattle Division, Spokane Resident Agency, Joint Terrorism Task Force, and SA Joseph M. Cleary.
INTERROGATORY NO. 5: For each person identified in your answer to Interrogator?, No. 4, please state the information possessed or provided by such person(s). OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: S/SA Robert Alvarez provided information from his agency about Plaintiff’s scheduled trip to Saudi Arabia. SA Joseph Cleary provided information on his interviews with Plaintiff, as well as copies of documents abandoned by Plaintiff at his storage facility in Moscow, Idaho, which indicated a relationship between Plaintiff and other members of LA_NA.
5

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 7 of 58
INTERROGATORY NO. 6: Please describe how and when you came to be aware that Plaintiff was planning to travel to Saudi Arabia in 2003. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: On or about March 13, 2003, S/SA Robert Alvarez received information (telephonically) from U.S. Customs and Border Protection that Plaintiff had purchased a oneway, first-class ticket for travel to Saudi Arabia for approximately $5000. SA Gneckow obtained this information in person from S/SA Alvarez on or about March 13, 2003. S!SA Alvarez also indicated that Plaintiff was scheduled to depart in about two or three days.
INTERROGATORY NO. 7: Please describe every step you took to investigate or otherwise gather information about Plaintiff’s plans for travel to Saudi Arabia in 2003, including every person, document, and!or database you consulted, and state the information you acquired at each step in this process. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: See Response to Interrogatory No. 6. Prior to Plaintiff’s arrest, a special agent with the FBI, Washington Field Office, confirmed that Plaintiff was listed on the flight manifest to Saudi Arabia. At or around that time, SA Gneckow was notified by telephone of this confirmation, but he does not remember the special agent’s name. Sometime after Plaintiff was arrested, SA Gneckow received three different reports dated March 12, 2003, March 20, 2003, and April 3, 2003, respectively, from the United States Customs Service concerning, among

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 8 of 58
other things, PlaintifFs scheduled trip to Saudi Arabia.
~TERROGATORY NO. 8: Please indicate all knowledge you had as of the time when the Affidavit was filed with the Court, and the sources or bases of such knowledge, regarding Mr. al-Kidd’s ai~lane ticket for travel to Saudi Arabia, including but not limited to its date of purchase, purchase price, manner of purchase, class of ticket (e.g., first-class, coach), and whether for one-way or round-trip travel. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: See Response to Interrogatory No. 6.
INTE~OGATORY NO. 9: Please describe your knowledge, as of the time ~vhen the Affidavit was filed with the Court, of Plaintiff s connections to the United States, including but not limited to his citizenship, place of birth, prior residences, education, work history, and family in the United States. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: At the time the material witness arrest warrant was sought for Plaintiff, SA Gneckow knew that:
Plaintiff was a United States citizen; Plaintiff had attended the University of Idaho from 1991 to 1996; Plaintiff had lived in Kent, Washington and Moscow’, Idaho;

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 9 of 58
Plaintiff s mother resided in Kent, Washington; Plaintiff divorced from his first wife, Stephanie J. Kidd, in 1994 and, at the time of the application for the material witness arrest, owed her over $10,000 in back child support; in mid-2000, Plaintiff began working at the Walla Walla State Prison where he was supposed to be a Muslim advisor to the Muslim inmates, and that Plaintiff was terminated from that position; Plaintiff separated from his second wife, Nadine Zegura, and traveled to Sanaa, Yemen in 2001, returning to the United States in early 2002 after he was arrested by the Yemeni security forces in the aftermath of 9/11; and at the time of his interviews with the FBI in June and July 2002, Plaintiff was unemployed.
INTE~OGATORY NO. 10: Please describe what you knew about the FBI’s contacts, including but not limited to any meetings or interv’iews, with Plaintiff up to and including March 14, 2003. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: SA Gneckow knew that Plaintiff had been interviewed on June 10, 2002, and July 3, 2002, by SA Joseph Cleary, FBI Spokane, prior to his arrest on March 14, 2003.
INTERROGATORY NO. 11: Please describe any information of which you were aware, as of the time when the Affidavit was filed with the Court, that related to the likelihood of whether

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 10 of 58
Plaintiff was a flight risk, would or would not comply with a subpoena, or whether it might become impracticable for the United States Government to secure Mr. al-Kidd’s presence at Mr. A1-Hussayen’s trial without having Mr. al-Kidd arrested. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: SA Gneckow was aware that, on February 26, 2003, A1-Hussayen was arrested, search warrants were executed and several of A1-Hussayen’s associates ~vere interviewed. SA Gneckow was also aware of significant news coverage in the Idaho and Washington area, particularly in Seattle, Washington. On March 11 and 12, 2003, SA Gneckow testified at A1Hussayen’s detention hearing in Boise, Idaho. News coverage of the hearing was widespread, to include numerous newspaper articles and television coverage in the Seattle, Washington area. During the hearing, there was a great deal of information provided which tied A1-Hussayen and IANA to illegal activity, much of which included A1-Hussayen’s operation ofwebsites, including ww~v.al-multaqa.com.
The following day (March 13, 2003), SA Gneckow was advised by S/SA Alvarez that Plaintiff had scheduled his one-way trip to Saudi Arabia. SA Gneckow believed the timing of Plaintiff’s rese~-ation and scheduled departure following the al-Hussayen arrest and subsequent detention hearing supported the belief that Plaintiff was fleeing the country to avoid being called to testify in the A1-Hussayen prosecution. SA Gneckow also thought it was significant that Plaintiff did not attempt to contact the FBI after al-Hussayen’s well publicized indictment and arrest, considering that the FBI had previously interviewed Plaintiff concerning his ties to alHussayen. SA Gneckow learned that an attempt by the FBI to locate Plaintiff in the Kent,
9

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 11 of 58
Washington area after his flight schedule was discovered was unsuccessful. [SA Gneckow later learned that Plaintiff left the Washington area on March 12, 2003, following the first day of A1Hussayen’s detention hearing.]
SA Gneckow was aware that the FBI made at least two attempts to obtain information relative to Plaintiff’s relationship with A1-Hussayen and his work at A1-Multaqa, but in both instances, Plaintiff declined to provide information on A1-Hussayen. Specifically, SA Gneckow is aware that in Plaintiff’s prior interviews ~vith the FBI on June 10, 2002 and July 3, 2002, Plaintiff admitted to employment with A1-Multaqa but refused to give names of individuals (to include A1-Hussayen’s name) who operated A1-Multaqa. SA Gneckow was aware that Plaintiff was less than forth coming on other issues as well. For example, Plaintiff described A1-Multaqa as a web based clearinghouse for the distribution of tapes and literature on Islam, but failed to mention that the tapes included lectures by radical Saudi sheikhs such as Salman al-Ouda and Safar al-Hawali, who are considered the spiritual mentors to Osama bin Laden. Plaintiff also failed to mention that the A1-Multaqa website was devoted to promoting terrorism in Chechnya against the Russians and in Palestine against the Israelis. Plaintiff also failed to mention meeting with any of A1-Hussayen’s associates upon his return from Yemen. Based on his experience in terrorism related investigations during this time, SA Gneckow considered Plaintiff’s lack of cooperation to be uncharacteristic in comparison to other persons the FBI was interviewing as part of its investigations.
SA Gneckow believed these two issues (the timing and exigency of Plaintiff’s flight to Saudi Arabia and his failure to cooperate, even to the extent of refusing to identify al-Hussayen by name) served as the two most important factors in the decision made by the U.S. Attorney’s
10

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 12 of 58
Office to use the material witness arrest warrant option. SA Gneckow also believed that because Plaintiff was leaving the country" imminently to travel to Saudi Arabia (which does not have an extradition treaty with the United States), and that Plaintiff failed to cooperate in previous contacts with the FBI, there was no guarantee Plaintiff would comply with a subpoena and that there was no other practicable means to secure Plaintiff’s presence at A1-Hussayen’s trial short of arrest as a material witness.
INTERROGATORY NO. 12: Please describe any efforts you made to verify or investigate any of the fac~s asserted in the Affidavit. OBJECTIONS: Defendant Gneckow answers this interrogatory subject to the General Objections noted above. ANSWER: SA Gneckow relied on the information provided by S/SA Alvarez from his agency about Plaintiff’s original flight schedule information to Saudi Arabia. Once it was confirmed by the Washington Field Office special agent (whose name SA Gneckow cannot recall) that Plaintiff was on the flight manifest to Saudi Arabia, SA Gneckow did not believe there was need to conduct additional checks about the trip. SA Gneckow obtained financial information concerning the relationship between Plaintiff and A1-Hussayen and his associates during the criminal investigation of A1-Hussayen. SA Gneckow obtained other information, such as documents which indicated a relationship between Plaintiff and IANA and/or A1-Multaqa from a storage facility in Moscow, Idaho in April 2002. SA Gneckow also was aware Plaintiff had been interviewed on June 10, 2002, and July 3, 2002, by SA Joseph Cleary, FBI Spokane, prior to his arrest on March 14, 2003.
11

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 13 of 58

INTERROGATORY NO. 13: Please describe any suspicions about Plaintiff of which you were aware as of the time when the Affidavit was filed with the Court, including but not limited to any suspicion that he was connected in any way to any criminal or terrorist activity or persons suspected of involvement in such activity. ANSWER: See Response to Interrogatory No. 1.

Dated: February 23, 2007

Signed as to the Objections by:

~NT S. LEVINE J. MARCUS MEEKS United States Dept. of Justice Torts Branch, Civil Division P. O. Box 7146 Ben Franklin Station Washington, D.C. 20044 (202) 616-4176 (voice) (202) 616-4314 (fax)
Attorneys for Michael Gneckow
Signed as to the Answers by:
SEE ATTACHED VERIFICATION OF SA MICHAEL GNECKOW

12

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 14 of 58

FEB-22-2809 14:53

FBI COEUR D’ALENE, [D RA

2~8 E65 2525

VE~CATION

I, Michael J. C’II~¢kow, declare tha~ I have read the responses m Pl~tiff’s Firs~ Interrogatories to Dcfcndam Oneckow. Based upon reasonable ~uquiry and my knowledge, information, and belief, these responses a~e true and correct.

is true.

Pursua.nt to 28 U.S,C, § 1746, I declare ur~der peratlty of p~rjury that the foregokug

Executed this 22rid day

2007, in Coeur

Idaho.

Special Agent Federal Burewa of Investigation
U.S. Department of Justice

FEB-22-2007 17:49

CDA R&

P,O02

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 15 of 58
CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2007, I caused the foregoing RESPONSE OF DEFENDANT MICHAEL GNECKOW TO PLAINTNF’S FIRST INTERROGATORIES to be served on Plaintiff’s and Defendant’s counsel, via first class mail, as follows:
Lee Gelernt, Attorney for Plaintiff ACLU Immigrants’ Rights Project 125 Broad St, 18th Floor New York, NW 10004
Robin Goldfaden, Attorney for Plaintiff ACLU Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111
Cynthia Jane Woolley, Attorney for Plaintiff Law Offices of Cynthia J. Woolley, PLLC P.O. Box 6999 180 First Street West, Suite 107 Ketchum, ID 83340
R. Keith Roark, Attorney for Plaintiff The Roark Law Firm, LLP 409 North Main Street Harley, ID 83333
Kathleen J. Elliott and Teresa A. Hampton, Attorneys for Plaintiff Hampton & Elliott 912 North 8th Street Boise, D 83302
Julie D. Reading, Attorney for Defendant Killeen Ada County Prosecutors 200 W. Front Street, Room 3191 Boise, ID 83702
arcus Meeks U.S. Department of Justice
13

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 16 of 58
Exhibit 20
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 17 of 58

Brant S. Levine brant.levine@usdoj, gov D.C. Bar 472970 J. Marcus Meeks marcus.meeks@usdoj, gov D.C. Bar No. 472072
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Fra~ktin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

Case No. CV:05-093-S-EJL

Plaintiff,
ALBERTO GONZALES, Attorney General of the United States; et al.,

~SPONSE OF DEFENDANT SCOTT MACE TO PLA~TIFF’S FIRST INTERROGATORIES

Defendants.

Pursuant to Federal Rules of Civil Procedure 26 and 33, and Local Civil Rule 26.1, Federal Defendant Scott Mace hereby responds to Plaintiff’s First Interrogatories.
GENERAL OBJECTIONS Defendant Mace states the following General Objections to Plaintiff’s First Interrogatories, which are hereby incorporated in and made part of each of the following specific interrogatory responses. 1. Defendant objects to Plaintiff’s First Interrogatories to the extent that they seek to

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 18 of 58
impose obligations that exceed the scope of the Federal Rules of Civil Procedure. 2. Defendant objects to Plaintiff’s First Interrogatories to the extent that they require
answers that are not relevant to Plaintiff’ s claims or Defendant’s defenses nor reasonably calculated to lead to the discovev of admissible evidence.
3. Defendant object to Plaintiff’s First Interrogatories to the extent that they require the disclosure of information protected from disclosure by the law enforcement privilege, the investigation files privilege, or the official information privilege.
4. Defendant’s responses to Plaintiff’s First Interrogatories are made without waiving:
(a) The right to object to the competence, relevance, materiality, or admissibility as evidence of any information, or the subject matter thereof, in any aspect of this civil action or any other matter;
(b) The right to object at any time and upon any grounds to any other discover?" requests; (c) The right at any time and for any reason to revise, supplement, correct, add or to clarify these responses; (d) The right to amend or supplement these responses if the Federal Defendants discover additional information; and (e) Any applicable privilege, including the but not limited to the attorney/client privilege, the law enforcement privilege, the investigation files privilege and the official information privilege.
INTERROGATORIES INTERROGATORY NO. 1: Please describe any knowledge you had, as of the time when your

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 19 of 58
Affidavit was signed by you and filed with the Court, of any investigation(s) or surveillance of Plaintiff. OBJECTIONS: Defendant Mace answers this interrogatory subject to the General Objections noted above. ANSWER: On March 14, 2003, Special Agent (SA) Scott Mace was contacted by SA Michael Gneckow who is assigned to the Federal Bureau of h~vestigation, Salt Lake City Division, Coeur d’Alene Resident Agency. SA Gneckow told SA Mace that he was seeking an arrest warrant for Abdullah A1-Kidd as a material witness in the matter of United States of America v. Sami Omar A1-Hussayen. SA Gneckow provided SA Mace with a copy of an affidavit that he had prepared in support of the application for an arrest warrant and asked that SA Mace present it to the nearest available U.S. Magistrate Judge who sat in Boise, Idaho. SA Mace reviewed the affidavit and inserted a preamble above the first paragraph which included the following language: ’°This affidavit is based upon facts acquired by fellow FBI Special Agent Michael James Gneckow and other law enforcement officials pertaining to the investigation. On March 14, 2003 Special Agent Michael James Gneckow advised your affiant of the following:". The affidavit from that point consisted of eight para~aphs that had been written by Special Agent Gneckow.
SA Mace spoke to SA Gneckow by telephone after having received the affidavit to ensure that SA Mace could answer questions which he, SA Mace, anticipated the Magistrate Judge might ask. SA Mace does not recall the specific questions that he asked of SA Gneckow, but he does recall that SA Gneckow and he discussed the contents of the affidavit in enough depth that SA Mace was comfortable that the facts were accurate and that he understood the facts well enough to articulate to the Magistrate Judge. SA Mace’s discussion with SA Gneckow was in

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 20 of 58
regard to the facts laid out in the affidavit. SA Mace did not question SA Gneckow regarding the investigation which developed those facts, nor did SA Mace participate in that investigation.
SA Mace had no knowledge of surveillance of Plaintiff.
INTERROGATORY NO. 2: Please describe your involvement in any investigation(s) or surveillance of Plaintiff. OBJECTIONS: Defendant Mace answers this interrogatory subject to the General Objections noted above. ANSWER: See Response to Interrogatory No. 1. Apart from what is indicated in Response to Interrogatory No. 1, SA Mace did not participate in the investigation which led to the arrest warrant for Plaintiff as a material witness in the matter of United States of America v. Sami Omar A1-Hussayen. SA Mace did not participate in any surveillance of Plaintiff.
INTERROGATORY NO. 3: Please identify and describe the role any persons you are aware of having participated in or been advised of the decision to seek Plaintiff’s arrest as a material witness. OBJECTIONS: Defendant Mace answers this interrogatory subject to the General Objections noted above. ANSWER: SA Mace is aware that SA Gneckow, as the case agent involved in the matter of United States of America v. Sami Omar A1-Hussayen, sought the arrest warrant for Plaintiff as a material witness. After becoming familiar with the affidavit, SA Mace contacted an Assistant United States Attorney and requested that he or she accompany him before the Magistrate Judge.
4

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 21 of 58
the facts asserted in your Affidavit. OBJECTIONS: Defendant Mace answers this interrogatory subject to the General Obj ections noted above. ANSWER: See Response to Interrogatory No. 1.
INTERROGATORY NO. 13: Please describe any suspicions about Plaintiff of which you were aware when you prepared and signed your Affidavit, including but not limited to any suspicion that he was connected in any way to any criminal or terrorist activity or persons suspected of involvement in such activity. OBJECTIONS: Defendant Mace answers this interrogatory subject to the General Objections noted above. ANSWER: See Response to Interrogatory No. 1. SA Mace had no knowledge of Plaintiff prior to discussing the affidavit prepared by SA Gneckow in support of the application for an arrest warrant for Plaintiff as a material witness in the matter of United States of America v. Sami Omar A1-Hussayen, nor did SA Mace participate in the investigation which developed those facts. Based on his discussion with SA Gneckow concerning the contents of the affidavit, SA Mace was satisfied that probable cause existed to seek an arrest warrant for Plaintiff as a material witness in the matter of United States of America v. Sami Omar A1-Hussayen.

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 22 of 58

Dated: February 23, 2007

Signed as to the Objections by:

S. LEVINE J. MARCUS MEEKS United States Dept. of Justice Torts Branch, Civil Division P. O. Box 7146 Ben Franklin Station Washington, D.C. 20044 (202) 616-4176 (voice) (202) 6!6-4314 (fax)
Attorneys for Scott Mace
Signed as to the Answers by:
SEE ATTACHED VERWICATION OF SA SCOTT MACE

9

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 23 of 58

02/22/07 ~: 21:08 F.~,I 208 433 3500

FBI BOISE

VERITICATION

I, Scott Mace, decl~e r~a~ I have read ~e responses ~o Plaimiff’s Firs~ tntc~-,Togatorie.s to Dsfendant Mace. B~ed upon reasonable inqtfry and my knowledge, information, and belief, r~ese responses ~e wae and correct.

is tPa~.

Pursum~t to 28 U.S.C. § t746, I dectm-e undo penalty of perjury t~t the foregoing

Executed this 22rid day of February, 2007, in Boise, I~o

Scott Mace Special Agent Federat Bm’eau of Investigation U.S. Depar~ent of Justice

FEB-22-2007 23:15

200 433 3500

92X

P.O02 -

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 24 of 58
CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2007, I caused the foregoing RESPONSE OF DEFENDANT SCOTT MACE TO PLAINTIFF’S FIRST INTERROGATORIES to be served on Plaintiff’s and Defendant’s counsel, via first class mail, as follows:
Lee Gelernt, Attorney for Plaintiff ACLU Immigrants’ Rights Project 125 Broad St, 18~h Floor New York, NY 10004
Robin Goldfaden, Attorney for Plaintiff ACLU Immigrants’ Rights Project 39 Drum Street San Francisco, CA 94111
Cynthia Jane Woolley, Attorney for Plaintiff Law Offices of Cynthia J. Woolley, PLLC P.O. Box 6999 180 First Street West, Suite 107 Ketchum, ID 83340
R. Keith Roark, Attorney for Plaintiff The Roark Law Firm, LLP 409 North Main Street Harley, ID 83333
Kathleen J. Elliott and Teresa A. Hampton, Attorneys for Plaintiff Hampton & Elliott 912 North 8th Street Boise, ID 83302
Julie D. Reading, Attorney for Defendant Killeen Ada County Prosecutors 200 W. Front Street, Room 3191 Boise, ID 83702
arcus Meeks U.S. Department of Justice

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 25 of 58
Exhibit 21
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 26 of 58

Brant S. Levine brant.levine@usdoj.gov D.C. Bar 472970 J. Marcus Meeks marcus.meeks@usdoj, gov D.C. Bar No. 472072
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

U~ITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-~D,

)

)

Plaintiff,

)

) )

ALBERTO GONZALES, Attorney General

of the United States; et al.,

Case No. CV:05-093-S-EJL
SUPPLEMENTAL RESPONSE OF DEFENX)ANT THE U~ITED STATES TO PLAINTIFF’S FIRST ~TERROGATORIES

Defendants.

)

)

Pursuant to Federal Rules of Civil Procedure 26 and 33, and Local Civil Rule 26.1,

Federal Defendant the United States hereby provides this supplemental response to Plaintiff’s

First Interrogatories. The answer to Interrogatory 14 has been revised and supplemental

information provided..

GENERAL OBJECTIONS

The United States makes the following General Objections to Plaintiff" s First

Interrogatories, which are hereby incorporated in and made part of each of the following specific

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 27 of 58
District of Oklahoma and are no longer part of this proceeding, nor is there any claim in this proceeding that relates to Plaintiff’s "transfers," as his false imprisonment claim for the period of time between his initial appearance in the Eastern District of Virginia and his subsequent appearance in the District of Idaho was dismissed by court order on September 18, 2006. The Untied States answers this interrogato~ subject to these specific objections and the General Objections noted above. ANSWER: The following individuals have relevant knowledge: FBI Special Agents (SAs) Michael Gneckow, Joseph Cleary, Scott Mace, Jeffrey Rising, Chris Mamula and John Wyrnan; retired FBI Supervisory Special Agent Robert Davis; Immigration and Customs Enforcement Senior Special Agent (S/SA) Robert Alvarez; CBP Security Specialist Jaime Alvarado; and AUSAs George Breitsameter and Kim Lindquist.
INTERROGATORY NO. 2: For each person identified in your answer to Interrogator?’ No. 1, please describe the information known to such person and when such information was acquired. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above. ANSWER: SA Michael Gneckow was the case agent for the criminal investigation of Sami Omar al-Hussayen. During that investigation, SA Gneckow developed information that Plaintiff received an unusually large number of regular payments from A1-Hussayen and A1-Hussayen’s close associate Abdulla Mohammed Aljughaiman, and that Plaintiff had direct information about A!-Hussayen’s official connection with the Islamic Assembly of North America (IANA) and A1Hussayen’s operation of the website www.al-multaqa.com. On or about March 13, 2003, SA
4

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 28 of 58
Gneckow obtained infolTnation from S/SA Robert Alvarez that Plaintiff had purchased a oneway, first-class ticket for travel to Saudi Arabia that cost approximately $5000 and that Plaintiff was scheduled to depart in about tWO or three days.
SA Joseph Clea~* was the case agent in the Seattle, Washington field office in charge of an intelligence investigation of Plaintiff. SA Cleary interviewed Plaintiff on June 10, 2002, and July 3, 2002, concerning, among other things, his travel to Yemen, his ties to Sami Omar alHussayen and his associates, and his work at al-Multaqa. SA Cleary also became aware in the summer of 2002 of documents abandoned by Plaintiff at a storage facility in Pullman, Washington that indicated a relationship between Plaintiff and other members of IANA. (Plaintiff had stated at his intelwiew on July 3, 2002, that he had attended the IANA a~mual conference in 1998 or 1999.) SA Clearly consulted with SA Gneckow during the course of the al-Hussayen criminal investigation and learned through those consultations that Plaintiff had received an unusually large number of regular pa?~nents from A1-Hussayen and Aljughaiman, and that Plaintiff had direct information about A1-Hussayen’s official connection with IANA and A1-Hussayen’s operation of the website v~,.al-multaqa.com.
SA Scott Mace was contacted by SA Michael Gneckow on March 14, 2003, regarding the need to obtain an arrest warrant for Abdullah A1-Kidd as a material witness in the matter of United States of America v. Sami Omar A1-Hussaven. SA Gneckow provided SA Mace with a copy of an affidavit that he had prepared in support of the application for an arrest warrant and asked that SA Mace present it to the nearest available U.S. Magistrate Judge who sat in Boise, Idaho. SA Mace spoke to SA Gneckow by telephone after having received the affidavit to ensure that SA Mace could answer questions that he, SA Mace, anticipated the Magistrate Judge might

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 29 of 58
ask. SA Jeffrey Rising arrested Plaintiff at Dulles International Airport on March 16, 2003. SAs Chris Mamula and John Wyman interviewed Plaintiff on March 16, 2003, after his
arrest, concerning his planned travel to Saudi Arabia. FBI Supervisory Special Agent Robert Davis (retired) was SA Gneckow’s supervisor in
March, 2003. In this capacity, SSA Davis would have been aware of Plaintiff’s involvement with al-Hussayen and L~NA, including the receipt of payments from A1-Hussayen and Aljughaiman. SSA Davis also was aware of the information used to support the material witness arrest warrant application and concurred in the decision to seek a material witness arrest warrant for Plaintiff.
ICE Senior Special Agent Robert Alvarez obtained information from U.S. Customs Officer Jaime Alvarado on March 12, 2003, concerning Plaintiffs flight to Saudi Arabia. Officer Alvarado informed Alvarez that Plaintiff had purchased a one-way, First Class ticket to Saudi Arabia scheduled to leave on March 13, 2003, and a second reservation for departure on March 15, 2003 (although the flight was actually scheduled to depart on March 16). It was SSA Alvarez’s understanding that the ticket cost approximately $5000.
CBP Officer Jaime Alvarado, on March 12, 2003, reviewed flight manifest information concerning the flight to Saudi Arabia Plaintiff had booked on March 6, 2003. The manifest information indicated that on March 6, 2003, Plaintiff had booked two reservations to Jeddah, Saudi Arabia: the first reservation for a one-way First-class ticket departing on Thursday, March 13 and the second reservation for a one-way ticket departing on Saturday, March 15 (though this second flight, which was a regular flight on Saudi Arabian Airlines to Jeddah, always departed
6

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 30 of 58
on a Sunday, rather than a Saturday). AUSA Kim Lindquist, as the prosecutor in charge of the al-Hussayen prosecution,
became aware during the course of the criminal investigation of al-Hussayen that Plaintiff had received an unusually large number of regular payments from A1-Hussayen and Aljughaiman, and that Plaintiff had direct information about A1-Hussayen’s official connection with the Islamic Assembly of North America (IANA) and A1-Hussayen’s operation of the website v, axw.almultaqa.com. On or about March 13, 2003, AUSA Lindquist learned from SA Gneckow that Plaintiff had purchased a one-way, First Class ticket to Saudi Arabia, that cost approximately $5000, and that Plaintiff was scheduled to depart in two or three days.
AUSA George Breitsameter, an AUSA in the Criminal Division in the District of Idaho, signed the material witness warrant application because AUSA Lindquist was unavailable at the time. AUSA Breitsameter accompanied SA Mace to present the application to the magistrate judge. AUSA Breitsameter does not recall making any inquiry into the matter, other than possibly confirming with SA Mace that AUSA Lindquist had approved the material witness warrant application.
~TERROGATORY NO. 3: Please state any facts upon which you base your defenses, including any affirmative defenses. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above. ANSWER: During the criminal investigation of Sami Omar A1-Hussayen, SA Gneckow and AUSA Lindquist developed information that Plaintiff received an unusually large number of
7

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 31 of 58
regular payments from A1-Hussayen and A1-Hussayen’s close associate Abdulla Mohammed Aljughaiman, and that Plaintiff had direct information about A1-Hussayen’s official connection with the Islamic Assembly of Nortia America (IANA) and A1-Hussayen’s operation of the website ,a~vw.al-multaqa.com. A1-Hussayen was arrested on February 26, 2003.
On March 12, 2003, CBP Officer Jaime Alvarado reviewed flight manifest information concerning Plaintiff’ s flight to Saudi Arabia. The manifest information indicated that on March 6, 2003, Plaintiff had booked two reservations to Jeddah, Saudi Arabia: the first reservation for a one-way First-class ticket departing on Thursday, March 13 and the second reservation for a oneway ticket departing on Saturday, March 15 (although this second flight, which was a regular flight on Saudi Arabian Airlines to Jeddah, always departed on a Sunday, rather than a Saturda~yf. Officer Alvarado provided this information to SSA Alvarez, who in turn provided it to SA Gneckow. At some point during these communications, it was deternained that a ticket such as the one Plaintiff was believed to have purchased cost approximately $5000.
SA Gneckow reasonably relied on the information available to him concerning the payments Plaintiff received from A1-Hussayen and A1-Hussayen’s close associate Abdulla Mohammed Aljughaiman, Plaintiff’s knowledge of A1-Hussayen’s official connection with the Islamic Assembly of North America (IANA) and A1-Hussayen’s operation of the website v,~v.al-multaqa.com, and the information obtained from SSA Alvarez and Offmer Alvarado in deciding whether the seek an arrest warrant for Plaintiff.
SA Gneckow suggested to AUSA Kim Lindquist that a material witness warrant be obtained for Plaintiff based on the information available to SA Gneckow. AUSA Linquist a~eed with SA Gneckow’s suggestion and decided that it was appropriate to obtain a material witness

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 32 of 58
arrest warrant for Plaintiff. SA Gneckow reasonably relied on the information available to him when he drafted the affidavit in support of the application for a material witness arrest warrant. Neither SA Gneckow nor AUSA Lindquist received any instruction or direction from any senior Department of Justice or FBI official located in Washington, D.C. regarding the decision to apply for the material witness arrest warrant. Neither SA Gneckow nor AUSA Lindquist received any policy guidance from the Department of Justice with respect to the use of the material witness statute for Plaintiff’s arrest.
On March 14, 2003, SA Gneckow contacted SA Mace about obtaining an arrest warrant for Abdullah A1-Kidd as a material witness in the matter of United States of America v. Sami Omar A1-Hussayen. SA Gneckow provided SA Mace with a copy of the affidavit he had prepared in support of the application for an arrest warrant and asked SA Mace to present it to the nearest available U.S. Magistrate Judge. SA Mace added only one paragraph to the affidavit - a preamble above the first numbered paragraph which included the language: "This affidavit is based upon facts acquired by fellow FBI Special Agent Michael James Gneckow and other law enforcement officials pertaining to the investigation. On March 14, 2003 Special Agent Michael James Gneckow advised your affiant of the following:". SA Mace presented the application to a federal magistrate on March 14, 2003, who signed it the same day.
INTERROGATORY NO. 4: Please identify and describe the role of ever5~ person involved in or aware of the decision to seek a warrant for the arrest of Plaintiff as a material witness. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above.

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 33 of 58
ANSWER: The following individuals were involved in the decision to seek Plaintiff’s arrest as a material witness, with their roles noted in parentheses: SA Gneckow (provided some of the factual basis to the U.S. Attorney’s Office to support the application for the material witness arrest warrant for Plaintiff and prepared an affidavit in support of the application); Supervisory SA Robert A. Davis (retired) (SA Gneckow’s supervisor, who concurred in the decision to seek a material witness arrest warrant for Plaintiff); SA Scott Mace (SA duty agent in Boise, who swore the affidavit filed in support of the material witness arrest warrant for Plaintiff); SA Joseph M. Cleary (provided some of the factual basis to the U.S. Attorney’s Office to support the application for the material witness arrest warrant) and Assistant United States Attorney Kim Lindquist (the lead prosecutor on the A1-Hussayen matter, who made the decision to seek the material witness arrest warrant for Plaintiff).
INTERROGATORY NO. 5: Please state every fact known to any FBI, customs or other federal law enforcement officer at any point prior to April 1, 2003, about Plaintiff’s plans to trave! to Saudi Arabia in March 2003 and identify the person(s) with such knowledge, when such knowledge was acquired, and the manner in which such knowledge was acquired. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above. ANSWER: See Answer to Interrogator’ No. 2. On March 12, 2003, CBP Officer Jaime Alvarado accessed the Reservation Monitor flight manifest database to review the names of passengers on Saudi Arabian Airlines Flight 34 to Jeddah, Saudi Arabia, scheduled to depart on March 13, 2003. The manifest information indicated that on March 6, 2003, Plaintiff had booked
10

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 34 of 58
two reservations to Jeddah, Saudi Arabia: the first reservation for a one-way First-class ticket departing on Thursday, March 13, and the second reservation for a one-way ticket departing on Saturday, March 15 (although this Second flight, which was a regular flight on Saudi Arabian Airlines to Jeddah, always departed on a Sunday, rather than a Saturday).
INTERROGATORY NO. 6: Please describe the basis or bases for the material witness arrest warrant application’s assertion that Plaintiff had a one-way first-class airplane ticket to Saudi Arabia, costing approximately $5,000, including but not limited to the source of such information, any documents reviewed, any persons or entities questioned about Plaintiff’ s airplane ticket, and any databases accessed. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above. ANSWER: See answers to Interrogatories Nos. 3 and 5. It was the understanding of SA Gneckow and SSA Alvarez that the ticket Plaintiff had purchased cost approximately $5000.
~’TERROGATORY NO. 7: Describe any facts known to any FBI, customs or other federal law enforcement officer about Plaintiff as of March 14, 2003, that would have tended to show that Plaintiff was a flight risk, would not comply with a subpoena issued for his appearance at criminal proceedings against Sami Omar A1-Hussayen, or that it otherwise might become impracticable to secure his presence by subpoena. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above.
11

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ANSWER: SA Gneckow was aware that on February 26, 2003, A1-Hussayen was arrested, search warrants were executed and several of A1-Hussayen’s associates were interviewed. SA Gneckow was also aware of significant news coverage in the Idaho and Washington area, particularly in Seattle, Washington. On March 11 and 12, 2003, SA Gneckow testified at A1Hussayen’s detention hearing in Boise, Idaho. News coverage of the hearing was widespread, to include numerous newspaper articles and television coverage in the Seattle, Washington area. During the hearing, there was a great deal of information provided which tied A1-Hussayen and IANA to illegal activity, much of which included A1-Hussayen’s operation of websites, including w~,~-.al-multaqa.com.
The following day (March 13, 2003), SA Gneckow was advised by SSA Alvarez that Plaintiff had purchased a one-way ticket to Saudi Arabia. SA Gneckow believed the timing of Plaintiff’s reservation and scheduled departure following the al-Hussayen arrest and subsequent detention hearing supported the belief that Plaintiff was fleeing the country to avoid being called to testify in the A!-Hussayen prosecution. SA Gneckow also thought it was significant that Plaintiff did not attempt to contact the FBI after al-Hussayen’s well publicized indictment and arrest, considering that the FBt had previously interviewed Plaintiff concerning his ties to alHussayen. SA Gneckow learned that an attempt by the FBI to locate Plaintiff in the Kent, Washington area after discovering his flight schedule was unsuccessful. [SA Gneckow later learned that Plaintiff left the Washington area on March 12, 2003, following the first day of A1Hussayen’s detention hearing.]
SA Gneckow was aware that the FBI made at least two attempts to obtain information relative to Plaintiff,s relationship with A1-Hussayen and his work at A1-Multaqa, but in both
12

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instances, Plaintiff declined to provide information on A1-Hussayen. Specifically, SA Gneckow is aware that in Plaintiff’s prior interviews with the FBI on June 10, 2002 and July 3, 2002, Plaintiff admitted to employment With A1-Multaqa but refused to give names of individuals (to include A1-Hussayen’s name) who operated A1-Multaqa. SA Gneckow was aware that Plaintiff was less than forthcoming on other issues as well. For example, Plaintiff described A1-Multaqa as a web based clearinghouse for the distribution of tapes and literature on Islam, but failed to mention that the tapes included lectures by radical Saudi sheikhs such as Salman al-Ouda and Safar al-Hawali, who are considered the spiritual mentors to Osama bin Laden. Plaintiff also failed to mention that the A1-Multaqa website was devoted to promoting terrorism in Chechnya against the Russians and in Palestine against the Israelis. Plaintiff also failed to mention meeting with any of A1-Hussayen’s associates upon his return from Yemen. Based on his experience in terrorism related investigations during this time, SA Gneckow considered Plaintiff’ s lack of cooperation to be uncharacteristic in comparison to other persons the FBI was interviewing as part of its investigations.
SA Gneckow believed these two issues (the timing and exigency of Plaintiff’s flight to Saudi Arabia and his failure to cooperate, even to the extent of refusing to identify al-Hussayen by name) served as the two most important factors in the decision made by the U.S. Attorney’s Office to use the material witness arrest warrant option. SA Gneckow also believed that because Plaintiff was lea,~ing the country imminently to travel to Saudi ~a~rabia (which does not have an extradition treaty with the United States), and that Plaintiff failed to cooperate in previous contacts with the FBI, there was no assurance Plaintiff would comply with a subpoena and that there was no other practicable means to secure Plaintiff’s presence at A1-Hussayen’s trial short of
13

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arrest as a material witness.
~,~TERROGATORY NO. 8: Describe any facts known to any FBI, customs or other federal law enforcement officer about Plaintiff as of March 14, 2003, that would tend to show that Plaintiff was not a flight risk, would comply with a subpoena issued for his appearance at criminal proceedings against Sami Omar A1-Hussayen, ancL/or that it would not become impracticable to secure his presence by subpoena. OBJECTIONS: The United States objects to this interrogatory as vague and conjectural. The Untied States answers this interrogatory subject to this specific objection and the General Objections noted above. ANSWER: Based on all information available to SA Gneckow and AUSA Lindquist on March 14, 2003, they determined that a material witness arrest warrant was necessary to ensure that Plaintiff was available to testify at the trial ofSami Omar al-Hussauen. See answer to Interrogatory No. 7.
INTERROGATORY NO. 9: Please describe any efforts made prior to Plaintiff’s arrest to inform him that the government wanted him to appear to testify at the trial of Sami Omar A1Hussayen. OBJECTIONS: The United States answers this interrogatory subject to the General Objections noted above. ANSWER: For several reasons, the United States was unable to inform Plaintiff prior to his arrest that the government wanted him to testify at al-Hussayen’s trial. The government did not
14

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INTERROGATORY NO. 10: Please describe any investigation(s) of Plaintiff for suspected involvement in or knowledge of criminal or terrorist activity, including when such investigation(s) were initiated and Germinated, the findings of such investigation(s), and the persons involved in such investigation(s). OBJECTIONS: Defendant United States objects to this interrogatory as over-broad in that the term ~any investigation" is without limitation, and therefore the interrogatory seeks information not relevant to Plaintiff’s claims against the Defendant or the defenses thereto. Defendant objects to the term ’"findings" as vague. Defendant also objects to this request to the extent it seeks information protected from disclosure by the law enforcement privilege, the investigation files privilege, or the official information privilege. Defendant further objects to this request to the extent it seeks grand jury information that may not be disclosed absent a court order under Rule 6(e) of the Federal Rules of Criminal Procedure. The United States answers this interrogatory subject to these specific objections and to the General Objections noted above. ANSWER: The FBI opened an intelligence investigation of Plaintiff on December 13, 2001, based, in part, on the investigation of Sami Omar A1-Hussayen. The investigation was assigned to the Seattle field office, with SA Clearly’ serving as the case agent. SA Cleary worked with SA Gneckow, the case agent in charge of the investigation of al-Hussayen, in investigating Plaintiff’s ties to al-Hussayen. During this investigation, SA Cleary and SA Gneckow learned that Plaintiff received an unusually large number of regular pa~vments from A1-Hussayen and A1-Hussayen’s close associate Abdulla Mohammed Aljughaiman, and that Plaintiff had direct information about A1-Hussayen’s official connection with the Islamic Assembly of North America (IANA) and A1Hussayen’s operation of the website www.al-multaqa.com. When Plaintiff relocated to Las
16

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Vegas, the investigation was transferred from the Seattle field office to the Las Vegas field office.
INTERROGATORY NO. 11: Please state whether information regarding Plaintiff was ever entered into any database managed by or for any federal law enforcement agency or purpose, including but not limited to the Violent Gang and Terrorist Organization File, Wanted Person File, Interstate Identification Index, or any other file or index of the National Crime Information Center (NCIC) database; any database maintained by the Terrorist Screening Center (TSC); and the Treasury Enforcement Communication System (TECS), and if the answer is yes, please indicate which such database(s), the exact nature of the entry or entries regarding Plaintiff, and the date of each such entry. OBJECTIONS: The United States objects to this interrogatory" because it seeks information not relevant to Plaintiff’s claims against the Defendant or the defenses thereto. Defendant also objects to this request to the extent it seeks information protected from disclosure by the law enforcement privilege, the investigation files privilege, or the official information privilege. ANSWER: The United States will not answer this interrogatory based on the specific objections and the General Objections noted above.
INTEP~ROGATORY NO. 12: If Plaintiff was ever entered into any database managed by or for any federal law enforcement agency or purpose, including but not limited to the Violent Gang and Terrorist Organization file, Wanted Person file, Interstate Identification Index, or any other file or index of the National Crime Information Center (NCIC) database; TECS; and any
17

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Dated: November 5, 2007

S. LEVINE J. MARCUS MEEKS United States Dept. of Justice Torts Branch, Civil Division P. O. Box 7146 Ben Franklin Station Washington, D.C. 20044 (202) 616-4176 (voice) (202) 616-4314 (fax)
Attorneys for the United States

21

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CERTIHCATE OF SERVICE
I hereby certify that on November 5, 2007, I caused the foregoing SUPPLEMENTAL RESPONSE OF DEFENDANT THE UNITED STATES TO PLAINTIFF’S FIRST INTERROGATORIES to be serve~i on Plaintiff’s and Defendant’s counsel, via first class mail, as follows:
Lee Gelernt, Attorney for Plaintiff ACLU Immigrants’ Rights Project 125 Broad St, 18th Floor New York, NW 10004
Robin Goldfaden, Attorney for Plaintiff ACLU Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111
C?~thia Jane Woolley, Attorney for Plaintiff Law Offices of CvT~thia J. Woolley, PLLC P.O. Box 6999 180 First Street West, Suite 107 Ketchum, ID 83340
R. Keith Roark, Attorney for Plaintiff The Roark Law Firm, LLP 409 North Main Street Harley, ID 83333
Kathleen J. Elliott and Teresa A. Hampton, Attorneys for Plaintiff Hampton & Elliott 912 North 8~h Street Boise, ID 83302
SherLv A. Morgan, Attorney for Defendant Killeen Ada County Prosecutors 200 W. Front Street, Room 3191 Boise, ID 83702
U.S. Department of Justice
22

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Exhibit 22
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

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Exhibit 23
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motions for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 55 of 58
LEE GELE~NT tgelemt@aclu.org AMERICAN CIVIL LIBERTIES U]NION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18t~ Floor New York, NY 10004 Teh (2t2) 549-2616 Fax: (212) 549-2654
R. KEITH ROAI~K, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 North Main Street Hailey, ID 83333 Teh (208) 788-2427 Fax: (208) 788-3918
CYNTHIA WOOLLEY, ISB No. 60 t 8 Cynthia@ketchumidaholaw.com LAW OFFICES OF CS~THIA J. WOOLLEY, PLLC P.O. Box 6999 !80 First Street West, Suite !07 Ketchum, ID 83340 Tel: (208) 725-5356 Fax: (208) 725-5569

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD~

) Case No. ! :05-cw00093-EJL-MHW

VS.
ALBERTO GONZALES, Attorney General of"
the United States; ¢~

) PLAINTIFF’S RESPONSES TO ) FEDERAL DEFENDANTS’ FIRST SET
) OF REQUESTS FOR ADMISSION

1
al-Kidd v. God,rates, e~ al., No. 05-cv-00093-EJL-MHW Plaintiff’s Responses to Federal Defendants’ First Se~ of Requests for Admission

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 56 of 58
(e) Any applicable privilege, including but not limited to the attorney-client privilege mad the work product privilege. RESPONSES
Request No. 1: Admit that you were not booked on a return flight at the time you attempted to depart the United States for Saudi Arabia on March 16, 2003.
Objections: Plaintiff incorporates each of the general objections by reference herein. Plaintiff ~;arther objects that the term ~booked" is vague and ambiguous. Subject to, and without waiving the foregoing objections, with the understanding that ~:booked" means that Plaintiff had not yet specified a date for the return flight that was part of the round-trip ticket Plaintiff had, Plaintiff responds as follows:
Admit.
Reguest No. 2: Admit that in March 2003, you were aware that the Federal Bureau of Investigation was investigating Sami Omar al-Hussayem
Obieetions: Plaintiff incorporates each of the general objections by reference herein, Plaintiff further objects that the term ’~investigating" is corn%sing and vague in this context given that Mr. al-Hussayen was indicted in February 2003, Plaintiff further objects that this request is not reasonably calculated to lead to the discover)’ of admissible evidence~
Plaintiff stands on his objections,
Reguest No. 3: Admit that you never informed the gederal Bureau of Investigation that you would testify voluntarily if Sami Omar a!-Hussa),en were to be brought to trial.
4
af-Kidd v. Gonza~es, et al., No. 05-cv-00093-EJL-MHW Plaintifffs Responses to Federal Defendants’ First Set of Requests ~br Adraission

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 57 of 58
PROOF OF SERVICE
I, Pauline Nguyen, declare as follows: I am employed in the City, County and State of New York, in the office of one of plaintiffs counsel at whose direction the following service was made. I am over the age of eighteen years and am not a party to the within action. My business address is the American Civil Liberties Union Foundation, Immigrants’ Rights Project, 125 Broad Street, 18th Floor, New York 10004.

Case 1:05-cv-00093-EJL-CWD Document 306-6 Filed 11/07/11 Page 58 of 58
On the ! 6~h day of March, 2007, I sent one copy of the foregoing Plaintiff’s Responses to Federal Defendants’ First Set of Requests for Admission by Federal Express, next business day delivery, addressed to the following:
J. Marcus Meeks Civil Division, Torts Branch P.O. Box 7146 Ben Fr~3:lin Station Washington, DC 20044 J@ie D. Reading Ada County Prosecutors 200 W. Front Street; l~q 3191 Boise, ID 83702
I declare under penatty of perjury under the laws of the State of New York that the above is true and correct.
Dated: March 16, 2007
Pauline Nguyen

 
 Case 1:05-cv-00093-EJL-CWD Document 308 Filed 12/21/11 Page 1 of 4
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE UNITED STATES

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Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff Abdullah al-Kidd respectfully moves for summary judgment against Defendant United States. The motion is based on Plaintiff’s Memorandum of Law, Statement of Undisputed Material Facts, and accompanying exhibits, filed in conjunction with this motion. Plaintiff is also opposing the United States’ Motion for Summary Judgment, and is filing a separate Statement of Facts and exhibits in opposition to the United States’ Motion.

Dated: December 21, 2011

_/s/_____________________________ Lee Gelernt

1

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MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

2

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21 day of December, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-CWD Document 308-1 Filed 12/21/11 Page 1 of 32

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT UNITED STATES’ MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSSMOTION FOR SUMMARY JUDGMENT

	  

Case 1:05-cv-00093-EJL-CWD Document 308-1 Filed 12/21/11 Page 2 of 32

Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

	  

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................. ii	   PRELIMINARY STATEMENT ............................................................................................1	   BACKGROUND ......................................................................................................................1	   ARGUMENT............................................................................................................................2	  
I.	   NEITHER PROSECUTORIAL IMMUNITY NOR THE DISCRETIONARY FUNCTION EXCEPTION SHIELDS THE UNITED STATES FROM LIABILITY. .....................................................................................................................2	   B.	   The Discretionary Function Exception Does Not Apply In This Case................4	  
II.	  MR. AL-KIDD IS ENTITLED TO SUMMARY JUDGMENT, AND THE GOVERNMENT’S MOTION SHOULD BE DENIED, AS TO HIS FALSE IMPRISONMENT CLAIM BECAUSE PROBABLE CAUSE WAS LACKING FOR HIS ARREST. ........................................................................................................6	   A.	   There Was No Probable Cause To Believe That It Would Be Impracticable To Secure Mr. al-Kidd’s Testimony By Subpoena. ..............................................8	   Omissions ....................................................................................................................10	   False Statements.........................................................................................................11	   B.	   There Was No Probable Cause To Believe That Plaintiff Had Material Testimony................................................................................................................12	  
III.	  PLAINTIFF SHOULD BE GRANTED SUMMARY JUDGMENT ON HIS ABUSE OF PROCESS CLAIM, AND DEFENDANT’S MOTION SHOULD BE DENIED. ................................................................................................................14	  
A.	   There Was An Abuse Of Process Because Mr. al-Kidd Was Arrested For Investigative Reasons And Not Solely To Secure His Testimony. .....................15	  
B.	   There Was An Abuse Of Process Because The Material Witness Statute May Not Constitutionally Be Used To Arrest A Cooperative Witness. ............23	  
CONCLUSION ......................................................................................................................25	  
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TABLE OF AUTHORITIES
Cases	   al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009)...................................................... 14, 23 al-Kidd v. Sugrue, No. CIV-06-1133-R, 2007 WL 2446750
(W.D. Okla. Aug. 23, 2007) ........................................................................................... 2 Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) ................................................... 9 Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) .............................................................. passim Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) .................................................... 8, 9 Beco Constr. Co., Inc. v. City of Idaho Falls, 865 P.2d 950 (Id. 1993)............................ 15 Bender v. City of Seattle, 664 P.2d 492 (Wash. 1983)........................................................ 7 Brinegar v. United States, 338 U.S. 160 (1949) ............................................................... 24 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .................................................................... 3 Casillas v. United States, No. 07-395, 2009 WL 735193 (D. Ariz. Feb. 11, 2009) ........... 6 Clark v. Alloway, 170 P.2d 425 (Idaho 1946)..................................................................... 7 El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249 (D. Conn. 2008) ............. 5, 7 Espinosa v. City and County of San Francisco, 598 F.3d 528 (9th Cir. 2010) ................ 23 Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004) .................................................................. 5, 7 Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003) ............ 15 General Dynamics Corp. v. United States, 139 F.3d 1280 (9th Cir. 1998)........................ 4 Hansen v. Lowe, 100 P.2d 51 (Idaho 1940).................................................................... 7, 8 Kalina v. Fletcher, 522 U.S. 118 (1997)............................................................................. 4 Malley v. Briggs, 475 U.S. 335 (1986) ............................................................................... 3 Mayfield v. Gonzales, 2005 WL 1801679 (D. Or. July 28, 2005) ...................................... 9 Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010) (en banc), cert.
granted, 131 S. Ct. 2057 (2011) ..................................................................................... 4 Nurse v. United States, 226 F.3d 996 (9th Cir. 2000)......................................................... 5 Perkins v. Click, 148 F. Supp. 2d 1177 (D. N.M. 2001)..................................................... 9 Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc) ...................................... 23 Sprague v. City of Burley, 710 P.2d 566 (Idaho 1985) ....................................................... 7 United States v. Esparza, 546 F.2d 841 (9th Cir. 1976) ................................................... 20 Whisnant v. United States, 400 F.3d 1177 (9th Cir. 2005) ................................................. 5
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Statutes 28 U.S.C. § 2680(h) ............................................................................................................ 7 Other Authorities	   Br. of Amici Curiae Legal History and Criminal Procedure Law Professors in Support of
Respondent, Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (No. 10-98), 2011 WL 317147 .......................................................................................................... 25 DOJ Bureau of Justice Statistics, Compendium of Federal Justice Statistics 124 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs03.pdf. .................... 14 First Judiciary Act, ch. 20, § 33, 1 Stat. 73 (1789) ........................................................... 24 Prosser and Keeton on the Law of Torts § 121 ................................................................ 15 Restatement (Second) of Torts § 682................................................................................ 15 S.Rep. No. 98–225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182 (legislative history of Bail Act) .................................................................................... 19 U.S. Const. amend. IV ...................................................................................................... 24
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PRELIMINARY STATEMENT There are three defendants before the Court in these summary judgment proceedings: the United States and FBI agents Gneckow and Mace. This brief concerns only the claims against the United States under the Federal Tort Claims Act (FTCA). Specifically, Plaintiff Mr. al-Kidd (1) moves for summary judgment against the United States on his false imprisonment and abuse of process claims, and (2) opposes the government’s summary judgment motion on these claims. The claims against the individual defendants, agents Gneckow and Mace, are addressed in a separate motion and memorandum.
BACKGROUND The United States previously moved to dismiss both of Plaintiff’s FTCA claims. The Court denied that motion, finding that Plaintiff’s complaint had set forth sufficient allegations to proceed on his claims of false imprisonment and abuse of process. Mem. Order 9, 12, 16 (Dkt. No. 78).1 To avoid repetition, Plaintiff will not fully repeat the factual and procedural background of the case, and respectfully requests that the background section of his brief regarding the individual defendants be incorporated herein. Plaintiff makes only the following additional point to respond to a statement in the United States’ brief. The government suggests that the length of Mr. al-Kidd’s detention was due to his own acts. U.S. Br. 22. As the transcript of Mr. al-Kidd’s March 17, 2003 Virginia hearing shows, see Pl. Ex. 19, that is a highly misleading account of what occurred.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1 Neither of Plaintiff’s FTCA claims is affected by the Supreme Court’s ruling, since both are based on state law, and not the Fourth Amendment. See Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (analyzing only Fourth Amendment pretext claim).
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When Mr. al-Kidd was brought before the Magistrate Judge in Virginia, he was not appointed counsel. He explained to the Court that he had always cooperated with the FBI, would continue to cooperate and did not understand why the FBI had arrested him given his prior cooperation. The Magistrate Judge stated that although he was entitled to a release hearing in Virginia, he might be “better served” going to Idaho for the hearing, at which point the government attorney represented that Mr. al-Kidd would be brought to Idaho “as quickly as possible.” Acting without counsel, Mr. al-Kidd acquiesced to the Magistrate Judge’s suggestion and agreed to have the hearing in Idaho. Pl. Facts ¶ 42. The fact that it took the government so long to transfer him to Idaho simply cannot be attributed to Mr. al-Kidd. Indeed, not only did the government delay the transfer from Virginia for another seven days, it also first brought him to an Oklahoma detention center where he was subjected to harsh conditions, including two strip searches within 24 hours. See al-Kidd v. Sugrue, No. CIV-06-1133-R, 2007 WL 2446750, at *8 (W.D. Okla. Aug. 23, 2007) (holding that Mr. al-Kidd’s clearly established Fourth Amendment rights were violated because warden “could not have reasonably believed in 2003” that strip-searches and body cavity inspections of “a material witness detainee such as the Plaintiff . . . did not violate the law”).
ARGUMENT I. NEITHER PROSECUTORIAL IMMUNITY NOR THE DISCRETIONARY
FUNCTION EXCEPTION SHIELDS THE UNITED STATES FROM LIABILITY. Defendant’s initial argument is that both the FTCA claims should be dismissed because the United States is either (a) entitled to absolute prosecutorial immunity, or (b)
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shielded by the discretionary function exception to the FTCA. Both arguments are incorrect.
A. Defendant’s Assertion Of Prosecutorial Immunity Is Meritless. Defendant’s FTCA liability is focused on actions taken by law enforcement agents: gathering facts to support probable cause for a warrant, and swearing to those facts in support of the warrant application. The Supreme Court has squarely held that neither of these functions is covered by prosecutorial immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993) (gathering evidence to establish probable cause); Malley v. Briggs, 475 U.S. 335, 340-41 (1986) (swearing to facts in affidavit in support of arrest warrant application). In fact, Defendant does not cite—and Plaintiff has not found—a single case extending prosecutorial immunity to a law enforcement officer for procuring an arrest warrant—and certainly not a material witness warrant. Ultimately, Defendant appears to recognize that courts have not afforded police officers absolute prosecutorial immunity. Defendant attempts to shoehorn this case into the prosecutorial box by stating that the warrant application was submitted by AUSA Lindquist. But that theory proves too much. All material witness warrants—indeed, virtually all federal arrest and search warrants—are technically sought by a prosecutor. If Defendant’s novel theory were correct, it would mean that police officers would always be entitled to absolute prosecutorial immunity.2
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    2 Extending absolute prosecutorial immunity to cover a law enforcement officer would be particularly inappropriate in a case like the instant one. Agent Gneckow not only requested that a material witness warrant be sought, but also gave Lindquist incomplete information regarding impracticability. Pl. Facts ¶ 38, Pl. Ex. 2, Gneckow Dep. 201 (“So you didn’t provide [Lindquist] with additional facts beyond those in the affidavit? A. Right.”).
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Notably, even actual prosecutors are not entitled to absolute immunity where they
swear to facts, as Mace and Gneckow did here in the affidavit. See Kalina v. Fletcher,
522 U.S. 118, 131 (1997) (prosecutor was not protected by absolute immunity for
“personally attesting to the truth of the averments” in a certification of probable cause).
Moreover, the fact that AUSA Lindquist reviewed the agents’ affidavit cannot be the
basis for extending absolute immunity to the agents’ actions. In fact, as the Ninth Circuit
recently made clear in an en banc decision, a law enforcement officer is not entitled even
to qualified immunity simply because a prosecutor signed off on the warrant. See
Millender v. County of Los Angeles, 620 F.3d 1016, 1034 (9th Cir. 2010) (en banc) (“[A]
neutral magistrate’s approval (and, a fortiori, a non-neutral prosecutor’s) cannot absolve an officer of liability.”), cert. granted, 131 S. Ct. 2057 (2011).3
In sum, the United States’ liability in this case is premised on the actions of its
FBI agents. There is thus no conceivable ground for affording the United States absolute
prosecutorial immunity.
B. The Discretionary Function Exception Does Not Apply In This Case. Defendant’s “discretionary function” argument was made at the motion to dismiss
stage and was based on the very same case on which Defendant now largely relies,
General Dynamics Corp. v. United States, 139 F.3d 1280, 1283 (9th Cir. 1998). This
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    3 Significantly, as the Supreme Court and Ninth Circuit made clear, it is not evident that AUSA Lindquist would receive absolute prosecutorial immunity even if he had not sworn to facts and had merely submitted the warrant application. The Supreme Court in this case specifically declined to decide whether a prosecutor has absolute immunity for the act of seeking a material witness warrant. Al-Kidd, 131 S. Ct. at 2085; see also al-Kidd v. Ashcroft, 580 F.3d 949, 963 (9th Cir. 2009) (“We hold . . . that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity.”), overruled on other grounds.
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Court expressly rejected the argument. See Mem. Order 14 (Dkt. No. 78) (discussing General Dynamics). As this Court explained, the discretionary function exception does not shield the United States from liability for the act of unlawfully seeking a warrant. See Mem. Order 15-16 (Dkt. No. 78); see also Galvin v. Hay, 374 F.3d 739, 758 & n.13 (9th Cir. 2004) (holding that discretionary function does not apply where officials “violate constitutional rights or federal statutes” or “exceed the scope of . . . [their] authority”) (internal quotation marks and citations omitted); Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000) (“Governmental conduct cannot be discretionary if it violates a legal mandate.”); cf. El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 275 (D. Conn. 2008) (“[I]f El Badrawi succeeds in proving his false arrest/false imprisonment claim, he will have succeeded in showing that the defendants acted unconstitutionally. . . . The discretionary functions exception does not bar El Badrawi’s FTCA claims.”).
Defendant nonetheless argues that the discretionary function exception applies because seeking a warrant involves a “policy” judgment about what facts to include in the affidavit and whether to seek the warrant at all. But drafting a factual affidavit in support of a warrant is not the type of “policy” judgment with which the discretionary function exception is concerned. Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005) (explaining that the discretionary function exception applies to “social, economic, or political policy” considerations).
Agents may have discretion whether to seek a material witness warrant once probable cause is established. But they certainly do not have policy discretion to seek an arrest warrant without probable cause. A law enforcement officer has a non-discretionary duty to comply with the material witness statute and Fourth Amendment’s probable cause
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requirement, and clearly may not make a “policy” judgment to withhold accurate, material facts from the Magistrate Judge.4
Defendant also argues that because AUSA Lindquist reviewed and officially
submitted the warrant, the discretionary function exception should apply. But as
discussed above in Section I.A, Defendant cannot avoid liability for its agents’ factual
affidavit by shifting the focus onto the AUSA. A material witness warrant will always be
officially submitted by an AUSA. That does not relieve the agents of the responsibility to
comply with the probable cause requirements of the statute and the Fourth Amendment,
or of their obligation to supply all of the available material information in an accurate
manner.
In short, the discretionary function exception is designed to shield true “policy”
decisions. As this Court previously held, the discretionary function does not relieve the
United States and its agents from complying with a “legal mandate.” Mem. Order 15
(Dkt. No. 78).
II. MR. AL-KIDD IS ENTITLED TO SUMMARY JUDGMENT, AND THE GOVERNMENT’S MOTION SHOULD BE DENIED, AS TO HIS FALSE IMPRISONMENT CLAIM BECAUSE PROBABLE CAUSE WAS LACKING FOR HIS ARREST.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    4 Defendant’s reliance on General Dynamics is thus misplaced, as that case involved whether to bring a prosecution. Defendant also cites a few district court cases, see U.S. Br. 5, but none involved a material witness warrant. Moreover, all but one of Defendant’s cases (Casillas v. United States, No. 07-395, 2009 WL 735193 (D. Ariz. Feb. 11, 2009)) are old decisions from outside of this Circuit, and Casillas does not even cite the Ninth Circuit’s controlling decision in Galvin, 374 F.3d at 758 & n.13. As this Court made clear in denying Defendant’s motion to dismiss, Galvin rejects the idea that the United States can take refuge in the discretionary function exception where an official “violates the constitution or a statute.” Mem. Order 15 (Dkt. No. 78) (discretionary function does not excuse violation of a “legal mandate”).
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The FTCA specifically permits the government to be held liable for false
imprisonment when such a claim arises out of the acts or omissions of federal officers.
See 28 U.S.C. § 2680(h); Galvin, 374 F.3d at 741-42; see also El Badrawi v. United
States, 787 F. Supp. 2d 204, 229-30 (D. Conn. 2011) (granting summary judgment to
plaintiff on FTCA false imprisonment claim).
This Court has previously set forth the standard for making out a FTCA false
imprisonment claim: a person must unlawfully restrain the physical liberty of another
without adequate legal justification or without probable cause. Mem. Order 5 (Dkt. No.
78) (citing Clark v. Alloway, 170 P.2d 425, 428 (Idaho 1946)). In denying the United
States’ motion to dismiss, the Court concluded that Plaintiff had alleged sufficient facts to
satisfy this standard. The remaining question is therefore factual: whether the arrest
warrant was supported by probable cause. Mem. Order 7, 9 (Dkt. No. 78); see also
Sprague v. City of Burley, 710 P.2d 566, 574 (Idaho 1985).5
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    5 The United States contends that it cannot be held liable for false imprisonment, and should be given a form of immunity, because its officers simply executed a warrant issued by a magistrate and there was nothing irregular in the process of issuing that warrant. But the United States unsuccessfully made this identical legal argument in its motion to dismiss in this case. As this Court correctly held in rejecting that argument, Plaintiff’s case is based on the actions of the officers who procured the warrant and who are alleged, among other things, to have omitted material information from the affidavit; Plaintiff’s case is not based on the act of simply executing the warrant (which was done by officers in Virginia who did not work on the al-Kidd matter, see Pl. Facts ¶¶14-15; Pl. Ex. 2, Gneckow Dep. 189-92, and who thus had no reason to know whether or not the warrant established probable cause). See Mem. Order 6 (Dkt. No. 78) (noting the protection of a facially valid warrant “is limited to when the officer is not involved in the procurement of the warrant”); see also Bender v. City of Seattle, 664 P.2d 492, 499-500 (Wash. 1983) (explaining that where an officer procures a warrant, immunity is not proper because the officer “is in a position to control the flow of information to the magistrate” and “should not be allowed to ‘cleanse’ the transaction by supplying only those facts favorable to the issuance of a warrant”).
The government’s reliance on Hansen v. Lowe, 100 P.2d 51 (Idaho 1940), is thus misplaced. U.S. Br. 15. In direct contrast to this case, Hansen involved officers who
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A. There Was No Probable Cause To Believe That It Would Be Impracticable To Secure Mr. al-Kidd’s Testimony By Subpoena.
The affidavit on which Mr. al-Kidd’s arrest warrant was based consisted of only
three sentences directly pertaining to whether Mr. al-Kidd’s testimony could be secured
voluntarily or by subpoena, without the need for arrest:
Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia.
* * * It is believed that if Al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.
Pl. Facts ¶ 25 (citing Pl. Ex. 1, Pl. Docs 2038). Defendants thus sought to establish
impracticability based on nothing more than their assertion that Mr. al-Kidd was taking a
trip without a return ticket and was flying first-class. Those facts were untrue, as the
government now concedes. See infra at 11-12. But even if true, no reasonable officer
could have viewed the affidavit as sufficient in light of the Ninth Circuit’s longstanding
interpretation of the material witness statute.
In Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), the Ninth Circuit ruled
that the FBI had failed to establish probable cause of flight risk—despite the fact that the
witness had “access to large sums of money,” had “personal contact with fugitives from
justice,” and had fled to an “adjoining rooftop” when the FBI sought her arrest. Id. at 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    executed—but did not procure—the warrant. Hansen, 100 P.2d at 56 (providing immunity for officers who executed seemingly valid warrants because it is not realistic for them “to examine into the merits of the case and every step taken by the officers who issued process”). Indeed, in rejecting the United States’ motion to dismiss, this Court expressly pointed to Hansen to show why the government’s theory was incorrect in a case where, as here, the officers were the ones who procured the warrant. Mem. Order 67 (Dkt. No. 78).
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944-45. The Court emphasized that the witness’s access to large sums of money was “at best remotely relevant to her possible recalcitrance.” Id. at 944. The Court discounted the importance of the money, even in conjunction with the fact that the witness had personal contacts with fugitives, explaining that it “at most tends to show that if Bacon wished to flee, she might be able to do so successfully. It does not support the conclusion that she would be likely to flee or go underground.” Id. (emphasis in original).
The Court also concluded that the witness’s capture on the adjoining rooftop did not establish flight risk. Significantly, the Court did not dispute that an “inference can be drawn that Bacon wished to avoid apprehension” by fleeing when the FBI came to arrest her at her home. Id. at 944. But the Court refused to draw the “further inference” that the witness would not have complied with a subpoena to testify. Id.
In Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985), the officers obtained a warrant only after having made several attempts to subpoena the witness—looking for him at work and his home, calling his friends, and twice leaving a subpoena with his employees—and after the witness said he would not testify voluntarily. Id. at 974. The Ninth Circuit nonetheless concluded that the arrest was invalid, stating that the facts “only show a man somewhat obstinately insisting upon his right to refuse to appear before a grand jury until personally served.” Id. at 976-77. See also Mayfield v. Gonzales, 2005 WL 1801679, at *9 (D. Or. July 28, 2005) (applying Bacon, denying defendants’ motions, and permitting discovery on what information was known to agents who submitted warrant regarding “flight risk” for witness); Perkins v. Click, 148 F. Supp. 2d 1177, 1183 (D. N.M. 2001) (finding no probable cause of flight risk where witness
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had ties to the community and “made no indication to any officer that she would be a reluctant witness”).
Under these precedents, no reasonable officer could have assumed that the affidavit in this case—even on its face—contained sufficient facts of impracticability. After discovery, it is even clearer that probable cause of impracticability was lacking.
Omissions 1. The complaint alleged, and discovery now shows, the following material omissions from the affidavit. First, and critically, the affidavit wholly failed to mention that the FBI had asked Mr. al-Kidd to meet and submit to questioning on multiple occasions, and that Mr. alKidd had never failed to appear at one of these meetings (which took place at his mother’s house, where Mr. al-Kidd was living at the time). Pl. Facts ¶¶ 8, 34. Second, although the agents were aware that Mr. al-Kidd was a native-born U.S. citizen, they omitted it from the affidavit. Pl. Facts ¶ 31(a). The affidavit also intentionally omitted the known facts that Mr. al-Kidd had U.S. citizen family-members in the United States. Pl. Facts ¶ 31(b). The affidavit likewise omitted to mention that Mr. al-Kidd had longstanding ties to Idaho and was a former football player and graduate of the University of Idaho, even though the agents were aware of these facts. Pl. Facts ¶ 31(a). The government thus allowed the Magistrate Judge to assume that Mr. al-Kidd was simply a Saudi national returning home, who lacked any significant ties to the United States or Idaho. Third, the FBI never told Mr. al-Kidd not to travel or to contact the FBI if he intended to travel. Pl. Facts ¶¶ 23, 31(e). Nor did the FBI tell Mr. al-Kidd he might be needed as a witness. Id. Mr. al-Kidd, moreover, had heard nothing from the FBI for over
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eight months before his arrest. Pl. Facts ¶¶ 9, 31(d). All of these facts were known to the agents, yet were omitted from the affidavit.
As shown below, the affidavit also contained reckless or intentional false statements concerning Mr. al-Kidd’s plane ticket. But even if the false statements were not corrected, the affidavit would not have established probable cause given the omissions discussed above. In arguing otherwise, Defendant is remarkably claiming that a material witness arrest is permissible simply because the witness has a one-way ticket to Saudi Arabia—even if he is a native-born U.S. citizen with substantial ties to the community, has never been told not to travel or that he may be needed at some future time, and has shown up to every pre-arranged meeting with the FBI whenever he was asked. If that extraordinary position were accepted, it would mean that any U.S. citizen could be arrested merely for taking a trip on a one-way ticket to a country without an extradition treaty—regardless of the citizen’s prior cooperation with the government and ties to the United States, no matter how innocent the trip, and regardless of the fact that the citizen was never told not to travel.
Notably, Defendant does not address these omissions in its discussion of impracticability. U.S. Br. 14-16. But these omissions were plainly material and would have given Magistrate Judge Williams a complete and accurate picture of why probable cause was lacking.
False Statements The affidavit was also false. It stated that Mr. al-Kidd had a one-way, first class ticket costing approximately $5,000. Defendant admits that these statements were incorrect and that Mr. al-Kidd had a roundtrip, coach-class ticket costing approximately $1,700. Pl. Facts ¶ 25; U.S. Br. 15 n.6.
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Defendant contends, however, that the misrepresentations regarding Mr. al-Kidd’s
airline ticket were of little importance. Defendant argues that the only meaningful fact
was that Mr. al-Kidd was flying to Saudi Arabia on a ticket without a scheduled return
date—not whether he was traveling on a one-way, first-class ticket costing roughly
$5,000, or as it turned out, a round-trip, coach ticket costing roughly $1,700. U.S. Br. 16.
Yet, in the entire affidavit, there were only four sentences that specifically addressed
flight risk, see Pl. Facts ¶25 (citing Pl. Ex. 1, Pl. Docs 2038), and the agents chose to
include those details about the ticket. It defies reality to assume that experienced FBI agents included those details for no reason—especially after September 11th.6
B. There Was No Probable Cause To Believe That Plaintiff Had Material Testimony.
The affidavit stated that Mr. al-Kidd’s testimony was “crucial” to the
government’s case. Yet it never precisely explained what information Mr. al-Kidd
possessed that was germane to the charges against Al-Hussayen (and, in fact, Mr. al-Kidd
was never called as a witness). Pl. Facts ¶ 44. Instead, the affidavit contained largely
irrelevant information or statements attempting to cast Mr. al-Kidd in a suspicious light.
The government claims that because Mr. al-Kidd worked at same charity as Al-
Hussayen, he would have had information relating to the visa and false statement charges
against Al-Hussayen. But the affidavit submitted to the Court never explained why that
would be so—or even stated that Mr. al-Kidd worked at the same charity. While the
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    6 Defendant also appears to suggest that agent Gneckow lacked any responsibility for the mistakes. But discovery has revealed that agent Gneckow never asked to see documentation of Mr. al-Kidd’s travel plans—even though he was made aware of confusion surrounding the details of the ticket. Pl. Facts ¶¶ 27-30. Moreover, agent Gneckow cannot shift responsibility to other agents. Upon being told about Mr. alKidd’s flight plans by agent Alvarez, agent Gneckow told agent Alvarez that he would “t[ake] [it] upon [him]self” to follow up and verify the information. Pl. Facts ¶ 29.
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affidavit mentions “Al-Multaqa,” for example, the Al-Hussayen indictment pending at the time of al-Kidd’s arrest contained no mention of Al-Multaqa. Pl. Facts ¶ 36. Instead, the affidavit provided a bunch of disparate facts that simply left the Magistrate in the position of having to assume that Mr. al-Kidd had something material to offer at the trial.
Moreover, even if the affidavit had explained why Mr. al-Kidd’s testimony was potentially material to the visa-related charges pending against Al-Hussayen, that would plainly not have been sufficient to satisfy the statute, which must be construed to comply with the Fourth Amendment. The Fourth Amendment permits only “reasonable” arrests. U.S. Const. amend. IV. It is draconian enough to allow the arrest of an uncharged and innocent U.S. citizen—even where the witness may have critical and dispositive information about a serious crime. But neither the Fourth Amendment nor the statute can permit such an arrest where the government is vaguely claiming that the witness has potentially relevant evidence and that potentially relevant evidence is clearly cumulative and unnecessary for the government to prove the charges. Here, there is little question Mr. al-Kidd’s testimony was not necessary given all of the other information (including documentary evidence) the government possessed about Al-Hussayen’s employment and activities. Pl. Facts ¶ 37.
Indeed, if the material witness statute did not contain the proportionality requirement dictated by the Fourth Amendment’s reasonableness provision, the government could routinely arrest multiple people to provide cumulative testimony for even a non-serious offense. For example, if the government had seven people lined up to testify to accounting fraud in a large company, it is inconceivable that the material witness statute or the Fourth Amendment would permit the government to arrest an
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eighth person to provide cumulative testimony simply because that person was travelling to Saudi Arabia or China or some other country without an extradition treaty.
As both the Ninth Circuit and several Supreme Court Justices in this case noted, the material witness statute’s compliance with the Fourth Amendment has never squarely been upheld. Al-Kidd v. Ashcroft, 580 F.3d 949, 965-66 (9th Cir. 2009); Ashcroft v. alKidd, 131 S. Ct. 2074, 2085-86 (2011) (Kennedy, J., concurring); see also infra Section III.B. But even assuming the statute is constitutional on its face, it must be interpreted in a manner consistent with the Fourth Amendment’s reasonableness clause. See al-Kidd, 131 S. Ct. at 2086 (Kennedy, J., concurring). That cannot mean that the statute allows the arrest of an innocent and cooperative American merely because he potentially has material information in the barest sense of that term. And, not surprisingly, the government itself understands this point and has issued guidelines defining a “material witness” as one who has “significant” information about a criminal prosecution that is “necessary” to resolve the matter. DOJ Bureau of Justice Statistics, Compendium of Federal Justice Statistics 124 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs03.pdf.
III. PLAINTIFF SHOULD BE GRANTED SUMMARY JUDGMENT ON HIS ABUSE OF PROCESS CLAIM, AND DEFENDANT’S MOTION SHOULD BE DENIED. In its Order denying the United States’ motion to dismiss, the Court set forth the
elements of an abuse of process claim: “‘(1) an ulterior, improper purpose; and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.’”
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Mem. Order 12-13 (Dkt. No. 78) (quoting Beco Constr. Co., Inc. v. City of Idaho Falls,
865 P.2d 950, 954 (Id. 1993)).7
There are two related reasons why there was an abuse of process in this case.
First, the United States, through its agents, used the material witness statute not to secure
testimony, but to preventively detain and investigate Mr. al-Kidd. See infra Section
III.A. Second, even if the purpose of Mr. al-Kidd’s arrest had in fact been to obtain his
testimony, there would have been an abuse of process, because the material witness
statute may not constitutionally be used to arrest a cooperative witness. See infra Section
III.B.
A. There Was An Abuse Of Process Because Mr. al-Kidd Was Arrested For Investigative Reasons And Not Solely To Secure His Testimony.
	   Assuming the material witness statute is constitutional, it may be used only to
secure testimony. Defendant does not dispute that point. Defendant contends, however,
that there was no abuse of process because Mr. al-Kidd was viewed “solely” as a witness
and that his arrest was for the “sole” purpose of obtaining his testimony for the Al	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    7 Defendant now belatedly attempts to redefine the legal standard set forth by this Court. First, Defendant suggests the plaintiff must show the defendant’s “primar[y]” purpose was improper. U.S. Br. 20. The Idaho Supreme Court has never so held; in Beco, it held simply that “an ulterior, improper purpose” was needed. 865 P.2d at 954 (emphasis added). Defendant also asserts that there must be a “threat or some form of extortion[].” U.S. Br. 22 (internal quotation marks omitted). But the Idaho Supreme Court has never suggested that abuse of process involves such a narrow, rigid inquiry; nor do the secondary authorities on which Defendant relies. See Restatement (Second) of Torts § 682; Prosser and Keeton on the Law of Torts § 121 at 898. Indeed, the Third Circuit recently rejected an identical argument, explaining that the secondary authorities mention extortion simply to illustrate “the classic example” of abuse of process. Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 305-06 (3d Cir. 2003) (internal quotation marks and citation omitted). What is required—as this Court has already held—is simply a willful act to use the process for the improper end. The procurement of the material witness warrant, the execution of that warrant, and the postarrest interrogations and extended detention of Plaintiff undoubtedly constitute such “willful acts.”
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Hussayen trial. U.S. Br. 17, 20. Yet the government’s only support for its position is the self-serving testimony of its own agents about what they were thinking at the time. Id. 19-20. In contrast, all of the relevant objective evidence in the record conclusively undermines the government’s position—including documents obtained during discovery showing Mr. al-Kidd was the subject of an investigation until 2004, well after his arrest. Eight pieces of evidence are especially relevant:
First, numerous documents obtained during discovery dispel any possible doubt that Mr. al-Kidd was the subject of an investigation the time of his arrest, and was not viewed solely as a witness. These documents—the dates of which range from 2002 to 2004—are the FBI’s own investigation sheets and memoranda. The documents specifically and unambiguously list Mr. al-Kidd himself as one of the subjects of a terrorism investigation. See Pl. Facts ¶¶ 3-7.
Second, within days of Mr. al-Kidd’s arrest, FBI Director Mueller appeared before Congress and testified about a number of the government’s recent “major successes” in combating terrorism and gave various examples. The first example was the capture of Khalid Shaikh Mohammed, alleged to be the “mastermind” of the September 11 attacks and now held at Guantanamo Bay. The next example was the arrest of Mr. alKidd. Director Mueller then listed three additional examples, all involving individuals who had been charged with terrorism-related offenses. Unbelievably, the Director’s testimony did not mention that Mr. al-Kidd had been arrested only as a witness, and not on criminal charges. Instead, he stated:
I am pleased to report that our efforts have yielded major successes over the past 17 months. Over 212 suspected terrorists have been charged with crimes, 108 of whom have been convicted to date. Some are well-known—including Zacarias
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Moussaoui, John Walker Lindh and Richard Reid. But, let me give you just a few recent examples: In March, Khalid Shaikh Mohammed was located by Pakistani officials and is in custody of the U.S. at an undisclosed location. Mr. Mohammed was a key planner and the mastermind of the September 11th attack. . . . On March 16, Abdullah al-Kidd, a U.S. native and former University of Idaho football player, was arrested by the FBI at Dulles International Airport en route to Saudi Arabia. The FBI arrested three other men in the Idaho probe in recent weeks. And the FBI is examining links between the Idaho men and purported charities and individuals in six other jurisdictions across the country. See Pl. Facts ¶ 17 (citing Pl. Ex. 1, Pl. Docs 3-4; Pl. Ex. 21). Remarkably, the government stated in discovery that not only does Director Mueller have no recollection of this testimony, but that no one at the Department of Justice—past or present—has any knowledge about who drafted the al-Kidd passage or how it made its way into the Director’s congressional testimony in discovery. Pl. Facts ¶ 17. The government could not even produce prior drafts of the Director’s testimony. But leaving all that aside, if Mr. al-Kidd genuinely had been viewed by the FBI as a witness, and not as a suspect, it is inconceivable that Director Mueller would have told the U.S. Congress that Mr. al-Kidd’s arrest was one of the government’s world-wide “major successes,” listing his arrest as second in importance only to Khalid Shaikh Mohammed, without ever mentioning that Mr. al-Kidd had been arrested only on a material witness warrant. Third, although Mr. al-Kidd had never failed to meet with the FBI, he was arrested without ever being served with a subpoena, postpone his trip, or relinquish his passport. Pl. Facts ¶¶ 8, 23, 31(f)-(g). That fact is particularly striking given that another Al-Hussayen witness who was seeking to travel to Saudi Arabia was given the opportunity to relinquish his passport and was not arrested as a material witness—even
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though that witness was actually a Saudi national, and not a U.S. citizen like Mr. al-Kidd. Pl. Facts ¶ 45. The FBI’s decision to arrest Mr. al-Kidd under these circumstances strongly suggests that the government wanted him detained and not simply to postpone his trip.
Fourth, the manner in which Mr. al-Kidd was treated after his arrest also strongly shows that the government did not view him primarily as a witness. Immediately after his arrest, Mr. al-Kidd was interrogated at Dulles Airport—with agent Gneckow’s knowledge and consent—by two local FBI “terrorism agents.” Pl. Facts ¶ 15; Pl. Ex. 2, Gneckow Dep. 190. The agents seized numerous items from Mr. al-Kidd (including his laptop computer) and questioned him extensively (without counsel) about his own religious beliefs, his personal opinions on various Islamic organizations, the purpose of his previous visit to Yemen, and the contents of his luggage. Pl. Facts ¶ 15. Yet if Mr. al-Kidd were truly being arrested solely as a witness in the Al-Hussayen matter, there would have been little need for this type of interrogation; rather, he would simply have been given an opportunity to surrender his passport, postpone his trip, or otherwise ensure his availability for trial. At worst, he would have been afforded a prompt detention hearing and told he was needed as a witness. Yet, by arresting him, the government was able to detain and investigate him about his own activities.
Fifth, following his interrogation at Dulles Airport, Mr. al-Kidd was incarcerated under harsh conditions, including repeated strip-searches and full shackling—conditions utterly inconsistent with the government’s position that the FBI viewed him merely as a witness. Pl. Facts ¶¶ 18-20. As Justice Ginsburg stated in this case, there is no “even
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arguably legitimate basis” for subjecting a presumptively innocent witness to such “harsh custodial conditions.” Al-Kidd, 131 S. Ct. at 2089 (Ginsburg, J., concurring).
Sixth, after the arrest, the FBI drafted a search warrant affidavit seeking permission to examine the contents of Mr. al-Kidd’s laptop computer, stating that it might yield “evidence” of criminal activity “as to . . . al-Kidd.” Pl. Facts ¶ 16. Although the search warrant was never submitted to a Magistrate, it leaves little doubt that, at the time of Mr. al-Kidd’s arrest, the FBI still viewed him as more than a witness and was still actively contemplating the possibility that Mr. al-Kidd himself could be linked to terrorist activity.
Seventh, in opposing Mr. al-Kidd’s release, the government took the position that Mr. al-Kidd was “dangerous.” Pl. Facts ¶ 43. As a legal matter, it is clear that dangerousness is not one of the factors that should be considered where the detainee is a witness. See S.Rep. No. 98–225, at 28 n.100 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3211 (legislative history of Bail Act) (“Of course a material witness is not to be detained on the basis of dangerousness.”). The government did not state that Mr. al-Kidd had a criminal history or point to any specific action taken by Mr. al-Kidd that would suggest he was a danger to the community. Yet the government still took the position that he was dangerous to the community, a position that could only have been based on the FBI’s view that he was not simply a witness.
Eighth, the government not only failed to call Mr. al-Kidd as a witness at the AlHussayen trial, but did not even move to have Mr. al-Kidd released from his draconian release restrictions—even though Mr. al-Kidd had labored under those restrictions for close to fourteen months at the time of the trial’s conclusion. Pl. Facts ¶¶ 22, 46.
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Instead, Mr. al-Kidd had to move for his release himself. Pl. Facts ¶ 47. Why the government would not have promptly released him upon the trial’s conclusion is inexplicable, unless the government did not view him solely as a witness and wanted to keep him under the restrictions.
Defendant attempts to dismiss the significance of some of these individual points, but its piecemeal arguments fail to take into account their cumulative impact. See United States v. Esparza, 546 F.2d 841, 844 (9th Cir. 1976). Moreover, even as to the individual facts, Defendant’s arguments are flawed.
For instance, Defendant seeks to dismiss the significance of Director Mueller’s testimony by noting that it occurred a few days after Mr. al-Kidd’s arrest. See U.S. Br. 21 n.10. But that fact has little bearing on Plaintiff’s point; that the testimony revealed that the FBI did not actually view Mr. al-Kidd as a witness.
Defendant also perplexingly suggests that Director Mueller’s testimony is immaterial because there is no evidence that he or any other national official personally authorized the arrest of Mr. al-Kidd. U.S. Br. 21 n.10. That argument is patently flawed. As an initial matter, the facts create a dispute about the extent of national DOJ’s involvement, given that Headquarters was routinely advised about the status of the alKidd and Al-Hussayen investigations. Pl. Facts ¶¶ 6-7. But, in any event, even if no one at national DOJ played any direct role, that simply means that they are not liable personally as supervisors. It is wholly irrelevant to the point that Plaintiff is making here: that Mueller’s testimony shows that the government viewed Mr. al-Kidd as more than a mere witness, even if Director Mueller had no personal involvement in his arrest, interrogation, and unlawful conditions of confinement.
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Defendant further argues that the United States cannot be held liable for the conditions under which Mr. al-Kidd was confined. But that argument also misses the point. As Justice Ginsburg noted, the way he was treated and the conditions under which he was held after his arrest are certainly indicative of how the government viewed him. Al-Kidd, 131 S. Ct. at 2089 (Ginsburg, J., concurring) (“[E]ven if the initial material witness classification had been proper, what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected[?]”). Mr. al-Kidd was interrogated by the FBI, shackled, repeatedly strip-searched, and held in high-security conditions. Pl. Facts ¶¶ 15, 18-21. This treatment is not consistent with Defendant’s contention that Mr. al-Kidd was detained as a witness.
Finally, Defendant draws a line between so-called intelligence investigations and criminal investigations, see U.S. Facts ¶¶ 1-3, and seems to suggest that this line is relevant to whether an abuse of process occurred here. See U.S. Br. 20. Specifically, the government admits, as it must, that Mr. al-Kidd was the subject of a terrorism “intelligence” investigation, U.S. Facts ¶¶ 8-9; this investigation continued well after Mr. al-Kidd’s arrest, until at least 2004. See Pl. Facts ¶ 5 (citing Pl. Ex. 2., Gneckow Dep. 55-57; Pl. Ex. 3, Cleary Dep. 109-10). The government also admits, as it must, that Mr. al-Kidd was the subject of a “criminal” investigation between 2001 and 2002. Pl. Facts ¶ 5 (citing Pl. Ex. 5 at 2724). Defendant suggests, however, that although Mr. al-Kidd remained the subject of an intelligence investigation until at least 2004, he suddenly stopped being a criminal suspect around 2002—though, tellingly, none of the government witnesses could pinpoint the date. See U.S. Br. 20; Pl. Facts ¶ 5. According to the
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government, this means that Mr. al-Kidd was viewed solely as a witness and that there
was therefore no abuse of process.
Defendant’s argument is legally and factually flawed. First, and dispositively,
even assuming that Mr. al-Kidd was no longer a criminal suspect at the time of his arrest,
but only the subject of an intelligence investigation, his arrest was still an abuse of the
material witness statute. Indeed, the government cannot seriously argue that it may not
use the material witness statute for the purpose of arresting a criminal suspect, but may
use the statute’s arrest powers for investigative purposes. As this Court made clear in its
prior orders, the statute may only be used to secure testimony. Mem. Order 15 (Dkt No.
78). Moreover, as a factual matter, Defendant ignores that there was a blurry line, at best,
between the FBI’s intelligence and criminal investigations after September 11th, 2001; in
fact, the FBI merged its intelligence and criminal investigations at some point in 2002 or
2003, thereby formally eliminating the distinction for counterterrorism investigations. Pl.
Facts ¶ 6.8
In sum, Defendant has offered no objective evidence to support its contention that
Mr. al-Kidd was viewed solely as a witness. Here, all of the objective documentation
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    8 Even if it were somehow relevant whether Mr. al-Kidd was technically viewed as the subject of a “criminal” or “intelligence” investigation, there is ample evidence—ignored by Defendant—that he was in fact viewed as a criminal suspect at the time of his arrest. Among many other things, there is (i) a document showing that agent Gneckow sent Mr. al-Kidd’s name to the U.S. Attorney’s office for that office to evaluate whether there was sufficient evidence to indict him, Pl. Facts ¶ 5 (citing Pl. Ex. A, U.S. Docs 666 (filed under seal)); (ii) documents listing Mr. al-Kidd on the subject line of the criminal investigation related to Al-Hussayen, Pl. Facts ¶ 5 (citing Pl. Ex. 5, U.S. Docs 3002-03, 3007); (iii) Director Mueller’s testimony labeling Mr. al-Kidd’s arrest one of the FBI’s great “successes,” lumping Mr. al-Kidd together with the arrests of others who had actually been charged with terrorism offenses, Pl. Facts ¶ 17; and (iv) the FBI’s draft search warrant averring that Mr. al-Kidd’s computer might reveal evidence with which to charge Mr. al-Kidd with the criminal offense of providing Material Support to Terrorism under 18 U.S.C. §2339B. Pl. Facts ¶ 16.
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shows that Mr. al-Kidd was not in fact viewed as a witness. Summary judgment for Plaintiff is therefore proper. At a minimum, there is a genuine dispute of fact regarding the purpose for which the government sought Mr. al-Kidd’s arrest. In light of the ample record evidence discussed above, a reasonable fact-finder could certainly conclude that the government arrested Mr. al-Kidd for the improper purpose of investigating and preventively detaining him. That is all that is needed to defeat Defendant’s summary judgment motion. See Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (“[T]his court has often held that in police misconduct cases, summary judgment should only be granted ‘sparingly’ because such cases often turn on credibility determinations by a jury.”); accord Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).
B. There Was An Abuse Of Process Because The Material Witness Statute May Not Constitutionally Be Used To Arrest A Cooperative Witness.
The material witness statute permits an arrest only where the government can establish probable cause that it would be “impracticable” to secure the witness’s testimony by subpoena. But like all statutes, it must be interpreted against constitutional norms, here the Fourth Amendment. Neither the Ninth Circuit nor the Supreme Court has ever addressed whether the material witness statute is consistent with the Fourth Amendment. See al-Kidd v. Ashcroft, 580 F.3d 949, 966-67 & n.15 (9th Cir. 2010) (“The Supreme Court has never held that detention of innocent persons as material witnesses is permissible under the Fourth Amendment . . . .”); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2086 (2011) (Kennedy, J., concurring) (“Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when
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material witness arrests might be consistent with statutory and constitutional requirements.”).
There are two prongs to the Fourth Amendment. The “Warrant Clause” allows an arrest based on a judicial warrant “issue[d] . . . upon probable cause.” U.S. Const. amend. IV. But the term probable cause has historically been understood in the Fourth Amendment to mean probable cause of guilt. See, e.g., Brinegar v. United States, 338 U.S. 160, 175 (1949) (“The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.”) (internal quotation marks omitted).
Under the other clause of the Fourth Amendment, an arrest is permitted without a judicial warrant provided that the arrest is not “unreasonable.” U.S. Const. amend. IV. But insofar as the material witness statute allows the arrest of a U.S. citizen who has never affirmatively refused to be available, the statute is not reasonable. Thus, as Justice Kennedy noted in his al-Kidd concurrence, it is far from clear that the material witness statute satisfies either clause of the Fourth Amendment. See al-Kidd, 131 S. Ct. at 2086 (Kennedy, J., concurring).
Significantly, the first material witness statute allowed the arrest of a witness only where the witness affirmatively refused to testify—a limitation that is hardly surprising, since the statute gives the government the extraordinary power to arrest a wholly innocent and uncharged person. See First Judiciary Act, ch. 20, § 33, 1 Stat. 73, 91 (1789). Consistent with its common law origins, the 1789 statute was exceedingly limited, authorizing imprisonment only where a witness refused to give his “recognizance[],” or promise, to testify. Id. The 1789 statute simply provided that a witness could be ordered to promise to appear and testify. As long as he agreed to do so,
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he could not be detained; in fact, the statute did not even authorize the magistrate to require a bond or surety from the witness. See Br. of Amici Curiae Legal History and Criminal Procedure Law Professors in Support of Respondent at *10, Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (No. 10-98), 2011 WL 317147 (explaining that under the 1789 statute, “detention was used only when witnesses refused to offer a recognizance or provide a reasonable surety”). As contemporaneous enactments, the Fourth Amendment and the First Judiciary Act must be read together, and together they confirm that the only seizure of a witness that is “reasonable” under the Constitution is the seizure of an uncooperative witness.
Although the current material witness statute uses the term “impracticable,” it must be understood against this historical backdrop and be limited to situations where the witness has been uncooperative. Otherwise, the statute would permit—in direct contravention of the Fourth Amendment—the arrest of someone (like Mr. al-Kidd) who has done nothing wrong and, indeed, has never once refused to meet with the government when requested to do so.
CONCLUSION The Court should grant Plaintiff summary judgment on his FTCA false imprisonment and abuse of process claims. Alternatively, the Court should deny Defendant’s motion for summary judgment in its entirety.

Dated: December 21, 2011 	  

Respectfully submitted, _/s/_ _________________ Lee Gelernt
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MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

26 	  

Case 1:05-cv-00093-EJL-CWD Document 308-1 Filed 12/21/11 Page 32 of 32

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21 day of December, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd


	   	  

Case 1:05-cv-00093-EJL-CWD Document 308-2 Filed 12/21/11 Page 1 of 13
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL Professor of Clinical Law P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT UNITED STATES

Case 1:05-cv-00093-EJL-CWD Document 308-2 Filed 12/21/11 Page 2 of 13

Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Case 1:05-cv-00093-EJL-CWD Document 308-2 Filed 12/21/11 Page 3 of 13
1. Abdullah al-Kidd is a U.S. citizen born in 1972 in Wichita, Kansas. Ex. 1, Pl. Docs 448. His mother, father, sister, and children are all native-born U.S. citizens who reside in the United States. Id.
2. Al-Kidd graduated from the University of Idaho, where he played on the football team. Ex. 1, Pl. Docs 448. He converted to Islam before graduating. Id.
3. Following September 11, 2001, the FBI began a terrorism investigation in Idaho. Ex. 2, Gneckow Dep. 216; see also Ex. 1, Pl. Docs 4. This included a Joint Terrorism Task Force investigation into al-Kidd, Ex. 2, Gneckow Dep. 54-57; Ex. 3, Cleary Dep. 21, 109-12, including surveillance of him and his then-wife (which indicated no illegality). Ex. 1, Pl. Docs 2400-24; Ex. 3, Cleary Dep. 121, 125-26.
4. The FBI had al-Kidd’s name added to the Treasury Enforcement and Communication System (TECS) database, with a “lookout” to track his international travel. Ex. 4, Alvarez Dep. 1819. See also Ex. 3, Cleary Dep. 118; Ex. 22, NCIC Printout (FBI added al-Kidd’s name to the Violent Gang and Terrorist Organization File).
5. Al-Kidd was the subject of an intelligence investigation from December 2001 until at least 2004. See Ex. 2, Gneckow Dep. 55-57; Ex. 3, Cleary Dep. 109-10. He was also a co-subject in the criminal investigation of Sami Al-Hussayen, a graduate student at the University of Idaho. Ex. 5, U.S. Docs 2724, 3002-03, 3007; see also Ex. 2, Gneckow Dep. 45-46 (“a possible co-subject” has not been “ruled out definitively” from criminal suspicion); Ex. 6, Mace Dep. 73 (equating “subject” with “suspect”). The FBI Agent sent al-Kidd’s name as a proposed “defendant[]” to the U.S. Attorney’s office to evaluate him for potential prosecution. Ex. A, U.S. Docs 666 (filed under seal); see also Ex. 7, Lindquist Dep. 53.
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6. “Intelligence” and “criminal” investigations worked in tandem; both types of investigations could lead to criminal charges. See Ex. 8, Dezihan Dep. 51-53, 82-83 (intelligence and criminal formally merged in 2002), 114-15, 161-62 (FBI shared periodic updates with U.S. Attorney’s Office); Ex. 2, Gneckow Dep. 17; Ex. 3, Cleary Dep. 18, 30.
7. FBI Headquarters received updates and provided guidance on al-Kidd’s investigation. See Ex. 8, Dezihan Dep. 85-86, 102, 104, 106; Ex. 2, Gneckow Dep. 23-24 (headquarters was kept informed of terrorism investigations); Ex. 5, U.S. Docs 2724-26 (electronic communication sent to headquarters).
8. The FBI asked to meet with al-Kidd twice. Ex. 2, Gneckow Dep. 63; Ex. 3, Cleary Dep. 147, 173. Both times, al-Kidd voluntarily met with FBI Agent Joseph Cleary in his mother’s home and answered questions at length; al-Kidd never missed one of these meetings. Ex. 3, Cleary Dep. 170-71, 173-74, 179-81. Cleary found al-Kidd “cooperative” and agreed that he “volunteered a lot of information.” Id. 174, 181.
9. After the second interview, Cleary asked if he could contact al-Kidd again, and al-Kidd agreed. Ex. 3, Cleary Dep. 174-75. However, neither Cleary nor any other FBI agent ever followed up to request another interview. Id. Eight months passed between the last meeting and al-Kidd’s arrest. See Ex. 16, Gneckow Resp. 1st ROG #10, 12 (al-Kidd’s final pre-arrest interview was on July 3, 2002).
10. The FBI never told al-Kidd to keep his meetings with the FBI secret, nor told him not to talk to the press. Ex. 9, Gneckow Resp. 1st RFA #21; Ex. 2, Gneckow Dep. 199-200; Ex. 3, Cleary Dep. 176-78. Al-Kidd spoke with a reporter at one point for an article in which multiple law enforcement officials were also quoted. Ex. 20, Seattle Post-Intelligencer article.
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11. In April 2002, al-Kidd applied to a university in Saudi Arabia to pursue language and religious studies. Ex. 10, al-Kidd Dep. 113, 118.
12. In late 2002, al-Kidd also began making plans to travel to Saudi Arabia for work. Ex. 10, alKidd Dep. 132-33 (al-Kidd applied to Berlitz in December 2002); Ex. 1, Pl. Docs 9-18 (Berlitz employment contract, signed January 2003), 26 (al-Kidd obtained a work visa).
13. In the first week of February 2003, al-Kidd learned that the university had accepted him and awarded him a scholarship, and he decided to accept. Ex. 10, al-Kidd Dep. 119. In February, he began the process of applying for a visa. Id. 120-21, 137; see also Ex. 5, U.S. Docs 98 (reservation monitoring printout showing al-Kidd’s flight had a “visa” requirement); Ex. 11, Alvarado Dep. 229-30. The Saudi Cultural Mission paid for his plane ticket. Ex. 10, al-Kidd Dep. 125.
14. On March 16, 2003, while al-Kidd was checking in for his flight to Saudi Arabia at Dulles Airport in Virginia, he was arrested by FBI agents. Ex. 1, Pl. Docs 121-22.
15. The agents took al-Kidd to a police station in the airport and, with Gneckow’s consent, interrogated him. Ex. 1, Pl. Docs 26; Ex. 2, Gneckow Dep. 189-92. They questioned him at length, without counsel, about numerous matters unrelated to Al-Hussayen’s charges— including al-Kidd’s own religious beliefs and opinions on various Islamic organizations, the purpose of his previous trip to Yemen, and the contents of his luggage. Ex. 1, Pl. Docs 2631. The FBI agents searched al-Kidd’s belongings, Ex. 5, U.S. Docs 2997, and seized numerous items, including his laptop. Id. 1982.
16. The FBI later drafted a search warrant application to search al-Kidd’s laptop. Ex. B, U.S. Docs 1583 (filed under seal). The draft affidavit avers that al-Kidd’s computer “contains . . .
3

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evidence in support of Title 18 Section 2339(A) and or (B) (Providing material support to terrorism) as to . . . al-Kidd.” Ex. 5, U.S. Docs 1583 (emphasis added) (filed under seal). 17. Within days of Plaintiff’s arrest, FBI Director Robert Mueller testified before Congress that Plaintiff’s arrest—along with that of Khalid Shaikh Mohammed, a “mastermind” of the September 11th attacks—as a “major success[]” in the government’s anti-terrorism efforts. Ex. 1, Pl. Docs 3-4 (Testimony before House Subcommittee, Mar. 27, 2003); Ex. 21, Mueller Testimony before Senate Subcommittee (Apr. 10, 2003) (same). Director Mueller never mentioned that Plaintiff was arrested as a witness. The government has never been able to explain why Director Mueller’s testimony highlighted Mr. al-Kidd. See Ex. 18, U.S. Resp. 4th RFA, #73-84 (FBI was unable to determine how al-Kidd came to be mentioned in Director Mueller’s testimony). 18. Over the next 15 days, al-Kidd was incarcerated in three different facilities in Virginia, Oklahoma, and Idaho. Each time he was transferred, al-Kidd was shackled with handcuffs, leg restraints, and a belly chain. Ex. 13, Pl. Resp. 1st ROG #14; Ex. 1, Pl. Docs 123-24, 70204; Ex. 14, al-Kidd v. Sugrue, No. 06-cv-1133, 2007 WL 2446750, at *1 (W.D. Okla. Aug. 23, 2007). 19. Al-Kidd was strip-searched multiple times over the course of his detention. Ex. 1, Pl. Docs 703-04, 2184; Ex. 13, Pl. Resp. 1st ROG #14; see also Ex. 14, Sugrue at *1. In Virginia, he was held under high-security conditions, often spending 22 to 23 hours a day in his cell. Ex. 1, Pl. Docs 122-23, 450, 2183; Ex. 13, Pl. Resp. 1st ROG #14. 20. In the detention center in Oklahoma, al-Kidd was made to remove his clothes and sit naked in view of other, fully clothed detainees. Ex. 1, Pl. Docs 2184; Ex. 14, Sugrue at *1.
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Case 1:05-cv-00093-EJL-CWD Document 308-2 Filed 12/21/11 Page 7 of 13
21. While al-Kidd was incarcerated in Ada County Jail, Gneckow and Cleary questioned him. Ex. 2, Gneckow Dep. 63, 187-89; Ex. 3, Cleary Dep. 141.
22. On March 31, 2003, al-Kidd was released from detention, but was ordered to live with his wife and in-laws in Nevada and was prohibited from traveling outside of Nevada and three other states. Al-Kidd agreed to the conditions of release, including surrendering his passport. Ex. 5, U.S. Docs 1279-80 (detention hearing transcript); Ex. 1, Pl. Docs 1783.
23. Prior to al-Kidd’s arrest, no FBI agent had ever told al-Kidd he could not leave the United States, or to contact the FBI before traveling. Ex. 15, U.S. Resp. 1st RFA #8-9. Nor had any FBI agent told al-Kidd his testimony might be needed, asked him to surrender his passport, or attempted to serve him with a subpoena. Ex. 15, U.S. Resp. 1st RFA #10-13; Ex. 2, Gneckow Dep. 198-99.
24. Al-Kidd was arrested on a material witness warrant issued in the case of Al-Hussayen. Agent Gneckow drafted the warrant affidavit. Ex. 2, Gneckow Dep. 165-66, 171-72. Gneckow did not know the legal standard for obtaining a material witness warrant, and had not received any training in obtaining material witness warrants. Id. 128.
25. The affidavit stated that al-Kidd was “scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003 . . . .” Ex. 1, Pl. Docs 2038. But in fact, al-Kidd had a round-trip, coach-class ticket costing approximately $1,700. Ex. 5, U.S. Docs 3779. His ticket was open-ended, meaning that a return had been purchased but the date had not yet been scheduled. Ex. 2, Gneckow Dep. 183.
26. Gneckow learned of al-Kidd’s travel plans on March 13, 2003, from an oral conversation with ICE officer Robert Alvarez. Ex. 2, Gneckow Dep. 135-36, 162-63, 170; Ex. 4, Alvarez
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Case 1:05-cv-00093-EJL-CWD Document 308-2 Filed 12/21/11 Page 8 of 13
Dep. 31-32, 52. Gneckow and Alvarez worked in the same office. Ex. 2, Gneckow Dep. 135-36. 27. Alvarez did not know al-Kidd’s exact departure date, but he gave Gneckow a range of possible departure dates. Ex. 2, Gneckow Dep. 174-75. 28. Gneckow did not inquire about the confusion regarding al-Kidd’s departure date. Ex. 2, Gneckow Dep. 174-75. Nor did he ask to look at any paperwork showing al-Kidd’s flight information. Id. 163, 173. Gneckow also did not attempt to find out the class of the ticket, or whether al-Kidd had purchased a return flight. Id. 169-70, 173-74. Gneckow made no attempt to find out when al-Kidd had made his travel plans or booked his ticket. Ex. 16, Gneckow Resp. 1st ROG #12; Ex. 2, Gneckow Dep. 149-50. 29. Although the flight information caused Gneckow “concern,” he did not ask Alvarez “to do any follow-up research” about al-Kidd’s travel plans or to show him any documents to verify the information. Instead, Gneckow “took [it] upon [him]self” to verify the information by calling an FBI agent stationed at Dulles Airport. Ex. 2, Gneckow Dep. 165-67. 30. Gneckow asked the FBI agent at Dulles Airport whether al-Kidd’s name appeared on an upcoming flight manifest. Ex. 2, Gneckow Dep. 145-46. Gneckow did not ask the agent about the class of the ticket, the booking date, the price, or whether a return trip had been purchased. Id. 169-70, 174-75; Ex. 16, Gneckow Resp. 1st ROG #7, 12. 31. Gneckow also knowingly omitted numerous facts from the affidavit, including:
(a) Al-Kidd is a native-born U.S. citizen and a graduate of the University of Idaho. See supra ¶¶1-2; Ex. 16, Gneckow Resp. 1st ROG #9; Ex. 9, Gneckow Resp. 1st RFA #1, 2; Ex. 2, Gneckow Dep. 156, 193; see also Ex. 6, Mace Dep. 36.
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(b) Al-Kidd has U.S. citizen family members residing in the United States. See supra ¶1; Ex. 2, Gneckow Dep. 156, 193-94.
(c) Al-Kidd had voluntarily spoken to the FBI on multiple occasions prior to his arrest, and had never failed to attend one of these meetings. See supra ¶¶8-9; Ex. 16, Gneckow Resp. 1st ROG #10; Ex. 9, Gneckow Resp. 1st RFA #8.
(d) Prior to his arrest, al-Kidd had not heard from the FBI for more than eight months. See supra, ¶9; Ex. 16, Gneckow Resp. 1st ROG #10, 12; Ex. 2, Gneckow Dep. 149.
(e) The FBI never informed al-Kidd that his testimony might be needed in Al-Hussayen’s trial, that he could not travel abroad, or that he should inform the FBI before traveling abroad. See supra ¶23; Ex. 9, Gneckow Resp. 1st RFA #9-11, 16-18.
(f) The FBI never asked al-Kidd if he would be willing to testify in Al-Hussayen’s trial, voluntarily relinquish his passport, or postpone his trip to Saudi Arabia. See supra ¶23; Ex. 9, Gneckow Resp. 1st RFA #12-14, 19; Ex. 2, Gneckow Dep. 197-99.
(g) The FBI never attempted to contact al-Kidd or to subpoena his testimony after learning of his travel plans. Ex. 9, Gneckow Resp. 1st RFA #13, 14.
32. The affidavit stated that al-Kidd “and/or” his then-wife “received payments from Sami Omar Al-Hussayen and his associates in excess of $20,000.” Ex. 1, Pl. Docs 2037. From 1999 to 2001, al-Kidd received salary for his work with a Muslim organization with which AlHussayen was affiliated, al-Multaqa. Ex. 10, al-Kidd Dep. 21, 82-83. Gneckow knew “well before” submitting the affidavit that the money al-Kidd received was his salary, Ex. 2, Gneckow Dep. 76, but omitted that fact from the affidavit.
33. Gneckow conceded he would not have sought a material witness warrant for a “cooperative businessman” with a one-way ticket to Saudi Arabia. Ex. 2, Gneckow Dep. 220.
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34. At the time of the warrant application, Gneckow knew that al-Kidd had voluntarily spoken to the FBI on multiple occasions. Ex. 9, Gneckow Resp. 1st RFA #8. Gneckow had not been present at those interviews and had never met al-Kidd; his knowledge of the interviews was based solely on what he learned from Cleary. Ex. 2, Gneckow Dep. 62-65.
35. The affidavit also stated that al-Kidd had information “crucial” to the Al-Hussayen prosecution. Ex. 1, Pl. Docs 2038. In fact, al-Kidd had little knowledge of Al-Hussayen. Ex. 10, al-Kidd Dep. 159-61.
36. When asked what information al-Kidd had that could be relevant at trial, Gneckow testified that al-Kidd could “talk about” al-Multaqa and its website. Ex. 2, Gneckow Dep. 157-59. The Al-Hussayen indictment pending at the time of al-Kidd’s arrest, however, did not mention either al-Multaqa or al-multaqa.com. Ex. 12, Indictment, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #1).
37. Prosecutors on Al-Hussayen’s case had obtained numerous of pages of documentary evidence about Al-Hussayen’s activities, making al-Kidd’s testimony redundant. See Ex. 2, Gneckow Dep. 54 (referencing bank records); Ex. 12, Indictment, Al-Hussayen, at ¶¶ 7-9, 11, 13, 15-21, 23 (referring to business records, emails, websites, and other documents) (Dkt. #1).
38. On or about March 13, 2003, Gneckow contacted AUSA Kim Lindquist and requested that the government seek the material witness warrant. Ex. 2, Gneckow Dep. 129, 170-71. Gneckow did not tell Lindquist any information that was not ultimately included in the affidavit. Id. 201.
39. Prior to contacting Lindquist, Gneckow had made no efforts to locate al-Kidd. Ex. 2, Gneckow Dep. 143. Nor did Gneckow recall what efforts were made to ascertain al-Kidd’s
8

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location after his conversation with Lindquist. Id. 143-44 (Gneckow could not recall whether he “ask[ed] someone to do a drive-by,” “mak[e] a phone call,” or take any other steps). 40. FBI Agent Scott Mace, who signed and submitted the affidavit, did not know the legal standard for obtaining a material witness warrant. Nor had he received any training in obtaining a material witness warrant. Ex. 6, Mace Dep. 14. 41. Mace did not know whether charges were pending against Al-Hussayen, what those charges were, or whether al-Kidd had testimony material to those charges. Ex. 6, Mace Dep. 48-50. He did not inquire into the materiality of al-Kidd’s testimony or the impracticability of obtaining his testimony by subpoena, see Ex. 17, Mace Resp. 1st ROG #1, 13, but “took it on face value that what [Gneckow] was telling [him] was true.” Ex. 6, Mace Dep. 17-18, 30-31. Mace appeared in court alongside AUSA George Breitsameter, who had no prior knowledge of al-Kidd or the Al-Hussayen case. Id. 19-21; Ex. 7, Lindquist Dep. 95-96. 42. On March 17, 2003, after his arrest, al-Kidd was brought before a judge in Virginia for a detention hearing. Al-Kidd was not afforded counsel at this hearing. Al-Kidd asked for his testimony to be “expedite[d].” Ex. 19, Hearing, U.S. v. al-Kidd, No. 03-94 at 2-3 (E.D. Va. Mar. 17, 2003). The judge stated that “the fastest way for you to get to Idaho and see the people that can . . . discuss why you were arrested” would be to “waive your right to a hearing here today,” and consent to a transfer to Idaho. Id. at 3. The government attorney represented that the transfer would occur “as quickly as possible,” and al-Kidd consented. Id. at 4. Yet the government delayed transferring al-Kidd until March 24. See Ex. 14, Sugrue at *1. 43. At al-Kidd’s detention hearing in Idaho on March 25, 2003, the government opposed his release, contending that he was dangerous. Ex. 1, Pl. Docs 1795, 1797.
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44. Al-Kidd was never called as a witness or deposed for Al-Hussayen’s trial. Ex. 7, Lindquist Dep. 35, 101-02.
45. Another witness connected to the Al-Hussayen trial, a student named Saleh Al-Kraida, was served with a summons and asked to surrender his passport and postpone his travel. Ex. 12, Summons, Al-Hussayen (Dkt. #205); Minutes & Order, Al-Hussayen (Dkt. #259, #260). AlKraida was a Saudi national, had plans to leave the United States, and had already vacated his student housing. See Ex. 12, Aff., Al-Hussayen ¶¶ 6(a), 6(q), 11 (Dkt. #203). At no point was Al-Kraida or any other witness besides al-Kidd arrested in connection with AlHussayen’s trial. Ex. 2, Gneckow Dep. 211.
46. On June 10, 2004, a jury acquitted Al-Hussayen of material support charges (which had been added in a superseding indictment) and failed to reach a verdict on the visa fraud and false statement charges. Ex. 12, Jury Verdict, Al-Hussayen (Dkt. #671).
47. The government did not move to have al-Kidd’s restrictions lifted, leaving al-Kidd to file a motion himself. Ex. 12, Motion, Al-Hussayen (Dkt. #665). The Court granted the motion on June 16, 2004. Ex. 12, Order, Al-Hussayen (Dkt. #680).
Respectfully submitted, _/s/_____________________________
Lee Gelernt
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Case 1:05-cv-00093-EJL-CWD Document 308-2 Filed 12/21/11 Page 13 of 13

MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

11

Case 1:05-cv-00093-EJL-CWD Document 308-3 Filed 12/21/11 Page 1 of 2

TABLE OF EXHIBITS

Exhibit 1. Plaintiff’s Documents

Exhibit 2. Deposition of FBI Special Agent Michael Gneckow

Exhibit 3. Deposition of FBI Special Agent Joseph Cleary

Exhibit 4. Deposition of ICE Agent Robert Alvarez

Exhibit 5. United States’s Documents

Exhibit 6. Deposition of FBI Special Agent Scott Mace

Exhibit 7. Deposition of AUSA Kim Lindquist

Exhibit 8. Deposition of FBI Special Agent Egon Dezihan

Exhibit 9.

Response of Defendant Michael Gneckow to Plaintiff’s First Set of Requests for Admission

Exhibit 10. Deposition of Abdullah al-Kidd

Exhibit 11. Deposition of CBP Officer Jaime Alvarado

Exhibit 12. Case Docket in United States v. Al-Hussayen

Exhibit 13. Plaintiff’s Responses to Federal Defendants’ First Set of Interrogatories

Exhibit 14. District Court Order in al-Kidd v. Sugrue, No. 06-cv-1133, 2007 WL 2446750 (W.D. Okla. Aug. 23, 2007)

Exhibit 15. United States’s Response to Plaintiff’s First Set of Requests for Admission

Exhibit 16. Response of Defendant Michael Gneckow to Plaintiff’s First Interrogatories

Exhibit 17. Response of Defendant Scott Mace to Plaintiff’s First Interrogatories

Exhibit 18. United States’s Response to Plaintiff’s Fourth Set of Requests for Admission

Exhibit 19. Hearing Transcript, United States v. al-Kidd, No. 03-94 (E.D. Va. Mar. 17, 2003)

Exhibit 20. Article in Seattle Post-Intelligencer

Case 1:05-cv-00093-EJL-CWD Document 308-3 Filed 12/21/11 Page 2 of 2

Exhibit 21. Testimony of FBI Director Robert Mueller before Senate Subcommittee (Apr. 10, 2003)
Exhibit 22. NCIC Document
Exhibit 23. Deposition of FBI Special Agent Robert Davis

Exhibit A. Exhibit B.

Filed Separately Under Seal Filed Separately Under Seal

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 1 of 110
Exhibit 10

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 2 of 110

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,
Plaintiff,
vs.
ALBERTO GONZALES, Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) No. CV:05-093-S-EJL ) ) ) ) ) )

Page 1

The deposition of ABDULLAH AL-KIDD, taken pursuant to the Federal Rules of Civil Procedure of the United States District Courts pertaining to the taking of depositions, taken before Lisa R. Lisit, a Notary Public within and for the County of Cook and State of Illinois, and a Certified Shorthand Reporter of said State, taken at 219 South Dearborn Street, Suite 500, Chicago, Illinois, on the 11th day of December, 2007, at the hour of 9:35 a.m.

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

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1

A. Between 1999 and 2002, I was

2 inconsistent.

3

Q. Why were you inconsistent?

4

A. I didn't have the money all the time.

5

Q. Why did you not have the money?

6

A. Because I had very little means.

7

Q. Why did you very little means?

8

A. I was paid very little, and there was a

9 portion of time that I had nearly almost nothing.

10

Q. Were you working during this time period?

11

A. Yes.

12

Q. Where were you working?

13

A. I worked for al-Multaqa from 1999 to

14 2001.

15

Q. When did you stop working at al-Multaqa?

16

A. August of 2001.

17

Q. What did you do from August of 2001 to

18 the point in time in 2002, when you were still not

19 making or unable to make payments?

20

A. Can you repeat your question?

21

Q. Sure. Sure. You said the period of time

22 when you were inconsistent was from 1999 to 2002.

23 And you just said that you worked at

24 al-Multaqa -- al-Multaqa?

25

A. That's fine.

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1

What do you mean you were given a blank

2 check by a multimillionaire?

3

A. A person offered to invest in my project.

4

Q. And did you accept that offer?

5

A. No, I did not.

6

Q. Why not?

7

A. Because I didn't want to become this

8 famous music mogul.

9

Q. Why did you not want to become that

10 person?

11

A. Because that's not my goal in life.

12

Q. What is your goal in life?

13

A. To be a good human being.

14

Q. And so did you inform this

15 multimillionaire -- presumably you informed this

16 multimillionaire that you were not going to accept

17 the offer; is that correct?

18

A. I just didn't answer any phone calls.

19

Q. And when was this period that you weren't

20 answering any phone calls?

21

A. In these months prior to August '99.

22

Q. So are we talking about June and July?

23

A. June and July, mm-hmm.

24

Q. So did you just -- strike that.

25

So you started to work at al-Multaqa in I

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1 think -- I just want to clarify -- September of

2 '99?

3

A. It was in August of '99.

4

Q. That you moved to Moscow and started

5 working there?

6

A. Right.

7

Q. And how long did you work there?

8

A. Up until August of 2001.

9

Q. And then you went to Yemen; is that

10 correct?

11

A. Yes.

12

Q. And you were in Yemen until April of '02;

13 is that right?

14

A. Yes.

15

Q. You came back from Yemen, and what did

16 you do in terms of employment?

17

A. Probably in late June or July I got a job

18 at YouthCare.

19

Q. So you were looking for employment

20 from -- strike that.

21

Were you actively seeking employment from

22 April of 2002 to June or July of '02?

23

A. Yes, I was.

24

Q. And in what field, what areas of

25 employment were you looking?

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1 home I have no money.

2

Q. Where does all your money go?

3

A. It goes to bills -- electricity, that's

4 behind. Heat bill, that's behind -- my basic

5 necessities.

6

Q. I think I understand now. I'm just

7 trying to clarify.

8

So you had that period where you had no

9 income --

10

A. I had no income.

11

Q. -- and you had bills that accumulated?

12

A. Yes.

13

Q. And you are now paying off those bills?

14

A. Yes.

15

Q. Okay. That makes sense.

16

What was the purpose -- you had planned

17 to go to Saudi Arabia in March of 2003, correct?

18

A. Yes.

19

Q. What was the purpose of that trip?

20

A. I wanted to study Islamic law.

21

Q. And you had a scholarship at a

22 university; is that correct?

23

A. Yes.

24

Q. And was that scholarship specifically to

25 study Islamic law at a particular university?

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1

A. Yes.

2

Q. How long were those studies going to

3 last?

4

A. When you mean "studies," what do you

5 mean?

6

Q. Your study of Islamic law. Was there a

7 program? Was there a set time period for that

8 program?

9

A. Well, it's a university just like any

10 university. I would have been first in the

11 language program, but there's a semester break.

12

I would have returned to the United

13 States and then returned back to Saudi Arabia and

14 then entered into the semester.

15

Q. Was there any specific time period? Was

16 it a two-year program? A three-year program?

17

A. Well, the Arabic program is a two-year

18 program which -- yes, the Arabic program is a

19 two-year program. And then after that, you enter

20 into the university.

21

Q. So by "Arabic program," do you mean study

22 of Arabic language?

23

A. Yeah, in the university everything is

24 taught in the Arabic language so you have to go

25 through the Arabic course before you can enter into

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1 correct?

2

A. Yes.

3

Q. What was the plan in terms of Saadia?

4

A. In terms of what?

5

Q. Well, you're looking at an extended

6 period in Saudi Arabia. What was Saadia going to

7 do during this time?

8

A. She was going to join me.

9

Q. So what was the plan in terms of her

10 joining you?

11

A. After I left she was to join me in one

12 month.

13

Q. When did you learn that Saadia was

14 pregnant with Zainab?

15

A. When I was in Ada County.

16

Q. You mean when you were detained at the

17 Ada County facility?

18

A. Yes, sir.

19

Q. Who made the arrangements for your

20 scholarship at -- strike that.

21

At what university in Saudi Arabia were

22 you going to study?

23

A. A university called Umm al-Qora

24 University. That's U-m-m a-l, dash, Q-o-r-a

25 University.

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1

Q. Umm al-Qora?

2

A. Mm-hmm.

3

Q. Who made arrangements for you to obtain a

4 scholarship from Umm al-Qora?

5

MR. GELERNT: Vague.

6

You can answer.

7 BY THE WITNESS:

8

A. I applied to get a scholarship.

9

Q. To the university?

10

A. Yes.

11

Q. When did you apply?

12

A. I applied for -- at which particular

13 time?

14

Q. That's the question. When did you apply?

15

A. I have applied at the university more

16 than one time.

17

Q. When was the first time?

18

A. The first time was in 1999.

19

Q. And what happened?

20

A. I was denied.

21

Q. Why?

22

A. I don't know.

23

Q. You just received a denial letter? Is

24 that all that --

25

A. I don't recall getting a denial letter.

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1 I had no response.

2

Q. So do you know for a fact that you were

3 denied or are you assuming that you were denied?

4

A. I know that I was denied.

5

Q. How do you know that?

6

A. Because I know an individual that worked

7 at the university.

8

Q. Who is that individual?

9

A. His name is Hulayl al-Omairy,

10 H-u-l-a-y-l, a-l, dash, O-m-a-i-r-y.

11

Q. When was the second time you applied to

12 Umm al-Qora?

13

A. In April of 2002.

14

Q. And were you accepted -- I'm sorry.

15

What happened?

16

A. Nothing. I just applied.

17

Q. So were you accepted or rejected? Do you

18 know?

19

A. No, it doesn't happen like that.

20

Q. Maybe that's what I'm -- so how does it

21 happen?

22

A. I mean, I submitted my application and I

23 had to wait until they gave me a response.

24

Q. And did you ever receive a response?

25

A. Yes, I did.

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1

Q. And what was the response?

2

A. That I was accepted.

3

Q. When did you receive that response?

4

A. I received that response in the

5 first -- approximately the first week of February

6 of 2003.

7

Q. Other than these two instances, have you

8 ever applied to Umm al-Qora?

9

A. No.

10

Q. Now, in addition to when you applied to

11 attend the university in both instances, did you

12 also have to apply for a scholarship?

13

A. If you're accepted they give you a

14 scholarship.

15

Q. Where were you going to live in Saudi

16 Arabia?

17

A. They have housing. They provide housing.

18

Q. "They" being the university?

19

A. Yes.

20

Q. So were you going to live on the

21 university or in some type of housing that the

22 university paid for?

23

A. Yes.

24

Q. So you were not going to have any housing

25 costs?

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1

A. No.

2

Q. What about Saadia? Where was she going

3 to live?

4

A. With me.

5

Q. Had she booked a flight to go to Saudi

6 Arabia?

7

A. No, not yet.

8

Q. Why not?

9

A. Because the plan was that I was to get

10 there and get settled and contact the university

11 that my family was coming so I could get into the

12 family housing.

13

Q. Was the university going to pay for her

14 travel?

15

A. No.

16

Q. What was her parents' view of this plan

17 for her to go to Saudi Arabia?

18

A. They at first were apprehensive about it

19 because it came out of -- you know, it was kind of

20 sudden.

21

Q. Why was it sudden?

22

A. Because the letter came to me in the

23 first part of February, and in the letter it told

24 me that I had, if I'm not mistaken, about two weeks

25 to begin the process of, you know, the visa

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1 application process and so forth.

2

Q. Did they know that you had applied to

3 study in Saudi Arabia? Her parents?

4

A. Yes, I told them.

5

Q. And what was their reaction?

6

A. There was no reaction.

7

Q. Were they supportive?

8

A. Oh, yes, when I -- yes.

9

Q. Were they happy for you?

10

MR. GELERNT: Happy that he applied?

11

MR. MEEKS: Were they happy for him that he

12 had applied.

13 BY THE WITNESS:

14

A. Or happy for me that I got accepted?

15

Q. I'm talking about the application.

16

A. Oh, I'm sorry. I didn't tell them about

17 the application. I'm sorry. I misunderstood you.

18

Q. So you did not tell Saadia's parents that

19 you had applied?

20

A. No, and what I had told them is that I

21 had applied for jobs in Saudi Arabia.

22

Q. Why did you not tell them that you had

23 applied for this?

24

A. Because that was so up in the air that it

25 was not something solid or even remotely solid

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1 attend mosque as often as you did or services at a

2 mosque as often as you did?

3

A. We attended together.

4

Q. Did you ever attend apart?

5

A. Well, if I was outside of the home like

6 at work and I had the ability to stop at the mosque

7 during prayer, I would do so.

8

Q. Did they pray as often as you did?

9

A. I wasn't keeping track of their prayer.

10

Q. Who paid for your flight arrangements to

11 Saudi Arabia?

12

A. The Saudi Cultural Mission.

13

Q. And that is located where?

14

A. In Washington, D.C., I believe, or in

15 Virginia, in the surrounding area.

16

Q. The Saudi Cultural Mission -- is that

17 what you said?

18

A. Yes.

19

Q. -- is that a government agency?

20

A. Yes, it's part of the embassy -- Saudi

21 Embassy.

22

Q. Did they book your ticket for you?

23

A. No, I booked it -- excuse me. I'm sorry.

24

What do you mean by "booked"?

25

Q. I mean who actually picked up the phone

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1 February?

2

A. Because prior to the acceptance letter, I

3 was actually offered a job to work in Saudi Arabia.

4

Q. What job were you offered?

5

A. I was offered to teach ESL at Dar

6 al-Kibbrah which is a school of the Berlitz

7 language out of Jersey.

8

Q. I thought earlier you testified you had

9 not made arrangements to teach ESL in Saudi Arabia?

10

A. I don't recall saying that.

11

Q. Well, let's just talk about that for a

12 moment. So the Berlitz Language Institute, you had

13 made arrangements with them to teach ESL in Saudi

14 Arabia; is that correct?

15

A. Yes, sir.

16

Q. When were those arrangements made?

17

A. I applied in December, and shortly -- I

18 think at the end of December and shortly after

19 that, they offered me a position.

20

Q. December of 2002?

21

A. Yes.

22

Q. And so were you planning to go to Saudi

23 Arabia to take this position?

24

A. At that particular time, I was excited

25 about the opportunity to teach in I think -- yeah,

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1 I started to prepare for that.

2

Q. Were you planning to go to Saudi Arabia

3 to teach ESL at the Berlitz school regardless of

4 whether you received a scholarship or admittance to

5 Umm al-Qora University?

6

A. As I stated before, actually Umm al-Qora

7 University was not even in my mind at this

8 particular time. Too much time had passed from the

9 time that I had put the application in so it wasn't

10 even in the framework in the late part of December,

11 early part of January.

12

Q. When did you apply to Berlitz to teach

13 ESL?

14

A. As I best recall, it was at the end of

15 December.

16

Q. And was that specifically to teach ESL in

17 Saudi Arabia?

18

A. Yes.

19

Q. Had you told Saadia's parents that you

20 had sought this employment?

21

A. That I sought this employment?

22

Q. That you applied.

23

A. I don't recall telling them.

24

Q. Why not?

25

A. Why I don't recall?

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1

A. From the time that I had finalized the

2 process of the paperwork and visa and so on and so

3 forth.

4

Q. So what visa requirements did you have to

5 fulfill?

6

A. The things I stated before in regards to

7 the background check and the medical testing.

8

Q. You submitted that to the Saudi Cultural

9 Mission?

10

A. Yes.

11

Q. And then they would then make

12 arrangements for you to get some type of visa then?

13

A. Yes.

14

Q. Do you remember when you sent that

15 paperwork to the Saudi Cultural Mission?

16

A. It was probably -- I started that

17 process -- as I stated before, I got the letter in

18 the first part of February. And since I had

19 already started the process for the job, a lot of

20 the same things applied so I would say within the

21 second and third week of February I had sent all

22 that stuff in to the cultural mission.

23

Q. When did you receive a visa from them?

24

A. It would have probably been the

25 last -- the last week of February or the first week

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1

A. At different places.

2

Q. Within one state? Within the state of

3 Washington or outside?

4

A. Outside -- sometimes outside the state of

5 Washington.

6

Q. And then you went to work for al-Multaqa

7 after that again?

8

A. Between -- I worked for three months in

9 1994 consistently. After that -- which was in the

10 summer.

11

After that time of that summer, I didn't

12 do anything for al-Multaqa other than work the

13 youth camps up until 1999, as I best recall.

14

Q. And then in 1999 --

15

A. After 1999, I worked as like a full-time

16 role.

17

Q. And that was from '99 until --

18

A. -- August 2001 --

19

Q. -- when you left for Yemen, correct?

20

A. Yes.

21

Q. And what did you do at al-Multaqa --

22 al-Multaqa?

23

A. al-Multaqa, yes.

24

Q. -- al-Multaqa? And what did you do

25 during this time period?

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1

A. In which time period?

2

Q. 1999 to August of 2001.

3

A. I arranged the English library. I made

4 labels for tapes. I made labels for tape albums.

5 I designed a couple book covers that were never

6 used.

7

I used to speak at universities,

8 churches, synagogues to represent Islam. That was

9 pretty much my role.

10

Q. From '94 to 99, when you attended the

11 youth camp, were you paid or was that as a

12 volunteer?

13

A. I was paid for the three months, but

14 after that I was a volunteer.

15

Q. For the three months, were you referring

16 to the 1994 time period?

17

A. Yes.

18

Q. Was al-Multaqa located in Moscow, Idaho

19 at that time -- I'm sorry. Where was it located at

20 that time in 1994?

21

A. Seattle, Washington.

22

Q. But then, when you went to work in 1999,

23 it was in Moscow; is that correct?

24

A. Yes, sir.

25

Q. They just moved operations -- or why did

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1 surrounding area for a while so I met all of the

2 new people to the area.

3

Q. Did Sami Omar al-Hussayen have a title at

4 al-Multaqa --

5

A. At which particular time?

6

Q. -- a connection to al-Multaqa?

7

A. At which time are you speaking?

8

Q. 1991 to 2001, during that period.

9

A. To my general understanding, yes.

10

Q. What was your understanding of his

11 connection?

12

A. He was one of the people doing work for

13 the al-Multaqa.

14

Q. Do you know what kind of work he was

15 doing?

16

A. In August of 1999, no, I did not.

17

Q. At any point from August of -- did you

18 start working there in August of '99?

19

A. Yes.

20

Q. At any time from August '99 to

21 August 2001, do you know what he was doing for

22 al-Multaqa?

23

A. He was -- did a lot of logistics. There

24 was a newsletter, an Arabic newsletter that, to the

25 best of my understanding -- because again, you

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1 know, I didn't really -- I knew Sami. I saw him,

2 but our interaction was very limited -- but from

3 what I understood, he was one of the people that

4 worked on this newsletter.

5

And he did -- like I said, he did a lot

6 of logistics, a lot of administrative things.

7

Q. Would you describe your relationship with

8 him as professional or personal or both?

9

A. It was not personal. I couldn't classify

10 it as professional.

11

Q. How would you classify it?

12

A. I mean, it was just -- there seemed to

13 be -- I don't really know how to explain this, but

14 there seemed to be some kind of barrier between us.

15

Q. Can you -- okay. What do you mean by

16 that?

17

A. I mean, it just -- you know, I actually

18 rarely even saw Sami. He was pretty much -- he was

19 seen on Fridays in the mosque, but for the most

20 part he was in his home or in his office. He was

21 not a person that was easily accessible.

22

Q. And when you say "office," do you mean

23 his office at al-Multaqa?

24

A. No.

25

Q. What do you mean, "his office"?

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1

A. On campus.

2

Q. When did you learn that Sami al-Hussayen

3 had been arrested?

4

A. I found out via a thread on the Internet

5 approximately probably the last week of February.

6

Q. When you say "a thread on the Internet,"

7 what do you mean?

8

A. Well, I went to, you know, one of the

9 Internet Web -- I don't know -- one of the news

10 sites.

11

You know, sometimes when you click

12 open -- I'm not saying this is how I did it, but

13 you know, when you click on Google it might have a

14 couple lines. If you open up your Yahoo mail

15 account, it might have a few lines. It was

16 something like that.

17

Q. Do you recall what your reaction was when

18 you learned that he had been arrested?

19

A. I was surprised.

20

Q. Why were you surprised?

21

A. Because I was surprised that, you know,

22 Sami was arrested. It wasn't -- I certainly didn't

23 expect him to be arrested.

24

Q. Did you talk to anyone about the fact

25 that he had been arrested?

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1

CERTIFICATE

2

3 I, LISA R. LISIT, a Shorthand Reporter and a Notary 4 Public, do hereby certify that the foregoing 5 witness, ABDULLAH AL-KIDD, was duly sworn on the 6 date indicated, and that the foregoing is a true 7 and accurate transcription of my stenographic notes 8 and is a true record of the testimony given by the 9 foregoing witness.
10

11 I further certify that I am not employed by or 12 related to any party to this action by blood or 13 marriage and that I am in no way interested in the 14 outcome of this matter.
15

16 In witness whereof, I have hereunto set my hand 17 this 26th day of December, 2007.
18

19

20

21

22

LISA R. LISIT, CSR, RPR

Notary Public, Cook County, Illinois

23

24 C.S.R. No. 084-004297
25

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 24 of 110
Exhibit 11

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 25 of 110

1

1

2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

3

Case No. CV:05-093-S-EJL

-------------------------------------)

4 ABDULLAH AL-KIDD,

5

Plaintiff,

6

vs.

7 ALBERTO GONZALES, Attorney General
8 of the United States, et al.,

9 Defendants.
10 -------------------------------------)

11

12

13

14

DEPOSITION OF JAIME A. ALVARADO

15

New York, New York

16

Wednesday, November 7, 2007

17

18

19

20

21

22

23 Reported by:

24 Toni Allegrucci

25 JOB NO. 198421

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 26 of 110

229

1

ALVARADO

2

Q. Okay. I'm actually asking about

3 the line above that, the one that begins

4 T-K-D-E.

5

A. No, not 100 percent. I would be

6 guessing. I'm not 100 percent on that, I

7 don't know.

8

Q. So then the line after that you

9 said that did mean something to you?

10

A. Some airlines put the nationality

11 of the passenger there.

12

Q. And so from this you gather that

13 Mr. Al-Kidd was?

14

A. That this particular subject was a

15 U.S. national.

16

Q. So do you know what AP fax means at

17 the beginning of that line?

18

A. No.

19

Q. Or OSI SV?

20

A. No.

21

Q. Okay. And then on the last line,

22 can you tell me what that means?

23

A. I can only tell you that it says

24 "passenger advised Visa requirement." I

25 guess they have to have a Visa to get into

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 27 of 110

230

1

ALVARADO

2 that country.

3

Q. Into?

4

A. Saudi Arabia.

5

Q. So after you determined that

6 Mr. Al-Kidd was the subject of a text record

7 and the subject of a JTTF investigation you

8 printed out this sheet?

9

A. Right.

10

Q. Okay.

11

MR. JADWAT: I'm going to give the

12

reporter a document Bates stamped US 99

13

to be marked.

14

(Plaintiff's Exhibit 7, document,

15

marked for identification, as of this

16

date.)

17

Q. Again, I'm going to ask you to

18 focus on what's underneath the handwriting on

19 this page, okay?

20

A. Um-hm.

21

Q. What is this page?

22

A. As I mentioned to you before, some

23 airlines have different type of reservation

24 systems, this particular one the history is

25 so short. That is the history that you are

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 28 of 110

257

1

ALVARADO

2

Q. Any questions at all.

3

A. No, I was the one feeding him the

4 information about the reservation.

5

Q. So he didn't ask you to follow-up

6 on any of the information you gave him?

7

A. All this information was turned

8 over to my deputy, because remember, I didn't

9 work, I think I was off both days, Saturday

10 and Sunday, so he was advised, my deputy, to

11 keep track.

12

Q. Right. But you did have a phone

13 call with Alvarez on Friday?

14

A. Probably. I don't recall.

15

Q. Okay. In either of those phone

16 conversations, did you tell Mr. Alvarez that

17 Mr. Al-Kidd definitely did not have a ticket

18 for a return flight?

19

A. No, I never told him that.

20

Q. Can you turn back please to

21 Exhibit 6. This is your handwriting on this

22 exhibit; is that correct?

23

A. Yes.

24

Q. Well, actually, before I ask you

25 about the exhibit, do you recall whether you

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 29 of 110

263

1

ALVARADO

2 the reservation?

3

A. No.

4

Q. So in either of the conversations

5 that you had with Mr. Alvarez, did you

6 definitively tell him that Mr. Al-Kidd had a

7 one-way ticket?

8

A. I might have mentioned it to him,

9 that there was one-way ticket, that the

10 reservation didn't show the return. In

11 certain cases the agent would say do you know

12 if he is coming back, then I would say yeah,

13 he has a return ticket on this and this and

14 this date.

15

I might have said to him it looks

16 like it's a one-way ticket, there's no date.

17

Q. But you certainly did not tell him

18 as you said before, did you not tell him that

19 there's no return?

20

A. I can't remember that. I might

21 have I wrote it down. And if he did get a

22 copy of that he had to read it one-way

23 ticket. Again, it was my personal

24 information anyway.

25

Q. Right. And you had an

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 30 of 110

267

1

2

C E R T I F I C A T E

3 STATE OF NEW YORK )

4

: ss.

5 COUNTY OF NEW YORK )

6

7

I, Toni Allegrucci, a Notary Public

8

within and for the State of New York, do

9

hereby certify:

10

That JAIME A. ALVARADO, the witness

11

whose deposition is hereinbefore set

12

forth, was duly sworn by me and that

13

such deposition is a true record of the

14

testimony given by the witness.

15

I further certify that I am not

16

related to any of the parties to this

17

action by blood or marriage, and that I

18

am in no way interested in the outcome

19

of this matter.

20

IN WITNESS WHEREOF, I have hereunto

21

set my hand this 27th day of November,

22

2007.

23

____________________

24

TONI ALLEGRUCCI

25

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 31 of 110
Exhibit 12

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea1goef3129of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea2goef3139of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea3goef3149of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea4goef3159of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea5goef3169of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea6goef3179of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea7goef3189of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea8goef3199of 110

Case 1C:0a5s-ecv3-:0030-c9r3-0-E0J0L4-8C-EWJDL Document 1308F-5iledFi0le2d/1132/0/231/1P1agPea9goef4109of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a0geof419of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a1geof4129of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a2geof4139of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a3geof4149of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a4geof4159of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a5geof4169of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a6geof4179of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a7geof4189of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a8geof4199of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt1308F-i5ledF0il2e/d131/20/321/P11ageP1a9geof5109of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg1e o5f17of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg2e o5f27of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg3e o5f37of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg4e o5f47of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg5e o5f57of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg6e o5f67of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230038-5FilFeidle1d01/127/2/013/11PaPgaeg7e o5f77of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230058-5FilFeidle1d01/127/2/013/11PaPgaeg1e o5f82of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt230058-5FilFeidle1d01/127/2/013/11PaPgaeg2e o5f92of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt235098-5FilFeidle1d11/024/2/013/11PaPgaeg1e o6f01of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt236008-5FilFeidle1d11/024/2/013/11PaPgaeg1e o6f14of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt236008-5FilFeidle1d11/024/2/013/11PaPgaeg2e o6f24of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt236008-5FilFeidle1d11/024/2/013/11PaPgaeg3e o6f34of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt236008-5FilFeidle1d11/024/2/013/11PaPgaeg4e o6f44of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt636058-5FilFeidle0d61/023/2/014/11PaPgaeg1e o6f53of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt636058-5FilFeidle0d61/023/2/014/11PaPgaeg2e o6f63of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt636058-5FilFeidle0d61/023/2/014/11PaPgaeg3e o6f73of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt637018-5FilFeidle0d61/120/2/014/11PaPgaeg1e o6f84of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt637018-5FilFeidle0d61/120/2/014/11PaPgaeg2e o6f94of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt637018-5FilFeidle0d61/120/2/014/11PaPgaeg3e o7f04of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt637018-5FilFeidle0d61/120/2/014/11PaPgaeg4e o7f14of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638008-5FilFeidle0d61/126/2/014/11PaPgaeg1e o7f23of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638008-5FilFeidle0d61/126/2/014/11PaPgaeg2e o7f33of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638008-5FilFeidle0d61/126/2/014/11PaPgaeg3e o7f43of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638038-5FilFeidle0d61/320/2/014/11PaPgaeg1e o7f53of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638038-5FilFeidle0d61/320/2/014/11PaPgaeg2e o7f63of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638038-5FilFeidle0d61/320/2/014/11PaPgaeg3e o7f73of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638048-5FilFeidle0d71/021/2/014/11PaPgaeg1e o7f83of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638048-5FilFeidle0d71/021/2/014/11PaPgaeg2e o7f93of 110

Case C1:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-C-EWJLD DDooccuummeenntt638048-5FilFeidle0d71/021/2/014/11PaPgaeg3e o8f03of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 81 of 110
Exhibit 13

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 82 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 83 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 84 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 85 of 110
Exhibit 14

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 86 of 110

Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))

Page 1

Only the Westlaw citation is currently available.
United States District Court, W.D. Oklahoma.
Abdullah AL-KIDD, Plaintiff, v.
John SUGRUE, Defendant.
No. CIV-06-1133-R. Aug. 23, 2007.
Charles S. Thornton, American Civil Liberties Union of Oklahoma, Oklahoma City, OK, Lee Gelernt, American Civil Liberties Union Fnd, New York, NY, Robin L. Goldfaden, American Civil Liberties Union Immigrants' Rights, Oakland, CA, for Plaintiff.
J. Marcus Meeks, U.S. Dept of Justice Torts Div, Washington, DC, for Defendant.
ORDER DAVID L. RUSSELL, United States District Judge.
*1 Defendant John Sugrue has moved for summary judgment on Plaintiff's Amended Complaint assertedly based upon qualified immunity and Plaintiff's lack of standing to pursue declaratory relief [Doc. No. 44]. Defendant Sugrue, who is sued in his individual capacity in this Bivens action, asserts that Plaintiff cannot establish a Fourth Amendment violation; that the law does not clearly establish that the Federal Transfer Center's visual search policy violated the Fourth Amendment; and that Defendant is entitled to qualified immunity because he did not personally participate in the search of Plaintiff, the manner and circumstances of which are alleged to have violated the Fourth Amendment.
The following facts are undisputed. On March 16, 2003, Plaintiff Abdullah Al-Kidd was arrested in Virginia on a material witness arrest warrant issued on application made by the United States Attorney's Office for the District of Idaho. At the detention hearing before a magistrate judge in the Eastern District of Virginia, Plaintiff agreed to a continuance to be transferred to Idaho for the detention hearing after being assured that the transfer would occur quickly. Plaintiff remained in a detention facility in Virginia until March 24, 2003, when he was transported by airplane to the Federal Transfer Center (FTC) in Oklahoma City, Oklahoma. During the entire duration of the trip, Plaintiff was shackled at the hands, waist and ankles. Upon Plaintiff's arrival at the FTC, Plaintiff was taken to a “shower cell,” where he was asked to remove all of his clothes. Pursuant to what is apparently an unwritten policy of the FTC, a visual strip search and visual body cavity search of the Plaintiff was conducted by an FTC staff person standing outside the “shower cell” door. After the search was completed, the staff person confiscated Plaintiff's clothes and left Plaintiff naked in the shower cell for approximately one and one-half to two hours until other arriving detainees had been processed through the Receiving and Discharge area of the FTC. Plaintiff attests that because there was no bench or chair in the shower cell, he had to sit naked on the floor. He further attests that the cell was extremely cold to the point where he was shivering. Plaintiff attests that because the cell was so close to the desk where a female FTC staff person sat, with her back to the Plaintiff, processing detainees, each detainee who was being processed by the female employee could see the

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 87 of 1P1a0ge 2
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
Plaintiff. Plaintiff further attests that because he was cold and embarrassed, he curled up on the floor at the back of the shower cell, with his knees pulled up against his chest but that he was still in plain view of other detainees. Eventually, an FTC staff person gave Plaintiff a prison uniform to put on, shackled the Plaintiff and took him to a single-occupant cell in FTC's Special Housing Unit for administrative detention. Once Plaintiff was inside his cell with the door locked, his handcuffs and shackles were removed through a slot in the door. Plaintiff attests that the cell was completely closed off from neighboring cells by concrete walls, making it impossible for anything to be passed to him from other cells. He further attests that he was never permitted to leave his cell. The following morning, before being taken to the plane for transport to Idaho, Plaintiff was again handcuffed and shackled, taken from his cell and escorted to a barred cell where he was again subjected to another strip search and visual body cavity search. Plaintiff attests that at least two other detainees could see him being searched.
*2 It is FTC's policy to conduct a visual inspection of all body surfaces and body cavities of each inmate that arrives at FTC, regardless of whether the inmate is a sentenced prisoner, is awaiting trial, a material witness, or is being detained for some other purpose. The BOP Inmate Systems Supervisor at the FTC attests that uniform application of the visual search policy ensures that it is not administered in a discriminatory manner. The purpose of this policy is to prevent and deter the introduction of contraband and weapons into the FTC. All FTC inmates are also subjected to a visual search upon departure from the FTC. The stated purpose of these searches is to prevent contraband or weapons from leaving the facility and to deter the creation or obtaining of contraband and weapons within the FTC.
The FTC's Inmate Systems Supervisor, Johnny Rose, attests that the procedures for conducting visual searches are designed to ensure maximum privacy for the inmates. Inmates are searched in one of eleven fourfoot by four-foot search booths which have a curtain on the fourth side, allowing the FTC staff person to open the curtain and view the inmate, or in one of two four-foot by five-foot shower cells, having a barred, locked door on the fourth side. Mr. Rose attests that because of the configuration and size of the booths and shower cells, it is difficult if not impossible for other inmates and staff to see into them while a search is being conducted, and that while an inmate is being searched in a shower cell, other inmates are not moved past the shower cell doors. Mr. Rose attests that it is FTC policy to have an inmate disrobe only long enough to perform a visual search and that inmates are given institutional clothing as soon as possible after visual searches are performed. However, he states that there are occasions when staff will leave an inmate who's been searched in a shower cell, which is locked, for a short period while the staff person attends to other duties.
It is also FTC policy or practice for each inmate to be placed in a “boss chair” and then passed through a metal detector after the inmate is visually searched for the purpose of detecting metal objects that could not be detected by the visual search.
A significant number of inmates arrive at FTC on a daily basis and include sentenced prisoners, pretrial detainees, other types of detainees and material witnesses of all custody classifications and security levels. Inmates housed at FTC come from both state and federal facilities and prisons all over the country. On the day Plaintiff arrived at FTC, 187 inmates of all categories were admitted to FTC. According to the sworn Declaration of Johnny Rose:
The FTC has limited information about an inmate upon his or her arrival. The movement paperwork that arrives with the inmate will provide the basis for an inmate's detention, but it may say nothing about the underlying conviction, charges, or specific reasons why an inmate is being detained. The movement paperwork also
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 88 of 1P1a0ge 3
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
may or may not indicate where an inmate was housed prior to arriving at the FTC. If an inmate was housed in a non-Federal facility, the movement paperwork may not indicate security concerns that arose during the inmate's stay in the non-Federal facility. The limited information that the FTC has about an inmate upon arrival necessitates a visual cavity search of all inmates to prevent the introduction of contraband or weapons into the facility.
*3 Declaration of Johnny Rose (Exhibit “3” to Defendant's Brief) at ¶ 6 (emphasis added).
Defendant John Sugrue was warden of the FTC at the time Plaintiff was detained there in March of 2003. As Warden, Defendant Sugrue had oversight of all staff and was responsible for the overall operations of the FTC, although he was not directly involved in the daily operations of each department. Defendant Sugrue had no knowledge of and no personal interaction with the Plaintiff during the time Plaintiff was at the FTC. Rick Sharp, an Inmate Systems Supervisor at FTC, had no recollection of Plaintiff and none of FTC's staff persons recalled Plaintiff coming into the FTC or going out. Mr. Sharp also testified that a Form 129 for Plaintiff, showing that Plaintiff was a federal material witness, could have been included in the “movement papers” with which Plaintiff arrived at the FTC.
Despite the routine visual searches and use of the “boss chair”/metal detector upon inmates' arrival at FTC and departure therefrom, inmates still attempt to smuggle contraband and weapons in and out of the FTC. Since December of 1999, there have been eight (8) documented incidents of inmates attempting to do so, in each of which instance the material was discovered during the visual search or when the inmate sat in the boss chair. There have been at least three instances since 2000 where weapons or contraband have been discovered on inmates while in the FTC. There is no information in the record as to the type(s) of FTC inmates on which contraband or weapons were discovered during visual searches, use of the boss chair or otherwise, i.e., whether the inmates were convicted prisoners, pretrial detainees, material witnesses or other types of detainees.
Qualified Immunity Qualified immunity is a defense to a Bivens action. See Robbins v. Wilkie, --- U.S. ----, 127 S.Ct. 2588, --L.Ed.2d ---- (2007); Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under the qualified immunity doctrine, government officials performing discretionary functions generally are immune from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir.2005), cert. denied, 546 U.S. 1138, 126 S.Ct. 1147, 163 L.Ed.2d 1001 (2006). “When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, who must first establish that the defendant violated a constitutional right.” Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.2007) (citing Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir.2004)). If no constitutional violation is established no further inquiry is necessary. See id., citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a constitutional violation has been shown, the plaintiff must show that the constitutional right which was violated was clearly established. See Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. at ----, 150 L.Ed.2d at 281. The inquiry as to whether a constitutional right was clearly established must be undertaken not in a broad general sense but in a more particularized and relevant sense. “The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.” Saucier, 533 U.S. at 201-02, 121 S.Ct. at ----, 150 L.Ed.2d at 281-82, quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523, 531 (1987). Ultimately, however, the inquiry is whether the law was sufficiently clear to given an official “fair warning” that his conduct deprived his victim of a constitutional right. United States v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432, 445 (1997). This does not mean, however, that a plaintiff must point to a case involving
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Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
identical or even very similar facts, although doing so would provide strong support for the conclusion that the law is clearly established. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666, 679 (2002). General statements of the law may give fair and clear warning because they “apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’ “ Lanier, 520 U.S. at 270-71, 117 S.Ct. 1219, 137 L.Ed.2d at 446, quoting Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034, 97 L.Ed.2d at 531. Thus, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, ----, 153 L.Ed.2d 666, 679 (2002). “The more obviously egregious the [subject] conduct is in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Meyer v. Board of County Commissioners of Harper County, OK, 482 F.3d 1232, 1242 (10th Cir.2007) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004)).
Did Defendant Violate Plaintiff's Fourth Amendment Rights By Causing Plaintiff to be Subjected to the Strip Searches and Visual Body Cavity Searches?
*4 In determining whether a strip search is constitutional under the Fourth Amendment to the United States Constitution, the Court must balance the need for the particular search against the grave invasion of privacy it entails. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000); Cottrell v. Kaysville City, Utah, 994 F.3d 730, 734 (10th Cir.1993); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir.1993); Hill v. Bogans, 735 F.3d 391, 393-95 (10th Cir.1984); Draper v. Walsh, 790 F.Supp. 1553, 1558 (W.D.Okla.1991); Morreale v. City of Cripple Creek, 113 F.3d 1246, 1997 WL 290976 (10th Cir. May 27, 1997) (No. 96-1220) at *7; Ellis v. Sharp, 30 F.3d 141, 1994 WL 408129 at *3 (10th Cir. Aug. 4, 1994) (No. 93-6242). In arriving at that balance, the Court must consider the scope of the intrusion, the manner in which it was conducted, the justification for initiating the search and the place where the search took place. Id. Personal body searches of inmates must be reasonable under the circumstances. Levoy v. Miller, 788 F.2d 1437, 1439 n * * (10th Cir.1986). See Ohio v. Robinett, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347, 354 (1996) (Reasonableness under the Fourth Amendment is “measured in objective terms by examining the totality of the circumstances.”).
In this case, no probable cause or reasonable suspicion that Plaintiff was concealing weapons or contraband on his person was articulated as the justification or need for the strip and body cavity searches at issue. Rather, the searches were conducted pursuant to an FTC policy to conduct such searches on all arriving and departing FTC inmates. The stated purpose for this policy as applied to arriving inmates is to prevent and deter the introduction of contraband and weapons into the FTC and as applied to departing inmates is to deter the creation or obtaining of contraband and weapons within the FTC. Thus, the articulated need for the searches in this case is the maintenance of institutional security at the FTC by preventing and deterring the introduction, creation or obtaining of contraband or weapons in the FTC. Maintaining a safe and secure detention facility is a legitimate penological interest. See Bell v. Wolfish, 441 U.S. at 540 & 546, 99 S.Ct. 1861, 60 L.Ed.2d at 469 & 473; Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438, ---- (1984). However, Plaintiff had neither been arrested for or convicted of any crime. Plaintiff was merely a material witness who had voluntarily agreed to be transferred to the District of Idaho for a detention hearing. Plaintiff was either a material witness detainee or a material witness subject to possible detention following a detention hearing in Idaho.
“A strip search is an invasion of personal rights of the first magnitude.” Nelson v. McMullen, 207 F.3d at 1206, quoting Chapman v. Nichols, 989 F.2d at 395. Strip searches involving the visual inspection of body cavities, like those herein, are even more intrusive and among the most dehumanizing and degrading of experiences. See Levoy v. Mills, 768 F.2d at 1439. In this case Plaintiff was twice required to remove all of his clothes and
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 90 of 1P1a0ge 5
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
subjected to a visual inspection of his body cavities. Thus, the scope of the intrusion upon Plaintiff's privacy interests was great.
*5 There is no dispute at to where the searches of Plaintiff were conducted. Although Defendant's Inmate Systems Supervisor, Johnny Rose, attests that “[t]he procedures for conducting visual searches are designed to ensure maximum privacy for the inmates,” Declaration of Johnny Rose at ¶ 9; that it is difficult if not impossible for other inmates and staff to see inside the cell while a search is being conducted,” id. at ¶ 11; and that while an inmate is searched in a shower cell, other inmates are not moved past the shower stall doors, see id. at ¶ 12, his description of the shower cells indicates that it was certainly possible for other inmates or staff to see into the shower cell while the search of Plaintiff was being conducted and to see Plaintiff when he was left nude in the shower cell. Moreover, because Mr. Rose's statements pertain only to routine procedures and not to what occurred while and after Plaintiff was strip searched, they do not directly or completely controvert Plaintiff's statements that inmates being processed and a female staff person could see Plaintiff when he was left naked in the shower cell following the initial strip search or that at least two inmates could see him when he was strip searched before his departure from the FTC. Likewise, Mr. Rose's statements that FTC policy is to have an inmate disrobe only long enough for a visual search and that inmates are given institutional clothing as soon as possible after the visual searches, see id. at ¶ 14, do not directly or completely controvert Plaintiff's statement that he was left naked in the shower cell for one and one-half to two hours following the visual search conducted when he arrived at FTC because, again, Mr. Rose's statements pertain to what generally or ordinarily occurs and not to what specifically occurred after Plaintiff was strip searched. It is unnecessary, however, for the Court to resolve any factual disputes in the record concerning the place where the initial search of Plaintiff was conducted and the manner in which it was conducted. Likewise, it is unnecessary for the Court to resolve any factual discrepancy in the record as to the place or manner in which the search of Plaintiff before his departure from FTC was conducted. Neither of the searches of Plaintiff was performed in a place and manner that ensured his privacy and prevented others from viewing Plaintiff while and after he was being searched.
If the Court balances the need to search Plaintiff, a material witness who had never been arrested for or convicted of committing a crime, for weapons or contraband to prevent or deter the introduction, creation or obtaining of same in the FTC against the grave invasion of the Plaintiff's privacy occasioned by the strip searches of Plaintiff and visual inspections of his body cavities, considering the factors set forth in Bell v. Wolfish, both of the searches of Plaintiff were objectively unreasonable and violated the Fourth Amendment.
*6 However, the searches of Plaintiff herein were conducted pursuant to an FTC policy requiring searches of all incoming and departing inmates or detainees. A search conducted pursuant to such a prison policy which impinges on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64, 70 (1987); Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir.2002). Maintenance of facility security by preventing and deterring the introduction, creation or obtaining of weapons and contraband is a legitimate penological interest. However, the searches of Plaintiff and the manner in which they were conducted were not reasonably related to the FTC's security needs. There is no logical or legitimate reason to think that individuals like Plaintiff, who are detained merely because they are material witnesses and who have not been charged with or convicted of a crime, may be concealing weapons or contraband. Strip searches and body cavity inspections of material witness detainees are irrational and arbitrary or an “exaggerated response” to security needs and the likelihood of the articulated concern that inmates subject to searches would learn which detainees would not be searched and ask or force them to smuggle contraband or weapons into the FTC, see Declaration of Johnny Rose at ¶ 19. This is particularly true inasmuch as it is also FTC policy to conduct pat searches of all inmates and subject them to the “boss chair”/metal detector
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 91 of 1P1a0ge 6
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
procedure. With respect to the strip search of Plaintiff upon his arrival, it is illogical or irrational to believe that another inmate could have asked or forced Plaintiff to conceal a weapon or contraband in transit to the FTC because Plaintiff was shackled. The strip search of Plaintiff before his departure from the FTC, after Plaintiff had been strip searched upon arrival at FTC, shackled, placed in a single-person cell to which no other inmates had access and which Plaintiff was not allowed out of for the duration of his stay at FTC, bears no rational relationship to any security needs or interest of the FTC. Moreover, accommodation of the constitutional rights of material witness detainees like Plaintiff by ascertaining their status as material witnesses would pose little burden on FTC staff. Compare with Turner v. Safly, 482 U.S. at 90, 107 S.Ct. 2254, 96 L.Ed.2d at 79-80. It is not reasonable for FTC staff to conduct strip searches and visual body cavity inspections on material witness detainees merely because they don't know that they are merely material witness detainees and not convicted prisoners. See Ellis v. Sharp, 30 F.3d 141, 1994 WL 408129 at *2 (10th Cir. Aug. 4, 1994).
Finally, “the existence of obvious, easy alternatives” to policy-dictated routine strip and body cavity searches of all material witness detainees “at de minimis cost to the valid penological interests,” such as a stamp on material witnesses' moving papers identifying their status as such, coupled with a pat-down search or a patdown search and use of the “boss chair”/metal detector procedure, is evidence that FTC's policy of strip searches and body cavity inspections for all incoming and outgoing “inmates,” as applied to material witness detainees, is not reasonable and not reasonably related to legitimate penological interests. See id., 482 U.S. at 90-91, 107 S.Ct. 2254, 96 L.Ed.2d at 80. The record herein shows that Defendant's policy as applied to Plaintiff is not reasonably related to legitimate penological interests in facility security and that Defendant violated Plaintiff's Fourth Amendment rights by causing Plaintiff to be subjected to strip searches and body cavity inspections both upon his arrival at FTC and before his departure therefrom. With respect to the place and manner in which the searches of Plaintiff were conducted, genuine issues of material fact exist as to whether the conditions of the searches violated Plaintiff's Fourth Amendment rights. However, Plaintiff's version of the material facts as to where the searches were conducted, whether Plaintiff could be viewed by other inmates during the searches and the length of time during which Plaintiff remained naked and visible to other inmates following the initial search supports a claim for the violation of Plaintiff's Fourth Amendment rights by the place and manner in which the searches were conducted. See Walker v. City of Orem, 451 F.3d 1139, 1130 (10th Cir.2006) (denial of summary judgment on the issue of qualified immunity is proper where the plaintiff's version of facts in summary judgment proceedings supports a claim for a violation of a constitutional right).
Was the Law Clearly Established Such that Defendant Should Have Known that Subjecting Plaintiff to the Strip Searches and Body Cavity Inspections Violated Plaintiff's Constitutional Rights?
*7 As early as 1984, the Tenth Circuit held that strip searches of persons arrested for minor traffic offenses of whom officials had no reasonable suspicion that they were carrying or concealing weapons or drugs, conducted pursuant to a blanket policy requiring all detainees to be strip searched, were unconstitutional as violative of such detainees' Fourth Amendment rights, even when such detainees were or were to be intermingled with the prison population. See Hill v. Bogans, 735 F.2d 391 (10th Cir.1984). In 1993, the Tenth Circuit stated that “[e]very circuit court, including our own, which had considered the constitutionality of strip searches conducted under such circumstances has concluded that such searches are unconstitutional.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993) (citing cases from the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits). The Tenth Circuit has in fact consistently and continuously condemned strip searches with or without visual inspection of body cavities of pretrial detainees arrested for minor offenses as unreasonable as a matter of law and unconstitutional under the Fourth Amendment. See Cottrell v. Kaysville City, Utah, 994 F.2d at 734; Chapman, 989 F.2d at 395-96; Hill v. Bogans, 735 F.2d at 393-94; Morreale v. City of Cripple Creek, 1997 WL
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 92 of 1P1a0ge 7
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
290976 at *6-7; Ellis v. Sharp, 1994 WL 408129 at *2. Cf. Foote v. Spiegel, 118 F.3d 1416, 1425-26 (10th Cir.1997) (no qualified immunity for strip search of person arrested for possession of drugs but not placed in general inmate population where there was no reasonable suspicion she had additional drugs or a weapon on her person). Moreover, the Tenth Circuit has consistently condemned strip searches with or without body cavity inspections even of convicted prisoners as unreasonable and violative of the Fourth Amendment when they are conducted in full view of other inmates and staff, at least without sufficient justification for conducting the searches in an open area. See Farmer v. Perrill, 288 F.3d at 1259-61; Nelson v. McMullen, 207 F.3d at 1207; Hayes v. Marriott, 70 F.3d 1144, 1146-48 (10th Cir.1995). Finally, the Tenth Circuit has specifically held that it was clearly established by May of 1993 that a strip search of a person arrested for a minor traffic offense, conducted in view of other persons, without sufficient justification for the search or for conducting it in a public area, violates the Fourth Amendment and that a reasonable officer would have known that by May of 1993. See Farmer v. Perrill, 288 F.3d at 1260, citing Hill v. Bogans, 735 F.2d 391; Foote v. Spiegel, 118 F.3d at 1425 (“[I]t was clearly established in May 1994 that a strip search of a person arrested for driving under the influence of drugs but not placed in the general jail population is not justified in the absence of reasonable suspicion that the arrestee has drugs or weapons hidden on his or her person.”) (citing Cottrell, 994 F.2d at 734). In Chapman v. Nichols, the Tenth Circuit in 1993 concluded as a matter of law that a belief that “a strip search policy applied to minor offense detainees without particularized reasonable suspicion was lawful if conducted in private” was “not objectively reasonable” in light of clearly established law, rejecting a defense of qualified immunity. 989 F.2d at 398. The Tenth Circuit further observed in Chapman that “no circuit case has upheld the grant of qualified immunity when asserted against a claim based on an across-the-board policy of strip searching minor offense detainees.” Chapman v. Nichols, 989 F.2d at 398 (citing cases). Accord Draper v. Walsh, 790 F.Supp. 1553, 1560-61 (W.D.Okla.1991).
*8 In the case before this Court, Plaintiff had not even been arrested for a minor offense; he was arrested and detained as a material witness. He was not intermingled with convicted prisoners at FTC and was handcuffed and shackled while in the presence of other inmates. If an official could not have reasonably believed in 1993 that a strip search policy applied to minor offense detainees was constitutional in light of clearly established law, a fortiori, Defendant could not have reasonably believed in 2003 that the strip search/body cavity inspection policy of FTC, applied to a material witness detainee such as the Plaintiff, did not violate the law and deprive Plaintiff of his Fourth Amendment rights. Likewise, if the searches in question occurred where Plaintiff could be and was viewed by other inmates, as Plaintiff attests but as to which a genuine issue of material fact exists, Defendant Sugrue could not have reasonably believed that the manner of conducting the searches was reasonable and did not violate Plaintiff's Fourth Amendment rights. However, an issue remains as to whether Defendant Sugrue caused the deprivation of Plaintiff's Fourth Amendment rights by the place and manner in which the strip searches were conducted, i.e., whether there is any basis for Defendant's personal liability for the place/ manner in which Plaintiff maintains the strip searches were conducted.
Did Defendant Personally Participate in the Asserted Constitutional Violations Defendant Sugrue does not argue that he cannot be liable for deprivations of Plaintiff's constitutional rights
occasioned by conducting strip searches and body cavity inspections of Plaintiff at the FTC because he did not personally participate in them. Nor does he argue that he did not promulgate and/or enforce the FTC policy on strip searched and body cavity searches. The Court therefore presumes that Defendant Sugrue promulgated and enforced the FTC policy on strip searches and body cavity searches and therefore, that he is liable for the violation of Plaintiff's Fourth Amendment rights occasioned by the searches by “causing” such violations. See Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2nd Cir.2006) (personal involvement of a supervisory defendant ne-
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 93 of 1P1a0ge 8
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
cessary for liability in Bivens action may be shown by evidence that he created a custom or policy fostering the constitutional violation or allowed the custom or policy to continue after learning of it). Cf. Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir.2000) (supervisor is liable under 42 U.S.C. § 1983 where an affirmative link is shown between the constitutional deprivation and the supervisor's personal participation or exercise of control or direction). However, he argues that he cannot be liable for any deprivation of Plaintiff's Fourth Amendment rights resulting from the place and manner in which he was searched, that is, because the searches were conducted where Plaintiff could be viewed by other inmates and because Plaintiff was left naked in the shower cell for one and one-half to two hours, if this was in fact the case. This is so, Defendant Sugrue asserts, because the FTC search policy does not sanction any of these circumstances, and Defendant Sugrue cannot be liable for actions of the FTC staff that were contrary to policy procedures. In other words, Defendant Sugrue asserts that Plaintiff has failed to show Defendant's personal participation in these aspects of the searches or any affirmative link between the deprivation of Plaintiff's constitutional rights occasioned by these search conditions and Defendant's personal participation or exercise of control or direction. Defendant Sugrue is correct. However, Plaintiff, concurrently with his response to Defendant's motion for summary judgment, filed a motion pursuant to Rule 56(f), F.R.Civ.P . [Doc. No. 49], most of which is moot in light of the foregoing. But in his Rule 56(f) motion, Plaintiff asserts that he should be permitted to conduct discovery directed to how often the practice of leaving detainees naked in their cells or shower cells during or after searches has occurred and for what length of time detainees have been so left, whether Defendant Sugrue was aware of, condoned or tolerated this “practice” and what measures, if any, Defendant took to prevent this practice from occurring at the FTC, including what training was conducted in that regard. Plaintiff also requests that he be permitted to take the deposition of the individual responsible for Plaintiff's initial search and prolonged wait before he was furnished any clothes to understand whether Plaintiff was “singled out” for the treatment he received and to determine whether such treatment was at the direction of “someone in a supervisory position,” presumably to include Defendant. Defendant asserts that this discovery should not be permitted “because Plaintiff has not satisfied his burden under Rule 56(f) of showing that this discovery would rebut Defendant's assertion of qualified immunity.” Defendant's Opposition to Plaintiff's Rule 56(f) Motion at pp. 4-5. As should be obvious from the foregoing, Defendant is wrong. If the searches took place in the place/manner as Plaintiff attests and Plaintiff was left naked in the shower cell for one and one-half to two hours, Plaintiff's constitutional rights were violated thereby, constitutional rights which were clearly established at the time of those searches, and Defendant would not be entitled to qualified immunity if he personally participated in or caused the violations. Under extant case law,
*9 [P]ersonal involvement of a supervisory defendant may be shown by evidence that the defendant (1) directly participated in the constitutional violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; (4) was grossly negligent in supervising subordinates who caused the violation; or (5) failed to act on information indicating that unconstitutional acts were occurring.
Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2nd Cir.2006) (citing Wright v. Smith, 21 F.3d 496, 501 (2nd Cir.1994).
In this circuit, in the Section 1983 context, a supervisor may be liable for the unconstitutional acts of his subordinates if the plaintiff shows that an affirmative link exists between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, his acquiescence in the constitutional violation or his failure to supervise. See Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1151 (10th Cir.2006); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1187 (10th Cir.2001); Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir.2000); Green v. Branson, 108 F.3d 1296, 1304 (10th Cir.1997); Winters v.
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 94 of 1P1a0ge 9
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
Board of County Commissioners, 4 F.3d 848, 855 (10th Cir.1993); Meade v. Grubbs, 841 F.3d 1512, 1527 (10th Cir.1988). The supervisor's state of mind is critical to showing the affirmative link. See Serna, 455 F.3d at 1151. Mere negligence is insufficient to hold a supervisor liable under § 1983; rather, a plaintiff must show that the supervisor acted knowingly or with deliberate indifference that a constitutional violation would occur, id., which requires that a plaintiff show that the supervisor was aware of facts from which the inference could be drawn that a substantial risk of the violation of constitutional rights existed and that the supervisor actually drew the inference. See Serna, 455 F.3d at 1154-55.
If, for example, Plaintiff can show that FTC inmates were with some frequency searched where they could be viewed by other inmates and/or were left naked in shower cells where they could be viewed by other inmates, that Defendant Sugrue was aware of this practice and condoned or acquiesced in it and that he had the requisite state of mind, then Defendant Sugrue may be liable for the claimed deprivation of Plaintiff's constitutional rights and not qualifiedly immune. Similarly, if Plaintiff can show that Defendant Sugrue directed this treatment of Plaintiff, Defendant may be liable and not enjoy qualified immunity for Plaintiff's Bivens claim based upon the place and manner of the strip searches. Accordingly, Plaintiff's Rule 56(f) motion is GRANTED insofar as Plaintiff asks the Court to hold Defendant's motion directed to the place and manner of the strip searches in abeyance and allow Plaintiff to conduct discovery as to whether the frequency with which detainees were strip searched where they could be viewed by others and left naked in their cell for more than a few minutes, whether Defendant Sugrue was aware of and tolerated or condoned any such practice, what measures, if any, he took to prevent such practices from occurring and as to whether anyone in a supervisory position directed the treatment Plaintiff received. Plaintiff is GRANTED a period of sixty (60) days in which to conduct such discovery. Plaintiff is directed to file his supplemental brief responding to Defendant's argument that he cannot be liable for any constitutional deprivation occasioned by the place and manner in which the strip searches of Plaintiff were conducted due to lack of personal participation within seventy-five (75) days of the date of this Order.
Declaratory Relief *10 Defendant asserts that Plaintiff is not entitled to declaratory relief on his Fourth Amendment Bivens claims for the same reason that the Court concluded he was not entitled to such relief on his Fifth Amendment claim: Plaintiff lacks standing to pursue this claim. Plaintiff does not take issue with this argument and the Court concludes that Plaintiff lacks standing to pursue declaratory relief on his Fourth Amendment claims. See PeTA v. Rasmussen, 298 F.3d 1198, 1202-03, 1203 n. 2 (10th Cir.2002); Bauchman v. West High School, 132 F.3d 542, 548-49 (10th Cir.1997); Green v. Brown, 108 F.3d at 1299-1300.
Conclusion In accordance with the foregoing, Defendant's motion for summary judgment [Doc. No. 44] on Plaintiff's Fourth Amendment Bivens claims predicated on the strip searches and visual body cavity inspections of Plaintiff, based upon qualified immunity, is DENIED; Defendant's motion for summary judgment on Plaintiff's claims for declaratory relief is GRANTED; Plaintiff's Rule 56(f) motion [Doc. No. 49] is GRANTED in part as set forth herein and DENIED in part as moot; and Defendant's motion for summary judgment on Plaintiff's Fourth Amendment Bivens claims predicated on the place and manner (duration) of the strip searches, based upon lack of personal participation, is HELD IN ABEYANCE pending completion of discovery permitted Plaintiff herein and the filing of Plaintiff's supplemental brief as ordered herein. Defendant is GRANTED leave to file a reply brief to Plaintiff's supplemental brief within ten (10) days after the filing of Plaintiff's supplemental brief. Plaintiff is sua sponte GRANTED partial summary judgment on the issue of Defendant's liability on Plaintiff's Fourth Amendment Bivens claim based upon the fact that he was twice subjected to a strip search and visual inspection of his body cavities.
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 95 of 1P1ag0e 10
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
It is so ordered. W.D.Okla.,2007. Al-Kidd v. Sugrue Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) END OF DOCUMENT
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Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 96 of 110
Exhibit 15

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 97 of 110

Brant S. Levine brant.levine@usdoj.gov D.C. Bar 472970 J. Marcus Meeks marcus.meeks@usdoj.gov D.C. Bar No. 472072 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

)

Case No. CV:05-093-S-EJL
RESPONSE OF DEFENDANT THE UNITED STATES OF AMERICA TO PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSION

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, Defendant the

United States of America (“Defendant” or the “United States”) hereby responds to Plaintiff’s

First Set of Requests for Admissions.

OBJECTIONS

Defendant states the following General Objections to Plaintiff’s First Set of Requests for

Admissions, which are hereby incorporated in and made part of each of the following specific

responses.

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 98 of 110
Request No. 8 Admit that no federal officer or employee instructed Abdullah al-Kidd that he could not
travel outside the United States. Response: Admitted.
Request No. 9 Admit that no federal officer or employee instructed Abdullah al-Kidd that he should
report to the FBI or an attorney for the United States of America if he was planning travel outside the United States.
Response: Admitted. Request No. 10
Admit that, prior to the arrest of Abdullah al-Kidd, no federal officer or employee informed Mr. al-Kidd that his testimony might be wanted for a criminal proceeding.
Response: Admitted. Request No. 11
Admit that, prior to the arrest of Abdullah al-Kidd, no federal officer or employee asked Mr. al-Kidd if he would postpone his travel to Saudi Arabia, relinquish his passport, or agree to return to the United States to testify in any criminal proceeding.
Response: Admitted. Request No. 12
Admit that, prior to the arrest of Sami Omar Al-Hussayen, no federal officer or employee advised Abdullah al-Kidd that Mr. Al-Hussayen in particular was the target of a criminal investigation.
5

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 99 of 110
Response: Admitted. Request No. 13
Admit that, prior to the arrest of Abdullah al-Kidd, no federal law enforcement officer or employee advised Mr. al-Kidd that he might have information considered material to a criminal proceeding against Sami Omar Al-Hussayen.
Response: Admitted. Request No. 14
Admit that no federal officer or employee instructed Abdullah al-Kidd that he should not disclose that he had been interviewed by the FBI.
Response: Defendant admits that no federal officer or employee commanded Abdullah al-Kidd not to disclose that he had been interviewed by the FBI, but denies the request to the extent it seeks an admission that no federal officer or employee requested al-Kidd not to disclose that he had been interviewed by the FBI. Request No. 15
Admit that no federal officer or employee provided to any person responsible for physical custody of Abdullah al-Kidd any instruction that he be subjected to the least restrictive conditions of confinement possible while held as a material witness.
Response: Defendant objects to this request as over-broad because the allegations and claims in Plaintiff’s Second Amended Complaint against any federal employee concerning Plaintiff’s “conditions of confinement” have been transferred to the United District Court for the Western District of Oklahoma and are no longer part of this proceeding. Defendant also objects to this request because the phrase “least restrictive conditions of confinement possible” is vague,
6

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 100 of 110
Exhibit 16

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 101 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 102 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 103 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 104 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 105 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 106 of 110
Exhibit 17

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 107 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 108 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 109 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-5 Filed 12/21/11 Page 110 of 110

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 1 of 41
Exhibit 18

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 2 of 41

Brant S. Levine brant.levine@usdoj.gov D.C. Bar 472970 J. Marcus Meeks marc us.meeks@usdoj, gov D.C. Bar No. 472072
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

L~JITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-K~D,

)

)

Plaintiff,

)

)

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

Defendants.

)

)

Case No. CV:05-093-S-EJL
RESPONSE OF DEFENDANT THE U~’NITED STATES TO PLAINTIFF’S FOURTH SET OF REQUESTS FOR ADMISSION

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, Defendant the

United States hereby responds to Plaintiffs Fourth Set of Requests for Admissions.

OBJECTIONS

Defendant states the following General Objections to Plaintiff’s Fourth Set of Requests

for Admissions, which are hereby incorporated in and made part of each of the following specific

responses.

1. Defendant objects to Plaintiff’s Fourth Set of Requests for Admissions to the

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 3 of 41
Response: Defendant objects to the term "possible" as confusing, conjectural and speculative, and objects to the term "federal intelligence investigation" as vague on its face and vague due to the time period in question. Based on these objections, Defendant is unable to admit or deny this request. Request No. 71
Admit that, at some point between March 16, 2004 and June 16, 2004, Mr. al-Kidd was a possible subject of a federal criminal investigation.
Response: Defendant objects to the term ~possible" as conjectural and speculative, and objects to the term "federal criminal investigation" as vague due to the time period in question. Based on these objections, Defendant is unable to admit or deny this request. Request No. 72
Admit that, at some point between March 16, 2004 and June 16, 2004, Mr. al-Kidd was a possible subject of a JTTF investigation.
Response: Defendant objects to the term "possible" as conjectural and speculative. Based on this objection, Defendant is unable to admit or deny this request. Request No. 73
Admit that, as of the present time, the FBI is unable to determine why mention of Mr. alKidd’s arrest was included in the testimony of the director of the FBI, Robert Mueller before the House on March 23, 2003.
Response: Admitted. Request No. 74
Admit that, as of the present time, the FBI is unable to determine why mention of Mr. alKidd’s arrest was included in the testimony of the director of the FBI, Robert Mueller, before the

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 4 of 41
Senate on April 10, 2003. Response: Admitted.
Request No. 75 Admit that, as of the present time, the FBI is unable to determine why mention of Mr. al-
Kidd’s arrest in the testimony of Director Mueller before the House on March 23,2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant.
Response: Admitted. Request No. 76
Admit that, as of the present time, the FBI is unable to determine why mention of Mr. alKidd’s arrest in the testimony of Director Mueller before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material ~vitness warrant.
Response: Admitted. Request No. 77
Admit that, as of the present time, the FBI is unable to determine how mention of Mr. alKidd’s arrest became included in the testimony of the director of the FBI, Robert Mueller, before the House on March 23,2003.
Response: Admitted. Request No. 78
Admit that, as of the present time, the FBI is unable to determine how mention of Mr. alKidd’s arrest became included in the testimony of the director of the FBI, Robert Mueller, before the Senate on April 10, 2003.
Response: Admitted.

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 5 of 41
Request No. 79 Admit that, as of the present time, Director Mueller is unable to determine why mention
of Mr. al-Kidd’s arrest was included in his testimony before the House on March 23, 2003. Response: Defendant objects to this request as confusing and states that Director Mueller
has not undertaken an individual effort to determine why Mr. al-Kidd’s arrest was included in his testimony before the House on March 23, 2003. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest was included in Director Mueller’s testimony before the House on March 23, 2003. Request No. 80
Admit that, as of the present time, Director Muetler is unable to determine why mention of Mr. al-Kidd’s arrest was included in his testimony before the Senate on April 10, 2003.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine why Mr. al-Kidd’s arrest was included in his testimony before the Senate on April 10, 2003. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest was included in Director Mueller’s testimony before the Senate on April 10, 2003. Request No. 81
Admit that, as of the present time, Director Mueller is unable to determine why mention of Mr. al-Kidd’s arrest in his testimony before the House on March 23, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine why mention of Mr. al-Kidd’s arrest in his testimony before the House on March 23, 2003, did not include mention that Mr. al-Kidd was

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 6 of 41
arrested on a material witness warrant. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest in Director Muetler’s testimony before the House on March 23, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant. Request No. 82
Admit that, as of the present time, Director Mueller is unable to determine why mention of Mr. al-Kidd’s arrest in his testimony before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine why mention of Mr. al-Kidd’s arrest in his testimony before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest in Director Mueller’s testimony before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant. Request No. 83
Admit that, as of the present time, Director Mueller is unable to determine how mention of Mr. al-Kidd’s arrest became included in his testimony before the House on March 23, 2003.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine how mention of Mr. al-Kidd’s arrest became included in his testimony before the House on March 23, 2003. The United States admits that, as of the present time, the FBI is unable to determine how mention of Mr. al-Kidd’s arrest became included in Director Muetler’s testimony before the House on March 23, 2003.

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 7 of 41
Request No. 84 Admit that, as of the present time, Director Mueller is unable to determine how mention
of Mr. al-Kidd’s arrest became included in his testimony before the Senate on April 10, 2003. Response: Defendant objects to this request as confusing and states that Director Mueller
has not undertaken an individual effort to determine how mention of Mr. al-Kidd’s arrest became included in his testimony before the Senate on April 10, 2003. The United States admits that, as of the present time, the FBI is unable to determine how mention of Mr. al-Kidd’s arrest became included in Director Mueller’s testimony before the Senate on April 10, 2003. Request No. 85
Admit that at least one Federal employee, other than Director Mueller, was involved in preparing the testimony of Director Mueller regarding Mr. al-Kidd before the House on March 23, 2003.
Response: Admitted. Request No. 86
Admit that at least one Federal employee, other than Director Muelter, was involved in preparing the testimony of Director Mueller regarding Mr. al-Kidd before the Senate on April 10, 2003.
Response: Admitted. Request No. 87
Admit that at least one prior draft of the text of the written testimony of Director Mueller before the House on March 23, 2003, other than the final draft as submitted to the House, was prepared by one or more Federal employees.
Response: The United States has made a reasonable inquiry into the subject matter of this

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 8 of 41
Exhibit 19

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 9 of 41

Transcript of VA hearing

1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division

X- - - - - - - - - - - - - - - - -X

:

UNITED STATES OF AMERICA,

:

:

v.

:

:

ABDULLAH AL-KIDD,

:

:

Defendant.

:

:

X- - - - - - - - - - - - - - - - -X

CRIMINAL ACTION NO. 03-94-MG
March 17, 2003

TRANSCRIPT OF MOTION PROCEEDINGS BEFORE THE HONORABLE LIAM O'GRADY,
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Government: United States Attorney's Office By: JOHN McADAMS, ESQ. 2100 Jamieson Avenue Alexandria, Virginia 22314

For the Defendant: ABDULLAH AL-KIDD

* * * DON McCOY, RMR OFFICIAL COURT REPORTER 401 COURTHOUSE SQUARE ALEXANDRIA, VA. 22314-5798 (703) 683-3668

2

1

P-R-O-C-E-E-D-I-N-G-S

2

THE DEPUTY CLERK: United States vs. Abdullah Al-Kidd,

3 Case Number 03-94-M.

4

MR. McADAMS: Good afternoon, Your Honor; John McAdams

Page 1

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 10 of 41

Transcript of VA hearing

5 for the Government

6

THE COURT: Good afternoon, Mr. McAdams.

7

MR. McADAMS: Your Honor, the witness appears before

8 Your Honor as a material witness pursuant to 18 USC 3144. A

9 material witness warrant was issued for the witness by a United

10 States Magistrate Judge in the District of Idaho.

11

The Government is requesting that he be transferred to

12 the District of Idaho.

13

THE COURT: Does the Government have a position on a

14 bond?

15

MR. McADAMS: Yes, Your Honor. The Government would

16 seek the witness be detained without bond until transferred to the

17 District of Idaho.

18

THE COURT: Mr. Al-Kidd.

19

THE DEFENDANT: Yes, sir.

20

THE COURT: Do you understand you have been arrested

21 pursuant to a material witness warrant?

22

THE DEFENDANT: Yes, sir. I was informed yesterday.

23

THE COURT: All right, and the Government is required to

24 bring you to the nearest location from your arrest so that you

25 would have what's called a Rule 5 hearing, which is what you are

3

1 having right now, and told why you are being held, and give you

2 certain other information, including your right to a bond hearing.

3

The Government has indicated that they are seeking

4 detention until you are transferred to Idaho, where the U. S.

5 Attorney's Office and the people out there can further review the

6 conditions of your bond.

7

You have some choices today. You can either have a

8 hearing here, and I'll appoint counsel if you cannot afford one.

Page 2

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 11 of 41

Transcript of VA hearing 9 Within the next three days we will have a detention hearing here.

10 Or you can go out to Idaho and have that same detention hearing at

11 a location where the people there may be a little more familiar

12 with the specifics of why they need you as a material witness and

13 what arrangements should be made.

14

We will do the best we can here, but you may be better

15 served going out to Idaho and having your detention hearing out

16 there, but the choice is yours. If you would rather have a

17 detention hearing, then we will set one and we will appoint

18 counsel for you.

19

THE DEFENDANT: The only question I guess I have is that

20 I have always been forthright with the intelligence community

21 that's contacted me, and I just would like to expedite this

22 matter.

23

Had I known that they issued the warrant this past

24 Friday, I would have turned myself in; however, I had a valid visa

25 to leave this country. I wasn't fleeing anything, and I wasn't

4

1 charged with any crime. So I just want to know is there, based on

2 those two choices that you gave me, when can I expedite -- you

3 know, I'm a witness for the Government -- so I want to expedite my

4 testimony in Idaho. I would like to get there as soon as

5 possible.

6

THE COURT: I think quite clearly the fastest way for

7 you to get to Idaho and see the people that can best determine

8 that information is to waive your right to a hearing here today,

9 or in the next three days and to have that hearing once you get

10 out to Idaho before the Magistrate Judge who issued the warrant

11 for a material witness. So you still will have the same rights.

12

You are still going to have the right to a detention

13 hearing. It's an absolute right. It's a question of where you Page 3

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 12 of 41

Transcript of VA hearing

14 have it. I think if you are looking to discuss why you were

15 arrested and whether it was the right thing to do, given what you

16 have just told me, then that probably is a discussion you need to

17 have with the people who know you and who are responsible for

18 requesting the material witness warrant.

19

So, if you want, I will order you to be transferred to

20 Idaho for further hearings on your detention and the grounds under

21 which you would proceed as a material witness.

22

THE DEFENDANT: How long would that possibly take for me

23 to be transferred to Idaho?

24

THE COURT: I think pretty quickly.

25

MR. McADAMS: Your Honor, I don't know the specifics.

5

1 The Marshal would make the arrangements, but we would certainly be

2 doing this as quickly as possible.

3

THE DEFENDANT: Okay, then I'll accept that route, to be

4 transferred to Idaho.

5

THE COURT: At your request, I'll transfer you to the

6 District of Idaho that has filed the arrest warrant for you as a

7 material witness, and you will be, as I said, entitled to the same

8 hearing that you could have had here when you get to Idaho, and

9 also at that stage you have the right to appointment of counsel if

10 you can't afford one. You are so ordered transferred.

11

THE DEFENDANT: Thank you.

12

MR. McADAMS: Thank you, Your Honor.

13

(Whereupon, the proceedings in the above-captioned

14 matter were concluded.)

15

16

17

Page 4

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 13 of 41

Transcript of VA hearing 18 19 20 21 22 23 24 25

6

1

CERTIFICATE OF OFFICIAL REPORTER

2 COMMONWEALTH OF VIRGINIA)

) ss.

3 CITY OF ALEXANDRIA

)

4

I, EDWARD DONOVAN McCOY, Registered Professional & Merit

5 Reporter, and Official Court Reporter for the United States

6 District Court for the Eastern District of Virginia, appointed

7 pursuant to the provisions of Title 28, United States Code,

8 Section 753, do hereby certify that I was authorized to report,

9 and did so report by computerized Stenograph machine the foregoing

10 proceedings;

11

THEREAFTER, my Stenograph notes were reduced to printed

12 form by computer-aided transcription under my supervision; and I

13 further certify that the pages herein numbered contain a true and

14 correct transcription of my Stenograph notes taken herein.

15

DONE and signed, this

day

16 of

, 2005, in the City of Alexandria,

17 Commonwealth of Virginia.

18

EDWARD DONOVAN McCOY, RMR

19

Official Court Reporter

20 (Virginia Court Reporters Association Certification
21 No. 0313168)

22 Page 5

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 14 of 41
Transcript of VA hearing * * *
23 24 25
Page 6

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Exhibit 20

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 16 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,
Plaintiff,
vs.
ALBERTO GONZALES, Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) No. CV:05-093-S-EJL ) ) ) ) ) )

Page 1

The deposition of ABDULLAH AL-KIDD, taken pursuant to the Federal Rules of Civil Procedure of the United States District Courts pertaining to the taking of depositions, taken before Lisa R. Lisit, a Notary Public within and for the County of Cook and State of Illinois, and a Certified Shorthand Reporter of said State, taken at 219 South Dearborn Street, Suite 500, Chicago, Illinois, on the 11th day of December, 2007, at the hour of 9:35 a.m.

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 17 of 41

1

I N D E X

2 WITNESS

3 ABDULLAH AL-KIDD

4

Direct Examination By Mr. Meeks

5

6

E X H I B I T S

7 NUMBER

8 AL-KIDD DEPOSITION EXHIBIT

9

No. 1

10

No. 2

11

No. 3

12

No. 4

13

No. 5

14

No. 6

15

No. 7

16

No. 8

17

No. 9

18

19

20

21

22

23

24

25

Page 3
PAGE
4
PAGE
140 144 149 162 185 206 216 235 237

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 18 of 41

Page 236

1

(Witness viewing document.)

2 BY MR. MEEKS:

3

Q. Can you just generally describe this

4 document that's marked as Exhibit 8?

5

A. This is the Seattle Post-Intelligencer

6 article.

7

Q. Is this the article that you just

8 testified -- or is this a fair and accurate

9 representation of the article you just testified

10 you recalled seeing that was a result of your

11 meeting with the reporter from the Seattle

12 Post-Intelligencer?

13

A. Yes.

14

Q. If you turn to page 2, towards the

15 bottom, in fact the third paragraph from the

16 bottom, it says in the first sentence, "Among those

17 who have drawn the scrutiny of the FBI is a former

18 University of Idaho football player, an American

19 who converted to Islam nine years ago."

20

Is it your understanding that that's a

21 reference to you?

22

A. Yes.

23

Q. We may have already identified this

24 person, but I'm not sure. Who is -- I'm going to

25 spell this -- O-u-l-l-a, Oulla, perhaps, Mansowr,

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 19 of 41

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Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 21 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 22 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 23 of 41
Exhibit 21

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 24 of 41
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,

:

Plaintiff,

:

vs.

: No. 05-cv-093-EJL-MHW

ALBERTO GONZALES, Attorney :

General of the United States, :

et al.,

:

Defendants.

:

DEPOSITION OF KIM LINDQUIST Wednesday, January 9, 2008 Washington, D.C. 1:04 p.m.

Job No. 1-117718 Pages: 1 - 119 Reported by: Janet A. Hamilton, RDR

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 25 of 41
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

I N D E X

2

3 EXAMINATION OF KIM LINDQUIST

4

By Mr. Gelernt

5

6

7

E X H I B I T S

8

(ATTACHED)

9 Plaintiff's

10 Deposition Exhibit

11 No. 1

Testimony of Director Mueller

12 No. 2 13 No. 3 14 No. 4 15 No. 5

Criminal docket document Interview priority list Affidavit of Special Agent Cleary Declaration of Kim Lindquist

16 No. 6 17 No. 7
18
19 No. 8

Affidavit of Special Agent Mace Letter of Kim Lindquist to Office of of Professional Responsibility Stipulation regarding trial testimony

20

21

22

Page 5
PAGE 6
PAGE 45 48 55 57 57 59 96
104

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 26 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 27 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 28 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 29 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 30 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 31 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 32 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 33 of 41
Exhibit 22

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 34 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

)

ALBERTO GONZALEZ, Attorney )

General of the United

)

States; et al.,

)

)

Defendant.

)

_____________________________)

Case No. 05-CV-093-EJL-MHW

DEPOSITION OF JOSEPH CLEARY TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO NOVEMBER 28, 2007, AT 10:00 A.M.

REPORTED BY:
PATRICIA L. PULLO, CSR Notary Public

M & M Court Reporting Service, Inc. 1-800-879-1700

CLEARY , JOSEPH
0dcc83de-f61a-4073-bf34-c48ef3b604cb

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 35 of 41

1

I N D E X

2 DEPOSITION EXHIBITS:

MARKED

3 No. 1 Excerpts from NCIC 2000,

55

Violent Gang and Terrorist

4

Organization File

5 No. 2 Department of Justice

75

Criminal Complaint

6

No. 3 Supplemental Response of

113

7

Defendant The United

States to Plaintiff's

8

First Interrogatories

9 No. 4 TECS entry

115

10 No. 5 Report of Investigation

117

11 No. 6 NCIC VGTOF

118

12 No. 7 Write-up of spot

122

surveillance in Utah

13

No. 8 Surveillance log cover

123

14

sheet

15 No. 9 Write-up of physical

125

surveillance

16

No. 10 Prepared statement

152

17

of Robert S. Mueller

18 No. 11 Response of Defendant

209

Michael Gneckow to

19

Plaintiff's First

Interrogatories

20

No. 12 FBI EC dated

217

21

07/06/2002

22 No. 13 FBI EC dated

217

07/06/2002

23

No. 14 FBI EC dated

218

24

07/22/2002

25

Page 4
IDENT'D 56
75 113
115 117 118 122 123 125 152 209
217 218 219

M & M Court Reporting Service, Inc. 1-800-879-1700

CLEARY , JOSEPH

0dcc83de-f61a-4073-bf34-c48ef3b604cb

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 36 of 41

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 37 of 41
Exhibit 23

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 38 of 41

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff, )

)

vs.

)

)

ALBERTO GONZALES,

)

Attorney General of the )

United States, et al., )

)

Defendants. )

_________________________)

Case No. 05-cv-093-EJL-MHW

DEPOSITION OF ROBERT DAVIS TAKEN ON BEHALF OF THE PLAINTIFF AT 115 SOUTH SECOND STREET, COEUR D'ALENE, IDAHO NOVEMBER 30, 2007, AT 10:00 A.M.

Page 1

REPORTED BY:
JULIE MCCAUGHAN, C.S.R. NO. 684 Notary Public

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
b5715917-3b4e-4fa9-ab3e-850bb953fb50

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 39 of 41

Page 11

1 questions based on your long career at the FBI. What's

2 the difference between a criminal investigation and an

3 intelligence investigation?

4

A.

Criminal investigations are generally

5 pointed towards prosecution. Normally intelligence

6 investigations have other goals.

7

Q.

Okay. What are some of those other goals,

8 if you know?

9

A.

Well, just by virtue of the name of it, to

10 develop intelligence information.

11

Q.

Okay. So you ask a stupid question, you

12 get -- can there be an intelligence investigation

13 without a corresponding criminal investigation?

14

A.

I guess it would depend on the time frame

15 you're talking about. Things change.

16

Q.

Things have changed at the FBI, you're

17 saying?

18

A.

They have.

19

Q.

Okay. And so what would the relevant time

20 period be?

21

A.

There again, I would only be speculating.

22 I'm not sure.

23

Q.

Okay. But you had some reason for saying

24 it would depend on the time frame?

25

A.

Well, years ago, in the 80s, there were

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
b5715917-3b4e-4fa9-ab3e-850bb953fb50

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 40 of 41

Page 13

1 strike that. You're saying you don't know what they are

2 at this particular time?

3

A.

Correct.

4

Q.

Okay. I want to ask you about in 2001.

5 Do you know what the standards were for initiating a

6 JTTF intelligence investigation?

7

A.

I did then. I'm not sure I can remember

8 what they are, or what they were, now.

9

Q.

How about for a JTTF criminal

10 investigation?

11

A.

It would have been -- I would give you the

12 same answer because there would be a manual to look in,

13 and lots of manuals, and so you would always consult the

14 manual when you opened an investigation.

15

Q.

How about putting aside JTTF? Do you

16 recall what the standard was for opening a criminal

17 investigation by the FBI in 2002?

18

A.

Generally, it would have been information

19 beyond a reasonable suspicion that someone had committed

20 a criminal act.

21

Q.

Okay. And how about for an intelligence

22 investigation?

23

A.

I don't know. I couldn't answer that

24 question.

25

Q.

Was there a formal procedure for opening a

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
b5715917-3b4e-4fa9-ab3e-850bb953fb50

Case 1:05-cv-00093-EJL-CWD Document 308-6 Filed 12/21/11 Page 41 of 41

Page 88

1

REPORTER'S CERTIFICATE

2

I, JULIE MCCAUGHAN, Certified Shorthand Reporter,

3 do hereby certify:

4

That the foregoing proceedings were taken

5 before me at the time and place therein set forth, at

6 which time any witnesses were placed under oath;

7

That the testimony and all objections made

8 were recorded stenographically by me and were thereafter

9 transcribed by me or under my direction;

10

That the foregoing is a true and correct

11 record of all testimony given, to the best of my

12 ability;

13

That I am not a relative or employee of

14 any attorney or of any of the parties, nor am I

15 financially interested in the action.

16

IN WITNESS WHEREOF, I have hereunto set my

17 hand and seal December 10, 2007.

18

19

20

21

____________________________________

JULIE MCCAUGHAN, ID C.S.R. No. 684

22

Notary Public

816 Sherman Avenue, Suite 7

23

Coeur d'Alene, ID 83814

24 My Commission Expires February 9, 2010.

25

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
b5715917-3b4e-4fa9-ab3e-850bb953fb50

Case 1:05-cv-00093-EJL-CWD Document 308-7 Filed 12/21/11 Page 1 of 4
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S MOTION TO FILE DECLARATION AND EXHIBITS UNDER SEAL

Case 1:05-cv-00093-EJL-CWD Document 308-7 Filed 12/21/11 Page 2 of 4

Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Plaintiff Abdullah al-Kidd, by and through his attorneys of record, respectfully moves this Court for an Order allowing plaintiff to file the Declaration of Lee Gelernt, and attached exhibits, under seal. This Declaration is in support of Plaintiff’s Opposition To Defendant United States’ Motion For Summary Judgment And In Support Of Plaintiff’s Cross-Motion For Summary Judgment filed on this date herewith. Plaintiff is simultaneously filing a memorandum in support of this motion.

Dated: December 21, 2011

_/s/_____________________________ Lee Gelernt

1

Case 1:05-cv-00093-EJL-CWD Document 308-7 Filed 12/21/11 Page 3 of 4

MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

2

Case 1:05-cv-00093-EJL-CWD Document 308-7 Filed 12/21/11 Page 4 of 4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21 day of December, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 1 of 12
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S RESPONSE TO DEFENDANT UNITED STATES’ STATEMENT OF UNDISPUTED MATERIAL FACTS

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 2 of 12

Additional Counsel
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 3 of 12
1-2. Plaintiff does not dispute these facts. 3. Plaintiff disputes this fact insofar as Defendants are suggesting a bright line between criminal and intelligence investigations, or that intelligence investigations do not often lead to criminal investigation and/or charges. “Intelligence” and “criminal” investigations work in tandem, and both types of investigations can lead to criminal charges. See Ex. 8, Dezihan Dep. 51-52, 82-83 (intelligence and criminal investigations formally merged in 2002), 114-15, 161-62 (FBI shared periodic updates with U.S. Attorney’s Office); Ex. 2, Gneckow Dep. 17; Ex. 3, Cleary Dep. 18, 30. Plaintiff also disputes that the testimony establishes that the FBI could open an intelligence investigation in 2001 absent suspicion of criminal activity. Defendants’ witnesses could not articulate a clear standard for opening an intelligence investigation in 2001. See Ex. 2, Gneckow Dep. 26-27; Ex. 3, Cleary Dep. 30; Ex. 23, Davis Dep. 11, 13. 4. Plaintiff disputes these facts insofar as Defendants imply that Mr. al-Kidd was not a criminal suspect. Defendants omit that Plaintiff was under criminal suspicion from 2001 through at least 2003. See Ex. 2, Gneckow Dep. 45-46 (“a possible co-subject” has not been “ruled out definitively” from criminal suspicion); Ex. 6, Mace Dep. 73 (equating “subject” with “suspect”); Ex. 5, U.S. Docs 2724, 3002-03, 3007 (Plaintiff was a “subject” in Al-Hussayen’s criminal investigation); see also Ex. A, U.S. Docs 666 (filed under seal) (FBI sent al-Kidd’s name as a proposed “defendant[]”);Ex. 7, Lindquist Dep. 53. In addition, when Mr. al-Kidd was arrested at the airport, FBI agents took al-Kidd to a police station in the airport and, with Gneckow’s consent, interrogated him. Ex. 2, Gneckow Dep. 189-92. They questioned him at length, without counsel, about his own religious beliefs and opinions on various Islamic organizations, the purpose of his previous trip to Yemen, and the
1

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 4 of 12
contents of his luggage. Id. 192; see also Ex. 1, Pl. Docs 26-31. The FBI agents searched alKidd’s belongings, Ex. 5, U.S. Docs 2997, and seized numerous items, including his laptop. Ex. 2, Gneckow Dep. 125; Ex. 5, U.S. Docs 1982. The FBI later drafted a search warrant application to search al-Kidd’s laptop, stating that it likely contained relevant to Plaintiff’s possible criminal activities. Ex. 2, Gneckow Dep. 125-26; Ex. B, U.S. Docs 1583 (filed under seal).
5. Plaintiff disputes these facts to the extent they suggest Defendant Gneckow did not know that the transfers were salary when he prepared his affidavit. See Ex. 2, Gneckow Dep. 76 (testifying he knew “well before” submitting the affidavit that the payments were salary).
6. Plaintiff does not dispute these facts. 7. Plaintiff disputes that Gneckow ceased to view Plaintiff as a criminal suspect at some point in 2002. Plaintiff was the subject of an FBI investigation from December 2001 until at least 2004. See Ex. 2, Gneckow Dep. 55-57; Ex. 3, Cleary Dep. 109-10. The FBI conducted surveillance of al-Kidd and his then-wife in the spring and summer of 2002 (which indicated no illegality). Ex. 1, Pl. Docs 2400-24; Ex. 3, Cleary Dep. 121, 125-26. The FBI had al-Kidd’s name added to the Treasury Enforcement and Communication System (TECS) database, with a “lookout” to track his international travel. Ex. 4, Alvarez Dep. 18-19. The FBI also added alKidd’s name to the Violent Gang and Terrorist Organization File. See Ex. 3, Cleary Dep. 118; Ex. 22, NCIC Printout. Plaintiff was also a co-subject in Al-Hussayen’s criminal investigation. Ex. 5, U.S. Docs 2724, 3002-03, 3007; see also Ex. 2, Gneckow Dep. 45-46 (“a possible co-subject” has not been “ruled out definitively” from criminal suspicion); Ex. 6, Mace Dep. 73 (equating “subject” with “suspect”). The FBI sent al-Kidd’s name as a proposed “defendant[]” to the U.S. Attorney’s
2

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 5 of 12
Office, see Ex. A, U.S. Docs 666 (filed under seal), to evaluate him for potential prosecution. Ex. 7, Lindquist Dep. 53.
Prior to his arrest, Mr. al-Kidd had never failed to meet with the FBI when asked. Ex. 3, Cleary Dep. 170-71, 173-74, 179-81. No FBI agent told Mr. al-Kidd his testimony might be needed, asked him to surrender his passport, or attempted to serve him with a subpoena, Ex. 15, U.S. Resp. 1st RFA #10-13; Ex. 2, Gneckow Dep. 198-99. Within days of Plaintiff’s arrest, FBI Director Robert Mueller testified before Congress that Plaintiff’s arrest—along with that of Khalid Shaikh Mohammed, a “mastermind” of the September 11th attacks—was a “major success[]” in the government’s anti-terrorism efforts. Ex. 1, Pl. Docs 3-4 (testimony before House Subcommittee, Mar. 27, 2003); Ex. 21, Testimony before Senate Subcommittee (Apr. 10, 2003) (same). Director Mueller never mentioned that Plaintiff was arrested as a witness. The government has never been able to explain why Director Mueller’s testimony highlighted Mr. alKidd. See Ex. 18, U.S. Resp. 4th RFA, #73-84 (government was unable to determine how alKidd came to be mentioned in Director Mueller’s testimony).
In addition, when Mr. al-Kidd was arrested at Dulles Airport, FBI agents took him to a police station in the airport and, with Gneckow’s consent, interrogated him. Ex. 2, Gneckow Dep. 189-92. They questioned him at length, without counsel, about numerous matters unrelated to Al-Hussayen’s charges—including al-Kidd’s own religious beliefs and opinions on various Islamic organizations, the purpose of his previous trip to Yemen, and the contents of his luggage. Id. 192; see also Ex. 1, Pl. Docs 26-31. The FBI agents searched al-Kidd’s belongings, Ex. 5, U.S. Docs 2997, and seized numerous items, including his laptop. Ex. 2, Gneckow Dep. 125; Ex. 5, U.S. Docs 1982. The FBI later drafted a search warrant application to search al-Kidd’s laptop,
3

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 6 of 12
stating that it likely contained relevant to Plaintiff’s possible criminal activities. Ex. 5, U.S. Docs 1583 (filed under seal).
Following his interrogation, Mr. al-Kidd was incarcerated in three different facilities in Virginia, Oklahoma, and Idaho. Each time he was transferred, al-Kidd was shackled with leg restraints, a belly chain, and handcuffs. Ex. 13, Pl. Resp. 1st ROG #14; Ex. 1, Pl. Docs 123-24, 702-04; Ex. 14, al-Kidd v. Sugrue, No. 06-cv-1133, 2007 WL 2446750, at *1 (W.D. Okla. Aug. 23, 2007). Al-Kidd was strip-searched multiple times over the course of his detention. Ex. 1, Pl. Docs 2184, 703-04; Ex. 13, Pl. Resp. 1st ROG #14; see also Sugrue at *1. In Virginia, he was held under high-security conditions, often spending 22 to 23 hours a day in his cell. Ex. 1, Pl. Docs 123, 450, 2183; Ex. 13, Pl. Resp. 1st ROG #14. In the detention center in Oklahoma, alKidd was made to remove his clothes and sit naked in view of other, fully clothed detainees. Ex. 1, Pl. Docs 2184; Ex. 14, Sugrue at *1. While al-Kidd was incarcerated in Ada County Jail in Idaho, Gneckow and Cleary questioned him. Ex. 2, al-Kidd Dep. 185; Ex. 2, Gneckow Dep. 63, 187; Ex. 3, Cleary Dep. 141.
At al-Kidd’s detention hearing in Idaho on March 25, 2003, the government opposed his release, contending that he was dangerous. Ex. 1, Pl. Docs 1795, 1797. Al-Kidd was never called as a witness or deposed for Al-Hussayen’s trial. Ex. 7, Lindquist Dep. 35, 101-02. Even so, the government did not move to have al-Kidd’s release restrictions lifted, leaving al-Kidd to file a motion himself. Ex. 12, Motion, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #665).
8-11. Plaintiff does not dispute these facts. 12. Plaintiff disputes these facts insofar as Defendants imply that Mr. al-Kidd was not supposed to speak to the press. Defendants omit that the FBI’s investigation in Idaho was not secret, and that the reporter spoke with multiple people, including law enforcement officials. See
4

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 7 of 12
Ex. 20, Seattle Post-Intelligencer article. Defendants omit that the FBI never told Plaintiff not to talk to reporters or to keep his meetings with the FBI a secret. See Ex. 9, Gneckow RFA #21; Ex. 3, Cleary Dep. 176.
13. Plaintiff does not dispute these facts. 14. Plaintiff disputes these facts insofar as Defendants imply that Plaintiff prepared to leave the country “[d]uring th[e] same time period” as the Al-Hussayen indictment. Defendants omit that Plaintiff applied to the university in Saudi Arabia in April 2002, months before alHussayen’s arrest. See Ex. 10, al-Kidd Dep. 113, 118. Defendants also omit that Plaintiff began making plans to travel to Saudi Arabia for work in late 2002. Ex. 10, al-Kidd Dep. 132-33 (alKidd applied to Berlitz in December 2002); Ex. 1, Pl. Docs 9-18 (Berlitz employment contract, signed January 2003), 26 (al-Kidd obtained a work visa). Defendants also omit that, in the first week of February 2003, al-Kidd learned that the university had accepted him and awarded him a scholarship, Ex. 10, al-Kidd Dep. 119. That same month, before Al-Hussayen’s arrest, he began the process of applying for a visa. Ex. 10, al-Kidd Dep. 120-21, 137; see also Ex. 5, U.S. Docs 98 (reservation monitoring printout showing al-Kidd’s flight had a “visa” requirement); Ex. 11, Alvarado Dep. 229-30. The Saudi Cultural Mission paid for his plane ticket. Ex. 10, al-Kidd Dep. 125. 15. Plaintiff does not dispute these facts. 16. Plaintiff disputes the fact that his reservation did not list a return flight to the extent it suggests that he had a one-way ticket. Plaintiff’s ticket was open-ended. Open-ended tickets by definition have a return. Ex. 2, Gneckow Dep. 183. 17. Plaintiff does not dispute these facts.
5

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 8 of 12
18. Plaintiff disputes that Agent Alvarado had no reason to look for Plaintiff in particular. Plaintiff’s name was specifically added to the TECS in 2002 with a “lookout” to track his international travel. See Ex. 4, Alvarez Dep. 18-19.
19. Plaintiff disputes these facts. It is unclear what Agent Alvarado told Agent Alvarez regarding whether Plaintiff had a return flight. See Ex. 11, Alvarado Dep. 257, 263. Further, Agent Alvarado never learned how much the ticket cost, nor did he attempt to find out how much it cost even though he could have obtained that information by calling the airline. Id. 260-61.
20-23. Plaintiff does not dispute these facts. 24. Plaintiff disputes that Defendant Gneckow “determined” that Plaintiff had left his home in Kent, Washington before seeking the material witness warrant. Prior to contacting Lindquist, Gneckow had made no efforts to locate al-Kidd. Ex. 2, Gneckow Dep. 143. Nor did Gneckow recall what efforts were made to ascertain al-Kidd’s location after his conversation with Lindquist. Id. 143-44 (Gneckow could not recall whether he “ask[ed] someone to do a drive-by,” “mak[e] a phone call,” or take any other steps). 25. Plaintiff disputes that Defendant Gneckow simply “included the information” Agent Alvarez provided him regarding Plaintiff’s flight reservation in his affidavit. Instead, Gneckow “took [it] upon [him]self” to verify the information by calling an FBI agent stationed at Dulles Airport. Ex. 2, Gneckow Dep. 165-67. Gneckow learned of al-Kidd’s travel plans on March 13, 2003, from an oral conversation with ICE officer Robert Alvarez. Ex. 2, Gneckow Dep. 135-36, 162-63, 170; Ex. 4, Alvarez Dep. 31-32, 52. Gneckow and Alvarez worked in the same office. Ex. 2, Gneckow Dep. 13536. Alvarez told Gneckow verbally that Plaintiff was flying to Saudi Arabia on a one-way, firstclass ticket. Alvarez gave Gneckow a range of possible departure dates. Gneckow did not
6

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 9 of 12
inquire about the confusion regarding al-Kidd’s departure date. Id. 174-75. Nor did he ask to look at any paperwork showing al-Kidd’s flight information. Id. 163, 173. Gneckow also did not attempt to find out the class of the ticket, or whether al-Kidd had purchased a return flight. Id. 169-70, 173-74. Gneckow made no attempt to find out when al-Kidd had made his travel plans or booked his ticket. Ex. 16, Gneckow Resp. 1st ROG #12; Ex. 2, Gneckow Dep. 149-50. Gneckow did not ask Alvarez “to do any follow-up research” about al-Kidd’s travel plans or to show him any documents to verify the information. Instead, Gneckow contacted the FBI agent at Dulles Airport and asked whether al-Kidd’s name appeared on an upcoming flight manifest. Ex. 2, Gneckow Dep. 146, 166. Gneckow did not ask the agent about the class of the ticket, the booking date, the price, or whether a return trip had been purchased. Id. 169-70, 174-75; Ex. 16, Gneckow Resp. 1st ROG #7, 12.
26. Plaintiff disputes the fact that the FBI Headquarters did not provide guidance on Mr. al-Kidd’s investigation. To the contrary, FBI Headquarters received updates and provided guidance on al-Kidd’s investigation. See Ex. 8, Dezihan Dep. 85-86, 102, 104, 106, 161-62; Ex. 2, Gneckow Dep. 23-24; Ex. 5, U.S. Docs 2724-26 (electronic communication sent to headquarters); Ex. 1, Pl. Docs 3-4 (Mueller testimony).
27. Plaintiff disputes these facts insofar as they imply Mr. al-Kidd had information germane to the visa and false statement charges against Al-Hussayen. In fact, al-Kidd had little knowledge of Al-Hussayen. Ex. 10, al-Kidd Dep. 159-61. Further, the Al-Hussayen indictment pending at the time of al-Kidd’s arrest did not mention either al-Multaqa or al-multaqa.com. Ex. 12, Indictment, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #1). While working at al-Multaqa, Plaintiff’s duties were limited to arranging the English library, making tape labels, designing book covers, and speaking on Islam at public events. See Ex. 10, al-Kidd Dep. 156-57.
7

Case 1:05-cv-00093-EJL-CWD Document 308-8 Filed 12/21/11 Page 10 of 12
Finally, prosecutors on Al-Hussayen’s case had obtained numerous of pages of documentary evidence about Al-Hussayen’s activities, making al-Kidd’s testimony redundant. See Ex. 2, Gneckow Dep. 54 (referencing bank records); Ex. 12, Indictment, Al-Hussayen, at ¶¶ 7-9, 11, 13, 15-21, 23 (Dkt. #1) (referencing business records, emails, websites, and other documents).
28. Plaintiff does not dispute these facts. 29. Plaintiff disputes that Defendant Mace had “no independent knowledge of al-Kidd.” Defendant Mace admitted that he may have had been aware of Plaintiff as a football player at the University of Idaho. Ex. 6, Mace Dep. 13. 30. Plaintiff does not dispute these facts. 31. Plaintiff disputes that he “requested” a continuance of his detention hearing so that he could be transported to Idaho. Plaintiff appeared before the Magistrate Judge in Virginia on March 17th without counsel, and asked for his testimony to be “expedite[d].” Ex. 19, Hearing, U.S. v. al-Kidd, No. 03-94 at 2-3 (E.D. Va. Mar. 17, 2003). The judge stated that “the fastest way for you to get to Idaho and see the people that can . . . discuss why you were arrested” would be to “waive your right to a hearing here today” and consent to a transfer to Idaho. Id. at 3. The government attorney represented that the transfer would occur “as quickly as possible,” and al-Kidd consented. Id. at 4. Yet the government delayed transferring al-Kidd until March 24. See Ex. 14, Sugrue at *1. 32-34. Plaintiff does not dispute these facts. 35. Plaintiff disputes that AUSA Lindquist decided not to call Mr. al-Kidd at trial “primarily” based on the defense’s strategy “as the trial progressed.” Mr. al-Kidd was never deposed for Al-Hussayen’s trial. Ex. 7, Lindquist Dep. 101-02. Further, prosecutors had
8

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obtained thousands of pages of documentary evidence about al-Hussayen’s activities, making alKidd’s testimony redundant. See Ex. 2, Gneckow Dep. 54 (referencing bank records); Ex. 12, Indictment ¶¶ 7-9, 11, 13, 15-21, 23, Al-Hussayen (Dkt. #1) (referencing business records, emails, websites, and other documents).
36. Plaintiff does not dispute these facts. 37. Defendants appear to have stated inadvertently that the jury found Al-Hussayen guilty on some counts, and could not reach a verdict on others. In fact, the jury found AlHussayen not guilty on all the terrorism charges and did not reach a verdict on the visa fraud charges. Ex. 12, Jury Verdict, Al-Hussayen (Dkt. #671). 38. Plaintiff disputes that the Chertoff memorandum is “guidance” on the use of the material witness statute, as it does not emphasize using the statute to preserve testimony. Rather, it is a letter template provided to prosecutors to use in response to inquiries. It is not probative of substantive Justice Department policy, but rather provides information about the Department’s public communications. See Ex. 5, U.S. Docs 78-79.
Respectfully submitted, _/s/_____________________________ Lee Gelernt
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MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

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 Case 1:05-cv-00093-EJL-CWD Document 322 Filed 02/06/12 Page 1 of 26

Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314 P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for Defendant United States of America

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. 1:05-cv-093-EJL-MHW
DEFENDANT UNITED STATES’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, FILED ON DECEMBER 21, 2011 (Dkt. No. 308), AND REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT (Dkt. No. 307)

Case 1:05-cv-00093-EJL-CWD Document 322 Filed 02/06/12 Page 2 of 26

TABLE OF CONTENTS

TABLE OF ADDITIONAL EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

PLAINTIFF’S COMMON LAW CLAIMS ARE BARRED BY THE DISCRETIONARY

FUNCTION EXCEPTION... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. PLAINTIFF’S COMMON LAW CLAIMS ARE BARRED BY PROSECUTORIAL IMMUNITY. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. PLAINTIFF FAILS TO SHOW HIS ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IV. PLAINTIFF FAILS TO PRESENT SUFFICIENT EVIDENCE TO PROCEED ON HIS ABUSE OF PROCESS CLAIM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Plaintiff Has Not Presented Any Concrete Evidence That Shows He Was Arrested For an Improper Purpose Or That Agents Gneckow and Mace Wilfully Misused the Material Witness Statute. . . . . . . . . . . . . . . . . . . . . 10

B. Plaintiff Offers No Legal Support For His Argument That Arresting a Cooperative Witness Violates the Constitution and Constitutes an Abuse Of Process.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGEMENT . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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Case 1:05-cv-00093-EJL-CWD Document 322 Filed 02/06/12 Page 3 of 26 TABLE OF ADDITIONAL EXHIBITS
Depositions Exhibit 24: FBI Special Agent Norman Brown Exhibit 25: FBI Special Agent Joe Cleary Exhibit 26: FBI Special Agent Egon Dezihan Exhibit 27: FBI Special Agent Mike Gneckow Exhibit 28: FBI Special Agent Scott Mace Written Discovery Exhibit 29: Response of Defendant Mike Gneckow to Plaintiff’s Third Set of Interrogatories
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TABLE OF AUTHORITIES CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Bacon v. United States, 449 F.2d 933 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Barry v. United States, 279 U.S. 597 (1929).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Beco Constr. Co. v. City of Idaho Falls, 865 P.2d 950 (Idaho 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Blair v. United States, 250 U.S. 273 (1919).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Brown v. Savage No. CV-08-382-N-EJL, 2011 WL 4584771 (D. Idaho Sept. 30, 2011). . . . . . . . . . . . . . . . 14
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15, 18
Clark v. Alloway, 170 P.2d 425 (Idaho 1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
FDIC v. Meyer, 510 U.S. 471 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16
Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hanson v. Lowe, 100 P.2d 51 (1940).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Hurtado v. United States, 410 U.S. 578 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 -iv-

Case 1:05-cv-00093-EJL-CWD Document 322 Filed 02/06/12 Page 5 of 26
Imbler v. Pachtman, 424 U.S. 409 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Mason v. United States, 120 Fed. App’x 40 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mintun v. Peterson, No. CV06-447-S-BLW, 2010 WL 1338148 (D. Idaho March 30, 2010). . . . . . . . . . . . . . . 11
State v. Gomez, 172 P.3d 1140 (Idaho 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Julian, 922 P.2d 1059 (Idaho 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9
State v. Ramirez, 824 P.2d 894 (Idaho Ct. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Rubio, 771 P.2d 537 (Idaho Ct. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stein v. New York, 346 U.S. 156 (1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
United States v. Awadallah, 349 F.3d 42 (2nd Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. McVeigh, 940 F. Supp. 1541 (D. Col. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Olson, 546 U.S. 43 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-v-

Case 1:05-cv-00093-EJL-CWD Document 322 Filed 02/06/12 Page 6 of 26 White v. Gerbitz,
892 F.2d 457 (6th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 STATUTES
Judiciary Act of 1789, Ch. 20 §§ 30, 33, 1 Stat. 73. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 28 U.S.C. § 1346(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
MISCELLANEOUS 11 James William Moore et al., Moore's Federal Practice § 56.13[1] (3d ed.2010). . . . . . . . . . 18 Restatement (Second) of Torts § 682 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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INTRODUCTION The United States provided three reasons in its opening brief why the Court should grant summary judgment in its favor. First, Plaintiff’s claims are barred by the discretionary function exception. Second, Plaintiff’s claims are barred by prosecutorial immunity. Third, Plaintiff’s claims fail on the merits, as the evidence does not show either a false imprisonment or an abuse of process. In response, Plaintiff focuses his arguments on what he thinks the law should be, rather than what it actually is. But there is no legal support for Plaintiff’s novel legal argument that a person who once cooperated with authorities cannot later be arrested as a material witness without being given the chance to cooperate again. In fact, the Supreme Court has long recognized that material witness laws are so critical to our legal system that they justify jailing people who have committed no crime: “The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” Stein v. New York, 346 U.S. 156, 184 (1953) overruled on other grounds by Jackson v. Denno, 378 U.S. 368 (1964). Even if there was a basis for Plaintiff’s novel constitutional arguments, the United States has not waived its sovereign immunity for constitutional violations. Rather, the United States is liable under the Federal Tort Claims Act (“FTCA”) only when a private individual, in similar circumstances, would be liable under state common law. Here, as evidenced by Plaintiff’s response to the Federal Defendants’ Statement of Facts, there are no genuine disputes of material fact related to the essential elements of the two tort claims at issue: false imprisonment and abuse of process. These uncontested facts show that FBI Special Agents Michael Gneckow and Scott Mace had probable cause to seek a material witness arrest warrant for Plaintiff, and they did not
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abuse the material witness process to gain some collateral advantage over him. Therefore, as

explained more fully below, Plaintiff has not made a sufficient showing to overcome the United

States’s motion for summary judgment, much less show that he is entitled to summary judgment.

ARGUMENT

I.

PLAINTIFF’S COMMON LAW CLAIMS ARE BARRED BY THE DISCRETIONARY

FUNCTION EXCEPTION.

In the United States’s opening brief, it demonstrated that both of Plaintiff’s common law

claims are barred by the discretionary function exception because the conduct at issue involved

an element of judgment that was susceptible to policy analysis. See U.S. Summ. J. Mem. at 3-8.

In response, Plaintiff points out that this Court rejected similar arguments when it denied the

United States’s motion to dismiss five years ago. Pl.’s Mem. in Opp’n to Def. U.S.’s Mot. for

Summ. J. and Supp. of Pl.’s Cross-Mot. for Summ. J. at 7 (hereinafter “Pl.’s U.S. Opp’n”). But

now that discovery has occurred, the Court can and should reevaluate whether it retains subject

matter jurisdiction in light of the undisputed facts. Contrary to Plaintiff’s suggestion, the United

States is not arguing that the discretionary function exception shields the United States from

liability for unlawfully seeking a warrant. Rather, as detailed in the United States’s opening brief,

there is simply no evidence of unlawful conduct.

Plaintiff makes no substantive rebuttal to the United States’s arguments regarding the

discretionary function exception. In fact, Plaintiff agrees that “[a]gents may have discretion

whether to seek a material witness warrant once probable cause is established,” Pl.’s U.S. Opp’n

at 5, and he does not dispute that such a decision is grounded in policy considerations. Thus, if

this Court concludes that the agents had probable cause to seek the material witness warrant, then

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the Court must find that Plaintiff’s false imprisonment and abuse of process claims are barred by the discretionary function exception. II. PLAINTIFF’S COMMON LAW CLAIMS ARE BARRED BY PROSECUTORIAL IMMUNITY.
In response to the United States’s argument that Plaintiff’s claims are barred by prosecutorial immunity, Plaintiff cites several cases holding that law enforcement officers are not entitled to prosecutorial immunity for procuring an arrest warrant. Pl.’s U.S. Opp’n at 3. Again, the United States does not disagree with this basic proposition. But Plaintiff’s brief is replete with challenges to inherently prosecutorial decisions, and he argues that he should not have been considered a witness in the first place. For example, Plaintiff argues that his testimony was “clearly cumulative” because “there is little question Mr. al-Kidd’s testimony was not necessary given all of the other information (including documentary evidence) the government possessed about Al-Hussayen’s employment and activities.” Pl.’s U.S. Opp’n at 13. This argument, however, directly implicates prosecutorial decision-making regarding what evidence to present at trial, which is “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Likewise, Plaintiff’s argument that he has shown an abuse of process based on decisions by prosecutors to request a detention hearing and not to call him as a witness at trial, Pl.’s U.S. Opp’n at 19, also implicate the judicial phase of the criminal process.
Plaintiff’s arguments highlight that the material witness statute is intertwined with prosecutorial decisions regarding the presentation of evidence at trial. In this case, Assistant United States Attorney Kim Lindquist (1) made the final decision to seek the warrant, (2) advised Agent Mike Gneckow to make sure Plaintiff had left his home before proceeding, (3) told Agent Gneckow what the affidavit supporting the warrant application should say regarding Plaintiff’s
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material testimony, (4) filed the government’s request for a detention hearing (in part on the ground that the government would introduce evidence that Plaintiff “pose[d] a danger to another person or the community,” see Pl.’s Ex. 1 at 1795-97), (5) negotiated Plaintiff’s release conditions with his counsel, and (6) chose not to call Plaintiff has a witness at al-Hussayen’s trial. On these facts, as the United States explained in its opening brief, the doctrine of prosecutorial immunity bars Plaintiff’s common law claims. III. PLAINTIFF FAILS TO SHOW HIS ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE.
The facts upon which Agent Gneckow concluded there was probable cause to seek Plaintiff’s arrest as a material witness are not in dispute. The only question to be resolved is whether those undisputed facts, “viewed from an objective standpoint,” State v. Julian, 922 P.2d 1059, 1062-63 (Idaho 1996), established probable cause to believe (1) that it may become “impracticable” to secure Plaintiff’s presence at al-Hussayen’s trial by subpoena, and (2) he had testimony material to the prosecution of al-Hussayen. 18 U.S.C. § 3144. The following undisputed facts show that Gneckow had probable cause to seek a material witness warrant:
(1) Gneckow had evidence of money being transferred from al-Hussayen’s bank account to Plaintiff, see Defs.’ Statement of Undisputed Mat. Facts at ¶ 1 and Pl.’s Response at ¶ 1;
(2) Plaintiff worked with al-Hussayen at an Islamic charity and al-Hussayen paid Plaintiff for this work, id. ¶¶ 6;
(3) al-Hussayen’s trial was initially scheduled to start on April 15, 2003, id. ¶¶ 13; (4) Plaintiff purchased a ticket to Saudi Arabia on March 6, 2003, and moved out of his apartment in Kent, Washington in early March, id. ¶¶ 14; (5) on March 13, 2003, ICE Agent Robert Alvarez informed Gneckow that Plaintiff had
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purchased a one-way, first-class ticket to Saudi Arabia that was scheduled to depart in a few days, id. ¶¶ 20;
(6) unbeknownst to Gneckow, that ticket was actually coach-class and was an “open” round-trip ticket that did not have a scheduled return date, id. ¶¶ 21;
(7) Gneckow recommended to AUSA Lindquist that the government seek a material witness warrant for Plaintiff, id. ¶¶ 23;
(8) Lindquist advised Gneckow to make sure Plaintiff had left his home before proceeding, and Gneckow followed this advice, id. ¶¶ 24;
(9) Gneckow called an FBI agent at Dulles International Airport to confirm Plaintiff was in fact booked on a flight to Saudi Arabia, id.;
(10) Gneckow consulted with Lindquist regarding what his affidavit should say about Plaintiff’s material testimony, id. ¶¶ 25;
(11) Gneckow included information in the affidavit regarding Plaintiff’s ties to alHussayen and the Islamic Assembly of North America, as advised by Lindquist, id;
(12) FBI Agent Scott Mace wholly relied on information provided to him by Gneckow when he presented the warrant application to the magistrate, id. ¶¶ 28-29.
Because these facts are undisputed, and establish probable cause, Plaintiff resorts to making the same argument this Court has already rejected—that probable cause was lacking because the affidavit failed to show that Plaintiff had refused to comply with a subpoena, or would refuse to comply if served with one. See Pl.’s U.S. Opp’n at 8-10. As the Court observed when it rejected this argument at the motion to dismiss stage:
Mr. al-Kidd relies on dicta in [Bacon v. United States, 449 F.2d 933 (9th Cir.
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Case 1:05-cv-00093-EJL-CWD Document 322 Filed 02/06/12 Page 12 of 26
1971)] where the court, after finding the affidavit submitted in support of the arrest warrant failed to show that Bacon was likely to flee, distinguished the case from the situation where a witness was served with a subpoena. . . . This language and reasoning does not, as Mr. al-Kidd contends, stand for the proposition that all potential witnesses must be given the opportunity to appear to testify prior to a material witness arrest warrant being sought and executed. Dkt. No. 79 at 14 (quotations marks and citation omitted). Moreover, under Idaho law, the question is not limited to whether the affidavit established probable cause. Rather, the question to be answered is whether Plaintiff’s arrest occurred “without probable cause.” Clark v. Alloway, 170 P.2d 425, 428 (Idaho 1946). This question requires the court to determine whether “the facts available” to Agent Gneckow “warranted a person of reasonable caution to believe that the action taken [seeking the material witness warrant] was appropriate.” State v. Gomez, 172 P.3d 1140, 1145 (Idaho 2007). As shown, the facts available to Gneckow at the time he recommended that the government seek a material witness warrant would have led “a person of reasonable caution” to conclude that there was probable cause to believe the elements of the statute were satisfied. Gomez, 172 P.3d at 1145. Plaintiff also challenges his arrest on the ground that his testimony was cumulative to “other information (including documents) the government possessed about Al-Hussayen.” Pl.’s U.S. Opp’n at 13. Plaintiff’s argument that his testimony was cumulative is irrelevant, because the only question is whether there was probable cause to believe Plaintiff had material testimony. Moreover, Plaintiff’s argument is premised on the Fourth Amendment’s reasonableness provision, not Idaho law. See Pl.’s U.S. Opp’n at 13-14. As the United States has not waived its sovereign immunity for constitutional tort claims, see FDIC v. Meyer, 510 U.S. 471, 477-78
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(1994), these arguments are wholly irrelevant.1 Because Plaintiff’s arrest was supported by probable cause, the United States cannot be
held liable for false imprisonment. This Court has ruled that under Idaho law, the existence of probable cause is a complete defense to Plaintiff’s false imprisonment claim. See Dkt. No. 78 at 8 (“[R]egardless of any alleged misrepresentations or omissions on the arrest warrant, if the arrest warrant was supported by probable cause, [Plaintiff] does not have a claim for false imprisonment.”). Despite this Court’s prior ruling, Plaintiff continues to argue that the Unites States may be held liable on a “procurement” theory because the affidavit contained incorrect details regarding Plaintiff’s flight and lacked certain information regarding Plaintiff’s ties to the United States and his prior cooperation with law enforcement. Pl.’s U.S. Opp’n at 10-12. Discovery has shown that Plaintiff cannot prevail on a procurement theory because it is undisputed that Agent Gneckow was unaware of any defect in the affidavit submitted with the warrant application. As the United States explained in its opening brief, Agent Gneckow obtained Plaintiff’s admittedly incorrect flight information from ICE Agent Robert Alvarez and he took steps to ensure that Plaintiff was in fact leaving the country before he submitted the affidavit to the court. See U.S. Summ. J. Mem. at 14-15.
Because Plaintiff cannot dispute these facts, he faults Gneckow for not asking Alvarez or the FBI agent at Dulles International Airport for documentation. Pl’s U.S. Opp’n at 12 n.6. But Plaintiff cites no Idaho law that imposes such a duty on Gneckow. Indeed, Plaintiff’s argument is
1 Even if Plaintiff’s contention regarding cumulative testimony was relevant, the contention lacks factual support as he does not cite to any evidence that another witness could have presented the same testimony as Plaintiff. Moreover, Plaintiff’s argument reinforces that he is challenging prosecutorial decisions regarding what evidence to present at trial, decisions that are subject to both the discretionary function exception and prosecutorial immunity.
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contrary to Idaho law, which does not require an officer to “have personal knowledge of all the items of information used to assess the probable cause to arrest.” See State v. Rubio, 771 P.2d 537, 540 (Idaho Ct. App. 1989). “[T]he collective knowledge and information of all the officers involved in the investigation, when taken together” may supply probable cause. Id. Moreover, Agent Gneckow was entitled to rely on information provided to him by Alvarez and the FBI agent at Dulles.2 See U.S. Summ. J. Mem. at 12, 15. As this Court stated in its prior ruling denying the United States’ motion to dismiss, “Idaho law only shields officers from liability if they are unaware of any defect in the warrant.” Dkt. No. 78 at 7. Because Gneckow was unaware that the flight information listed in his affidavit was incorrect, the United States may not be found liable on a “procurement” theory.3 See id.; Hanson v. Lowe, 100 P.2d 51, 55 (1940).
Plaintiff lists several “omissions” from the affidavit that he contends are relevant to the probable cause analysis. Pl.’s U.S. Opp’n at 10-11. But Plaintiff never explains how this information negates probable cause to believe Plaintiff would be unavailable to testify at alHussayen’s trial by subpoena, which at the time the government sought the warrant was scheduled to start in thirty-two days. Importantly, Plaintiff has not presented any evidence that when Gneckow drafted the affidavit he was aware of some fact indicating Plaintiff might return
2 Plaintiff contends there was “confusion surrounding the details of the ticket,” Pl.’s U.S. Opp’n at 12 n.6, but this assertion is not supported by the record. See Defs.’ Gneckow and Mace’s Opp’n to Pl.’s Mot. for Summ. J. and Reply in Supp. of Their Mot. for Summ. J. at 1314.
3 Contrary to Plaintiff’s assertions, the United States is not arguing for summary judgment in its favor because Gneckow and Mace “simply executed a warrant issued by a magistrate,” nor is the United States’ argument “identical” to the argument it made at the motion to dismiss stage. Pl.’s U.S. Opp’n at 7 n.5. Two key facts—that Gneckow was unaware of the incorrect flight information and he called Dulles to confirm Plaintiff was leaving the country—were not before the Court at the motion to dismiss stage.
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to the United States prior to the start of al-Hussayen’s trial. Only this type of omission would enable Plaintiff to prevail on a procurement theory. Moreover, even if the Court were to conclude the identified omissions were relevant to the probable cause question, Idaho law recognizes that “the principle of probable cause must allow room for some mistakes by the arresting officer.” Julian, 922 P.2d at 1063 (quoting Kingler v United States, 409 F.2d 299, 304 (8th Cir. 1969)). As the Idaho Supreme Court has observed:
Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusion of probability. Id. Here, even if it was a “mistake” for Agent Gneckow to not include information in his affidavit regarding Plaintiff’s ties to the United States and his past cooperation with law enforcement, it was not unreasonable for him to conclude that there was probable cause to believe Plaintiff would not be available to testify at al-Hussayen’s trial. Not only was there no indication Plaintiff would return to the United States before al-Hussayen’s trial started, but in Gneckow’s experience, as well as that of Agent Mace, neither citizenship nor familial ties guarantees that a person will appear in court. See Defs.’ Ex. 16, Gneckow Dep. at 193-94; Ex. 18, Mace Dep. at 47-48. Under Idaho law, “in passing on the question of probable cause, the expertise and the experience of the officer must be taken into account.” State v. Ramirez, 824 P.2d 894, 898 (Idaho Ct. App. 1991). Under the totality of the circumstances, it was reasonable for Gneckow to conclude probable cause existed to arrest Plaintiff. Accordingly, the United States is entitled to summary judgment on Plaintiff’s false imprisonment claim.
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IV. PLAINTIFF FAILS TO PRESENT SUFFICIENT EVIDENCE TO PROCEED ON HIS ABUSE OF PROCESS CLAIM. In his motion for summary judgment, Plaintiff makes no effort to defend what used to be
the crux of his abuse of process claim: that he was arrested pursuant to a national policy to use the material witness statute to arrest and detain criminal suspects without probable cause. The abandonment of this central allegation shows how much the factual landscape has changed since the Court last considered these allegations over five years ago on a motion to dismiss. As the United States detailed in its opening brief, the evidence developed during discovery now confirms that Plaintiff was arrested to secure his testimony in al-Hussayen’s trial, the exact purpose of the material witness statute. U.S. Summ. J. Mem. at 16-22.
In response to the evidence developed during discovery, Plaintiff offers a series of speculative inferences drawn from a smattering of separate incidents, which is insufficient to overcome the United States’s summary judgment motion. In addition, Plaintiff’s legal arguments rest in large measure on his assertion that the material witness law is unconstitutional, but the United States has not waived its sovereign immunity for constitutional violations. Finally, in focusing on what he believes the law should be, instead of what it currently is, Plaintiff cannot prove the essential element of an abuse of process claim—that the conduct at issue was not part of the standard process.
A. Plaintiff Has Not Presented Any Concrete Evidence That Shows He Was Arrested For an Improper Purpose Or That Agents Gneckow and Mace Wilfully Misused the Material Witness Statute.
Where, as here, the nonmoving party bears the burden of persuasion at trial, “the burden on the moving party may be discharged by ‘showing’-that is, pointing out to the district court-
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that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In its opening brief, the United States made this “showing” that Plaintiff cannot prove an abuse of process because the undisputed facts show that the material witness law was used for a proper purpose—to secure the material testimony of a witness who was a flight risk. U.S. Summ. J. Mem. at 16-22. To support this showing, the United States relied on sworn testimony of the FBI agents who sought the arrest and the Assistant United States Attorney who led the al-Hussayen prosecution, as well as numerous documents.
In his opposition brief, Plaintiff effectively asks the Court to ignore the unanimous and uncontested testimony of all government witnesses, characterizing their sworn statements as “self-serving.” Pl.’s U.S. Opp’n at 16. But “‘self-serving’ is not a proper objection” to a summary judgment motion. Mintun v. Peterson, No. CV06-447-S-BLW, 2010 WL 1338148, *26 (D. Idaho March 30, 2010). As the Supreme Court has long held, a party cannot defeat a summary judgment motion merely by asserting that “the jury might, and legally could, disbelieve” the witnesses. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see also Mason v. United States, 120 Fed. App’x 40, 43 (9th Cir. 2005) (“simply attack[ing] the credibility” of affiants is insufficient to defeat summary judgment). To defeat a motion for summary judgment, parties must provide “concrete evidence from which a reasonable jury could return a verdict in their favor.” United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1543 (9th Cir. 1989) (quoting Liberty Lobby, 477 U.S. at 256).
Plaintiff points to eight pieces of evidence that he claims are sufficient to defeat the United States’s motion for summary judgment. See Pl.’s U.S. Mem. at 16-20. The first item on Plaintiff’s list is that he was the subject of an FBI investigation at the time of his
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arrest—something the Unites States has always acknowledged and never disputed. See Defs. Gneckow and Mace’s Summ. J. Mem. (Dkt. No. 306-1) at 2; Fed. Defs.’ Response to Pl.’s Statement of Undisputed Mat. Facts at ¶5. But the fact that Plaintiff was under investigation does not lead to a reasonable inference that he was arrested because of that investigation. Plaintiff deposed the lead FBI agent assigned to his intelligence investigation, Special Agent Joe Cleary, yet Plaintiff does not point to any testimony that Agent Cleary suggested that the FBI seek a material witness warrant to enable further investigation of Plaintiff. In fact, Agent Cleary testified unequivocally that it was not his idea to seek the material witness warrant. See Ex. 25, Dep. of J. Cleary at 182-83, 190. He further testified that he agreed with the decision to seek the warrant not because he viewed it as a vehicle to further investigate Plaintiff, but because “[Gneckow] needed [Plaintiff] to testify against Sami [al-Hussayen].” See Ex. 13 at 192-93. In sum, after fourteen months of discovery, not a single witness has testified that Plaintiff was arrested to investigate him and not a single document exists stating Plaintiff should be or was arrested to investigate him.
The seven other pieces of evidence that Plaintiff cites to support his claim all involve actions by individuals other than Agents Gneckow and Mace, such as FBI Director Robert Mueller (Pl.’s U.S. Mem. at 16), the FBI agents who questioned him at Dulles airport (id. at 18), the correctional officers who strip-searched him (id.), and the prosecutors who opposed his release and did not call him at trial (id. at 19). Specifically, Plaintiff contends these collective actions show “that the government viewed Mr. al-Kidd as more than a mere witness.” Pl.’s U.S. Mem. at 20; see also id. at 18 (“the government wanted him detained”); 21 (“the way he was treated and the conditions under which he was held after his arrest are certainly indicative of how
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the government viewed him”). But as this Court previously recognized, Plaintiff’s claims rise or fall based on the individual actions of Agents Gneckow and Mace. Doc. No. 78 at 13 (“Mr. alKidd’s allegations here are only based on the actions of the investigative officers Mace and Gneckow”); see also Pl.’s U.S. Mem. at 4 (“the United States’ liability in this case is premised on the actions of its FBI agents”). This is because the Federal Tort Claims Act does not waive sovereign immunity for the way “the government” views someone, but only when a private individual, under similar circumstances would be liable under state tort law. See 28 U.S.C. § 1346(b)(1); see also United States v. Olson, 546 U.S. 43, 45-47 (2005) (emphasizing that FTCA liability exists only if a “private person” would be liable under state law). Actions of other federal employees, taken after Plaintiff was arrested, have no bearing on whether Agents Gneckow and Mace used the material witness law for an improper purpose.
But even if conduct by government personnel other than Gneckow and Mace could be considered in determining whether the United States is liable on an abuse of process theory, Plaintiff’s claim would still fail. First, except for AUSA Lindquist, none of the individuals identified by Plaintiff had any involvement whatsoever with the decision to arrest Plaintiff, and thus none of their actions is relevant to whether the government had an improper purpose in seeking the arrest warrant. Second, almost all of the actions cited by Plaintiff–such as the congressional testimony by Director Mueller, the decision by prosecutors and a different FBI agent not to arrest another witness, the treatment of Plaintiff by correctional officials, and the determination by prosecutors not to call Plaintiff as a witness–do not involve investigative activity and thus are not relevant to whether the government committed a willful act to investigate Plaintiff.
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Although Plaintiff was questioned by two FBI agents at Dulles airport after he was arrested, there is no evidence to show that the material witness warrant was sought for this purpose. In fact, it is undisputed that neither Gneckow nor Mace contacted the FBI Field Office in Washington before seeking the warrant to ensure agents from that office interviewed Plaintiff after his arrest. See Defs.’ Ex. 16 at 189-90; cf. Brown v. Savage, No. CV-08-382, 2011 WL 4584771, *8 (D. Idaho Sept. 30, 2011) (“Just because a secondary reason exists that law enforcement officers want to interview a person of interest does not mean a valid arrest warrant supported by probable cause cannot legally be issued.”). Likewise, although Plaintiff points to a draft of an affidavit for a warrant to search the laptop computer Plaintiff was carrying at the time of his arrest, Plaintiff concedes the affidavit was never filed nor was a search warrant ever sought–hardly a “willful” act.
Even when viewed collectively, as Plaintiff suggests, the disparate facts cited in Plaintiff’s opposition do not create a genuine dispute for trial. At most, the evidence shows that an “incidental benefit” accrued to the FBI in that it was able to interview Plaintiff after his arrest, but an incidental benefit is not sufficient to prove an abuse of process. See Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 305 (3d Cir. 2003) (“there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive or spite or an ulterior purpose of benefit to the defendant.”) (citing Restatement (Second) of Torts, § 682, cmt. b).4 The “relevant objective evidence in the record,” to use
4 Contrary to Plaintiff’s contention (Pl.’s U.S. Mem. at 15 n.7), the United States is not trying to redefine the legal standard for abuse of process. As the United States explained in its opening brief at 17-18, the Ninth Circuit and Idaho courts use the Restatement to define the tort, and as shown above, even the Third Circuit case cited by Plaintiff supports Defendant’s
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Plaintiff’s words, shows that there is no genuine issue of material fact regarding why Plaintiff was arrested. The pertinent officials—FBI Agents Gneckow and Cleary, and AUSA Lindquist—testified consistently with each other that they viewed Plaintiff as a witness, and the warrant was sought to secure his presence at al-Hussayen’s trial. See Def.’s Summ. J. Mem. at 18-20.
In light of the uncontradicted affirmative evidence, the fact that Plaintiff was also the subject of an FBI investigation and was interviewed by FBI agents after his arrest does not lead to a reasonable inference that Agents Gneckow and Mace had “an ulterior, improper purpose” in seeking the warrant, nor does it show that they engaged in “a wilful act in the use of the process not proper in the regular conduct of the proceeding.” Beco Constr. Co. v. City of Idaho Falls, 865 P.2d 950, 954 (Idaho 1993). Summary judgment for the United States on Plaintiff’s abuse of process claim is therefore appropriate because Plaintiff has failed to make a “showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (“[S]ome metaphysical doubt as to the material facts” will not defeat a summary judgment motion; “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” ).
B. Plaintiff Offers No Legal Support For His Argument That Arresting a Cooperative Witness Violates the Constitution and Constitutes an Abuse Of Process.
The last section of Plaintiff’s brief reveals that his abuse of process argument is, at
4(...continued) argument that Plaintiff may not satisfy his burden by showing further investigation was an incidental benefit to obtaining the warrant.
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bottom, a constitutional challenge to the government’s ability to seek a material witness warrant for a person who has previously cooperated with the government. Plaintiff’s attempt to turn his abuse of process claim into a constitutional challenge to the material witness statute fails for two reasons. First and foremost, the FTCA does not waive the United States’s sovereign immunity from damages for constitutional torts. See Meyer, 510 U.S. at 477-78. This alone forecloses Plaintiff’s effort to bring a constitutional challenge to the material witness statute under the guise of an abuse of process claim.
Second, even if Plaintiff is correct that the statute is unconstitutional when applied to witnesses like him—a position the United States strongly disputes—that does not mean there has been an abuse of process. See Pl.’s U.S. Opp’n at 23-25. As Plaintiff implicitly acknowledges, no court has ever adopted his novel constitutional argument during the over 200 years that material witness laws have been in effect. See Judiciary Act of 1789, Ch. 20 §§ 30, 33, 1 Stat. 73, 88-91. Because no court has adopted the constitutional standard Plaintiff is pressing, there cannot have been an abuse of process based on a “violation” of that standard. Moreover, “[t]he usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.” Restatement (Second) of Torts § 682 (1978). Plaintiff’s theory simply does not fit within this tort.
To be clear, though, there is no merit to Plaintiff’s argument that the Constitution prohibits the arrest of so-called cooperative witnesses. To the contrary, Plaintiff’s argument conflicts with Supreme Court precedent. See Barry v. United States, 279 U.S. 597, 616-617 (1929). In Barry, the Senate ordered the arrest and detention of a witness in an election fraud
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matter, but the Court of Appeals held that the arrest was invalid because the witness had not been served with a subpoena first. Id. The Supreme Court reversed:
The decision of the Circuit Court of Appeals is that, as a necessary prerequisite to the issue of a warrant of arrest, a subpoena first should have been issued, served, and disobeyed. And undoubtedly the courts recognize this as the practice generally to be followed. But undoubtedly also, a court has power in the exercise of a sound discretion to issue a warrant of arrest without a previous subpoena when there is good reason to believe that otherwise the witness will not be forthcoming. Id. The Supreme Court in Barry compared the Senate’s actions to the then-existing federal law that allowed the arrest and detention of material witnesses, concluding that “[t]he constitutionality of this statute apparently has never been doubted. Similar statutes exist in many of the states and have been enforced without question.” Id. at 617. Eighty years later, the same holds true. In fact, courts in recent years have consistently upheld arrests of material witnesses who have previously cooperated with authorities. See, e.g.,United States v. Awadallah, 349 F.3d 42 (2nd Cir. 2003); United States v. McVeigh, 940 F. Supp. 1541 (D. Col. 1996); White v. Gerbitz, 892 F.2d 457 (6th Cir. 1989). Thus, there is no merit to Plaintiff’s arguments that the “historical backdrop” of the material witness law means that witnesses may only be arrested after they have been uncooperative. In sum, although Plaintiff may have suffered a hardship by the government’s actions, that hardship does not evidence a constitutional violation, nor does it entitle him to damages for abuse of process. As the Supreme Court has recognized, detention of material witnesses “‘may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood,’” but that sacrifice does not necessarily evidence a constitutional violation. Hurtado v. United States, 410 U.S. 578, 589 (1973) (finding that material witness detentions do not violate the Fifth Amendment’s takings
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clause) (quoting 8 J. Wigmore, Evidence § 2192, p. 72 (J. McNaughton rev. 1961)). “The giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned . . . . The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.” Blair v. United States, 250 U.S. 273, 281 (1919). Thus, compelled testimony, even through an arrest of a cooperative witness, does not involve a willful act outside the regular course of proceedings, and consequently cannot constitute an abuse of process. V. PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGEMENT.
As the discussion above demonstrates, the evidence in this case shows that FBI Agents Gneckow and Mace had probable cause to seek Plaintiff’s arrest and did not use the material witness law for an improper purpose. Yet even if the Court disagrees that the evidence entitles the United States to summary judgment, it does not follow that Plaintiff has established his entitlement to judgment as a matter of law. As the party bearing the burden of proof at trial, Plaintiff has a different and higher burden than the United States to succeed on a Motion for Summary Judgment. See 11 James William Moore et al., Moore’s Federal Practice § 56.13[1], at 56-166 (3d ed.2010) (stating that, if the moving party bears the ultimate burden of persuasion at trial, the moving party’s initial summary judgment burden is “higher in that it must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.”). See also Celotex Corp., 477 U.S. at 325. Because Plaintiff has not met his burden, his motion for summary judgment must be denied.
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CONCLUSION For the reasons stated above and in our opening brief, the United States’s motion for summary judgment should be granted, and Plaintiff’s denied.

Dated: February 6, 2012

Respectfully submitted,
C. SALVATORE D’ALESSIO, JR. Acting Director, Torts Branch
/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4176 Fax: (202) 616-4314

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CERTIFICATE OF SERVICE I hereby certify that on February 6, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following counsel for Plaintiff to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Lee Gelernt lgelernt@aclu.org Esha Bhandari ebhandari@aclu.org Lea Candy Cooper lcooper@acluidaho.org Katherine Desormeau kdesormeau@alcu.org Michale K.T. Tan mtan@aclu.org Michael J. Wishne michael.wishne@yale.edu Cynthia Jane Woolley cynthia@ketchumidaholaw.com R. Keith Roark keith@roarklaw.com
/s/ J. Marcus Meeks U.S. Department of Justice
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Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314 P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for Defendants the United States, Michael Gneckow and Scott Mace

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States, et al.,

)

)

______D__e_fe_n_d_a_n_t_s_. ____________________)

Case No. 1:05-cv-093-EJL-MHW
FEDERAL DEFENDANTS’ RESPONSE TO PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS FILED ON DEC. 21, 2011 (Dkt. Nos. 308-2 & 310-2)

Pursuant to Fed. R. Civ. P. 56(c) and Dist. Idaho Loc. Civ. R. 7.1(c)(2), the Federal Defendants submit this response to Plaintiff’s Statement of Undisputed Material Facts that was filed in support of his motions for summary judgment against the United States (Dkt. No. 308) and Defendants Michael Gneckow and Scott Mace (Dkt. No. 310). The numbered paragraphs below correspond to the paragraphs in Plaintiff’s Statement of Undisputed Material Facts.
1-2. Defendants do not dispute these facts. 3. Defendants object to Plaintiff’s generalized assertion that a terrorism investigation began in Idaho following September 11, 2001, because the record citations do not indicate when

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the investigation began. Defendants do not dispute the remaining facts in this paragraph. 4. Defendants do not dispute this fact. 5. Defendants do not dispute that Plaintiff was the subject of an intelligence
investigation from December 2001 until at least 2004. Defendants dispute the statement that Plaintiff was a “co-subject in the criminal investigation of Sami Al-Hussyen.” Plaintiff relies on FBI documents that contain his name in the “Title” to support this asserted fact, but the undisputed testimony shows that the appearance of a person’s name in the title of an FBI document does not mean the person was suspected of engaging in criminal activity. See Pl.’s Ex. 2 at 41-42, 47; Defs.’ Ex. 27, Dep. of M. Gneckow at 35-37, 85; Ex. 24, Dep. of N. Brown at 134-35; Ex. 26, Dep. of E. Dezihan at 110; Ex. 28, Dep. of S. Mace at 86-87. FBI Special Agent Gneckow specifically testified that al-Kidd remained in the title of FBI documents concerning the al-Hussayen investigation because he was an associate of al-Hussayen, not because he was the subject of a criminal investigation. See Defs.’ Ex. 16 at 75; Ex. 27, Gneckow Dep. at 85; see also Defs.’ Ex. 16 at 73-75, 78; Defs.’s Ex. 17 at 25-28.
Defendants object to Plaintiff’s assertion that an unidentified FBI agent sent Plaintiff’s name to the U.S. Attorney’s office as a proposed defendant. First, the document Plaintiff cites to support this statement, Pl. Ex. A, U.S. Docs 666, is inadmissable for lack of foundation and hearsay. Second, the testimony from AUSA Kim Lindquist regarding that document is inadmissible for lack of foundation. See Pl.’s Ex. 7 at 48-53 (Lindquist testified he was unfamiliar with US 666 and defense counsel objected to questions regarding the document’s contents on foundation grounds). Finally, there is no other evidence in the record that Plaintiff’s name was sent to the U.S. Attorney’s Office as a proposed defendant. Indeed, Agent Gneckow
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stated in response to an interrogatory that “Al-Kidd was never considered a possible subject for indictment by the United States.” Ex. 29, M. Gneckow Response to Pl.’s Interrog. No. 22.
6. Defendants object to Plaintiff’s generalized assertion that an intelligence investigation could lead to criminal charges, as the record citations do not support that assertion. See also Defendants’ Statement of Facts, ¶ 3.
7. Defendants object to Plaintiff’s statement that FBI Headquarters provided “guidance” on the al-Kidd investigation because the record citations do not support that assertion. Defendants do not dispute that FBI Headquarters received updates on the al-Kidd investigation.
8-10. Defendants do not dispute these facts. 11-13. Defendants object to these statements on relevance grounds, as there is no evidence cited to show that Agents Gneckow or Mace–or any other federal officer–was aware of any of these facts at the time the arrest warrant was issued for Plaintiff. See Franklin v. Fox, 312 F.3d 423, 437 (9th Cir. 2002) (whether “a reasonable officer could have believed that probable cause existed . . . is an objective [inquiry], based on what a reasonable officer would believe if faced with the facts and circumstances actually known to the officer in question.”) (emphasis added) (internal citation and quotes omitted)). 14-23. Defendants do not dispute these facts. 24. Defendants do not dispute these facts, although Defendants note that Agent Gneckow relied on AUSA Kim Lindquist to determine whether the legal standard for obtaining a material witness warrant had been met. See Defs.’ Ex. 16 at 187. 25-27. Defendants do not dispute these facts.
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28. Defendants do not dispute these facts, except that the record does not support Plaintiff’s assertion that Agent Gneckow was “confused” about Plaintiff’s departure date.
29. Defendants dispute Plaintiff’s vague assertion that Agent Gneckow’s “concern” about Plaintiff’s flight information related to the veracity of the information ICE Agent Alvarez provided to Agent Gneckow. Agent Gneckow’s “concern” related to the fact that Plaintiff was scheduled to leave the country in a matter of days. See Defs.’ Ex. 16 at 165-66.
30. Defendants do not dispute these facts. 31. Defendants object to the legal conclusion that Agent Gneckow “knowingly omitted numerous facts from the affidavit.” Defendants do not dispute that the facts listed in subparagraphs (a)-(g) were not included in the affidavit. 32. Defendants do not dispute these facts, except that Agent Gneckow testified he did not characterize the payments listed in the affidavit as salary because though he suspected they were salary, he was not absolutely sure at the time he drafted the affidavit. See Ex. 16 at 180. 33. Defendants object to this statement for two reasons. First, it is irrelevant whether Agent Gneckow would have sought a material witness warrant based on a hypothetical situation involving a “cooperative businessman.” Second, the record cited does not support the statement; Agent Gneckow’s complete response to that question was: “No, No. Well, I think I was going to say that in that particular case, again, it boils down to the cooperative nature of the traveler.” Pl.’s Ex. 2, Gneckow Dep. 220. 34. Defendants do not dispute these facts. 35. Defendants admit that the affidavit stated that al-Kidd had information “crucial” to the al-Hussayen prosecution. Defendants object to the statement that “al-Kidd had little
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knowledge of Al-Hussayen” because the deposition testimony cited does not support this statement. See also Defs. Ex. 2 at 3 (Plaintiff told Seattle Post-Intelligencer reporter he “did Web design for Al Moultaqua and attended many conferences on behalf of it”); Defs.’ Ex. 16 at 15659 (Gneckow’s testimony regarding Plaintiff’s knowledge of al-Hussayen and al-Multaqua, including that Plaintiff could “say that Al-Hussayen was an officer of IANA . . . talk about salary that he received from Al-Hussayen . . . [and] talk about Al-Multaqua and the website”); Defs.’ Ex. 17 at 35-37 (Lindquist’s testimony that Plaintiff “was associated with Mr. Al-Hussayen in a business way at the University of Idaho”); Defs.’ Ex. 22, Pl.’s Responses to Fed. Defs.’ Interrog. Nos. 6, 10 and 11 (Plaintiff worked with al-Hussayen at al-Multaqua, received payments from alHussayen for this work, and received a payment from al-Hussayen that was as act of charity).
36. Defendants do not dispute this fact. 37. Defendants object to this paragraph because it is not a factual assertion, but rather a critical judgment of how the prosecutors in USA v. al-Hussayen contemplated presenting their evidence at al-Hussayen’s trial. To the extent this paragraph may be viewed as a factual assertion, Defendants also object because the record citations do not support the conclusion that documentary evidence gathered during the investigation into al-Hussayen’s activities “[made] alKidd’s testimony redundant.” 38. Defendants do not dispute this fact. 39. Defendants dispute that Gneckow could not recall what efforts were made to determine whether Plaintiff had left his home in Kent, Washington. See Pl.’s Ex. 2 at 144 (Gneckow recalled certain “specifics about the effort to locate Mr. Al-Kidd” but that information was not disclosed as it was privileged law-enforcement information).
-5-

Case 1:05-cv-00093-EJL-CWD Document 322-1 Filed 02/06/12 Page 6 of 7
40-41. Defendants do not dispute these facts. 42. Defendants do not dispute these facts, except to the extent they imply that the United States purposefully “delayed” transferring Plaintiff from Virginia to Idaho. The record does not support such an assertion. 43-44. Defendants do not dispute these facts. 45. Defendants object to this statement because it is irrelevant to Plaintiff’s claims whether a Saudi national was served with a summons and asked to surrender his passport. To the extent the statement is relevant, Defendants note that the Saudi national was not scheduled to leave the country for another month at the time the government sought the summons. See Pl.’s Ex. 12, M. Martin Aff. at 6-7. 46-47. Defendants do not dispute these facts.
Respectfully submitted, C. SALVATORE D’ALESSIO Acting Director, Torts Branch
/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4176 Fax: (202) 616-4314
-6-

Case 1:05-cv-00093-EJL-CWD Document 322-1 Filed 02/06/12 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that on February 6, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Lee Gelernt lgelernt@aclu.org Esha Bhandari ebhandari@aclu.org Lea Candy Cooper lcooper@acluidaho.org Katherine Desormeau kdesormeau@alcu.org Michale K.T. Tan mtan@aclu.org Michael J. Wishne michael.wishne@yale.edu Cynthia Jane Woolley cynthia@ketchumidaholaw.com R. Keith Roark keith@roarklaw.com
/s/ J. Marcus Meeks U.S. Department of Justice

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 1 of 53
Exhibit 24
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motion for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 2 of 53 Norman C. Brown, 12/13/2007

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

______________________________________________________________

)

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

No. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney

)

)

General of the United States, )

)

et al.,

)

)

Defendants.

)

______________________________________________________________

DEPOSITION UPON ORAL EXAMINATION
OF
NORMAN C. BROWN ______________________________________________________________

1:05 p.m. December 13, 2007
100 South King Street 360 Seattle, Washington 98104

JACQUELINE L. BELLOWS CCR 2297

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 3 of 53 Norman C. Brown, 12/13/2007

1 2 3 4
For the Plaintiff: 5
6
7
8 9
For the Defendants: 10
11
12
13 14
15
16
17 18 19 Court Reporter:
20
21 22 23 24 25

Page 4
APPEARANCES
ROBIN GOLDFADEN American Civil Liberties Union
Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111
BRANT S. LEVINE U.S. Department of Justice Constitutional & Specialized Torts P.O. Box 7146 Washington, D.C. 20044
HENRY R. FELIX Federal Bureau of Investigation Assistant General Counsel 935 Pennsylvania Avenue NW, PA-400 Washington, D.C. 2054535
JACQUELINE L. BELLOWS VAN PELT, CORBETT, BELLOWS 100 South King Street, Ste. 360 Seattle, WA 98104
* * * * * * * * * *

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 4 of 53 Norman C. Brown, 12/13/2007

Page 5

1

2 NORMAN C. BROWN,

having been first duly sworn

3

by the Notary Public, appeared

4

and testified as follows:

5

6

7

E X A M I N A T I O N

8 BY MS. GOLDFADEN:

9 Q Good afternoon. I know we introduced ourselves, but let me

10

formally introduce myself for the record. My name is Robin

11

Goldfaden. I'm one of the attorneys representing the

12

plaintiffs in this matter.

13

Would you state your name and address for the record.

14 A Norman C. Brown. I reside in Spokane, Washington.

15 Q Can you give the street address, please.

16

MR. LEVINE: Your can just use your business

17

address.

18 A It's 316 West Boone, Suite 250, Spokane.

19 Q (By Ms. Goldfaden) Have you been deposed before?

20 A No.

21 Q Okay. Well, basically you're under oath as if you were in a

22

courtroom; and everything that we say while we're on the

23

record is going to be taken down. I will be asking you

24

questions; and, if at any point you don't understand

25

something that I'm saying, please let me know and I'll try

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 5 of 53 Norman C. Brown, 12/13/2007

Page 134

1 Q (By Ms. Goldfaden) I believe the question was whether or not

2

Mr. Aljughaiman was the subject of an investigation.

3 A And my answer was he was in the title of the Sami

4

Al-Hussayen case.

5 Q What did that mean?

6 A Just what I said: That he was listed as a subject with

7

others in that investigation.

8 Q Did that mean that he was a suspect in the activity being

9

investigated?

10 A Individuals who are in the title block of a case can be a

11

subject. They can be a victim. They can be an associate of

12

the subject. It doesn't necessarily mean that they are the

13

subject of the case.

14 Q Can you tell me what it meant in this case?

15 A I honestly don't know.

16 Q Who would know?

17 A The case agent, Mike Gneckow.

18 Q Would there be anything in these EC's that would tell the

19

reader whether or not the people listed in the subject --

20

I'm sorry -- the title line were or were not subject -- I'm

21

sorry -- subjects of the investigation or suspects or

22

witnesses or victims or whatever else you might put there?

23 A Typically the victim is identified in the subject line or

24

subject block. However, an associate may not necessarily be

25

defined as such in the text of the document.

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 6 of 53 Norman C. Brown, 12/13/2007

Page 135

1 Q When you said that the witness is typically identified in

2

the subject block did you mean -- I'm sorry, victim. Did

3

you mean typically, when there's a crime involving a victim,

4

the victim's listed in the title line; or did you mean, when

5

it's the victim being listed in the title line, that is

6

typically noted in the title line, that they're a victim?

7 A Yes, it's the second.

8 Q The latter. Okay.

9

And I didn't quite follow what you were saying about

10

associates. Associates might be in the title line; but

11

there might be nothing, typically, to identify them in one

12

way or another?

13 A In the text, correct.

14 Q Are witnesses typically put in the title line?

15 A Not, not typically, no.

16 Q Are there any protocols or guidelines for what does or

17

doesn't go in the title line of an EC?

18 A Not other than what I just explained in terms of who can be

19

in the title line or subject block.

20 Q Is there any difference in the significance between a check

21

going from Mr. Al-Hussayen versus a check going from

22

Mr. Aljughaiman?

23 A It's still financial transactions between these three

24

individuals.

25 Q So they were viewed as one and the same?

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 7 of 53 Norman C. Brown, 12/13/2007

Page 205

1

C E R T I F I C A T E

2 STATE OF WASHINGTON )

) SS

3 COUNTY OF KING

)

4

I, Jacqueline L. Bellows, a Notary Public in and for

5 the State of Washington, do hereby certify:

6

That the foregoing deposition was taken before me at

7 the time and place therein set forth;

8

That the witness was by me first duly sworn to

9 testify to the truth, the whole truth, and nothing but the

10

truth; and that the testimony of the witness and all

11

objections made at the time of the examination were recorded

12

stenographically by me, and thereafter transcribed under my

13

direction;

14

That the foregoing transcript is a true record of

15 the testimony given by the witness and of all objections made at

16

the time of the examination, to the best of my ability.

17

I further certify that I am in no way related to any

18 party to this matter nor to any of counsel, nor do I have any

19

interest in the matter.

20

Witness my hand and seal this 3rd day of

21 January, 2008.

22

______________________________

23

Jacqueline L. Bellows, Notary

Public in and for the State

24

of Washington, residing at

Arlington. Commission

25

expires October 19, 2010.

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 8 of 53
Exhibit 25
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motion for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 9 of 53
00001

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

)

ALBERTO GONZALEZ, Attorney )

General of the United

)

States; et al.,

)

)

Defendant.

)

_____________________________)

Case No. 05-CV-093-EJL-MHW

DEPOSITION OF JOSEPH CLEARY TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO NOVEMBER 28, 2007, AT 10:00 A.M.

REPORTED BY:
PATRICIA L. PULLO, CSR Notary Public

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 10 of 53
00002

1

A P P E A R A N C E S

2 MR. LEE GELERNT, Attorney at Law, of the American Civil
3 Liberties Union Foundation, Immigrants' Rights Project, 125 Broad Street, 18th Floor, New York, New York,
4 10468, appearing for and on behalf of the Plaintiff;

5 MR. BRANT S. LEVINE and MR. J. MARCUS MEEKS, Attorneys
6 at Law, of the United States Department of Justice, Torts Branch, Civil Division, P.O. Box 7146, Ben
7 Franklin Station, Washington, D.C. 20044, appearing for and on behalf of the Federal Defendants.
8

9

ALSO PRESENT: Mr. Henry R. Felix

10

Ms. Sonia Kumar

Mr. Patrick Toomey

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 2
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 11 of 53
00005

1

THE DEPOSITION OF JOSEPH CLEARY, was taken

2 on behalf of the plaintiff on this 28th day of

3 November, 2007, at the offices of M & M Court Reporting

4 Service, Inc., 816 Sherman Avenue, Suite 7, Coeur

5 d'Alene, Idaho, before M & M Court Reporting Service,

6 Inc., by Patricia L. Pullo, Court Reporter and Notary

7 Public within and for the State of Idaho, to be used in

8 an action pending in the United States District Court,

9 for the District of Idaho, said cause being Case

10 No. 05-CV-093-EJL-MHW in said Court.

11

AND THEREUPON, the following testimony was

12 adduced, to wit:

13

JOSEPH CLEARY,

14 having been first duly sworn to tell the truth, the

15 whole truth, and nothing but the truth, relating to

16 said cause, deposes and says:

17

EXAMINATION

18 QUESTIONS BY MR. GELERNT:

19

Q. Good morning. Could you please state your

20 name for the record.

21

A. Joseph Cleary, C-l-e-a-r-y.

22

Q. I'm Lee Gelernt. I'm one of the lawyers for

23 the plaintiff. I'll be taking your deposition today.

24

You know you're not a defendant in this case?

25

A. Yes.

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 5
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 12 of 53
0000182

1 that had a case that that was used.

2

Q. Were you ever trained on the criteria for

3 seeking a material witness warrant?

4

A. Was I personally?

5

Q. Yes.

6

A. Not that I recall, no.

7

Q. Have you ever seen any policy, guidance or

8 memoranda about the criteria for an FBI agent seeking a

9 material witness warrant?

10

A. May have been. I don't recall seeing any.

11

Q. Okay.

12

A. But if I have, I don't want to misstate.

13

Q. You're just not sure?

14

A. I'm not sure.

15

Q. Okay. Did you know in March 2003 what the

16 criteria was for seeking a material witness warrant?

17

A. No.

18

Q. Do you now know?

19

A. Not really.

20

Q. Okay. When you were a state prosecutor, did

21 you ever seek a material witness warrant?

22

A. No.

23

Q. Do you know whose idea it was to seek a

24 material witness warrant for Mr. al-Kidd?

25

A. I don't know.

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 182
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 13 of 53
0000183

1

Q. Okay. Do you recall when you learned that

2 someone was going to seek -- the FBI was going to seek

3 a material witness warrant from Mr. al-Kidd?

4

A. I don't know specifically. I believe I heard

5 it from Mike.

6

Q. Okay.

7

A. Gneckow.

8

Q. And I assume it was prior to him actually

9 going to court to seek the warrant -- to seek the

10 arrest warrant?

11

MR. MEEKS: I'm just going to object, because

12 an FBI agent can't seek a material witness warrant.

13 Only a U.S. attorney can.

14

MR. GELERNT: Okay. That's fine. I'm fine

15 with counsel's objection. I was not using it in the

16 technical term. So I can -- we can just get on the

17 same page one time, and I think we can probably talk

18 more loosely.

19 BY MR. GELERNT:

20

Q. The U.S. attorney is seeking a material

21 witness warrant.

22

A. Right.

23

Q. Are you aware that in this case a material

24 witness warrant was sought for Mr. al-Kidd's arrest?

25

A. Yes.

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 183
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 14 of 53
0000184

1

Q. Are you aware that Agent Gneckow provided an

2 affidavit in support of the application for an arrest

3 warrant?

4

A. Yes.

5

Q. You said you weren't sure when you learned

6 that an arrest warrant -- material witness arrest

7 warrant was going to be sought for Mr. al-Kidd; is that

8 correct?

9

A. Yeah -- yes.

10

Q. But you believe you learned of it from Agent

11 Gneckow?

12

A. Right.

13

Q. And he informed you that that was going to

14 happen?

15

A. Yes.

16

Q. Okay. Do you recall whether it was the day

17 before the warrant was sought in court, two days

18 before, three days before?

19

A. I don't know. I can't recall when.

20

Q. Is it possible that it was more than a week

21 before?

22

A. I don't know when it was. I hate to

23 speculate on when.

24

Q. Okay. Did you ever see a draft of Agent

25 Gneckow's affidavit in support of the material witness

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 184
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 15 of 53
0000190

1

Q. Okay. When is the first time you learned

2 about the ticket?

3

A. First time I learned about the ticket?

4

I don't -- I believe Alvarez called me. I'm

5 trying to remember. This is the best of my

6 recollection. I believe Alvarez called me with

7 information about al-Kidd and departure.

8

Q. To Saudi Arabia?

9

A. Yeah.

10

Q. Is that prior to your conversation with Agent

11 Gneckow about the material witness warrant?

12

A. I believe so. It's my recollection I told

13 him to call Mike or get in touch with Mike.

14

Q. Why did you tell him to do that?

15

A. I don't know. Maybe it was after the

16 material witness warrant. I'm not sure.

17

Yeah. All I -- I told -- I think -- I

18 remember telling Rob call Gneckow.

19

Q. So you didn't have a view on -- it wasn't

20 your idea to seek a material witness warrant?

21

A. No.

22

Q. Did you ask Agent Alvarez any questions about

23 the ticket?

24

A. Did I ask him questions? I may have. Or he

25 told me.

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 190
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 16 of 53
0000221

1

REPORTER'S CERTIFICATE

2

I, Patricia L. Pullo, Certified Shorthand

3 Reporter, do hereby certify:

4

That the foregoing proceedings were taken

5 before me at the time and place therein set forth, at

6 which time any witnesses were placed under oath;

7

That the testimony and all objections made

8 were recorded stenographically by me and were

9 thereafter transcribed by me or under my direction;

10

That the foregoing is a true and correct

11 record of all testimony given, to the best of my

12 ability;

13

That I am not a relative or employee of any

14 attorney or of any of the parties, nor am I financially

15 interested in the action.

16

IN WITNESS WHEREOF, I have hereunto set my

17 hand and seal this 10th day of December, 2007.

18

19

20

__________________________________

PATRICIA L. PULLO, C.S.R. #697

21

Notary Public

816 Sherman Avenue, Suite 7

22

Coeur d'Alene, ID 83814

23 My Commission Expires 11/13/2012.

24

25

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 221
CLEARY , JOSEPH

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 17 of 53
Exhibit 26
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motion for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 18 of 53 Egon Dezihan, 12/14/2007

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

______________________________________________________________

)

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

No. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney

)

)

General of the United States, )

)

et al.,

)

)

Defendants.

)

______________________________________________________________

DEPOSITION UPON ORAL EXAMINATION
OF
EGON DEZIHAN ______________________________________________________________

9:54 a.m. December 14, 2007
100 South King Street 360 Seattle, Washington 98104

JACQUELINE L. BELLOWS CCR 2297

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 19 of 53 Egon Dezihan, 12/14/2007

1 2 3 For the Plaintiff: 4 5 6 7 8 For the Defendants: 9 10 11 12 13 14 15 16 17 Court Reporter: 18 19 20 21 22 23 24 25

APPEARANCES

Page 4

ROBIN GOLDFADEN American Civil Liberties Union
Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111

BRANT S. LEVINE U.S. Department of Justice Constitutional & Specialized Torts P.O. Box 7146 Washington, D.C. 20044
HENRY R. FELIX Federal Bureau of Investigation Assistant General Counsel 935 Pennsylvania Avenue NW, PA-400 Washington, D.C. 2054535
JACQUELINE L. BELLOWS VAN PELT, CORBETT, BELLOWS 100 South King Street, Ste. 360 Seattle, WA 98104
* * * * * * * * * *

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 20 of 53 Egon Dezihan, 12/14/2007

Page 5

1

2 EGON DEZIHAN,

having been first duly sworn

3

by the Notary Public, appeared

4

and testified as follows:

5

6

E X A M I N A T I O N

7 BY MS. GOLDFADEN:

8 Q Good morning. I'm Robin Goldfaden. I'm one of the

9

attorneys for the plaintiff in this case, and I'll be taking

10

your deposition today. Have you been deposed before?

11 A No.

12 Q Well, the basic ground rules are: I'll be asking you

13

questions, and you'll be giving me answers. Your attorney

14

may object from time to time. And unless you're instructed

15

not to answer, you can still answer the question even if

16

there's an objection. If you don't understand something I'm

17

asking you, please let me know; and I'll try to rephrase it.

18

The court reporter is going to be taking down

19

everything that we say while we're on the record. So it's

20

important that you give verbal answers as opposed to nods

21

and gestures. And it's important that we try not to speak

22

over each other.

23

Do you understand everything I've said so far?

24 A Yes.

25 Q If there's anything that you want to correct that you

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 21 of 53 Egon Dezihan, 12/14/2007

Page 110

1 Q Of?

2 A Mr. Al-Hussayen.

3 Q Was there one of Mr. Al-Kidd?

4 A "One" what?

5 Q Criminal investigation.

6 A No.

7 Q Was he at any time part of the criminal investigation of

8

Mr. Al-Hussayen?

9 A I believe his name may have been in the title of the

10

document. That doesn't mean that he's the subject of the

11

investigation. He's just related to the investigation.

12 Q But he would be investigated in some manner through that

13

investigation, correct?

14

MR. LEVINE: Objection, vague. And assumes facts

15

not in evidence.

16 A Can you give me more of a basis? I mean I'm not quite sure

17

how to answer that question for you.

18 Q (By Ms. Goldfaden) If Mr. Al-Kidd's name was appearing in

19

the title documents that were coming out of the

20

investigation of Mr. Al-Hussayen, did you consider that part

21

of the subject matter of this deposition?

22 A I would consider it within the context of the overall

23

investigation.

24 Q So is it something that you looked into prior to the

25

deposition or had knowledge of prior to this deposition?

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 22 of 53 Egon Dezihan, 12/14/2007

Page 251

1

C E R T I F I C A T E

2 STATE OF WASHINGTON )

) SS

3 COUNTY OF KING

)

4

I, Jacqueline L. Bellows, a Notary Public in and for

5 the State of Washington, do hereby certify:

6

That the foregoing deposition was taken before me at

7 the time and place therein set forth;

8

That the witness was by me first duly sworn to

9 testify to the truth, the whole truth, and nothing but the

10

truth; and that the testimony of the witness and all

11

objections made at the time of the examination were recorded

12

stenographically by me, and thereafter transcribed under my

13

direction;

14

That the foregoing transcript is a true record of

15 the testimony given by the witness and of all objections made at

16

the time of the examination, to the best of my ability.

17

I further certify that I am in no way related to any

18 party to this matter nor to any of counsel, nor do I have any

19

interest in the matter.

20

Witness my hand and seal this 3rd day of

21 January, 2008.

22

______________________________

23

Jacqueline L. Bellows, Notary

Public in and for the State

24

of Washington, residing at

Arlington. Commission

25

expires October 19, 2010.

Van Pelt, Corbett, Bellows 206-682-9339

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 23 of 53
Exhibit 27
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motion for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 24 of 53
00001

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLA AL-KIDD,

)

)

Plaintiff,

)

)

vs.

) NO. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney )

General of the United States; )

et al.,

)

)

Defendant.

)

DEPOSITION OF MICHAEL J. GNECKOW TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO DECEMBER 1, 2007, AT 9:00 A.M.

REPORTED BY: Charlotte R. Crouch, CSR NO. 192 Notary Public

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 25 of 53
00002

1 A P P E A R A N C E S
2

3

Mr. Lee Gelernt, Attorney at Law, American

Civil Liberities Union Foundation, 125 Broad Street,

4 18th Floor, New York, N.Y. 10468, appearing for and on

behalf of the Plaintiff.

5

6

Mr. J. Marcus Meeks, Attorney at Law, U.S.

Department of Justice, Civil Division, Ben Franklin

7 Station, P. O. Box 7146, Washington, DC 20004

appearing for and on behalf of Defendant.

8

9

Mr. Henry R. Felix, Attorney at Law,

Federal Bureau of Investigation, Assistant General

10 Counsel, 935 Pennsylvania Avenue N.W., PA-400,

Washington, DC 20535, appearing for and on behalf of

11 the Defendant.

12 Mr. Brant S. Levine, Attorney at Law,
13 United States Department of Justice, Civil Division 1425 New York Avenue N.W., P. O. Box 7146, Washington,
14 DC 20005, appearing for and on behalf of the Defendant.
15

16 ALSO PRESENT: Ms. Alicyn Cooley, and Mr. Zac Hudson, assisting Mr. Gelernt.
17

18

19

20

21

22

23

24

25

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GNECKOW, MICHAEL J.

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1

THE DEPOSITION OF MICHAEL J. GNECKOW, was

2

taken on behalf of the Plaintiff, on this 1st day of

3

December 2007, at The Coeur d'Alene Resort, 115 S.

4

Second Street, 7th Floor, Boardroom No. 4,

5

Coeur d'Alene, Idaho, before M & M Court Reporting

6

Service, Inc., by Charlotte R. Crouch, Court Reporter

7

and Notary Public within and for the State of Idaho,

8

to be used in an action pending in the United States

9

District Court for the District of Idaho, said cause

10

being Case No. 05-cv-093-EJL-MHW in said Court.

11

AND THEREUPON, the following testimony was

12

adduced, to wit:

13

MICHAEL J. GNECKOW,

14

having been first duly sworn to tell the truth, the

15

whole truth, and nothing but the truth, relating to

16

said cause, deposes and says:

17

EXAMINATION

18

BY MR. GELERNT:

19

Q. Good morning. Would you state your name

20

for the record?

21

A. Michael James Gneckow. Last name spelled

22

G-N-E-C-K-O-W.

23

Q. Thanks. My name is Lee Gelernt. I'm one

24

of the lawyers for the Plaintiff in this case. I'm

25

going to be asking you questions.

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1

subject -- of a criminal investigation if their name

2

appears in the subject block. Now, a subject block

3

in a criminal investigation could have dozen of names.

4

Q. Let me stop you for one second. By

5

"subject block," do you mean title block?

6

A. Title block. Title block, subject block.

7

Those are interchangeable.

8

Q. Sorry. I didn't mean to interrupt.

9

A. So, and like I said before, a criminal

10

investigation is initiated because we have allegations

11

of criminal activity. And so when the allegations

12

are presented to the FBI, the first order of business

13

is trying to find out if there is any substance to the

14

allegations, and if there is apparently substance to

15

the allegations, who might be our possible

16

perpetrators. And so, people are identified, and it's

17

the purpose of the investigation to determine are

18

these people involved in these allegations. And so,

19

someone can be the subject of an investigation, and

20

yet never ever reach the point of being the focal

21

point as they would say in the intelligence

22

investigation.

23

Q. And so then if they're in the subject block

24

or the title block -- I think you said you can use

25

those interchangeably?

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000036

1

A. Yes.

2

Q. If they're in there, then they're being

3

looked at as a possible perpetrator of criminal

4

activity?

5

A. It depends. It's kind of subjective.

6

Q. Well, when you write -- strike that.

7

Would there be ECs for a criminal

8

investigation?

9

A. Yes.

10

Q. When you would write an EC, who would you

11

put in the title block?

12

A. Again, it depends.

13

Q. Okay.

14

A. If a person were to call the FBI and say

15

John Smith robbed the bank on First Street, John

16

Smith's name appears in the title block. If someone

17

were to call us with information that there are

18

suspicious activities at this dam where I saw five

19

people carrying video cameras, well, we don't know who

20

those people are. But, if through investigation

21

we can identify twenty people who were at the dam

22

during this particular time period, those twenty

23

people could appear in that title block, and as we

24

conduct our investigation we look at these people and

25

see if any of these people perhaps were our suspicious

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000037

1

person out there.

2

Q. So you might rule out people as the

3

investigation went on of those twenty people in your

4

example?

5

A. Correct. And it would be fair to say that

6

those twenty people are possible subjects. But the

7

investigation -- during the course of the

8

investigation you would figure out if any of them are,

9

and you may discover that none of them are. So you

10

could have all those people identified in the title

11

block or the subject block when in fact none of them

12

are really the subjects of that activity.

13

Q. So, is it fair to say you'd be listing

14

suspects, but you might ultimately rule some or all of

15

them out?

16

A. Yes. That's correct.

17

MR. MEEKS: Objection to the extent you're

18

using the term suspect and we've been using the term

19

subject.

20

MR. GELERNT: Well --

21

MR. MEEKS: I think his testimony speaks

22

for itself. I don't want you to mischaracterize it.

23

BY MR. GELERNT:

24

Q. So, in your example, all twenty of those

25

people would be investigated for potential criminal

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000085

1

Q. Just for the record, this is US 2724 to

2

US 2731.

3

Now, here in the Case ID there's actually

4

typed 265C-SU-55418?

5

A. Yes.

6

Q. That suggests that there was actually a

7

case open by the Salt Lake City office, a criminal

8

case in relation to Mr. Al-Hussayen?

9

A. Correct.

10

Q. And his name appears in the title, and

11

Mr. Al-Kidd's name appears in the title. And the

12

synopsis says, "Addition of Abdulla Al-Kidd, aka

13

Lavoni T. Kidd, to list of subjects." Do you recall

14

why he was put in -- strike that.

15

Do you recall why Mr. Al-Kidd was put into

16

the title at this point?

17

A. I mean it was common practice for us to --

18

for me to identify Al-Hussayen's associates in that

19

title block, in that subject block.

20

Q. And would it have been based on the money

21

transfers?

22

A. Yes.

23

Q. Any other reason that you can recall?

24

A. I would -- not that I recall. Not at this

25

time.

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1

"Caution, known radical Islamic extremist" wouldn't

2

necessarily provide a law enforcement official with

3

concern on reading that?")

4

MR. MEEKS: My objection is noted, I

5

believe.

6

THE WITNESS: Again, you'd have to put

7

yourself -- you'd have to ask each individual law

8

enforcement officer how they would interpret this. I

9

can't answer for everybody.

10

MR. GELERNT: We'll mark this as

11

Plaintiff's 17.

12

(Deposition Exhibit Number 17 was marked

13

for identification.)

14

BY MR. GELERNT:

15

Q. For the record, this is US 1580 to 1583.

16

Have you ever seen this document before?

17

A. I don't think I've seen this, no.

18

Q. Do you know if it was ever submitted to a

19

court?

20

A. I'm fairly certain that there was never a

21

search warrant for that lap top; fairly certain.

22

Q. Would you have been advised if there was a

23

search warrant and material was uncovered?

24

A. I suspect that I would have been, yes.

25

Q. Paragraph 16, on Page -- well, it's US

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0000125

1

1583, it says, "I believe the foregoing information

2

establishes probably cause" -- I think that a typo --

3

"probably cause that the black IBM ThinkPad laptop

4

computer," and then it goes on for awhile and says,

5

"probably contains evidence relevant to the ongoing

6

investigation of Al-Hussayen for violations of Title

7

18, Section 1001, False Statements, Title 18, Section

8

1546, Visa Fraud, as well as evidence in support of

9

Title 18, Section 2339(A) and/or (B), Providing

10

material Support Terrorism, as to both Al-Hussayen and

11

Al-Kidd."

12

Was Mr. Al-Kidd under investigation for

13

material support violations?

14

A. Not in my case, he wasn't.

15

Q. In some other case, was he?

16

A. I don't know.

17

Q. Were you aware that when Mr. Al-Kidd was

18

arrested on March 16, 2003 the FBI seized certain

19

property of his?

20

A. Yes. I was aware of that.

21

Q. Did you -- were you of the opinion that the

22

evidence seized from him probably contains evidence

23

relevant to bring the material support charges against

24

Al-Kidd?

25

MR. MEEKS: Objection; foundation.

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0000126

1

THE WITNESS: I don't know. I didn't

2

specifically review the information, so I don't know.

3

BY MR. GELERNT:

4

Q. Was Agent Cleary working on the criminal

5

investigation of Al-Hussayen?

6

A. Not specifically, but there was a lot of

7

bleed-over. There's overlap.

8

Q. Why would he have been doing the search

9

warrant affidavit for the criminal case? If you could

10

take a look at that -- I mean if you want to look at

11

the last Plaintiff's exhibit, it's a draft of an

12

affidavit; is that correct?

13

MR. MEEKS: Objection; foundation.

14

BY MR. GELERNT:

15

Q. Does it appear to be a draft of an

16

affidavit?

17

A. It's obviously a draft because there are

18

spaces. There are blanks in here.

19

Q. And there's no signature?

20

A. Right.

21

Q. Whose name is at the bottom?

22

A. It's Joe Cleary's.

23

Q. Would that have been uncommon for him to

24

have be providing the search warrant affidavit in a

25

criminal matter?

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0000127

1

A. You know, it's difficult to say. I mean if

2

we were in the throws of trial prep in the Al-Hussayen

3

matter, I would have been busy doing other things. So

4

it's entire I possible that he may have done something

5

like this, but I mean it was never -- nothing ever

6

came out of this. It was just a draft, so I don't

7

know what the purpose of it is.

8

Q. Would he have drafted it without your

9

input?

10

A. Well, I've never seen this document.

11

Q. Do you recall that he was thinking about

12

possibly submitting an affidavit in support of a

13

search warrant?

14

A. I do recall that there were conversations

15

about that, but I don't know where that ever led,

16

other than I know that was never a warrant obtained.

17

MR. MEEKS: Are you okay? It's 12:30.

18

(A discussion off the record.

19

(A lunch recess was taken.)

20

BY MR. GELERNT:

21

Q. In March of 2003, did you still have some

22

lingering suspicion about whether Mr. Al-Kidd was

23

involved in criminal activity?

24

A. No, I don't think so. I mean in March of

25

2003 we had arrested Sami Al-Hussayen, and the

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0000128

1

investigation was all about him. I mean and for a

2

period of -- a long period of time up to that even.

3

Q. Prior to March 14, 2003, had you ever

4

received any training on how to use material witness

5

law?

6

A. No.

7

Q. How about subsequent to that?

8

A. I don't think so.

9

Q. No training on how to seek a material

10

witness warrant?

11

A. No.

12

Q. Under what circumstances to seek one?

13

A. No.

14

Q. Do you know the standard for obtaining a

15

material witness warrant?

16

A. No, I don't. I mean --

17

Q. Did you know in March of -- did you know on

18

March 14, 2003 what the standard was?

19

A. No.

20

Q. Other than in the Al-Kidd matter, had you

21

ever sought a material witness warrant?

22

A. No.

23

Q. Subsequent to the Al-Kidd matter, have you?

24

A. No.

25

Q. Were you the one who made the decision to

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0000216

1

and overseas, things thing like that.

2

BY MR. GELERNT:

3

Q. When you say the Idaho investigation was

4

significant, which indictments came out of that?

5

Al-Hussayen?

6

A. Al-Hussayen. However, he was connected to

7

other investigations.

8

Q. Outside of Idaho?

9

A. Correct.

10

Q. And were the ones outside of Idaho all

11

referred to as the Idaho Probe, all encompassed within

12

the words Idaho probe?

13

A. I wouldn't refer to it in that way, but

14

I've heard others refer to it in that way.

15

Q. If someone were going to Saudi Arabia who

16

was an individual whom the FBI wished to have testify

17

in a criminal matter, would that alone be sufficient

18

to arrest them on a material witness warrant?

19

MR. MEEKS: Objection; speculation.

20

THE WITNESS: It depends on the

21

circumstances.

22

BY MR. GELERNT:

23

Q. Meaning?

24

A. Meaning that a businessman cooperating in

25

an investigation who plans to travel to Saudi Arabia

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0000217

1

on a business trip and return a week later, that does

2

not concern me. An uncooperative witness who is

3

leaving the country with no apparent return date on

4

the eve of trial, that concerns me.

5

Q. On the Idaho Probe, how many people were

6

convicted?

7

A. I don't use the Idaho Probe, so can you

8

tell me what it is that you're referring to?

9

Q. If you want to look at the Mueller

10

testimony, does he use that phrase?

11

A. Something like that. The Idaho Probe.

12

Q. Do you know who he's referring to?

13

A. I would have to speculate.

14

Q. Okay. Presumably Al-Hussayen?

15

A. Certainly Al-Hussayen.

16

Q. But beyond that, you'd have to speculate?

17

A. Right.

18

Q. You said earlier that you had only -- the

19

only material witness warrant you've been involved

20

with was the one in the Al-Kidd matter?

21

A. That's correct.

22

Q. I gather from your affidavit -- strike

23

that.

24

I gather from the Mace affidavit, which you

25

supplied facts, that you've gotten search warrants in

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GNECKOW, MICHAEL J.

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0000222

1

REPORTER'S CERTIFICATE

I, CHARLOTTE R. CROUCH, Certified Shorthand

2

Reporter, do hereby certify:

That the foregoing proceedings were taken before

3

me at the time and place therein set forth, at which

time any witnesses were placed under oath;

4

That the testimony and all objections made

were recorded stenographically by me and were

5

thereafter transcribed by me or under my direction;

That the foregoing is a true and correct

6

record of all testimony given, to the best of my

ability;

7

That I am not a relative or employee of any

attorney or of any of the parties, nor am I

8

financially interested in the action.

IN WITNESS WHEREOF, I have hereunto set my

9

hand and seal this 10th day of December,

2007.

10

_________________________________

11

CHARLOTTE R. CROUCH, C.S.R. #192

Notary Public

12

816 Sherman Ave., Suite 7

Coeur d'Alene, ID 83814

13

14

My Commission Expires January 18, 2013.

15

16

17

18

19

20

21

22

23

24

25

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GNECKOW, MICHAEL J.

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Exhibit 28
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motion for Summary Judgment

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 40 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

)

ALBERTO GONZALES, Attorney

)

General of the United States; )

et al.,

)

)

Defendants.

)

_______________________________)

Case No. 05-CV-093-EJL-MHW

DEPOSITION OF SCOTT MACE TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO NOVEMBER 29, 2007, AT 9:30 A.M.

REPORTED BY:
PATRICIA L. PULLO, CSR Notary Public

Case 1:05-cv-00093-EJL-CWD Document 322-2 Filed 02/06/12 Page 41 of 53

1

A P P E A R A N C E S

2 MR. LEE GELERNT, Attorney at Law, of the American Civil
3 Liberties Union Foundation, Immigrants' Rights Project, 125 Broad Street, 18th Floor, New York, New York 10468,
4 appearing for and on behalf of the Plaintiff;

5 MR. BRANT S. LEVINE and MR. J. MARCUS MEEKS, Attorneys
6 at Law, of the United States Department of Justice, Torts Branch, Civil Division, P.O. Box 7146, Ben
7 Franklin Station, Washington, D.C., 20044 appearing for and on behalf of the Federal Defendants.
8

9 ALSO PRESENT: Mr. Henry R. Felix

Ms. Sonia Kumar

10

Mr. Patrick Toomey

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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MACE, SCOTT

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1

THE DEPOSITION OF SCOTT MACE, was taken on

2 behalf of the plaintiff on this 29th day of November,

3 2007, at The Coeur d'Alene Resort, 115 South Second

4 Street, Coeur d'Alene, Idaho, before M & M Court

5 Reporting Service, Inc., by Patricia L. Pullo, Court

6 Reporter and Notary Public within and for the State of

7 Idaho, to be used in an action pending in the United

8 States District Court for the District Idaho, said cause

9 being Case No. 05-CV-093-EJL-MHW in said Court.

10

AND THEREUPON, the following testimony was

11 adduced, to wit:

12

SCOTT MACE,

13 having been first duly sworn to tell the truth, the

14 whole truth, and nothing but the truth, relating to said

15 cause, deposes and says:

16

EXAMINATION

17 QUESTIONS BY MR. GELERNT:

18

Q. Can you state your name for the record.

19

A. Scott Mace.

20

Q. My name is Lee Gelernt, and I'm one of the

21 attorneys for the plaintiff in this case. Have you ever

22 had your deposition taken before?

23

A. In this matter?

24

Q. In any matter.

25

A. Yes.

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1 would say because I didn't deal with that kind of thing.

2

Q. Okay. Can you tell whether -- I'm sorry. Is

3 this an E.C. --

4

A. Yes.

5

Q. -- Plaintiff's 4?

6

A. Yes, sir.

7

MR. GELERNT: Just for the record, this is

8 U.S. 2803 to 2807.

9 BY MR. GELERNT:

10

Q. Is this an E.C.?

11

A. Yes, sir.

12

Q. Okay. Are there multiple people in the title?

13

A. I see two.

14

Q. Al-Hussayen and al-Kidd; is that correct?

15

A. Yes, sir.

16

Q. Can you tell whether this is a criminal

17 investigation?

18

A. No. I can make assumptions, but ...

19

Q. What are those assumptions?

20

A. I see that it's got the caveat "grand jury

21 material," which would lead me to believe it's probably

22 a criminal investigation or else they wouldn't be using

23 a grand jury.

24

Q. And does that mean that everybody, therefore,

25 in the subject -- I mean in the title would be the

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1 subject of a criminal investigation?

2

MR. MEEKS: Objection, vague, calls for

3 speculation.

4

THE WITNESS: My understanding of the way that

5 I structured the titles of my cases was that people in

6 the title -- well, generally in the FBI we have two

7 categories of people that are involved in an

8 investigation, main subjects and references. And I

9 don't believe it would be impossible for a reference to

10 make their way into the title.

11

Q. And what is a reference?

12

A. It's someone that's not a main subject, so

13 someone that's not the main target of the investigation.

14

Q. But they would still be a subject?

15

MR. MEEKS: Objection, vague.

16

THE WITNESS: I don't believe so.

17

Generally, a reference would be more like a

18 witness or something like that and I don't believe would

19 make -- normally would make their way into the title.

20 But, again, the title in protocol -- you know, I know

21 the way that I did it. But I don't know how well

22 defined that protocol really is or how it's followed in

23 different offices.

24 BY MR. GELERNT:

25

Q. So you would not put anybody who was not a

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1

REPORTER'S CERTIFICATE

2

I, Patricia L. Pullo, Certified Shorthand

3 Reporter, do hereby certify:

4

That the foregoing proceedings were taken

5 before me at the time and place therein set forth, at

6 which time any witnesses were placed under oath;

7

That the testimony and all objections made

8 were recorded stenographically by me and were thereafter

9 transcribed by me or under my direction;

10

That the foregoing is a true and correct

11 record of all testimony given, to the best of my

12 ability;

13

That I am not a relative or employee of any

14 attorney or of any of the parties, nor am I financially

15 interested in the action.

16

IN WITNESS WHEREOF, I have hereunto set my

17 hand and seal this 10th day of December, 2007.

18

19

20

__________________________________

PATRICIA L. PULLO, C.S.R. #697

21

Notary Public

816 Sherman Avenue, Suite 7

22

Coeur d'Alene, ID 83814

23 My Commission Expires 11/13/2012.

24

25

M & M Court Reporting Service, Inc. 1-800-879-1700

Page 95
MACE, SCOTT

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Exhibit 29
al-Kidd v. Gonzales, et al., No. 1:05-cv-093-EJL Federal Defendants’ Motion for Summary Judgment

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 Case 1:05-cv-00093-EJL-MHW Document 310 Filed 12/21/11 Page 1 of 4
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST INDIVIDUAL FEDERAL DEFENDANTS

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Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff Abdullah al-Kidd respectfully moves for summary judgment against Defendants Michael Gneckow and Scott Mace. The motion is based on Plaintiff’s Memorandum of Law, Statement of Undisputed Material Facts, and accompanying exhibits, filed in conjunction with this motion. Plaintiff is also opposing the United States’ Motion for Summary Judgment, and is filing a separate Statement of Facts and exhibits in opposition to the United States’ Motion.

Dated: December 21, 2011

_/s/_____________________________ Lee Gelernt

1

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MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

2

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21 day of December, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-MHW Document 310-1 Filed 12/21/11 Page 1 of 31
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO INDIVIDUAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSSMOTION FOR SUMMARY JUDGMENT

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Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Case 1:05-cv-00093-EJL-MHW Document 310-1 Filed 12/21/11 Page 3 of 31
TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................. ii INTRODUCTION....................................................................................................................1 STATEMENT ..........................................................................................................................1
I. FACTUAL BACKGROUND..........................................................................................1 A. Mr. al-Kidd’s Arrest And Detention....................................................................1 B. The Material Witness Warrant. ...........................................................................3
II. PROCEDURAL HISTORY ........................................................................................5 ARGUMENT ............................................................................................................................6
I. THE AFFIDAVIT WAS FACIALLY AND PATENTLY DEFICIENT AND AGENTS GNECKOW AND MACE ARE THEREFORE NOT ENTITLED TO IMMUNITY UNDER MALLEY....................................................................................8 A. The Affidavit Did Not Remotely Establish Impracticability. ............................8 B. The Affidavit Also Did Not Remotely Establish Materiality. ..........................12
II. DEFENDANTS MACE AND GNECKOW ARE ALSO LIABLE UNDER THE FRANKS TEST BECAUSE A CORRECTED AFFIADVIT DOES NOT ESTABLISH PROBABLE CAUSE. ...........................................................................16 A. The Corrected Affidavit Does Not Establish Impracticability. .......................17 Omissions ....................................................................................................................17 False Statements.........................................................................................................23 B. The Corrected Affidavit Does Not Establish Materiality. ...............................25
CONCLUSION ......................................................................................................................26
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TABLE OF AUTHORITIES Cases al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), pet’n for reh’g denied,
598 F.3d 1129 (9th Cir. 2010) .................................................................................. 5, 14 al-Kidd v. Sugrue, No. CIV-06-1133-R, 2007 WL 2446750
(W.D. Okla. Aug. 23, 2007) ........................................................................................... 2 Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) .......................................... passim Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) ............................................................. 5, 6, 14 Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) ............................................... passim Chism v. Washington State, 655 F.3d 1106 (9th Cir. 2011) ............................................... 7 Franks v. Delaware, 438 U.S. 154 (1978) .......................................................................... 7 Greenstreet v. County of San Bernadino, 41 F.3d 1306 (9th Cir. 1994) ............................ 7 Malley v. Briggs, 475 U.S. 335 (1986) ........................................................................... 7, 8 Mayfield v. Gonzales, 2005 WL 1801679 (D. Or. July 28, 2005) .................................... 10 Perkins v. Click, 148 F. Supp. 2d 1177 (D.N.M. 2001).................................................... 10 See Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010) (en banc),
cert. granted, 131 S. Ct. 2057 (2011) ........................................................................... 19 United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003) ............................................ 19, 20 United States v. Stanert, 762 F.2d 775 (9th Cir. 1985)..................................................... 16 Statutes 18 U.S.C. § 3144................................................................................................................. 8 Other Authorities DOJ, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 2003,
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs03.pdf.................................. 15
ii

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INTRODUCTION
There are three defendants before the Court in these summary judgment proceedings: the United States and FBI agents Gneckow and Mace. This brief is submitted (a) in support of Plaintiff’s motion for summary judgment against agents Gneckow and Mace, and (b) in opposition to their motion for summary judgment. In conjunction with the brief, Plaintiff has also filed two statements of undisputed material facts, one in support of the motion and the other in opposition to Defendants’ motion for summary judgment. The claims against the United States are addressed in a separate motion and memorandum.
STATEMENT I. FACTUAL BACKGROUND
A. Mr. al-Kidd’s Arrest And Detention. Plaintiff Abdullah al-Kidd is a 39-year-old African-American man born in 1972 in Wichita, Kansas. His mother, father, sister, and two children are U.S. citizens. Mr. alKidd graduated from the University of Idaho, where he played on the football team. While he was attending college, he changed his name from Lavoni T. Kidd to Abdullah al-Kidd, and converted to Islam. Pl. Facts ¶¶ 1, 2. Following September 11, 2001, the government began a terrorism investigation in Idaho. As part of this investigation, the Federal Bureau of Investigation (FBI) conducted surveillance of Mr. al-Kidd and his then-wife (also a native-born U.S. citizen). The surveillance logs from that investigation indicated no illegal activity, and indeed, Mr. alKidd was never charged with a crime. Pl. Facts ¶ 3. In addition, on multiple occasions,
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the FBI asked to meet with Mr. al-Kidd. Mr. al-Kidd met with the FBI and answered questions at length. At no time did he fail to appear for one of these requested meetings. Pl. Facts ¶ 8.
In February 2003, Mr. al-Kidd was preparing to travel to Saudi Arabia to further his language and religious studies on a scholarship at a university. Pl. Facts ¶ 13. On March 16, 2003, while checking in for his flight at Dulles Airport in Virginia, Mr. alKidd was arrested by agents of the FBI on a material witness warrant issued in Idaho in the case of Sami Al-Hussayen, who previously had been indicted by an Idaho grand jury for visa fraud and making false statements to the government.1 Pl. Facts ¶ 14, 24.
The agents brought Mr. al-Kidd to a police station in the airport and interrogated him, without counsel, on a variety of topics, including Mr. al-Kidd’s own religious beliefs, opinions on various Islamic organizations, and past travels. Pl. Facts ¶ 15. They never offered him the opportunity to postpone his flight, surrender his passport, or otherwise ensure his availability for the Al-Hussayen trial in lieu of arrest.
Mr. al-Kidd spent the next 15 nights in jails in Virginia, Oklahoma and Idaho, under severe conditions. In at least one facility he was placed in a high-security wing of the jail. In two of the three facilities, he was humiliatingly strip-searched. Pl. Facts ¶¶ 18-20. See also al-Kidd v. Sugrue, No. CIV-06-1133-R, 2007 WL 2446750, at *8 (W.D. Okla. Aug. 23, 2007) (holding that Mr. al-Kidd’s clearly established Fourth Amendment rights were violated because warden “could not have reasonably believed in 2003” that
1 The jury was unable to reach a verdict on these counts. Al-Hussayen was also ultimately charged with providing material support to terrorism but was acquitted on those more serious counts. Pl. Facts ¶ 46.
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strip-searches and body cavity inspections of “a material witness detainee such as the Plaintiff did not violate the law”).
When transferred between facilities, Mr. al-Kidd was treated as if he were a dangerous terrorist, and not a witness. Among other things, he was routinely placed in full shackles: his feet were chained together and his hands were cuffed to a belly chain that prevented any movement of his arms. Pl. Facts ¶ 18.
Mr. al-Kidd was eventually released from detention under strict conditions. He was limited to a four-state area, required to live with his in-laws, and to report regularly to the government. Pl. Facts ¶ 22. More than fourteen months later, the trial for which Mr. al-Kidd’s testimony was supposedly needed ended without conviction on a single count. Mr. al-Kidd was never called as a witness. Even when the trial concluded, the government did not immediately move to vacate the conditions of supervision, forcing Mr. al-Kidd to file a motion with the court in Idaho. Pl. Facts ¶¶ 44, 46, 47.
B. The Material Witness Warrant. The affidavit submitted in support of the material witness warrant stated that Mr. al-Kidd was “scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003 . . . .” These statements were false. Mr. al-Kidd had a round-trip ticket, and not a one-way ticket as alleged in the affidavit. Furthermore, Mr. al-Kidd did not have a first-class ticket costing approximately $5,000, as alleged, but rather a coach-class ticket costing approximately $1,700. Pl. Facts ¶ 25. In addition to the false statements, the affidavit also failed to inform the magistrate of numerous facts, including that: Mr. al-Kidd was not a Saudi national
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returning to his home country, but rather a native-born citizen with significant ties to the United States and Idaho (including that his family members were U.S. citizens living in this country and that he had attended the University of Idaho); Mr. al-Kidd had voluntarily talked with the FBI on multiple occasions prior to his arrest and had never failed to show up to these pre-arranged meetings; prior to his arrest, Mr. al-Kidd had not heard from the FBI for more than eight months; the FBI had never told Mr. al-Kidd that he might be needed as a witness, that he could not travel abroad, or even that he should inform the FBI if he did intend to travel abroad; and finally, that Mr. al-Kidd was never asked if he would be willing to testify, to relinquish his passport, or to otherwise postpone his trip to Saudi Arabia. Pl. Facts ¶ 31.
Tellingly, the affidavit also did not state that the government had attempted to locate Mr. al-Kidd prior to seeking the arrest warrant. Indeed, the affidavit nowhere stated that the government had made any effort to determine whether some action short of an arrest might be practicable. Pl. Facts ¶¶ 31. In this regard, it is notable that another witness in the Al-Hussayen case was permitted simply to relinquish his passport and postpone his trip to Saudi Arabia. That witness, moreover, was not a U.S. citizen like Mr. al-Kidd, but a Saudi national returning home. Pl. Facts ¶ 45.
The warrant application also perplexingly stated that Mr. al-Kidd had information critical for the defense. Yet the application was submitted ex parte by the government, without any suggestion that the government had consulted with defense counsel in making that unusual representation.
In short, the FBI simply blindsided a cooperative U.S. citizen eight months after it had last contacted him, without ever affording him the opportunity to testify voluntarily
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or comply with a subpoena—all based on the assertion that his testimony was “crucial” for a trial at which he was never called to testify.
II. PROCEDURAL HISTORY Defendants Mace, Gneckow and former Attorney General John Ashcroft filed a
joint motion to dismiss, which this Court denied in 2006. Mem. Order 23 (Dkt. No. 79). The Court held that Plaintiff’s complaint had stated claims on two principal grounds: (1) that Mr. al-Kidd’s arrest violated the Fourth Amendment because the materiality and impracticability prongs of the material witness statute were not satisfied, and (2) that Mr. al-Kidd’s arrest violated the Fourth Amendment even if the materiality and impracticability prongs of the statute were satisfied, because the subjective purpose of the arrest was to preventively detain Mr. al-Kidd, not to obtain his testimony. The agents did not appeal the Court’s ruling on the motion to dismiss, and discovery is now complete. The parties have filed cross-motions for summary judgment on the claims against the agents.
In contrast to the agents, the former Attorney General immediately appealed the denial of his motion to dismiss. The Ninth Circuit affirmed this Court’s denial of the motion to dismiss, al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), pet’n for reh’g denied, 598 F.3d 1129 (9th Cir. 2010), but the Supreme Court reversed. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011). The Court held that Attorney General Ashcroft did not violate the Fourth Amendment if he had the subjective intent to preventively detain Mr. al-Kidd, assuming arguendo (because it was not contested before the Supreme Court) that the affidavit did satisfy the materiality and impracticability prongs of the
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statute. Id. at 2083-85. The Court also held that Ashcroft was entitled to qualified immunity on that Fourth Amendment claim.
The Supreme Court thus rejected Plaintiff’s Fourth Amendment theory based on the subjective purpose of the arrest. But the Court expressly left open Plaintiff’s other Fourth Amendment claim: whether the materiality and impracticability prongs of the statute were satisfied, and it specifically noted that the claims against individual agents were not before the Court. Id. at 2083 (noting that Mr. al-Kidd “does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant”); see id. at 2085 (Kennedy, J., concurring) (“The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful.”). Thus, based on discovery, this Court must now decide if the agents satisfied the materiality and impracticability requirements.2
ARGUMENT
Plaintiff raises two Fourth Amendment arguments against the individual FBI Defendants: a Malley claim and a Franks claim. Both are based on the failure to show that the materiality and impracticability prongs of the material witness statute were satisfied.
2 The United States filed a separate motion to dismiss, which this Court also denied in 2006. See Mem. Order (Dkt. No. 78). The Court ruled that Plaintiff’s complaint had sufficiently alleged two types of claims under the Federal Tort Claims Act (FTCA), which looks to state law for the substantive standards: (1) a false imprisonment claim, and (2) an abuse of process claim. Neither claim is affected by the Supreme Court’s ruling in al-Kidd, since both are based on state law, and not the Fourth Amendment.
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First, the affidavit supporting the arrest warrant in this case was facially deficient
and no reasonable officer could have thought otherwise. Thus, under the Supreme
Court’s decision in Malley v. Briggs, 475 U.S. 335 (1986), the individual FBI Defendants
acted in violation of the Fourth Amendment and are not entitled to qualified immunity.
Malley, 475 U.S. at 345-46; Greenstreet v. County of San Bernadino, 41 F.3d 1306, 1310
(9th Cir. 1994) (denying qualified immunity to officer who failed to use “reasonable
professional judgment”). See Section I, infra.
Second, even if the affidavit was facially sufficient, the Court must examine the
facts to determine whether a “corrected” affidavit would have violated the Fourth
Amendment. Specifically, under the Supreme Court’s decision in Franks v. Delaware,
438 U.S. 154 (1978), the Court must examine the sufficiency of the affidavit after (1)
correcting all materially false statements that were made intentionally or recklessly, and
(2) adding any material information that was recklessly or intentionally omitted from the
affidavit. When the affidavit in this case is corrected for reckless or intentional false
statements and omissions, it is plain that the Fourth Amendment was violated and that agents Mace and Gneckow are not entitled to immunity. See Section II, infra.3
3 The government argues that—in addition to satisfying the Franks and Malley standards—Plaintiff must also establish that the law was “clearly established” in order to defeat the agents’ qualified immunity. Defs. Br. 21-22. That is incorrect and would result in double counting. Under the Franks standard, courts do not apply a “clearly established” test, because immunity protection is already provided by asking whether the omissions and false statements were “intentional” or “reckless.” See Chism v. Washington State, 655 F.3d 1106, 1118 n.15 (9th Cir. 2011) (stating that because “no reasonable officer could believe that it is constitutional to act dishonestly or recklessly with regard to the basis for probable cause in seeking a warrant,” “should a factfinder find against an official on this state-of-mind question, qualified immunity would not be available as a defense”). Likewise, under Malley, the Court does not apply the “clearly established test” because immunity protection is already provided by asking whether the affidavit not only lacked probable cause on its face, but also whether a “reasonable”
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Thus, under either a Malley or Franks theory, Plaintiff is entitled to summary judgment against agents Gneckow and Mace. At a minimum, the government’s motion for summary judgment must be denied and the case permitted to go to a fact-finder given the numerous critical false statements and omissions in the affidavit.4
I. THE AFFIDAVIT WAS FACIALLY AND PATENTLY DEFICIENT AND AGENTS GNECKOW AND MACE ARE THEREFORE NOT ENTITLED TO IMMUNITY UNDER MALLEY.
Under the material witness statute, 18 U.S.C. § 3144, the warrant application must establish that it was “impracticable” to secure the witness’s testimony by subpoena and that the witness had “material” information for a criminal proceeding. Mem. Order 14 (Dkt. No. 79). Here, the affidavit submitted by agents Gneckow and Mace was so deficient that no reasonable officer could have believed it established probable cause of either impracticability or materiality.
A. The Affidavit Did Not Remotely Establish Impracticability. The affidavit consisted of only three sentences directly pertaining to whether Mr. al-Kidd’s testimony could be secured voluntarily or by subpoena, without the need for arrest:
officer would have known that the warrant was facially deficient. See Malley, 475 U.S. at 344-45. 4 Although the Department of Justice is representing both agent Mace and agent Gneckow, the government’s brief appears at times to distinguish between the two agents. Insofar as the government is suggesting that agent Mace is not liable because he submitted but did not draft the affidavit, that argument is incorrect. By signing and submitting the affidavit, agent Mace is responsible for its contents (and omissions). See Malley, 475 U.S. at 339 (holding that “an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge” is liable unless it was objectively reasonable for him to believe the supporting affidavit established probable cause).
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Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia.
* * * It is believed that if al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.
Pl. Ex. 1. Defendants thus sought Mr. al-Kidd’s arrest based on nothing more than their assertion that he was taking a one-way trip and was flying first-class. Those facts were untrue, as the government concedes. But even if true, no reasonable officer could have viewed the affidavit as sufficient in light of the Ninth Circuit’s interpretation of the material witness statute. Indeed, if those bare facts were sufficient to arrest an uncharged and innocent person, it would completely gut the protections afforded by the statute and the Fourth Amendment.
A material witness cannot be arrested unless there is a genuine reason to believe he would not voluntarily testify or that a subpoena is impracticable. The government may not simply presume that an individual will not comply with a subpoena. The leading case in the Ninth Circuit on the standards for arresting a material witness is Bacon v. United States, 449 F.2d 933 (9th Cir. 1971). There, the Court ruled that the FBI had failed to establish probable cause of flight risk—despite the fact that the witness had “access to large sums of money,” had “personal contact with fugitives from justice,” and had fled to an “adjoining rooftop” when the FBI sought her arrest. Id. at 944-45.
The Ninth Circuit emphasized that the witness’s access to large sums of money was “at best remotely relevant to her possible recalcitrance.” Id. at 944. The Court discounted the importance of the money, even in conjunction with the fact that the witness had personal contacts with fugitives, explaining that it “at most tends to show
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that if Bacon wished to flee, she might be able to do so successfully. It does not support the conclusion that she would be likely to flee or go underground.” Id. (emphasis in original).
The Court also concluded that the witness’s capture on the adjoining rooftop did not establish flight risk. Significantly, the Court did not dispute that an “inference can be drawn that Bacon wished to avoid apprehension” by fleeing when the FBI came to arrest her at her home. Id. at 944. But the Court refused to draw the “further inference” that the witness would not have complied with a subpoena, explaining that the situation in which the witness found herself
differs greatly from that in which Bacon would have found herself had she been served with a subpoena. She would then have had an opportunity to reflect on her obligation to obey the process, free from the fear of imminent arrest by pursuing officers. This opportunity is granted to most witnesses . . . . Id. at 945 (emphasis added). In Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985), the Ninth Circuit went even further. There, the officers obtained a warrant only after having made multiple attempts to subpoena the witness—looking for him at work and his home, calling his friends, and twice leaving a subpoena with his employees—after the witness said he would not testify voluntarily. Id. at 974. The Ninth Circuit nonetheless concluded that the arrest was invalid, stating that the facts “only show a man somewhat obstinately insisting upon his right to refuse to appear before a grand jury until personally served.” Id at 976. See Mayfield v. Gonzales, 2005 WL 1801679, at *9 (D. Or. July 28, 2005) (applying Bacon, denying defendants’ motions, and permitting discovery on what information was known to agents who submitted warrant regarding “flight risk” for witness). See also Perkins v. Click, 148 F. Supp. 2d 1177, 1183 (D.N.M. 2001) (no
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probable cause of flight risk where witness had ties to the community and “made no indication to any officer that she would be a reluctant witness”).
Under these precedents, no reasonable officer could have assumed that the affidavit contained sufficient facts of impracticability. In Arnsberg, 757 F.2d at 974, the police made multiple attempts to serve a subpoena, yet the Ninth Circuit still held that there was an insufficient showing of impracticability. Here, the affidavit does not contain a single fact suggesting that the FBI tried to serve Mr. al-Kidd with a subpoena or that it would have been impracticable to do so before he flew to Saudi Arabia. See Pl. Ex. 1. Nor did Mr. al-Kidd exhibit any “recalcitrance” about testifying—indeed, he was never asked to testify or even alerted to the possibility that he might be needed as a witness. Pl. Facts ¶ 23; see also Bacon, 449 F.2d at 944-45.
Nor did the government state in the affidavit that it could not have asked for Mr. al-Kidd to postpone his trip and relinquish his passport. See Pl. Ex. 1. That omission is particularly glaring given that the government elected not to arrest another witness heading to Saudi Arabia, but simply took the witness’s passport (and that witness was a Saudi national, not a United States citizen). Pl. Facts ¶ 45.
The government notes that Saudi Arabia does not have an extradition treaty with the United States. Defs. Br. 29. But that fact was not in the affidavit, see Pl. Ex. 1, and cannot now be added. In any event, the lack of an extradition treaty would suggest, at best, that Mr. al-Kidd might have been able to technically resist his return if he intended not to comply with a subpoena. It does not remotely show that Mr. al-Kidd would not have complied with a subpoena, or a request to surrender his passport or defer his trip.
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In fact, the affidavit does not contain a single statement that Mr. al-Kidd had ever been uncooperative or unwilling to testify. As the Ninth Circuit pointedly stated in Bacon, the government must establish more than a witness’s ability to evade a subpoena, but rather, must show the witness’s willingness to do so: “if Bacon wished to flee, she might be able to do so successfully. [The affidavit] does not support the conclusion that she would be likely to flee or go underground.” 449 F.2d at 944 (emphasis in original). Here also, the magistrate was not given a single fact by Defendants suggesting that Mr. al-Kidd was unlikely to comply with a subpoena, much less that it was “likely” he would not comply with a subpoena. Id. at 944.
In short, the Ninth Circuit’s longstanding case law left little doubt that Mr. alKidd’s travel plans were insufficient to establish probable cause of impracticability. Indeed, agent Gneckow ultimately conceded at his deposition that a “cooperative businessman” could not be arrested on a material witness warrant simply because he had a one-way ticket to Saudi Arabia. Pl. Facts ¶ 33. Thus, agent Gneckow himself recognized that he gave Magistrate-Judge Williams insufficient facts to issue a warrant, since the affidavit did not contain a single fact suggesting, much less showing, that Mr. al-Kidd would be uncooperative.
B. The Affidavit Also Did Not Remotely Establish Materiality. The affidavit stated that Mr. al-Kidd’s testimony was “crucial” to the government’s case. Pl. Ex. 1; Pl. Facts ¶ 35. Yet it never precisely explained what information Mr. al-Kidd possessed that was germane to the charges against Al-Hussayen (and, in fact, Mr. al-Kidd was never called as a witness). Instead, the affidavit contained
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largely irrelevant information or statements attempting to cast Mr. al-Kidd in a suspicious light.
The government claims that because Mr. al-Kidd worked at the same charity as Al-Hussayen, he would have had information relating to the visa and false statement charges against Al-Hussayen. But the affidavit submitted to the Court never explained why that would be so—or even stated that Mr. al-Kidd worked at the same charity. The indictment pending against Al-Hussayen at the time never even mentioned almultaqa.com, the website about which Mr. al-Kidd could supposedly testify. Pl. Facts ¶ 36. Instead, the affidavit provided a bunch of disparate facts that simply left the Court in the position of having to assume that Mr. al-Kidd had something material to offer at the trial.
Moreover, even if the affidavit had explained why Mr. al-Kidd’s testimony was potentially material to the visa-related charges pending against Al-Hussayen, that would plainly not have been sufficient to satisfy the statute, which must be construed to comply with the Fourth Amendment. The Fourth Amendment permits only “reasonable” arrests. It is draconian enough to allow the arrest of an uncharged, cooperative, and innocent United States citizen—even where the witness may have critical and dispositive information about a serious crime. But neither the Fourth Amendment nor the statute can permit such an arrest where the government is simply claiming that the witness has potentially relevant evidence and that potentially relevant evidence is cumulative and unnecessary for the government to prove the charges. And there is little question that Mr. al-Kidd’s testimony was not necessary given all of the other information (including
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documents) the government possessed about Al-Hussayen’s charity and employment. Pl. Facts ¶ 37.
Indeed, if the statute did not incorporate the proportionality requirement dictated by the Fourth Amendment’s reasonableness provision, the government could routinely arrest multiple people to provide cumulative testimony for even a non-serious offense. Thus, for example, if the government had seven people lined up to testify to accounting fraud in a large company, it is inconceivable that the statute or Fourth Amendment would permit the government to arrest an eighth person to provide cumulative testimony simply because that person was travelling to Saudi Arabia or China or some other country without an extradition treaty.
As both the Ninth Circuit, al-Kidd, 580 F.3d at 965-66, and several Supreme Court Justices in this case noted, al-Kidd, 131 S. Ct. at 2085-86 (Kennedy, J., concurring), the material witness statute’s compliance with the Fourth Amendment has never squarely been upheld. But even assuming the statute is constitutional on its face, it must be interpreted in a manner consistent with the Fourth Amendment’s reasonableness clause.5 See id. at 2086. That cannot mean that the statute allows the arrest of an innocent American merely because he potentially has “material” information in the barest sense of that term. And, not surprisingly, the government itself understands this point and has issued guidelines defining a “material witness” as one who has “significant” information about a criminal prosecution that is “necessary” to resolve the matter. See
5 The Plaintiff’s arguments about the unconstitutionality of the material witness statute when used to detain a cooperative witness are set forth at greater length in Section III.B of his brief addressing the claims against the United States. The Plaintiff respectfully requests that those arguments be incorporated herein.
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DOJ, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 2003, at 124, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs03.pdf.
* * * In sum, the affidavit contained no information explaining why Mr. al-Kidd had material information, and certainly did not show that the information was “significant” and “necessary,” thereby justifying the arrest of an innocent United States citizen. The affidavit also did not state, or even suggest, that the government could not have served Mr. al-Kidd with a subpoena before he departed. Nor did it state that the government asked Mr. al-Kidd to relinquish his passport and defer his trip, as it did with another witness who was not even a United States citizen. Cf. Arnsberg, 757 F.2d at 974 (finding material witness arrest invalid even though officers obtained warrant only after having made several attempts to subpoena witness—looking for him at work and his home, calling his friends, and twice leaving subpoena with his employees—after witness said he would not testify voluntarily). Rather, the affidavit relied solely on the fact that Mr. al-Kidd had a one-way ticket to Saudi Arabia. But as agent Gneckow himself recognized at his deposition, it would not be permissible to arrest a cooperative businessman simply because he had a one-way ticket to Saudi Arabia. It was thus incumbent upon agent Gneckow to provide Magistrate-Judge Williams with some facts about why the government believed Mr. alKidd would be uncooperative. Yet the affidavit did not contain a single assertion suggesting that Mr. al-Kidd had been, or would be, uncooperative. In the words of the Ninth Circuit, the affidavit had to show not only that Mr. al-Kidd could refuse to comply
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with a subpoena, but also some reason to think Mr. al-Kidd would be “likely” to do so. Bacon, 449 F.2d at 944 (emphasis in original).
II. DEFENDANTS MACE AND GNECKOW ARE ALSO LIABLE UNDER THE FRANKS TEST BECAUSE A CORRECTED AFFIADVIT DOES NOT ESTABLISH PROBABLE CAUSE. Under the Franks test, the court looks at whether Defendants intentionally or
recklessly omitted material facts from the affidavit or intentionally included false statements. The Court then corrects the affidavit for these material omissions and false statements and asks whether the “corrected” affidavit establishes probable cause. If the corrected affidavit fails to establish either materiality or impracticability, then Defendants are liable.
The proper test is not whether each particular omission or false statement, by itself, would vitiate probable cause, but rather, whether all of the omissions and false statements, taken together, would have negated probable cause. See United States v. Stanert, 762 F.2d 775, 782 (9th Cir. 1985) (“The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively.”). As the Ninth Circuit has explained, by “reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning.” Id. at 781. Thus, Defendants attempt to dismiss each individual omission or false statement in a vacuum is flawed.
Here, Mr. al-Kidd’s complaint alleged numerous omissions and false statements in the affidavit. In rejecting motions to dismiss from agents Mace and Gneckow, this
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Court held that the allegations—if proven—were sufficient to establish a Fourth Amendment claim under Franks. Those allegations have now been indisputably proven.
A. The Corrected Affidavit Does Not Establish Impracticability. Omissions
1. The complaint alleged, and discovery now shows, the following intentional or reckless material omissions from the affidavit. First, and critically, the affidavit wholly failed to mention that the FBI had asked Mr. al-Kidd to meet on more than one occasion and that Mr. al-Kidd had never failed to appear at one of these pre-arranged meetings (which took place at his mother’s house, where Mr. al-Kidd was living at the time). Pl. Facts ¶ 31.
Second, although agent Gneckow was aware that Mr. al-Kidd was a native-born U.S. citizen, he omitted that fact from the affidavit. The affidavit also omitted the known facts that Mr. al-Kidd had U.S. citizen family and had a wife and child. Pl. Facts ¶ 31. The affidavit likewise failed to mention that Mr. al-Kidd had longstanding ties to Idaho and was a former football player and graduate of the University of Idaho, even though Defendants were well aware of these facts. Pl. Facts ¶ 31. Defendants thus allowed Magistrate-Judge Williams to assume that Mr. al-Kidd may simply be a Saudi national returning home, who lacks any significant ties to the United States or Idaho.
Third, the FBI never told Mr. al-Kidd to avoid travelling or to contact the FBI if he intended to travel. Nor did the FBI tell Mr. al-Kidd he might be needed as a witness. Mr. al-Kidd, moreover, had not heard from the FBI for more than eight months prior to being arrested. All of these facts were known to Defendants yet were omitted from the affidavit. Pl. Facts ¶ 31.
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Fourth, the FBI never told Magistrate-Judge Williams whether the government had made any meaningful effort to contact Mr. al-Kidd, serve him with a subpoena, or otherwise ascertain his willingness to testify voluntarily. Cf. Bacon, 449 F.2d at 944-45; Arnsberg, 757 F.2d at 974.
As shown below, the affidavit also contained reckless or intentional false statements concerning Mr. al-Kidd’s plane ticket. But even if those false statements about the ticket were not corrected, the affidavit would not have established probable cause if the omitted facts described above are taken into account. In arguing otherwise, Defendants are remarkably claiming that a material witness arrest is permissible simply because the witness has a one-way ticket to Saudi Arabia—even though he is a nativeborn United States citizen with substantial ties to the community, has never been told not to travel or that he may be needed at some future time, and has shown up to every prearranged meeting with the FBI whenever he was asked. If that extraordinary position were accepted, it would mean that any U.S. citizen could be arrested merely for taking a trip on a one-way ticket to a country without an extradition treaty—regardless of the citizen’s prior cooperation and ties to the United States and no matter how innocent the trip or the fact that he was never told not to travel.
Defendants seek to minimize the omissions. Defendants, for example, argue that prior cooperation is meaningless. But Defendants are simply re-arguing the motion to dismiss, where this Court listed Plaintiff’s allegation of prior cooperation as one of the relevant considerations. Mem. Order 16 n.2 (Dkt. No. 79). Indeed, in deciding whether it would be impracticable to secure the witness’s presence, prior cooperation is selfevidently relevant. The government relies heavily on the Second Circuit’s decision in
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United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003), but the Second Circuit did not say that cooperation was categorically irrelevant. And Awadallah could not be more different factually. Here, the government arrested a cooperative U.S. citizen; in Awadallah, the witness was a non-citizen arrested within two weeks of September 11 who actually had the phone number of one of the nineteen hijackers. See id. at 45-47.
Defendants also argue that community ties are irrelevant, and can only be taken into account after the arrest in deciding whether to release the witness. But, again, Defendants are re-arguing the motion to dismiss. Mem. Order 16 n.2 (Dkt. No. 79) (citing as one of the omissions Mr. al-Kidd’s community ties). And Defendants’ position is surely inconsistent with the statute and the Ninth Circuit’s careful attention to what constitutes “impracticability.” See Bacon, 449 F.2d at 944-45; Arnsberg, 757 F.2d at 976-77.
Defendants further argue that they should not be held liable because they consulted with AUSA Lindquist in drafting the affidavit. Defs. Br. 19 & n.6. In support of that position, Defendants cite two Ninth Circuit cases from the 1980s. Those cases involve different facts, but in any event, the Ninth Circuit recently held, en banc, that the input of a prosecutor cannot shield the officer, any more than the magistrate’s issuance of the warrant can shield the officer. See Millender v. County of Los Angeles, 620 F.3d 1016, 1034 (9th Cir. 2010) (en banc) (“[A] neutral magistrate’s approval (and, a fortiori, a non-neutral prosecutor’s) cannot absolve an officer of liability.”) (internal citations omitted), cert. granted, 131 S. Ct. 2057 (2011).
2. Defendants ultimately appear to recognize that the facts omitted from the affidavit are fatal to establishing probable cause and therefore seek to inject additional
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facts into the inquiry: (a) Mr. al-Kidd booked his flight to Saudi Arabia roughly a week after Al-Hussayen’s indictment became public; (b) the FBI supposedly looked for Mr. alKidd at his mother’s home after hearing about his scheduled trip and did not find him there; (c) Mr. al-Kidd spoke to a Seattle reporter between the time of his arrest and his last visit from the FBI; and (d) Mr. al-Kidd was unresponsive to some questions at his interviews with the FBI. Defendants’ arguments are flawed, legally and factually.
As an initial matter, Defendants do not get a second bite at the apple to add facts that were not included in the affidavit. Defendants had their opportunity in the affidavit to include any facts they believed relevant. They cannot seek to rehabilitate the affidavit at this stage. See Awadallah, 349 F.3d at 70 n.22 (rejecting government’s attempt to establish probable cause by “introduc[ing] several related facts which were also known at the time of the application” on the ground that such “related facts lie outside the scope of a proper Franks inquiry because the relevant question is whether the remaining portions of the affidavit give rise to probable cause”) (internal quotation marks omitted). Thus, as a straight legal matter, Defendants’ arguments fail. Moreover, even if the Court could consider these arguments, they are all factually flawed.
a) Defendants insinuate that Mr. al-Kidd bought his ticket soon after AlHussayen’s indictment became public because he may have been seeking to flee the country. Defs. Br. 22. But it is not reasonable to infer that, in the span of seven to ten days, Mr. al-Kidd decided to travel to Saudi Arabia, applied for and secured a visa to that country, obtained a scholarship at a university, and made all the arrangements necessary for his departure. Nor is there evidence in the record suggesting this was so.
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And, not surprisingly, the facts actually show that Mr. al-Kidd’s plans for his trip were underway long before Al-Hussayen’s arrest. He applied to the University in April 2002, many months before Al-Hussayen’s arrest. Pl. Facts ¶ 11. Upon being accepted, he began working with the Saudi consulate to obtain a visa in February 2003, again before Al-Hussayen’s arrest. Pl. Facts ¶ 13. In short, Mr. al-Kidd was already working on travel arrangements with the Saudi university and consulate well before AlHussayen’s arrest. Thus, any (belated) attempt by Defendants to insinuate that he was fleeing upon hearing of Al-Hussayen’s arrest is without support in the record, and indeed contrary to the facts—even assuming it could legally be taken into account given its absence from the affidavit.
b) Defendants also appear to suggest that it was impracticable to serve him with a subpoena because the FBI checked and did not find him at his mother’s home after learning of his planned trip to Saudi Arabia. Defs. Br. 26. But that does not explain why the agents would not have served him at the airport or asked him at the airport to relinquish his passport and postpone his flight. In any event, if the agents had actually checked whether Mr. al-Kidd was still living in his mother’s home, then surely that fact would have been included in the affidavit. Yet there was no mention in the affidavit of any attempt to locate and serve Mr. al-Kidd before the arrest at the airport. In fact, when asked at his deposition whether he was aware of any attempts to locate Mr. al-Kidd before seeking the warrant, agent Gneckow stated vaguely only that he believed some attempt had been made, but he could not recall who made the attempt or how it was done, whether by telephone or a “drive-by” past Mr. al-Kidd’s home. Nor could Defendants produce notes or any documentation of an attempt to locate Mr. al-Kidd at his house. Pl.
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Facts ¶ 39. In short, Defendants cannot belatedly try to rely on any attempt to serve or locate Mr. al-Kidd before seeking his arrest, especially when there is absolutely no record of them having done so and it was not in the affidavit.
c) Defendants further contend that they did not contact Mr. al-Kidd for months prior to his arrest because he had talked with a Seattle reporter, thereby allegedly jeopardizing the secrecy of their investigation. Defs. Br. 31. But the FBI’s investigation was hardly a secret in Idaho, and indeed, the reporter talked with multiple people, including law enforcement officials. Moreover, the FBI admits that it never told Mr. alKidd not to talk to reporters or to keep their meetings secret, and Defendants do not now claim that Mr. al-Kidd revealed any sensitive information (which, in any event, he did not have). Pl. Facts ¶ 10. Defendants nonetheless argue that Mr. al-Kidd’s innocuous discussion with a reporter is the reason the FBI did not contact him for eight months prior to his arrest. But even assuming that is true, it is irrelevant. From Mr. al-Kidd’s standpoint, he had not heard from the FBI for months, had never been told he may be needed as a witness, was never asked voluntarily to testify or accept service of a subpoena, was never told to alert the FBI if he planned on travelling, and had never been told not to talk to reporters.
d) Finally, Defendants contend that Mr. al-Kidd was not in fact cooperative, even though he attended every meeting requested by the FBI. Specifically, the government quotes agent Gneckow as saying that Mr. al-Kidd refused to fully answer certain questions at the interviews and was thus not cooperative. Defs. Br. 22. Yet agent Gneckow admittedly was not at those meetings and, in fact, never met Mr. al-Kidd until after the arrest. Rather, agent Gneckow’s account of the meetings was based solely on
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what he learned from agent Cleary, who conducted the interviews. Pl. Facts ¶ 34. And agent Cleary specifically testified at his deposition that Mr. al-Kidd was “cooperative.” Indeed, agent Cleary said that Mr. al-Kidd “voluntarily agreed to be interviewed” after being told that “he didn’t have to talk.” Agent Cleary also stated that Mr. al-Kidd “volunteered a lot of information.” Pl. Facts ¶ 8. Accordingly, agent Gneckow’s contradictory statement cannot be credited.
False Statements Even without correcting the affidavit’s false statements regarding the nature of the plane ticket, probable cause would still be lacking once all of the omissions were added. As discussed above, the purchase of a one-way ticket to Saudi Arabia is not sufficient to show impracticability where the witness is a US citizen with substantial community ties in the United States, who has attended every prior meeting with the FBI, and who has never been told he should not travel or that he may be needed as a witness. But there is no question the affidavit also contained several material false statements. It stated that Mr. al-Kidd had a one-way, first class ticket. Defendants admit these statements were incorrect and that Mr. al-Kidd had a roundtrip, coach ticket. Pl. Facts ¶ 25. Defendants argue, however, that the false statements were not intentional or reckless and should therefore not be considered in assessing whether the “corrected” affidavit satisfied probable cause. But the facts are straightforward and show that agent Gneckow was clearly reckless about verifying information about Mr. al-Kidd’s ticket. Agent Gneckow initially received information about Mr. al-Kidd’s flight plans from Alvarez, who worked in the same office as Gneckow. Alvarez told Gneckow orally that Mr. al-Kidd was flying to Saudi Arabia on a one-way, first-class ticket. Pl. Facts ¶
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26. The information “concern[ed]” Gneckow, but he did not ask Alvarez “to do any follow-up research” or to show him any documents to verify the information. Instead, Gneckow “took [it] upon [him]self” to verify the information by calling an FBI agent stationed at Dulles Airport. Pl. Facts ¶¶ 28, 29. Thus, contrary to the impression Defendants seek to convey, agent Gneckow was not simply a passive recipient of information, but rather took it upon himself to verify Mr. al-Kidd’s travel plans. That alone is dispositive of Defendants’ contention that the false statements cannot be attributed to agent Gneckow.
Defendants nonetheless argue that agent Gneckow was entitled to rely on Alvarez’s oral statements about the one-way nature of the ticket. But, as discussed above, that cannot be true given Gneckow’s admission that he told Alvarez he would take over the investigation. Moreover, even assuming it were generally true that an agent can rely on another officer’s oral (non-documented) statement of facts, it cannot be true under the circumstances here. In this case, agent Gneckow was placed on notice that there was significant confusion about the ticket and that Alvarez had not even figured out the date on which Mr. al-Kidd was flying. Rather, Alvarez told agent Gneckow only that Mr. al-Kidd appeared to be scheduled to fly within a certain “range” of days. Yet, despite the confusion, agent Gneckow never even bothered to ask the Dulles FBI agent whether Mr. al-Kidd’s ticket was one-way or roundtrip, much less asked to see documentation or a flight itinerary. Pl. Facts ¶¶ 27-30.
Defendants also contend that the misrepresentations regarding Mr. al-Kidd’s airline ticket were of little importance. Defendants argue that the only meaningful fact was that Mr. al-Kidd was going to Saudi Arabia without a return date, and not whether he
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was traveling on a one-way, first-class ticket costing roughly $5,000, or as it turned out, a roundtrip, coach ticket costing roughly $1,700. Yet, in the entire affidavit, there were only four sentences that specifically addressed flight risk, see Pl. Ex. 1, and Defendants chose to include those details about the ticket. It defies reality to assume that experienced FBI agents included those details for no reason—especially after September 11th.
In short, agent Gneckow cannot so easily pass the buck—especially when he agreed to take over the investigation of the ticket from Alvarez, did not ever ask to see documentation of the ticket from Alvarez (or anyone else), and was on notice that Alvarez had not solidified a basic fact about the ticket. Under these circumstances, it was reckless of agent Gneckow not to verify all of the information in the affidavit.
B. The Corrected Affidavit Does Not Establish Materiality. As discussed above, the affidavit, on its face, did not establish materiality. It certainly did not establish materiality when one considers that Defendants knowingly provided misleading information, and omitted material facts, about the nature of the testimony. Specifically, rather than informing Magistrate-Judge Williams in the affidavit that Mr. al-Kidd’s testimony would simply have been cumulative, the affidavit stated that Mr. al-Kidd had “crucial” information. See supra Section I (discussing why Mr. alKidd’s testimony would have been merely cumulative and unnecessary). It is one thing to allow the arrest of an innocent U.S. citizen who has crucial and indispensable information and that information cannot be practicably secured by subpoena. It is an entirely different calculus to permit the arrest of an innocent U.S. citizen for nonessential, cumulative information. Magistrate-Judge Williams had a right to know that
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the information Mr. al-Kidd may have possessed about the charges was merely cumulative and was not, by any stretch of the imagination, “crucial” information.
CONCLUSION The Court should grant Plaintiff summary judgment, or in the alternative, deny Defendants’ motion for summary judgment.

Dated: December 21, 2011
MICHAEL J. WISHNIE michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming
26

Respectfully submitted,
_/s/_____________________
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Case 1:05-cv-00093-EJL-MHW Document 310-1 Filed 12/21/11 Page 31 of 31

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21 day of December, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 1 of 13
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL Professor of Clinical Law P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT AGAINST INDIVIDUAL DEFENDANTS

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Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 3 of 13
1. Abdullah al-Kidd is a U.S. citizen born in 1972 in Wichita, Kansas. Ex. 1, Pl. Docs 448. His mother, father, sister, and children are all native-born U.S. citizens who reside in the United States. Id.
2. Al-Kidd graduated from the University of Idaho, where he played on the football team. Ex. 1, Pl. Docs 448. He converted to Islam before graduating. Id.
3. Following September 11, 2001, the FBI began a terrorism investigation in Idaho. Ex. 2, Gneckow Dep. 216; see also Ex. 1, Pl. Docs 4. This included a Joint Terrorism Task Force investigation into al-Kidd, Ex. 2, Gneckow Dep. 54-57; Ex. 3, Cleary Dep. 21, 109-12, including surveillance of him and his then-wife (which indicated no illegality). Ex. 1, Pl. Docs 2400-24; Ex. 3, Cleary Dep. 121, 125-26.
4. The FBI had al-Kidd’s name added to the Treasury Enforcement and Communication System (TECS) database, with a “lookout” to track his international travel. Ex. 4, Alvarez Dep. 1819. See also Ex. 3, Cleary Dep. 118; Ex. 22, NCIC Printout (FBI added al-Kidd’s name to the Violent Gang and Terrorist Organization File).
5. Al-Kidd was the subject of an intelligence investigation from December 2001 until at least 2004. See Ex. 2, Gneckow Dep. 55-57; Ex. 3, Cleary Dep. 109-10. He was also a co-subject in the criminal investigation of Sami Al-Hussayen, a graduate student at the University of Idaho. Ex. 5, U.S. Docs 2724, 3002-03, 3007; see also Ex. 2, Gneckow Dep. 45-46 (“a possible co-subject” has not been “ruled out definitively” from criminal suspicion); Ex. 6, Mace Dep. 73 (equating “subject” with “suspect”). The FBI Agent sent al-Kidd’s name as a proposed “defendant[]” to the U.S. Attorney’s office to evaluate him for potential prosecution. Ex. A, U.S. Docs 666 (filed under seal); see also Ex. 7, Lindquist Dep. 53.
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Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 4 of 13
6. “Intelligence” and “criminal” investigations worked in tandem; both types of investigations could lead to criminal charges. See Ex. 8, Dezihan Dep. 51-53, 82-83 (intelligence and criminal formally merged in 2002), 114-15, 161-62 (FBI shared periodic updates with U.S. Attorney’s Office); Ex. 2, Gneckow Dep. 17; Ex. 3, Cleary Dep. 18, 30.
7. FBI Headquarters received updates and provided guidance on al-Kidd’s investigation. See Ex. 8, Dezihan Dep. 85-86, 102, 104, 106; Ex. 2, Gneckow Dep. 23-24 (headquarters was kept informed of terrorism investigations); Ex. 5, U.S. Docs 2724-26 (electronic communication sent to headquarters).
8. The FBI asked to meet with al-Kidd twice. Ex. 2, Gneckow Dep. 63; Ex. 3, Cleary Dep. 147, 173. Both times, al-Kidd voluntarily met with FBI Agent Joseph Cleary in his mother’s home and answered questions at length; al-Kidd never missed one of these meetings. Ex. 3, Cleary Dep. 170-71, 173-74, 179-81. Cleary found al-Kidd “cooperative” and agreed that he “volunteered a lot of information.” Id. 174, 181.
9. After the second interview, Cleary asked if he could contact al-Kidd again, and al-Kidd agreed. Ex. 3, Cleary Dep. 174-75. However, neither Cleary nor any other FBI agent ever followed up to request another interview. Id. Eight months passed between the last meeting and al-Kidd’s arrest. See Ex. 16, Gneckow Resp. 1st ROG #10, 12 (al-Kidd’s final pre-arrest interview was on July 3, 2002).
10. The FBI never told al-Kidd to keep his meetings with the FBI secret, nor told him not to talk to the press. Ex. 9, Gneckow Resp. 1st RFA #21; Ex. 2, Gneckow Dep. 199-200; Ex. 3, Cleary Dep. 176-78. Al-Kidd spoke with a reporter at one point for an article in which multiple law enforcement officials were also quoted. Ex. 20, Seattle Post-Intelligencer article.
2

Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 5 of 13
11. In April 2002, al-Kidd applied to a university in Saudi Arabia to pursue language and religious studies. Ex. 10, al-Kidd Dep. 113, 118.
12. In late 2002, al-Kidd also began making plans to travel to Saudi Arabia for work. Ex. 10, alKidd Dep. 132-33 (al-Kidd applied to Berlitz in December 2002); Ex. 1, Pl. Docs 9-18 (Berlitz employment contract, signed January 2003), 26 (al-Kidd obtained a work visa).
13. In the first week of February 2003, al-Kidd learned that the university had accepted him and awarded him a scholarship, and he decided to accept. Ex. 10, al-Kidd Dep. 119. In February, he began the process of applying for a visa. Id. 120-21, 137; see also Ex. 5, U.S. Docs 98 (reservation monitoring printout showing al-Kidd’s flight had a “visa” requirement); Ex. 11, Alvarado Dep. 229-30. The Saudi Cultural Mission paid for his plane ticket. Ex. 10, al-Kidd Dep. 125.
14. On March 16, 2003, while al-Kidd was checking in for his flight to Saudi Arabia at Dulles Airport in Virginia, he was arrested by FBI agents. Ex. 1, Pl. Docs 121-22.
15. The agents took al-Kidd to a police station in the airport and, with Gneckow’s consent, interrogated him. Ex. 1, Pl. Docs 26; Ex. 2, Gneckow Dep. 189-92. They questioned him at length, without counsel, about numerous matters unrelated to Al-Hussayen’s charges— including al-Kidd’s own religious beliefs and opinions on various Islamic organizations, the purpose of his previous trip to Yemen, and the contents of his luggage. Ex. 1, Pl. Docs 2631. The FBI agents searched al-Kidd’s belongings, Ex. 5, U.S. Docs 2997, and seized numerous items, including his laptop. Id. 1982.
16. The FBI later drafted a search warrant application to search al-Kidd’s laptop. Ex. B, U.S. Docs 1583 (filed under seal). The draft affidavit avers that al-Kidd’s computer “contains . . .
3

Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 6 of 13
evidence in support of Title 18 Section 2339(A) and or (B) (Providing material support to terrorism) as to . . . al-Kidd.” Ex. 5, U.S. Docs 1583 (emphasis added) (filed under seal). 17. Within days of Plaintiff’s arrest, FBI Director Robert Mueller testified before Congress that Plaintiff’s arrest—along with that of Khalid Shaikh Mohammed, a “mastermind” of the September 11th attacks—as a “major success[]” in the government’s anti-terrorism efforts. Ex. 1, Pl. Docs 3-4 (Testimony before House Subcommittee, Mar. 27, 2003); Ex. 21, Mueller Testimony before Senate Subcommittee (Apr. 10, 2003) (same). Director Mueller never mentioned that Plaintiff was arrested as a witness. The government has never been able to explain why Director Mueller’s testimony highlighted Mr. al-Kidd. See Ex. 18, U.S. Resp. 4th RFA, #73-84 (FBI was unable to determine how al-Kidd came to be mentioned in Director Mueller’s testimony). 18. Over the next 15 days, al-Kidd was incarcerated in three different facilities in Virginia, Oklahoma, and Idaho. Each time he was transferred, al-Kidd was shackled with handcuffs, leg restraints, and a belly chain. Ex. 13, Pl. Resp. 1st ROG #14; Ex. 1, Pl. Docs 123-24, 70204; Ex. 14, al-Kidd v. Sugrue, No. 06-cv-1133, 2007 WL 2446750, at *1 (W.D. Okla. Aug. 23, 2007). 19. Al-Kidd was strip-searched multiple times over the course of his detention. Ex. 1, Pl. Docs 703-04, 2184; Ex. 13, Pl. Resp. 1st ROG #14; see also Ex. 14, Sugrue at *1. In Virginia, he was held under high-security conditions, often spending 22 to 23 hours a day in his cell. Ex. 1, Pl. Docs 122-23, 450, 2183; Ex. 13, Pl. Resp. 1st ROG #14. 20. In the detention center in Oklahoma, al-Kidd was made to remove his clothes and sit naked in view of other, fully clothed detainees. Ex. 1, Pl. Docs 2184; Ex. 14, Sugrue at *1.
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Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 7 of 13
21. While al-Kidd was incarcerated in Ada County Jail, Gneckow and Cleary questioned him. Ex. 2, Gneckow Dep. 63, 187-89; Ex. 3, Cleary Dep. 141.
22. On March 31, 2003, al-Kidd was released from detention, but was ordered to live with his wife and in-laws in Nevada and was prohibited from traveling outside of Nevada and three other states. Al-Kidd agreed to the conditions of release, including surrendering his passport. Ex. 5, U.S. Docs 1279-80 (detention hearing transcript); Ex. 1, Pl. Docs 1783.
23. Prior to al-Kidd’s arrest, no FBI agent had ever told al-Kidd he could not leave the United States, or to contact the FBI before traveling. Ex. 15, U.S. Resp. 1st RFA #8-9. Nor had any FBI agent told al-Kidd his testimony might be needed, asked him to surrender his passport, or attempted to serve him with a subpoena. Ex. 15, U.S. Resp. 1st RFA #10-13; Ex. 2, Gneckow Dep. 198-99.
24. Al-Kidd was arrested on a material witness warrant issued in the case of Al-Hussayen. Agent Gneckow drafted the warrant affidavit. Ex. 2, Gneckow Dep. 165-66, 171-72. Gneckow did not know the legal standard for obtaining a material witness warrant, and had not received any training in obtaining material witness warrants. Id. 128.
25. The affidavit stated that al-Kidd was “scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003 . . . .” Ex. 1, Pl. Docs 2038. But in fact, al-Kidd had a round-trip, coach-class ticket costing approximately $1,700. Ex. 5, U.S. Docs 3779. His ticket was open-ended, meaning that a return had been purchased but the date had not yet been scheduled. Ex. 2, Gneckow Dep. 183.
26. Gneckow learned of al-Kidd’s travel plans on March 13, 2003, from an oral conversation with ICE officer Robert Alvarez. Ex. 2, Gneckow Dep. 135-36, 162-63, 170; Ex. 4, Alvarez
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Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 8 of 13
Dep. 31-32, 52. Gneckow and Alvarez worked in the same office. Ex. 2, Gneckow Dep. 135-36. 27. Alvarez did not know al-Kidd’s exact departure date, but he gave Gneckow a range of possible departure dates. Ex. 2, Gneckow Dep. 174-75. 28. Gneckow did not inquire about the confusion regarding al-Kidd’s departure date. Ex. 2, Gneckow Dep. 174-75. Nor did he ask to look at any paperwork showing al-Kidd’s flight information. Id. 163, 173. Gneckow also did not attempt to find out the class of the ticket, or whether al-Kidd had purchased a return flight. Id. 169-70, 173-74. Gneckow made no attempt to find out when al-Kidd had made his travel plans or booked his ticket. Ex. 16, Gneckow Resp. 1st ROG #12; Ex. 2, Gneckow Dep. 149-50. 29. Although the flight information caused Gneckow “concern,” he did not ask Alvarez “to do any follow-up research” about al-Kidd’s travel plans or to show him any documents to verify the information. Instead, Gneckow “took [it] upon [him]self” to verify the information by calling an FBI agent stationed at Dulles Airport. Ex. 2, Gneckow Dep. 165-67. 30. Gneckow asked the FBI agent at Dulles Airport whether al-Kidd’s name appeared on an upcoming flight manifest. Ex. 2, Gneckow Dep. 145-46. Gneckow did not ask the agent about the class of the ticket, the booking date, the price, or whether a return trip had been purchased. Id. 169-70, 174-75; Ex. 16, Gneckow Resp. 1st ROG #7, 12. 31. Gneckow also knowingly omitted numerous facts from the affidavit, including:
(a) Al-Kidd is a native-born U.S. citizen and a graduate of the University of Idaho. See supra ¶¶1-2; Ex. 16, Gneckow Resp. 1st ROG #9; Ex. 9, Gneckow Resp. 1st RFA #1, 2; Ex. 2, Gneckow Dep. 156, 193; see also Ex. 6, Mace Dep. 36.
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Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 9 of 13
(b) Al-Kidd has U.S. citizen family members residing in the United States. See supra ¶1; Ex. 2, Gneckow Dep. 156, 193-94.
(c) Al-Kidd had voluntarily spoken to the FBI on multiple occasions prior to his arrest, and had never failed to attend one of these meetings. See supra ¶¶8-9; Ex. 16, Gneckow Resp. 1st ROG #10; Ex. 9, Gneckow Resp. 1st RFA #8.
(d) Prior to his arrest, al-Kidd had not heard from the FBI for more than eight months. See supra, ¶9; Ex. 16, Gneckow Resp. 1st ROG #10, 12; Ex. 2, Gneckow Dep. 149.
(e) The FBI never informed al-Kidd that his testimony might be needed in Al-Hussayen’s trial, that he could not travel abroad, or that he should inform the FBI before traveling abroad. See supra ¶23; Ex. 9, Gneckow Resp. 1st RFA #9-11, 16-18.
(f) The FBI never asked al-Kidd if he would be willing to testify in Al-Hussayen’s trial, voluntarily relinquish his passport, or postpone his trip to Saudi Arabia. See supra ¶23; Ex. 9, Gneckow Resp. 1st RFA #12-14, 19; Ex. 2, Gneckow Dep. 197-99.
(g) The FBI never attempted to contact al-Kidd or to subpoena his testimony after learning of his travel plans. Ex. 9, Gneckow Resp. 1st RFA #13, 14.
32. The affidavit stated that al-Kidd “and/or” his then-wife “received payments from Sami Omar Al-Hussayen and his associates in excess of $20,000.” Ex. 1, Pl. Docs 2037. From 1999 to 2001, al-Kidd received salary for his work with a Muslim organization with which AlHussayen was affiliated, al-Multaqa. Ex. 10, al-Kidd Dep. 21, 82-83. Gneckow knew “well before” submitting the affidavit that the money al-Kidd received was his salary, Ex. 2, Gneckow Dep. 76, but omitted that fact from the affidavit.
33. Gneckow conceded he would not have sought a material witness warrant for a “cooperative businessman” with a one-way ticket to Saudi Arabia. Ex. 2, Gneckow Dep. 220.
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Case 1:05-cv-00093-EJL-MHW Document 310-2 Filed 12/21/11 Page 10 of 13
34. At the time of the warrant application, Gneckow knew that al-Kidd had voluntarily spoken to the FBI on multiple occasions. Ex. 9, Gneckow Resp. 1st RFA #8. Gneckow had not been present at those interviews and had never met al-Kidd; his knowledge of the interviews was based solely on what he learned from Cleary. Ex. 2, Gneckow Dep. 62-65.
35. The affidavit also stated that al-Kidd had information “crucial” to the Al-Hussayen prosecution. Ex. 1, Pl. Docs 2038. In fact, al-Kidd had little knowledge of Al-Hussayen. Ex. 10, al-Kidd Dep. 159-61.
36. When asked what information al-Kidd had that could be relevant at trial, Gneckow testified that al-Kidd could “talk about” al-Multaqa and its website. Ex. 2, Gneckow Dep. 157-59. The Al-Hussayen indictment pending at the time of al-Kidd’s arrest, however, did not mention either al-Multaqa or al-multaqa.com. Ex. 12, Indictment, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #1).
37. Prosecutors on Al-Hussayen’s case had obtained numerous of pages of documentary evidence about Al-Hussayen’s activities, making al-Kidd’s testimony redundant. See Ex. 2, Gneckow Dep. 54 (referencing bank records); Ex. 12, Indictment, Al-Hussayen, at ¶¶ 7-9, 11, 13, 15-21, 23 (referring to business records, emails, websites, and other documents) (Dkt. #1).
38. On or about March 13, 2003, Gneckow contacted AUSA Kim Lindquist and requested that the government seek the material witness warrant. Ex. 2, Gneckow Dep. 129, 170-71. Gneckow did not tell Lindquist any information that was not ultimately included in the affidavit. Id. 201.
39. Prior to contacting Lindquist, Gneckow had made no efforts to locate al-Kidd. Ex. 2, Gneckow Dep. 143. Nor did Gneckow recall what efforts were made to ascertain al-Kidd’s
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location after his conversation with Lindquist. Id. 143-44 (Gneckow could not recall whether he “ask[ed] someone to do a drive-by,” “mak[e] a phone call,” or take any other steps). 40. FBI Agent Scott Mace, who signed and submitted the affidavit, did not know the legal standard for obtaining a material witness warrant. Nor had he received any training in obtaining a material witness warrant. Ex. 6, Mace Dep. 14. 41. Mace did not know whether charges were pending against Al-Hussayen, what those charges were, or whether al-Kidd had testimony material to those charges. Ex. 6, Mace Dep. 48-50. He did not inquire into the materiality of al-Kidd’s testimony or the impracticability of obtaining his testimony by subpoena, see Ex. 17, Mace Resp. 1st ROG #1, 13, but “took it on face value that what [Gneckow] was telling [him] was true.” Ex. 6, Mace Dep. 17-18, 30-31. Mace appeared in court alongside AUSA George Breitsameter, who had no prior knowledge of al-Kidd or the Al-Hussayen case. Id. 19-21; Ex. 7, Lindquist Dep. 95-96. 42. On March 17, 2003, after his arrest, al-Kidd was brought before a judge in Virginia for a detention hearing. Al-Kidd was not afforded counsel at this hearing. Al-Kidd asked for his testimony to be “expedite[d].” Ex. 19, Hearing, U.S. v. al-Kidd, No. 03-94 at 2-3 (E.D. Va. Mar. 17, 2003). The judge stated that “the fastest way for you to get to Idaho and see the people that can . . . discuss why you were arrested” would be to “waive your right to a hearing here today,” and consent to a transfer to Idaho. Id. at 3. The government attorney represented that the transfer would occur “as quickly as possible,” and al-Kidd consented. Id. at 4. Yet the government delayed transferring al-Kidd until March 24. See Ex. 14, Sugrue at *1. 43. At al-Kidd’s detention hearing in Idaho on March 25, 2003, the government opposed his release, contending that he was dangerous. Ex. 1, Pl. Docs 1795, 1797.
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44. Al-Kidd was never called as a witness or deposed for Al-Hussayen’s trial. Ex. 7, Lindquist Dep. 35, 101-02.
45. Another witness connected to the Al-Hussayen trial, a student named Saleh Al-Kraida, was served with a summons and asked to surrender his passport and postpone his travel. Ex. 12, Summons, Al-Hussayen (Dkt. #205); Minutes & Order, Al-Hussayen (Dkt. #259, #260). AlKraida was a Saudi national, had plans to leave the United States, and had already vacated his student housing. See Ex. 12, Aff., Al-Hussayen ¶¶ 6(a), 6(q), 11 (Dkt. #203). At no point was Al-Kraida or any other witness besides al-Kidd arrested in connection with AlHussayen’s trial. Ex. 2, Gneckow Dep. 211.
46. On June 10, 2004, a jury acquitted Al-Hussayen of material support charges (which had been added in a superseding indictment) and failed to reach a verdict on the visa fraud and false statement charges. Ex. 12, Jury Verdict, Al-Hussayen (Dkt. #671).
47. The government did not move to have al-Kidd’s restrictions lifted, leaving al-Kidd to file a motion himself. Ex. 12, Motion, Al-Hussayen (Dkt. #665). The Court granted the motion on June 16, 2004. Ex. 12, Order, Al-Hussayen (Dkt. #680).
Respectfully submitted, _/s/_____________________________
Lee Gelernt
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MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
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*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
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CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

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Case 1:05-cv-00093-EJL-MHW Document 310-3 Filed 12/21/11 Page 1 of 2

TABLE OF EXHIBITS

Exhibit 1. Plaintiff’s Documents

Exhibit 2. Deposition of FBI Special Agent Michael Gneckow

Exhibit 3. Deposition of FBI Special Agent Joseph Cleary

Exhibit 4. Deposition of ICE Agent Robert Alvarez

Exhibit 5. United States’s Documents

Exhibit 6. Deposition of FBI Special Agent Scott Mace

Exhibit 7. Deposition of AUSA Kim Lindquist

Exhibit 8. Deposition of FBI Special Agent Egon Dezihan

Exhibit 9.

Response of Defendant Michael Gneckow to Plaintiff’s First Set of Requests for Admission

Exhibit 10. Deposition of Abdullah al-Kidd

Exhibit 11. Deposition of CBP Officer Jaime Alvarado

Exhibit 12. Case Docket in United States v. Al-Hussayen

Exhibit 13. Plaintiff’s Responses to Federal Defendants’ First Set of Interrogatories

Exhibit 14. District Court Order in al-Kidd v. Sugrue, No. 06-cv-1133, 2007 WL 2446750 (W.D. Okla. Aug. 23, 2007)

Exhibit 15. United States’s Response to Plaintiff’s First Set of Requests for Admission

Exhibit 16. Response of Defendant Michael Gneckow to Plaintiff’s First Interrogatories

Exhibit 17. Response of Defendant Scott Mace to Plaintiff’s First Interrogatories

Exhibit 18. United States’s Response to Plaintiff’s Fourth Set of Requests for Admission

Exhibit 19. Hearing Transcript, United States v. al-Kidd, No. 03-94 (E.D. Va. Mar. 17, 2003)

Exhibit 20. Article in Seattle Post-Intelligencer

Case 1:05-cv-00093-EJL-MHW Document 310-3 Filed 12/21/11 Page 2 of 2

Exhibit 21. Testimony of FBI Director Robert Mueller before Senate Subcommittee (Apr. 10, 2003)
Exhibit 22. NCIC Document
Exhibit 23. Deposition of FBI Special Agent Robert Davis

Exhibit A. Exhibit B.

Filed Separately Under Seal Filed Separately Under Seal

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 1 of 110
Exhibit 10

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 2 of 110

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,
Plaintiff,
vs.
ALBERTO GONZALES, Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) No. CV:05-093-S-EJL ) ) ) ) ) )

Page 1

The deposition of ABDULLAH AL-KIDD, taken pursuant to the Federal Rules of Civil Procedure of the United States District Courts pertaining to the taking of depositions, taken before Lisa R. Lisit, a Notary Public within and for the County of Cook and State of Illinois, and a Certified Shorthand Reporter of said State, taken at 219 South Dearborn Street, Suite 500, Chicago, Illinois, on the 11th day of December, 2007, at the hour of 9:35 a.m.

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 3 of 110

Page 21

1

A. Between 1999 and 2002, I was

2 inconsistent.

3

Q. Why were you inconsistent?

4

A. I didn't have the money all the time.

5

Q. Why did you not have the money?

6

A. Because I had very little means.

7

Q. Why did you very little means?

8

A. I was paid very little, and there was a

9 portion of time that I had nearly almost nothing.

10

Q. Were you working during this time period?

11

A. Yes.

12

Q. Where were you working?

13

A. I worked for al-Multaqa from 1999 to

14 2001.

15

Q. When did you stop working at al-Multaqa?

16

A. August of 2001.

17

Q. What did you do from August of 2001 to

18 the point in time in 2002, when you were still not

19 making or unable to make payments?

20

A. Can you repeat your question?

21

Q. Sure. Sure. You said the period of time

22 when you were inconsistent was from 1999 to 2002.

23 And you just said that you worked at

24 al-Multaqa -- al-Multaqa?

25

A. That's fine.

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 4 of 110

Page 82

1

What do you mean you were given a blank

2 check by a multimillionaire?

3

A. A person offered to invest in my project.

4

Q. And did you accept that offer?

5

A. No, I did not.

6

Q. Why not?

7

A. Because I didn't want to become this

8 famous music mogul.

9

Q. Why did you not want to become that

10 person?

11

A. Because that's not my goal in life.

12

Q. What is your goal in life?

13

A. To be a good human being.

14

Q. And so did you inform this

15 multimillionaire -- presumably you informed this

16 multimillionaire that you were not going to accept

17 the offer; is that correct?

18

A. I just didn't answer any phone calls.

19

Q. And when was this period that you weren't

20 answering any phone calls?

21

A. In these months prior to August '99.

22

Q. So are we talking about June and July?

23

A. June and July, mm-hmm.

24

Q. So did you just -- strike that.

25

So you started to work at al-Multaqa in I

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 5 of 110

Page 83

1 think -- I just want to clarify -- September of

2 '99?

3

A. It was in August of '99.

4

Q. That you moved to Moscow and started

5 working there?

6

A. Right.

7

Q. And how long did you work there?

8

A. Up until August of 2001.

9

Q. And then you went to Yemen; is that

10 correct?

11

A. Yes.

12

Q. And you were in Yemen until April of '02;

13 is that right?

14

A. Yes.

15

Q. You came back from Yemen, and what did

16 you do in terms of employment?

17

A. Probably in late June or July I got a job

18 at YouthCare.

19

Q. So you were looking for employment

20 from -- strike that.

21

Were you actively seeking employment from

22 April of 2002 to June or July of '02?

23

A. Yes, I was.

24

Q. And in what field, what areas of

25 employment were you looking?

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1 home I have no money.

2

Q. Where does all your money go?

3

A. It goes to bills -- electricity, that's

4 behind. Heat bill, that's behind -- my basic

5 necessities.

6

Q. I think I understand now. I'm just

7 trying to clarify.

8

So you had that period where you had no

9 income --

10

A. I had no income.

11

Q. -- and you had bills that accumulated?

12

A. Yes.

13

Q. And you are now paying off those bills?

14

A. Yes.

15

Q. Okay. That makes sense.

16

What was the purpose -- you had planned

17 to go to Saudi Arabia in March of 2003, correct?

18

A. Yes.

19

Q. What was the purpose of that trip?

20

A. I wanted to study Islamic law.

21

Q. And you had a scholarship at a

22 university; is that correct?

23

A. Yes.

24

Q. And was that scholarship specifically to

25 study Islamic law at a particular university?

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1

A. Yes.

2

Q. How long were those studies going to

3 last?

4

A. When you mean "studies," what do you

5 mean?

6

Q. Your study of Islamic law. Was there a

7 program? Was there a set time period for that

8 program?

9

A. Well, it's a university just like any

10 university. I would have been first in the

11 language program, but there's a semester break.

12

I would have returned to the United

13 States and then returned back to Saudi Arabia and

14 then entered into the semester.

15

Q. Was there any specific time period? Was

16 it a two-year program? A three-year program?

17

A. Well, the Arabic program is a two-year

18 program which -- yes, the Arabic program is a

19 two-year program. And then after that, you enter

20 into the university.

21

Q. So by "Arabic program," do you mean study

22 of Arabic language?

23

A. Yeah, in the university everything is

24 taught in the Arabic language so you have to go

25 through the Arabic course before you can enter into

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1 correct?

2

A. Yes.

3

Q. What was the plan in terms of Saadia?

4

A. In terms of what?

5

Q. Well, you're looking at an extended

6 period in Saudi Arabia. What was Saadia going to

7 do during this time?

8

A. She was going to join me.

9

Q. So what was the plan in terms of her

10 joining you?

11

A. After I left she was to join me in one

12 month.

13

Q. When did you learn that Saadia was

14 pregnant with Zainab?

15

A. When I was in Ada County.

16

Q. You mean when you were detained at the

17 Ada County facility?

18

A. Yes, sir.

19

Q. Who made the arrangements for your

20 scholarship at -- strike that.

21

At what university in Saudi Arabia were

22 you going to study?

23

A. A university called Umm al-Qora

24 University. That's U-m-m a-l, dash, Q-o-r-a

25 University.

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1

Q. Umm al-Qora?

2

A. Mm-hmm.

3

Q. Who made arrangements for you to obtain a

4 scholarship from Umm al-Qora?

5

MR. GELERNT: Vague.

6

You can answer.

7 BY THE WITNESS:

8

A. I applied to get a scholarship.

9

Q. To the university?

10

A. Yes.

11

Q. When did you apply?

12

A. I applied for -- at which particular

13 time?

14

Q. That's the question. When did you apply?

15

A. I have applied at the university more

16 than one time.

17

Q. When was the first time?

18

A. The first time was in 1999.

19

Q. And what happened?

20

A. I was denied.

21

Q. Why?

22

A. I don't know.

23

Q. You just received a denial letter? Is

24 that all that --

25

A. I don't recall getting a denial letter.

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1 I had no response.

2

Q. So do you know for a fact that you were

3 denied or are you assuming that you were denied?

4

A. I know that I was denied.

5

Q. How do you know that?

6

A. Because I know an individual that worked

7 at the university.

8

Q. Who is that individual?

9

A. His name is Hulayl al-Omairy,

10 H-u-l-a-y-l, a-l, dash, O-m-a-i-r-y.

11

Q. When was the second time you applied to

12 Umm al-Qora?

13

A. In April of 2002.

14

Q. And were you accepted -- I'm sorry.

15

What happened?

16

A. Nothing. I just applied.

17

Q. So were you accepted or rejected? Do you

18 know?

19

A. No, it doesn't happen like that.

20

Q. Maybe that's what I'm -- so how does it

21 happen?

22

A. I mean, I submitted my application and I

23 had to wait until they gave me a response.

24

Q. And did you ever receive a response?

25

A. Yes, I did.

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1

Q. And what was the response?

2

A. That I was accepted.

3

Q. When did you receive that response?

4

A. I received that response in the

5 first -- approximately the first week of February

6 of 2003.

7

Q. Other than these two instances, have you

8 ever applied to Umm al-Qora?

9

A. No.

10

Q. Now, in addition to when you applied to

11 attend the university in both instances, did you

12 also have to apply for a scholarship?

13

A. If you're accepted they give you a

14 scholarship.

15

Q. Where were you going to live in Saudi

16 Arabia?

17

A. They have housing. They provide housing.

18

Q. "They" being the university?

19

A. Yes.

20

Q. So were you going to live on the

21 university or in some type of housing that the

22 university paid for?

23

A. Yes.

24

Q. So you were not going to have any housing

25 costs?

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1

A. No.

2

Q. What about Saadia? Where was she going

3 to live?

4

A. With me.

5

Q. Had she booked a flight to go to Saudi

6 Arabia?

7

A. No, not yet.

8

Q. Why not?

9

A. Because the plan was that I was to get

10 there and get settled and contact the university

11 that my family was coming so I could get into the

12 family housing.

13

Q. Was the university going to pay for her

14 travel?

15

A. No.

16

Q. What was her parents' view of this plan

17 for her to go to Saudi Arabia?

18

A. They at first were apprehensive about it

19 because it came out of -- you know, it was kind of

20 sudden.

21

Q. Why was it sudden?

22

A. Because the letter came to me in the

23 first part of February, and in the letter it told

24 me that I had, if I'm not mistaken, about two weeks

25 to begin the process of, you know, the visa

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1 application process and so forth.

2

Q. Did they know that you had applied to

3 study in Saudi Arabia? Her parents?

4

A. Yes, I told them.

5

Q. And what was their reaction?

6

A. There was no reaction.

7

Q. Were they supportive?

8

A. Oh, yes, when I -- yes.

9

Q. Were they happy for you?

10

MR. GELERNT: Happy that he applied?

11

MR. MEEKS: Were they happy for him that he

12 had applied.

13 BY THE WITNESS:

14

A. Or happy for me that I got accepted?

15

Q. I'm talking about the application.

16

A. Oh, I'm sorry. I didn't tell them about

17 the application. I'm sorry. I misunderstood you.

18

Q. So you did not tell Saadia's parents that

19 you had applied?

20

A. No, and what I had told them is that I

21 had applied for jobs in Saudi Arabia.

22

Q. Why did you not tell them that you had

23 applied for this?

24

A. Because that was so up in the air that it

25 was not something solid or even remotely solid

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1 attend mosque as often as you did or services at a

2 mosque as often as you did?

3

A. We attended together.

4

Q. Did you ever attend apart?

5

A. Well, if I was outside of the home like

6 at work and I had the ability to stop at the mosque

7 during prayer, I would do so.

8

Q. Did they pray as often as you did?

9

A. I wasn't keeping track of their prayer.

10

Q. Who paid for your flight arrangements to

11 Saudi Arabia?

12

A. The Saudi Cultural Mission.

13

Q. And that is located where?

14

A. In Washington, D.C., I believe, or in

15 Virginia, in the surrounding area.

16

Q. The Saudi Cultural Mission -- is that

17 what you said?

18

A. Yes.

19

Q. -- is that a government agency?

20

A. Yes, it's part of the embassy -- Saudi

21 Embassy.

22

Q. Did they book your ticket for you?

23

A. No, I booked it -- excuse me. I'm sorry.

24

What do you mean by "booked"?

25

Q. I mean who actually picked up the phone

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1 February?

2

A. Because prior to the acceptance letter, I

3 was actually offered a job to work in Saudi Arabia.

4

Q. What job were you offered?

5

A. I was offered to teach ESL at Dar

6 al-Kibbrah which is a school of the Berlitz

7 language out of Jersey.

8

Q. I thought earlier you testified you had

9 not made arrangements to teach ESL in Saudi Arabia?

10

A. I don't recall saying that.

11

Q. Well, let's just talk about that for a

12 moment. So the Berlitz Language Institute, you had

13 made arrangements with them to teach ESL in Saudi

14 Arabia; is that correct?

15

A. Yes, sir.

16

Q. When were those arrangements made?

17

A. I applied in December, and shortly -- I

18 think at the end of December and shortly after

19 that, they offered me a position.

20

Q. December of 2002?

21

A. Yes.

22

Q. And so were you planning to go to Saudi

23 Arabia to take this position?

24

A. At that particular time, I was excited

25 about the opportunity to teach in I think -- yeah,

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1 I started to prepare for that.

2

Q. Were you planning to go to Saudi Arabia

3 to teach ESL at the Berlitz school regardless of

4 whether you received a scholarship or admittance to

5 Umm al-Qora University?

6

A. As I stated before, actually Umm al-Qora

7 University was not even in my mind at this

8 particular time. Too much time had passed from the

9 time that I had put the application in so it wasn't

10 even in the framework in the late part of December,

11 early part of January.

12

Q. When did you apply to Berlitz to teach

13 ESL?

14

A. As I best recall, it was at the end of

15 December.

16

Q. And was that specifically to teach ESL in

17 Saudi Arabia?

18

A. Yes.

19

Q. Had you told Saadia's parents that you

20 had sought this employment?

21

A. That I sought this employment?

22

Q. That you applied.

23

A. I don't recall telling them.

24

Q. Why not?

25

A. Why I don't recall?

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1

A. From the time that I had finalized the

2 process of the paperwork and visa and so on and so

3 forth.

4

Q. So what visa requirements did you have to

5 fulfill?

6

A. The things I stated before in regards to

7 the background check and the medical testing.

8

Q. You submitted that to the Saudi Cultural

9 Mission?

10

A. Yes.

11

Q. And then they would then make

12 arrangements for you to get some type of visa then?

13

A. Yes.

14

Q. Do you remember when you sent that

15 paperwork to the Saudi Cultural Mission?

16

A. It was probably -- I started that

17 process -- as I stated before, I got the letter in

18 the first part of February. And since I had

19 already started the process for the job, a lot of

20 the same things applied so I would say within the

21 second and third week of February I had sent all

22 that stuff in to the cultural mission.

23

Q. When did you receive a visa from them?

24

A. It would have probably been the

25 last -- the last week of February or the first week

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1

A. At different places.

2

Q. Within one state? Within the state of

3 Washington or outside?

4

A. Outside -- sometimes outside the state of

5 Washington.

6

Q. And then you went to work for al-Multaqa

7 after that again?

8

A. Between -- I worked for three months in

9 1994 consistently. After that -- which was in the

10 summer.

11

After that time of that summer, I didn't

12 do anything for al-Multaqa other than work the

13 youth camps up until 1999, as I best recall.

14

Q. And then in 1999 --

15

A. After 1999, I worked as like a full-time

16 role.

17

Q. And that was from '99 until --

18

A. -- August 2001 --

19

Q. -- when you left for Yemen, correct?

20

A. Yes.

21

Q. And what did you do at al-Multaqa --

22 al-Multaqa?

23

A. al-Multaqa, yes.

24

Q. -- al-Multaqa? And what did you do

25 during this time period?

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1

A. In which time period?

2

Q. 1999 to August of 2001.

3

A. I arranged the English library. I made

4 labels for tapes. I made labels for tape albums.

5 I designed a couple book covers that were never

6 used.

7

I used to speak at universities,

8 churches, synagogues to represent Islam. That was

9 pretty much my role.

10

Q. From '94 to 99, when you attended the

11 youth camp, were you paid or was that as a

12 volunteer?

13

A. I was paid for the three months, but

14 after that I was a volunteer.

15

Q. For the three months, were you referring

16 to the 1994 time period?

17

A. Yes.

18

Q. Was al-Multaqa located in Moscow, Idaho

19 at that time -- I'm sorry. Where was it located at

20 that time in 1994?

21

A. Seattle, Washington.

22

Q. But then, when you went to work in 1999,

23 it was in Moscow; is that correct?

24

A. Yes, sir.

25

Q. They just moved operations -- or why did

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1 surrounding area for a while so I met all of the

2 new people to the area.

3

Q. Did Sami Omar al-Hussayen have a title at

4 al-Multaqa --

5

A. At which particular time?

6

Q. -- a connection to al-Multaqa?

7

A. At which time are you speaking?

8

Q. 1991 to 2001, during that period.

9

A. To my general understanding, yes.

10

Q. What was your understanding of his

11 connection?

12

A. He was one of the people doing work for

13 the al-Multaqa.

14

Q. Do you know what kind of work he was

15 doing?

16

A. In August of 1999, no, I did not.

17

Q. At any point from August of -- did you

18 start working there in August of '99?

19

A. Yes.

20

Q. At any time from August '99 to

21 August 2001, do you know what he was doing for

22 al-Multaqa?

23

A. He was -- did a lot of logistics. There

24 was a newsletter, an Arabic newsletter that, to the

25 best of my understanding -- because again, you

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1 know, I didn't really -- I knew Sami. I saw him,

2 but our interaction was very limited -- but from

3 what I understood, he was one of the people that

4 worked on this newsletter.

5

And he did -- like I said, he did a lot

6 of logistics, a lot of administrative things.

7

Q. Would you describe your relationship with

8 him as professional or personal or both?

9

A. It was not personal. I couldn't classify

10 it as professional.

11

Q. How would you classify it?

12

A. I mean, it was just -- there seemed to

13 be -- I don't really know how to explain this, but

14 there seemed to be some kind of barrier between us.

15

Q. Can you -- okay. What do you mean by

16 that?

17

A. I mean, it just -- you know, I actually

18 rarely even saw Sami. He was pretty much -- he was

19 seen on Fridays in the mosque, but for the most

20 part he was in his home or in his office. He was

21 not a person that was easily accessible.

22

Q. And when you say "office," do you mean

23 his office at al-Multaqa?

24

A. No.

25

Q. What do you mean, "his office"?

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1

A. On campus.

2

Q. When did you learn that Sami al-Hussayen

3 had been arrested?

4

A. I found out via a thread on the Internet

5 approximately probably the last week of February.

6

Q. When you say "a thread on the Internet,"

7 what do you mean?

8

A. Well, I went to, you know, one of the

9 Internet Web -- I don't know -- one of the news

10 sites.

11

You know, sometimes when you click

12 open -- I'm not saying this is how I did it, but

13 you know, when you click on Google it might have a

14 couple lines. If you open up your Yahoo mail

15 account, it might have a few lines. It was

16 something like that.

17

Q. Do you recall what your reaction was when

18 you learned that he had been arrested?

19

A. I was surprised.

20

Q. Why were you surprised?

21

A. Because I was surprised that, you know,

22 Sami was arrested. It wasn't -- I certainly didn't

23 expect him to be arrested.

24

Q. Did you talk to anyone about the fact

25 that he had been arrested?

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Page 252

1

CERTIFICATE

2

3 I, LISA R. LISIT, a Shorthand Reporter and a Notary 4 Public, do hereby certify that the foregoing 5 witness, ABDULLAH AL-KIDD, was duly sworn on the 6 date indicated, and that the foregoing is a true 7 and accurate transcription of my stenographic notes 8 and is a true record of the testimony given by the 9 foregoing witness.
10

11 I further certify that I am not employed by or 12 related to any party to this action by blood or 13 marriage and that I am in no way interested in the 14 outcome of this matter.
15

16 In witness whereof, I have hereunto set my hand 17 this 26th day of December, 2007.
18

19

20

21

22

LISA R. LISIT, CSR, RPR

Notary Public, Cook County, Illinois

23

24 C.S.R. No. 084-004297
25

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Exhibit 11

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1

1

2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

3

Case No. CV:05-093-S-EJL

-------------------------------------)

4 ABDULLAH AL-KIDD,

5

Plaintiff,

6

vs.

7 ALBERTO GONZALES, Attorney General
8 of the United States, et al.,

9 Defendants.
10 -------------------------------------)

11

12

13

14

DEPOSITION OF JAIME A. ALVARADO

15

New York, New York

16

Wednesday, November 7, 2007

17

18

19

20

21

22

23 Reported by:

24 Toni Allegrucci

25 JOB NO. 198421

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229

1

ALVARADO

2

Q. Okay. I'm actually asking about

3 the line above that, the one that begins

4 T-K-D-E.

5

A. No, not 100 percent. I would be

6 guessing. I'm not 100 percent on that, I

7 don't know.

8

Q. So then the line after that you

9 said that did mean something to you?

10

A. Some airlines put the nationality

11 of the passenger there.

12

Q. And so from this you gather that

13 Mr. Al-Kidd was?

14

A. That this particular subject was a

15 U.S. national.

16

Q. So do you know what AP fax means at

17 the beginning of that line?

18

A. No.

19

Q. Or OSI SV?

20

A. No.

21

Q. Okay. And then on the last line,

22 can you tell me what that means?

23

A. I can only tell you that it says

24 "passenger advised Visa requirement." I

25 guess they have to have a Visa to get into

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230

1

ALVARADO

2 that country.

3

Q. Into?

4

A. Saudi Arabia.

5

Q. So after you determined that

6 Mr. Al-Kidd was the subject of a text record

7 and the subject of a JTTF investigation you

8 printed out this sheet?

9

A. Right.

10

Q. Okay.

11

MR. JADWAT: I'm going to give the

12

reporter a document Bates stamped US 99

13

to be marked.

14

(Plaintiff's Exhibit 7, document,

15

marked for identification, as of this

16

date.)

17

Q. Again, I'm going to ask you to

18 focus on what's underneath the handwriting on

19 this page, okay?

20

A. Um-hm.

21

Q. What is this page?

22

A. As I mentioned to you before, some

23 airlines have different type of reservation

24 systems, this particular one the history is

25 so short. That is the history that you are

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257

1

ALVARADO

2

Q. Any questions at all.

3

A. No, I was the one feeding him the

4 information about the reservation.

5

Q. So he didn't ask you to follow-up

6 on any of the information you gave him?

7

A. All this information was turned

8 over to my deputy, because remember, I didn't

9 work, I think I was off both days, Saturday

10 and Sunday, so he was advised, my deputy, to

11 keep track.

12

Q. Right. But you did have a phone

13 call with Alvarez on Friday?

14

A. Probably. I don't recall.

15

Q. Okay. In either of those phone

16 conversations, did you tell Mr. Alvarez that

17 Mr. Al-Kidd definitely did not have a ticket

18 for a return flight?

19

A. No, I never told him that.

20

Q. Can you turn back please to

21 Exhibit 6. This is your handwriting on this

22 exhibit; is that correct?

23

A. Yes.

24

Q. Well, actually, before I ask you

25 about the exhibit, do you recall whether you

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 29 of 110

263

1

ALVARADO

2 the reservation?

3

A. No.

4

Q. So in either of the conversations

5 that you had with Mr. Alvarez, did you

6 definitively tell him that Mr. Al-Kidd had a

7 one-way ticket?

8

A. I might have mentioned it to him,

9 that there was one-way ticket, that the

10 reservation didn't show the return. In

11 certain cases the agent would say do you know

12 if he is coming back, then I would say yeah,

13 he has a return ticket on this and this and

14 this date.

15

I might have said to him it looks

16 like it's a one-way ticket, there's no date.

17

Q. But you certainly did not tell him

18 as you said before, did you not tell him that

19 there's no return?

20

A. I can't remember that. I might

21 have I wrote it down. And if he did get a

22 copy of that he had to read it one-way

23 ticket. Again, it was my personal

24 information anyway.

25

Q. Right. And you had an

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 30 of 110

267

1

2

C E R T I F I C A T E

3 STATE OF NEW YORK )

4

: ss.

5 COUNTY OF NEW YORK )

6

7

I, Toni Allegrucci, a Notary Public

8

within and for the State of New York, do

9

hereby certify:

10

That JAIME A. ALVARADO, the witness

11

whose deposition is hereinbefore set

12

forth, was duly sworn by me and that

13

such deposition is a true record of the

14

testimony given by the witness.

15

I further certify that I am not

16

related to any of the parties to this

17

action by blood or marriage, and that I

18

am in no way interested in the outcome

19

of this matter.

20

IN WITNESS WHEREOF, I have hereunto

21

set my hand this 27th day of November,

22

2007.

23

____________________

24

TONI ALLEGRUCCI

25

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 31 of 110
Exhibit 12

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa1goef 3129 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa2goef 3139 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa3goef 3149 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa4goef 3159 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa5goef 3169 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa6goef 3179 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa7goef 3189 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa8goef 3199 of 110

Case 1C:0a5s-ecv3-:00030-c9r3-0-E0J0L4-8M-EHJWL Document 1310F-5iledFi0le2d/1132/0/231/1P1agePa9goef 4109 of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a0geof4119of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a1geof4129of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a2geof4139of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a3geof4149of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a4geof4159of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a5geof4169of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a6geof4179of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a7geof4189of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a8geof4199of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt1310F-i5ledF0il2e/d131/20/321/P1a1geP1a9geof5109of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg1e o5f17of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg2e o5f27of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg3e o5f37of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg4e o5f47of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg5e o5f57of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg6e o5f67of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230130-5FilFeidle1d01/127/2/013/11PaPgaeg7e o5f77of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230150-5FilFeidle1d01/127/2/013/11PaPgaeg1e o5f82of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt230150-5FilFeidle1d01/127/2/013/11PaPgaeg2e o5f92of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt235190-5FilFeidle1d11/024/2/013/11PaPgaeg1e o6f01of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt236100-5FilFeidle1d11/024/2/013/11PaPgaeg1e o6f14of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt236100-5FilFeidle1d11/024/2/013/11PaPgaeg2e o6f24of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt236100-5FilFeidle1d11/024/2/013/11PaPgaeg3e o6f34of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt236100-5FilFeidle1d11/024/2/013/11PaPgaeg4e o6f44of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt636150-5FilFeidle0d61/023/2/014/11PaPgaeg1e o6f53of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt636150-5FilFeidle0d61/023/2/014/11PaPgaeg2e o6f63of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt636150-5FilFeidle0d61/023/2/014/11PaPgaeg3e o6f73of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt637110-5FilFeidle0d61/120/2/014/11PaPgaeg1e o6f84of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt637110-5FilFeidle0d61/120/2/014/11PaPgaeg2e o6f94of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt637110-5FilFeidle0d61/120/2/014/11PaPgaeg3e o7f04of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt637110-5FilFeidle0d61/120/2/014/11PaPgaeg4e o7f14of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638100-5FilFeidle0d61/126/2/014/11PaPgaeg1e o7f23of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638100-5FilFeidle0d61/126/2/014/11PaPgaeg2e o7f33of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638100-5FilFeidle0d61/126/2/014/11PaPgaeg3e o7f43of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638130-5FilFeidle0d61/320/2/014/11PaPgaeg1e o7f53of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638130-5FilFeidle0d61/320/2/014/11PaPgaeg2e o7f63of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638130-5FilFeidle0d61/320/2/014/11PaPgaeg3e o7f73of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638140-5FilFeidle0d71/021/2/014/11PaPgaeg1e o7f83of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638140-5FilFeidle0d71/021/2/014/11PaPgaeg2e o7f93of 110

Case 1C:a0s5e-c3v:-0030-0c9r-30-0E0J4L8-M-EHJWL DDooccuummeenntt638140-5FilFeidle0d71/021/2/014/11PaPgaeg3e o8f03of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 81 of 110
Exhibit 13

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 82 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 83 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 84 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 85 of 110
Exhibit 14

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 86 of 110

Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))

Page 1

Only the Westlaw citation is currently available.
United States District Court, W.D. Oklahoma.
Abdullah AL-KIDD, Plaintiff, v.
John SUGRUE, Defendant.
No. CIV-06-1133-R. Aug. 23, 2007.
Charles S. Thornton, American Civil Liberties Union of Oklahoma, Oklahoma City, OK, Lee Gelernt, American Civil Liberties Union Fnd, New York, NY, Robin L. Goldfaden, American Civil Liberties Union Immigrants' Rights, Oakland, CA, for Plaintiff.
J. Marcus Meeks, U.S. Dept of Justice Torts Div, Washington, DC, for Defendant.
ORDER DAVID L. RUSSELL, United States District Judge.
*1 Defendant John Sugrue has moved for summary judgment on Plaintiff's Amended Complaint assertedly based upon qualified immunity and Plaintiff's lack of standing to pursue declaratory relief [Doc. No. 44]. Defendant Sugrue, who is sued in his individual capacity in this Bivens action, asserts that Plaintiff cannot establish a Fourth Amendment violation; that the law does not clearly establish that the Federal Transfer Center's visual search policy violated the Fourth Amendment; and that Defendant is entitled to qualified immunity because he did not personally participate in the search of Plaintiff, the manner and circumstances of which are alleged to have violated the Fourth Amendment.
The following facts are undisputed. On March 16, 2003, Plaintiff Abdullah Al-Kidd was arrested in Virginia on a material witness arrest warrant issued on application made by the United States Attorney's Office for the District of Idaho. At the detention hearing before a magistrate judge in the Eastern District of Virginia, Plaintiff agreed to a continuance to be transferred to Idaho for the detention hearing after being assured that the transfer would occur quickly. Plaintiff remained in a detention facility in Virginia until March 24, 2003, when he was transported by airplane to the Federal Transfer Center (FTC) in Oklahoma City, Oklahoma. During the entire duration of the trip, Plaintiff was shackled at the hands, waist and ankles. Upon Plaintiff's arrival at the FTC, Plaintiff was taken to a “shower cell,” where he was asked to remove all of his clothes. Pursuant to what is apparently an unwritten policy of the FTC, a visual strip search and visual body cavity search of the Plaintiff was conducted by an FTC staff person standing outside the “shower cell” door. After the search was completed, the staff person confiscated Plaintiff's clothes and left Plaintiff naked in the shower cell for approximately one and one-half to two hours until other arriving detainees had been processed through the Receiving and Discharge area of the FTC. Plaintiff attests that because there was no bench or chair in the shower cell, he had to sit naked on the floor. He further attests that the cell was extremely cold to the point where he was shivering. Plaintiff attests that because the cell was so close to the desk where a female FTC staff person sat, with her back to the Plaintiff, processing detainees, each detainee who was being processed by the female employee could see the

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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 87 of 1P1a0ge 2
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
Plaintiff. Plaintiff further attests that because he was cold and embarrassed, he curled up on the floor at the back of the shower cell, with his knees pulled up against his chest but that he was still in plain view of other detainees. Eventually, an FTC staff person gave Plaintiff a prison uniform to put on, shackled the Plaintiff and took him to a single-occupant cell in FTC's Special Housing Unit for administrative detention. Once Plaintiff was inside his cell with the door locked, his handcuffs and shackles were removed through a slot in the door. Plaintiff attests that the cell was completely closed off from neighboring cells by concrete walls, making it impossible for anything to be passed to him from other cells. He further attests that he was never permitted to leave his cell. The following morning, before being taken to the plane for transport to Idaho, Plaintiff was again handcuffed and shackled, taken from his cell and escorted to a barred cell where he was again subjected to another strip search and visual body cavity search. Plaintiff attests that at least two other detainees could see him being searched.
*2 It is FTC's policy to conduct a visual inspection of all body surfaces and body cavities of each inmate that arrives at FTC, regardless of whether the inmate is a sentenced prisoner, is awaiting trial, a material witness, or is being detained for some other purpose. The BOP Inmate Systems Supervisor at the FTC attests that uniform application of the visual search policy ensures that it is not administered in a discriminatory manner. The purpose of this policy is to prevent and deter the introduction of contraband and weapons into the FTC. All FTC inmates are also subjected to a visual search upon departure from the FTC. The stated purpose of these searches is to prevent contraband or weapons from leaving the facility and to deter the creation or obtaining of contraband and weapons within the FTC.
The FTC's Inmate Systems Supervisor, Johnny Rose, attests that the procedures for conducting visual searches are designed to ensure maximum privacy for the inmates. Inmates are searched in one of eleven fourfoot by four-foot search booths which have a curtain on the fourth side, allowing the FTC staff person to open the curtain and view the inmate, or in one of two four-foot by five-foot shower cells, having a barred, locked door on the fourth side. Mr. Rose attests that because of the configuration and size of the booths and shower cells, it is difficult if not impossible for other inmates and staff to see into them while a search is being conducted, and that while an inmate is being searched in a shower cell, other inmates are not moved past the shower cell doors. Mr. Rose attests that it is FTC policy to have an inmate disrobe only long enough to perform a visual search and that inmates are given institutional clothing as soon as possible after visual searches are performed. However, he states that there are occasions when staff will leave an inmate who's been searched in a shower cell, which is locked, for a short period while the staff person attends to other duties.
It is also FTC policy or practice for each inmate to be placed in a “boss chair” and then passed through a metal detector after the inmate is visually searched for the purpose of detecting metal objects that could not be detected by the visual search.
A significant number of inmates arrive at FTC on a daily basis and include sentenced prisoners, pretrial detainees, other types of detainees and material witnesses of all custody classifications and security levels. Inmates housed at FTC come from both state and federal facilities and prisons all over the country. On the day Plaintiff arrived at FTC, 187 inmates of all categories were admitted to FTC. According to the sworn Declaration of Johnny Rose:
The FTC has limited information about an inmate upon his or her arrival. The movement paperwork that arrives with the inmate will provide the basis for an inmate's detention, but it may say nothing about the underlying conviction, charges, or specific reasons why an inmate is being detained. The movement paperwork also
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 88 of 1P1a0ge 3
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
may or may not indicate where an inmate was housed prior to arriving at the FTC. If an inmate was housed in a non-Federal facility, the movement paperwork may not indicate security concerns that arose during the inmate's stay in the non-Federal facility. The limited information that the FTC has about an inmate upon arrival necessitates a visual cavity search of all inmates to prevent the introduction of contraband or weapons into the facility.
*3 Declaration of Johnny Rose (Exhibit “3” to Defendant's Brief) at ¶ 6 (emphasis added).
Defendant John Sugrue was warden of the FTC at the time Plaintiff was detained there in March of 2003. As Warden, Defendant Sugrue had oversight of all staff and was responsible for the overall operations of the FTC, although he was not directly involved in the daily operations of each department. Defendant Sugrue had no knowledge of and no personal interaction with the Plaintiff during the time Plaintiff was at the FTC. Rick Sharp, an Inmate Systems Supervisor at FTC, had no recollection of Plaintiff and none of FTC's staff persons recalled Plaintiff coming into the FTC or going out. Mr. Sharp also testified that a Form 129 for Plaintiff, showing that Plaintiff was a federal material witness, could have been included in the “movement papers” with which Plaintiff arrived at the FTC.
Despite the routine visual searches and use of the “boss chair”/metal detector upon inmates' arrival at FTC and departure therefrom, inmates still attempt to smuggle contraband and weapons in and out of the FTC. Since December of 1999, there have been eight (8) documented incidents of inmates attempting to do so, in each of which instance the material was discovered during the visual search or when the inmate sat in the boss chair. There have been at least three instances since 2000 where weapons or contraband have been discovered on inmates while in the FTC. There is no information in the record as to the type(s) of FTC inmates on which contraband or weapons were discovered during visual searches, use of the boss chair or otherwise, i.e., whether the inmates were convicted prisoners, pretrial detainees, material witnesses or other types of detainees.
Qualified Immunity Qualified immunity is a defense to a Bivens action. See Robbins v. Wilkie, --- U.S. ----, 127 S.Ct. 2588, --L.Ed.2d ---- (2007); Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under the qualified immunity doctrine, government officials performing discretionary functions generally are immune from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir.2005), cert. denied, 546 U.S. 1138, 126 S.Ct. 1147, 163 L.Ed.2d 1001 (2006). “When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, who must first establish that the defendant violated a constitutional right.” Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.2007) (citing Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir.2004)). If no constitutional violation is established no further inquiry is necessary. See id., citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a constitutional violation has been shown, the plaintiff must show that the constitutional right which was violated was clearly established. See Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. at ----, 150 L.Ed.2d at 281. The inquiry as to whether a constitutional right was clearly established must be undertaken not in a broad general sense but in a more particularized and relevant sense. “The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.” Saucier, 533 U.S. at 201-02, 121 S.Ct. at ----, 150 L.Ed.2d at 281-82, quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523, 531 (1987). Ultimately, however, the inquiry is whether the law was sufficiently clear to given an official “fair warning” that his conduct deprived his victim of a constitutional right. United States v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432, 445 (1997). This does not mean, however, that a plaintiff must point to a case involving
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 89 of 1P1a0ge 4
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
identical or even very similar facts, although doing so would provide strong support for the conclusion that the law is clearly established. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666, 679 (2002). General statements of the law may give fair and clear warning because they “apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’ “ Lanier, 520 U.S. at 270-71, 117 S.Ct. 1219, 137 L.Ed.2d at 446, quoting Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034, 97 L.Ed.2d at 531. Thus, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, ----, 153 L.Ed.2d 666, 679 (2002). “The more obviously egregious the [subject] conduct is in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Meyer v. Board of County Commissioners of Harper County, OK, 482 F.3d 1232, 1242 (10th Cir.2007) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004)).
Did Defendant Violate Plaintiff's Fourth Amendment Rights By Causing Plaintiff to be Subjected to the Strip Searches and Visual Body Cavity Searches?
*4 In determining whether a strip search is constitutional under the Fourth Amendment to the United States Constitution, the Court must balance the need for the particular search against the grave invasion of privacy it entails. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000); Cottrell v. Kaysville City, Utah, 994 F.3d 730, 734 (10th Cir.1993); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir.1993); Hill v. Bogans, 735 F.3d 391, 393-95 (10th Cir.1984); Draper v. Walsh, 790 F.Supp. 1553, 1558 (W.D.Okla.1991); Morreale v. City of Cripple Creek, 113 F.3d 1246, 1997 WL 290976 (10th Cir. May 27, 1997) (No. 96-1220) at *7; Ellis v. Sharp, 30 F.3d 141, 1994 WL 408129 at *3 (10th Cir. Aug. 4, 1994) (No. 93-6242). In arriving at that balance, the Court must consider the scope of the intrusion, the manner in which it was conducted, the justification for initiating the search and the place where the search took place. Id. Personal body searches of inmates must be reasonable under the circumstances. Levoy v. Miller, 788 F.2d 1437, 1439 n * * (10th Cir.1986). See Ohio v. Robinett, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347, 354 (1996) (Reasonableness under the Fourth Amendment is “measured in objective terms by examining the totality of the circumstances.”).
In this case, no probable cause or reasonable suspicion that Plaintiff was concealing weapons or contraband on his person was articulated as the justification or need for the strip and body cavity searches at issue. Rather, the searches were conducted pursuant to an FTC policy to conduct such searches on all arriving and departing FTC inmates. The stated purpose for this policy as applied to arriving inmates is to prevent and deter the introduction of contraband and weapons into the FTC and as applied to departing inmates is to deter the creation or obtaining of contraband and weapons within the FTC. Thus, the articulated need for the searches in this case is the maintenance of institutional security at the FTC by preventing and deterring the introduction, creation or obtaining of contraband or weapons in the FTC. Maintaining a safe and secure detention facility is a legitimate penological interest. See Bell v. Wolfish, 441 U.S. at 540 & 546, 99 S.Ct. 1861, 60 L.Ed.2d at 469 & 473; Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438, ---- (1984). However, Plaintiff had neither been arrested for or convicted of any crime. Plaintiff was merely a material witness who had voluntarily agreed to be transferred to the District of Idaho for a detention hearing. Plaintiff was either a material witness detainee or a material witness subject to possible detention following a detention hearing in Idaho.
“A strip search is an invasion of personal rights of the first magnitude.” Nelson v. McMullen, 207 F.3d at 1206, quoting Chapman v. Nichols, 989 F.2d at 395. Strip searches involving the visual inspection of body cavities, like those herein, are even more intrusive and among the most dehumanizing and degrading of experiences. See Levoy v. Mills, 768 F.2d at 1439. In this case Plaintiff was twice required to remove all of his clothes and
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 90 of 1P1a0ge 5
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
subjected to a visual inspection of his body cavities. Thus, the scope of the intrusion upon Plaintiff's privacy interests was great.
*5 There is no dispute at to where the searches of Plaintiff were conducted. Although Defendant's Inmate Systems Supervisor, Johnny Rose, attests that “[t]he procedures for conducting visual searches are designed to ensure maximum privacy for the inmates,” Declaration of Johnny Rose at ¶ 9; that it is difficult if not impossible for other inmates and staff to see inside the cell while a search is being conducted,” id. at ¶ 11; and that while an inmate is searched in a shower cell, other inmates are not moved past the shower stall doors, see id. at ¶ 12, his description of the shower cells indicates that it was certainly possible for other inmates or staff to see into the shower cell while the search of Plaintiff was being conducted and to see Plaintiff when he was left nude in the shower cell. Moreover, because Mr. Rose's statements pertain only to routine procedures and not to what occurred while and after Plaintiff was strip searched, they do not directly or completely controvert Plaintiff's statements that inmates being processed and a female staff person could see Plaintiff when he was left naked in the shower cell following the initial strip search or that at least two inmates could see him when he was strip searched before his departure from the FTC. Likewise, Mr. Rose's statements that FTC policy is to have an inmate disrobe only long enough for a visual search and that inmates are given institutional clothing as soon as possible after the visual searches, see id. at ¶ 14, do not directly or completely controvert Plaintiff's statement that he was left naked in the shower cell for one and one-half to two hours following the visual search conducted when he arrived at FTC because, again, Mr. Rose's statements pertain to what generally or ordinarily occurs and not to what specifically occurred after Plaintiff was strip searched. It is unnecessary, however, for the Court to resolve any factual disputes in the record concerning the place where the initial search of Plaintiff was conducted and the manner in which it was conducted. Likewise, it is unnecessary for the Court to resolve any factual discrepancy in the record as to the place or manner in which the search of Plaintiff before his departure from FTC was conducted. Neither of the searches of Plaintiff was performed in a place and manner that ensured his privacy and prevented others from viewing Plaintiff while and after he was being searched.
If the Court balances the need to search Plaintiff, a material witness who had never been arrested for or convicted of committing a crime, for weapons or contraband to prevent or deter the introduction, creation or obtaining of same in the FTC against the grave invasion of the Plaintiff's privacy occasioned by the strip searches of Plaintiff and visual inspections of his body cavities, considering the factors set forth in Bell v. Wolfish, both of the searches of Plaintiff were objectively unreasonable and violated the Fourth Amendment.
*6 However, the searches of Plaintiff herein were conducted pursuant to an FTC policy requiring searches of all incoming and departing inmates or detainees. A search conducted pursuant to such a prison policy which impinges on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64, 70 (1987); Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir.2002). Maintenance of facility security by preventing and deterring the introduction, creation or obtaining of weapons and contraband is a legitimate penological interest. However, the searches of Plaintiff and the manner in which they were conducted were not reasonably related to the FTC's security needs. There is no logical or legitimate reason to think that individuals like Plaintiff, who are detained merely because they are material witnesses and who have not been charged with or convicted of a crime, may be concealing weapons or contraband. Strip searches and body cavity inspections of material witness detainees are irrational and arbitrary or an “exaggerated response” to security needs and the likelihood of the articulated concern that inmates subject to searches would learn which detainees would not be searched and ask or force them to smuggle contraband or weapons into the FTC, see Declaration of Johnny Rose at ¶ 19. This is particularly true inasmuch as it is also FTC policy to conduct pat searches of all inmates and subject them to the “boss chair”/metal detector
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 91 of 1P1a0ge 6
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
procedure. With respect to the strip search of Plaintiff upon his arrival, it is illogical or irrational to believe that another inmate could have asked or forced Plaintiff to conceal a weapon or contraband in transit to the FTC because Plaintiff was shackled. The strip search of Plaintiff before his departure from the FTC, after Plaintiff had been strip searched upon arrival at FTC, shackled, placed in a single-person cell to which no other inmates had access and which Plaintiff was not allowed out of for the duration of his stay at FTC, bears no rational relationship to any security needs or interest of the FTC. Moreover, accommodation of the constitutional rights of material witness detainees like Plaintiff by ascertaining their status as material witnesses would pose little burden on FTC staff. Compare with Turner v. Safly, 482 U.S. at 90, 107 S.Ct. 2254, 96 L.Ed.2d at 79-80. It is not reasonable for FTC staff to conduct strip searches and visual body cavity inspections on material witness detainees merely because they don't know that they are merely material witness detainees and not convicted prisoners. See Ellis v. Sharp, 30 F.3d 141, 1994 WL 408129 at *2 (10th Cir. Aug. 4, 1994).
Finally, “the existence of obvious, easy alternatives” to policy-dictated routine strip and body cavity searches of all material witness detainees “at de minimis cost to the valid penological interests,” such as a stamp on material witnesses' moving papers identifying their status as such, coupled with a pat-down search or a patdown search and use of the “boss chair”/metal detector procedure, is evidence that FTC's policy of strip searches and body cavity inspections for all incoming and outgoing “inmates,” as applied to material witness detainees, is not reasonable and not reasonably related to legitimate penological interests. See id., 482 U.S. at 90-91, 107 S.Ct. 2254, 96 L.Ed.2d at 80. The record herein shows that Defendant's policy as applied to Plaintiff is not reasonably related to legitimate penological interests in facility security and that Defendant violated Plaintiff's Fourth Amendment rights by causing Plaintiff to be subjected to strip searches and body cavity inspections both upon his arrival at FTC and before his departure therefrom. With respect to the place and manner in which the searches of Plaintiff were conducted, genuine issues of material fact exist as to whether the conditions of the searches violated Plaintiff's Fourth Amendment rights. However, Plaintiff's version of the material facts as to where the searches were conducted, whether Plaintiff could be viewed by other inmates during the searches and the length of time during which Plaintiff remained naked and visible to other inmates following the initial search supports a claim for the violation of Plaintiff's Fourth Amendment rights by the place and manner in which the searches were conducted. See Walker v. City of Orem, 451 F.3d 1139, 1130 (10th Cir.2006) (denial of summary judgment on the issue of qualified immunity is proper where the plaintiff's version of facts in summary judgment proceedings supports a claim for a violation of a constitutional right).
Was the Law Clearly Established Such that Defendant Should Have Known that Subjecting Plaintiff to the Strip Searches and Body Cavity Inspections Violated Plaintiff's Constitutional Rights?
*7 As early as 1984, the Tenth Circuit held that strip searches of persons arrested for minor traffic offenses of whom officials had no reasonable suspicion that they were carrying or concealing weapons or drugs, conducted pursuant to a blanket policy requiring all detainees to be strip searched, were unconstitutional as violative of such detainees' Fourth Amendment rights, even when such detainees were or were to be intermingled with the prison population. See Hill v. Bogans, 735 F.2d 391 (10th Cir.1984). In 1993, the Tenth Circuit stated that “[e]very circuit court, including our own, which had considered the constitutionality of strip searches conducted under such circumstances has concluded that such searches are unconstitutional.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993) (citing cases from the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits). The Tenth Circuit has in fact consistently and continuously condemned strip searches with or without visual inspection of body cavities of pretrial detainees arrested for minor offenses as unreasonable as a matter of law and unconstitutional under the Fourth Amendment. See Cottrell v. Kaysville City, Utah, 994 F.2d at 734; Chapman, 989 F.2d at 395-96; Hill v. Bogans, 735 F.2d at 393-94; Morreale v. City of Cripple Creek, 1997 WL
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 92 of 1P1a0ge 7
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
290976 at *6-7; Ellis v. Sharp, 1994 WL 408129 at *2. Cf. Foote v. Spiegel, 118 F.3d 1416, 1425-26 (10th Cir.1997) (no qualified immunity for strip search of person arrested for possession of drugs but not placed in general inmate population where there was no reasonable suspicion she had additional drugs or a weapon on her person). Moreover, the Tenth Circuit has consistently condemned strip searches with or without body cavity inspections even of convicted prisoners as unreasonable and violative of the Fourth Amendment when they are conducted in full view of other inmates and staff, at least without sufficient justification for conducting the searches in an open area. See Farmer v. Perrill, 288 F.3d at 1259-61; Nelson v. McMullen, 207 F.3d at 1207; Hayes v. Marriott, 70 F.3d 1144, 1146-48 (10th Cir.1995). Finally, the Tenth Circuit has specifically held that it was clearly established by May of 1993 that a strip search of a person arrested for a minor traffic offense, conducted in view of other persons, without sufficient justification for the search or for conducting it in a public area, violates the Fourth Amendment and that a reasonable officer would have known that by May of 1993. See Farmer v. Perrill, 288 F.3d at 1260, citing Hill v. Bogans, 735 F.2d 391; Foote v. Spiegel, 118 F.3d at 1425 (“[I]t was clearly established in May 1994 that a strip search of a person arrested for driving under the influence of drugs but not placed in the general jail population is not justified in the absence of reasonable suspicion that the arrestee has drugs or weapons hidden on his or her person.”) (citing Cottrell, 994 F.2d at 734). In Chapman v. Nichols, the Tenth Circuit in 1993 concluded as a matter of law that a belief that “a strip search policy applied to minor offense detainees without particularized reasonable suspicion was lawful if conducted in private” was “not objectively reasonable” in light of clearly established law, rejecting a defense of qualified immunity. 989 F.2d at 398. The Tenth Circuit further observed in Chapman that “no circuit case has upheld the grant of qualified immunity when asserted against a claim based on an across-the-board policy of strip searching minor offense detainees.” Chapman v. Nichols, 989 F.2d at 398 (citing cases). Accord Draper v. Walsh, 790 F.Supp. 1553, 1560-61 (W.D.Okla.1991).
*8 In the case before this Court, Plaintiff had not even been arrested for a minor offense; he was arrested and detained as a material witness. He was not intermingled with convicted prisoners at FTC and was handcuffed and shackled while in the presence of other inmates. If an official could not have reasonably believed in 1993 that a strip search policy applied to minor offense detainees was constitutional in light of clearly established law, a fortiori, Defendant could not have reasonably believed in 2003 that the strip search/body cavity inspection policy of FTC, applied to a material witness detainee such as the Plaintiff, did not violate the law and deprive Plaintiff of his Fourth Amendment rights. Likewise, if the searches in question occurred where Plaintiff could be and was viewed by other inmates, as Plaintiff attests but as to which a genuine issue of material fact exists, Defendant Sugrue could not have reasonably believed that the manner of conducting the searches was reasonable and did not violate Plaintiff's Fourth Amendment rights. However, an issue remains as to whether Defendant Sugrue caused the deprivation of Plaintiff's Fourth Amendment rights by the place and manner in which the strip searches were conducted, i.e., whether there is any basis for Defendant's personal liability for the place/ manner in which Plaintiff maintains the strip searches were conducted.
Did Defendant Personally Participate in the Asserted Constitutional Violations Defendant Sugrue does not argue that he cannot be liable for deprivations of Plaintiff's constitutional rights
occasioned by conducting strip searches and body cavity inspections of Plaintiff at the FTC because he did not personally participate in them. Nor does he argue that he did not promulgate and/or enforce the FTC policy on strip searched and body cavity searches. The Court therefore presumes that Defendant Sugrue promulgated and enforced the FTC policy on strip searches and body cavity searches and therefore, that he is liable for the violation of Plaintiff's Fourth Amendment rights occasioned by the searches by “causing” such violations. See Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2nd Cir.2006) (personal involvement of a supervisory defendant ne-
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 93 of 1P1a0ge 8
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
cessary for liability in Bivens action may be shown by evidence that he created a custom or policy fostering the constitutional violation or allowed the custom or policy to continue after learning of it). Cf. Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir.2000) (supervisor is liable under 42 U.S.C. § 1983 where an affirmative link is shown between the constitutional deprivation and the supervisor's personal participation or exercise of control or direction). However, he argues that he cannot be liable for any deprivation of Plaintiff's Fourth Amendment rights resulting from the place and manner in which he was searched, that is, because the searches were conducted where Plaintiff could be viewed by other inmates and because Plaintiff was left naked in the shower cell for one and one-half to two hours, if this was in fact the case. This is so, Defendant Sugrue asserts, because the FTC search policy does not sanction any of these circumstances, and Defendant Sugrue cannot be liable for actions of the FTC staff that were contrary to policy procedures. In other words, Defendant Sugrue asserts that Plaintiff has failed to show Defendant's personal participation in these aspects of the searches or any affirmative link between the deprivation of Plaintiff's constitutional rights occasioned by these search conditions and Defendant's personal participation or exercise of control or direction. Defendant Sugrue is correct. However, Plaintiff, concurrently with his response to Defendant's motion for summary judgment, filed a motion pursuant to Rule 56(f), F.R.Civ.P . [Doc. No. 49], most of which is moot in light of the foregoing. But in his Rule 56(f) motion, Plaintiff asserts that he should be permitted to conduct discovery directed to how often the practice of leaving detainees naked in their cells or shower cells during or after searches has occurred and for what length of time detainees have been so left, whether Defendant Sugrue was aware of, condoned or tolerated this “practice” and what measures, if any, Defendant took to prevent this practice from occurring at the FTC, including what training was conducted in that regard. Plaintiff also requests that he be permitted to take the deposition of the individual responsible for Plaintiff's initial search and prolonged wait before he was furnished any clothes to understand whether Plaintiff was “singled out” for the treatment he received and to determine whether such treatment was at the direction of “someone in a supervisory position,” presumably to include Defendant. Defendant asserts that this discovery should not be permitted “because Plaintiff has not satisfied his burden under Rule 56(f) of showing that this discovery would rebut Defendant's assertion of qualified immunity.” Defendant's Opposition to Plaintiff's Rule 56(f) Motion at pp. 4-5. As should be obvious from the foregoing, Defendant is wrong. If the searches took place in the place/manner as Plaintiff attests and Plaintiff was left naked in the shower cell for one and one-half to two hours, Plaintiff's constitutional rights were violated thereby, constitutional rights which were clearly established at the time of those searches, and Defendant would not be entitled to qualified immunity if he personally participated in or caused the violations. Under extant case law,
*9 [P]ersonal involvement of a supervisory defendant may be shown by evidence that the defendant (1) directly participated in the constitutional violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; (4) was grossly negligent in supervising subordinates who caused the violation; or (5) failed to act on information indicating that unconstitutional acts were occurring.
Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2nd Cir.2006) (citing Wright v. Smith, 21 F.3d 496, 501 (2nd Cir.1994).
In this circuit, in the Section 1983 context, a supervisor may be liable for the unconstitutional acts of his subordinates if the plaintiff shows that an affirmative link exists between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, his acquiescence in the constitutional violation or his failure to supervise. See Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1151 (10th Cir.2006); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1187 (10th Cir.2001); Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir.2000); Green v. Branson, 108 F.3d 1296, 1304 (10th Cir.1997); Winters v.
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 94 of 1P1a0ge 9
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
Board of County Commissioners, 4 F.3d 848, 855 (10th Cir.1993); Meade v. Grubbs, 841 F.3d 1512, 1527 (10th Cir.1988). The supervisor's state of mind is critical to showing the affirmative link. See Serna, 455 F.3d at 1151. Mere negligence is insufficient to hold a supervisor liable under § 1983; rather, a plaintiff must show that the supervisor acted knowingly or with deliberate indifference that a constitutional violation would occur, id., which requires that a plaintiff show that the supervisor was aware of facts from which the inference could be drawn that a substantial risk of the violation of constitutional rights existed and that the supervisor actually drew the inference. See Serna, 455 F.3d at 1154-55.
If, for example, Plaintiff can show that FTC inmates were with some frequency searched where they could be viewed by other inmates and/or were left naked in shower cells where they could be viewed by other inmates, that Defendant Sugrue was aware of this practice and condoned or acquiesced in it and that he had the requisite state of mind, then Defendant Sugrue may be liable for the claimed deprivation of Plaintiff's constitutional rights and not qualifiedly immune. Similarly, if Plaintiff can show that Defendant Sugrue directed this treatment of Plaintiff, Defendant may be liable and not enjoy qualified immunity for Plaintiff's Bivens claim based upon the place and manner of the strip searches. Accordingly, Plaintiff's Rule 56(f) motion is GRANTED insofar as Plaintiff asks the Court to hold Defendant's motion directed to the place and manner of the strip searches in abeyance and allow Plaintiff to conduct discovery as to whether the frequency with which detainees were strip searched where they could be viewed by others and left naked in their cell for more than a few minutes, whether Defendant Sugrue was aware of and tolerated or condoned any such practice, what measures, if any, he took to prevent such practices from occurring and as to whether anyone in a supervisory position directed the treatment Plaintiff received. Plaintiff is GRANTED a period of sixty (60) days in which to conduct such discovery. Plaintiff is directed to file his supplemental brief responding to Defendant's argument that he cannot be liable for any constitutional deprivation occasioned by the place and manner in which the strip searches of Plaintiff were conducted due to lack of personal participation within seventy-five (75) days of the date of this Order.
Declaratory Relief *10 Defendant asserts that Plaintiff is not entitled to declaratory relief on his Fourth Amendment Bivens claims for the same reason that the Court concluded he was not entitled to such relief on his Fifth Amendment claim: Plaintiff lacks standing to pursue this claim. Plaintiff does not take issue with this argument and the Court concludes that Plaintiff lacks standing to pursue declaratory relief on his Fourth Amendment claims. See PeTA v. Rasmussen, 298 F.3d 1198, 1202-03, 1203 n. 2 (10th Cir.2002); Bauchman v. West High School, 132 F.3d 542, 548-49 (10th Cir.1997); Green v. Brown, 108 F.3d at 1299-1300.
Conclusion In accordance with the foregoing, Defendant's motion for summary judgment [Doc. No. 44] on Plaintiff's Fourth Amendment Bivens claims predicated on the strip searches and visual body cavity inspections of Plaintiff, based upon qualified immunity, is DENIED; Defendant's motion for summary judgment on Plaintiff's claims for declaratory relief is GRANTED; Plaintiff's Rule 56(f) motion [Doc. No. 49] is GRANTED in part as set forth herein and DENIED in part as moot; and Defendant's motion for summary judgment on Plaintiff's Fourth Amendment Bivens claims predicated on the place and manner (duration) of the strip searches, based upon lack of personal participation, is HELD IN ABEYANCE pending completion of discovery permitted Plaintiff herein and the filing of Plaintiff's supplemental brief as ordered herein. Defendant is GRANTED leave to file a reply brief to Plaintiff's supplemental brief within ten (10) days after the filing of Plaintiff's supplemental brief. Plaintiff is sua sponte GRANTED partial summary judgment on the issue of Defendant's liability on Plaintiff's Fourth Amendment Bivens claim based upon the fact that he was twice subjected to a strip search and visual inspection of his body cavities.
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 95 of 1Pa1g0e 10
Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) (Cite as: 2007 WL 2446750 (W.D.Okla.))
It is so ordered. W.D.Okla.,2007. Al-Kidd v. Sugrue Not Reported in F.Supp.2d, 2007 WL 2446750 (W.D.Okla.) END OF DOCUMENT
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Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 96 of 110
Exhibit 15

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 97 of 110

Brant S. Levine brant.levine@usdoj.gov D.C. Bar 472970 J. Marcus Meeks marcus.meeks@usdoj.gov D.C. Bar No. 472072 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

)

Case No. CV:05-093-S-EJL
RESPONSE OF DEFENDANT THE UNITED STATES OF AMERICA TO PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSION

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, Defendant the

United States of America (“Defendant” or the “United States”) hereby responds to Plaintiff’s

First Set of Requests for Admissions.

OBJECTIONS

Defendant states the following General Objections to Plaintiff’s First Set of Requests for

Admissions, which are hereby incorporated in and made part of each of the following specific

responses.

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 98 of 110
Request No. 8 Admit that no federal officer or employee instructed Abdullah al-Kidd that he could not
travel outside the United States. Response: Admitted.
Request No. 9 Admit that no federal officer or employee instructed Abdullah al-Kidd that he should
report to the FBI or an attorney for the United States of America if he was planning travel outside the United States.
Response: Admitted. Request No. 10
Admit that, prior to the arrest of Abdullah al-Kidd, no federal officer or employee informed Mr. al-Kidd that his testimony might be wanted for a criminal proceeding.
Response: Admitted. Request No. 11
Admit that, prior to the arrest of Abdullah al-Kidd, no federal officer or employee asked Mr. al-Kidd if he would postpone his travel to Saudi Arabia, relinquish his passport, or agree to return to the United States to testify in any criminal proceeding.
Response: Admitted. Request No. 12
Admit that, prior to the arrest of Sami Omar Al-Hussayen, no federal officer or employee advised Abdullah al-Kidd that Mr. Al-Hussayen in particular was the target of a criminal investigation.
5

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Response: Admitted. Request No. 13
Admit that, prior to the arrest of Abdullah al-Kidd, no federal law enforcement officer or employee advised Mr. al-Kidd that he might have information considered material to a criminal proceeding against Sami Omar Al-Hussayen.
Response: Admitted. Request No. 14
Admit that no federal officer or employee instructed Abdullah al-Kidd that he should not disclose that he had been interviewed by the FBI.
Response: Defendant admits that no federal officer or employee commanded Abdullah al-Kidd not to disclose that he had been interviewed by the FBI, but denies the request to the extent it seeks an admission that no federal officer or employee requested al-Kidd not to disclose that he had been interviewed by the FBI. Request No. 15
Admit that no federal officer or employee provided to any person responsible for physical custody of Abdullah al-Kidd any instruction that he be subjected to the least restrictive conditions of confinement possible while held as a material witness.
Response: Defendant objects to this request as over-broad because the allegations and claims in Plaintiff’s Second Amended Complaint against any federal employee concerning Plaintiff’s “conditions of confinement” have been transferred to the United District Court for the Western District of Oklahoma and are no longer part of this proceeding. Defendant also objects to this request because the phrase “least restrictive conditions of confinement possible” is vague,
6

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 100 of 110
Exhibit 16

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 101 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 102 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 103 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 104 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 105 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 106 of 110
Exhibit 17

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 107 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 108 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 109 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-5 Filed 12/21/11 Page 110 of 110

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 1 of 41
Exhibit 18

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 2 of 41

Brant S. Levine brant.levine@usdoj.gov D.C. Bar 472970 J. Marcus Meeks marc us.meeks@usdoj, gov D.C. Bar No. 472072
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Torts Branch Tel: 202-616-4176 Fax: 202-616-4314

P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044

Attorneys for the Federal Defendants

L~JITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-K~D,

)

)

Plaintiff,

)

)

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

Defendants.

)

)

Case No. CV:05-093-S-EJL
RESPONSE OF DEFENDANT THE U~’NITED STATES TO PLAINTIFF’S FOURTH SET OF REQUESTS FOR ADMISSION

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, Defendant the

United States hereby responds to Plaintiffs Fourth Set of Requests for Admissions.

OBJECTIONS

Defendant states the following General Objections to Plaintiff’s Fourth Set of Requests

for Admissions, which are hereby incorporated in and made part of each of the following specific

responses.

1. Defendant objects to Plaintiff’s Fourth Set of Requests for Admissions to the

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 3 of 41
Response: Defendant objects to the term "possible" as confusing, conjectural and speculative, and objects to the term "federal intelligence investigation" as vague on its face and vague due to the time period in question. Based on these objections, Defendant is unable to admit or deny this request. Request No. 71
Admit that, at some point between March 16, 2004 and June 16, 2004, Mr. al-Kidd was a possible subject of a federal criminal investigation.
Response: Defendant objects to the term ~possible" as conjectural and speculative, and objects to the term "federal criminal investigation" as vague due to the time period in question. Based on these objections, Defendant is unable to admit or deny this request. Request No. 72
Admit that, at some point between March 16, 2004 and June 16, 2004, Mr. al-Kidd was a possible subject of a JTTF investigation.
Response: Defendant objects to the term "possible" as conjectural and speculative. Based on this objection, Defendant is unable to admit or deny this request. Request No. 73
Admit that, as of the present time, the FBI is unable to determine why mention of Mr. alKidd’s arrest was included in the testimony of the director of the FBI, Robert Mueller before the House on March 23, 2003.
Response: Admitted. Request No. 74
Admit that, as of the present time, the FBI is unable to determine why mention of Mr. alKidd’s arrest was included in the testimony of the director of the FBI, Robert Mueller, before the

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 4 of 41
Senate on April 10, 2003. Response: Admitted.
Request No. 75 Admit that, as of the present time, the FBI is unable to determine why mention of Mr. al-
Kidd’s arrest in the testimony of Director Mueller before the House on March 23,2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant.
Response: Admitted. Request No. 76
Admit that, as of the present time, the FBI is unable to determine why mention of Mr. alKidd’s arrest in the testimony of Director Mueller before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material ~vitness warrant.
Response: Admitted. Request No. 77
Admit that, as of the present time, the FBI is unable to determine how mention of Mr. alKidd’s arrest became included in the testimony of the director of the FBI, Robert Mueller, before the House on March 23,2003.
Response: Admitted. Request No. 78
Admit that, as of the present time, the FBI is unable to determine how mention of Mr. alKidd’s arrest became included in the testimony of the director of the FBI, Robert Mueller, before the Senate on April 10, 2003.
Response: Admitted.

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 5 of 41
Request No. 79 Admit that, as of the present time, Director Mueller is unable to determine why mention
of Mr. al-Kidd’s arrest was included in his testimony before the House on March 23, 2003. Response: Defendant objects to this request as confusing and states that Director Mueller
has not undertaken an individual effort to determine why Mr. al-Kidd’s arrest was included in his testimony before the House on March 23, 2003. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest was included in Director Mueller’s testimony before the House on March 23, 2003. Request No. 80
Admit that, as of the present time, Director Muetler is unable to determine why mention of Mr. al-Kidd’s arrest was included in his testimony before the Senate on April 10, 2003.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine why Mr. al-Kidd’s arrest was included in his testimony before the Senate on April 10, 2003. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest was included in Director Mueller’s testimony before the Senate on April 10, 2003. Request No. 81
Admit that, as of the present time, Director Mueller is unable to determine why mention of Mr. al-Kidd’s arrest in his testimony before the House on March 23, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine why mention of Mr. al-Kidd’s arrest in his testimony before the House on March 23, 2003, did not include mention that Mr. al-Kidd was

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 6 of 41
arrested on a material witness warrant. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest in Director Muetler’s testimony before the House on March 23, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant. Request No. 82
Admit that, as of the present time, Director Mueller is unable to determine why mention of Mr. al-Kidd’s arrest in his testimony before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine why mention of Mr. al-Kidd’s arrest in his testimony before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant. The United States admits that, as of the present time, the FBI is unable to determine why mention of Mr. al-Kidd’s arrest in Director Mueller’s testimony before the Senate on April 10, 2003, did not include mention that Mr. al-Kidd was arrested on a material witness warrant. Request No. 83
Admit that, as of the present time, Director Mueller is unable to determine how mention of Mr. al-Kidd’s arrest became included in his testimony before the House on March 23, 2003.
Response: Defendant objects to this request as confusing and states that Director Mueller has not undertaken an individual effort to determine how mention of Mr. al-Kidd’s arrest became included in his testimony before the House on March 23, 2003. The United States admits that, as of the present time, the FBI is unable to determine how mention of Mr. al-Kidd’s arrest became included in Director Muetler’s testimony before the House on March 23, 2003.

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 7 of 41
Request No. 84 Admit that, as of the present time, Director Mueller is unable to determine how mention
of Mr. al-Kidd’s arrest became included in his testimony before the Senate on April 10, 2003. Response: Defendant objects to this request as confusing and states that Director Mueller
has not undertaken an individual effort to determine how mention of Mr. al-Kidd’s arrest became included in his testimony before the Senate on April 10, 2003. The United States admits that, as of the present time, the FBI is unable to determine how mention of Mr. al-Kidd’s arrest became included in Director Mueller’s testimony before the Senate on April 10, 2003. Request No. 85
Admit that at least one Federal employee, other than Director Mueller, was involved in preparing the testimony of Director Mueller regarding Mr. al-Kidd before the House on March 23, 2003.
Response: Admitted. Request No. 86
Admit that at least one Federal employee, other than Director Muelter, was involved in preparing the testimony of Director Mueller regarding Mr. al-Kidd before the Senate on April 10, 2003.
Response: Admitted. Request No. 87
Admit that at least one prior draft of the text of the written testimony of Director Mueller before the House on March 23, 2003, other than the final draft as submitted to the House, was prepared by one or more Federal employees.
Response: The United States has made a reasonable inquiry into the subject matter of this

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 8 of 41
Exhibit 19

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 9 of 41

Transcript of VA hearing

1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division

X- - - - - - - - - - - - - - - - -X

:

UNITED STATES OF AMERICA,

:

:

v.

:

:

ABDULLAH AL-KIDD,

:

:

Defendant.

:

:

X- - - - - - - - - - - - - - - - -X

CRIMINAL ACTION NO. 03-94-MG
March 17, 2003

TRANSCRIPT OF MOTION PROCEEDINGS BEFORE THE HONORABLE LIAM O'GRADY,
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Government: United States Attorney's Office By: JOHN McADAMS, ESQ. 2100 Jamieson Avenue Alexandria, Virginia 22314

For the Defendant: ABDULLAH AL-KIDD

* * * DON McCOY, RMR OFFICIAL COURT REPORTER 401 COURTHOUSE SQUARE ALEXANDRIA, VA. 22314-5798 (703) 683-3668

2

1

P-R-O-C-E-E-D-I-N-G-S

2

THE DEPUTY CLERK: United States vs. Abdullah Al-Kidd,

3 Case Number 03-94-M.

4

MR. McADAMS: Good afternoon, Your Honor; John McAdams

Page 1

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 10 of 41

Transcript of VA hearing

5 for the Government

6

THE COURT: Good afternoon, Mr. McAdams.

7

MR. McADAMS: Your Honor, the witness appears before

8 Your Honor as a material witness pursuant to 18 USC 3144. A

9 material witness warrant was issued for the witness by a United

10 States Magistrate Judge in the District of Idaho.

11

The Government is requesting that he be transferred to

12 the District of Idaho.

13

THE COURT: Does the Government have a position on a

14 bond?

15

MR. McADAMS: Yes, Your Honor. The Government would

16 seek the witness be detained without bond until transferred to the

17 District of Idaho.

18

THE COURT: Mr. Al-Kidd.

19

THE DEFENDANT: Yes, sir.

20

THE COURT: Do you understand you have been arrested

21 pursuant to a material witness warrant?

22

THE DEFENDANT: Yes, sir. I was informed yesterday.

23

THE COURT: All right, and the Government is required to

24 bring you to the nearest location from your arrest so that you

25 would have what's called a Rule 5 hearing, which is what you are

3

1 having right now, and told why you are being held, and give you

2 certain other information, including your right to a bond hearing.

3

The Government has indicated that they are seeking

4 detention until you are transferred to Idaho, where the U. S.

5 Attorney's Office and the people out there can further review the

6 conditions of your bond.

7

You have some choices today. You can either have a

8 hearing here, and I'll appoint counsel if you cannot afford one.

Page 2

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 11 of 41

Transcript of VA hearing 9 Within the next three days we will have a detention hearing here.

10 Or you can go out to Idaho and have that same detention hearing at

11 a location where the people there may be a little more familiar

12 with the specifics of why they need you as a material witness and

13 what arrangements should be made.

14

We will do the best we can here, but you may be better

15 served going out to Idaho and having your detention hearing out

16 there, but the choice is yours. If you would rather have a

17 detention hearing, then we will set one and we will appoint

18 counsel for you.

19

THE DEFENDANT: The only question I guess I have is that

20 I have always been forthright with the intelligence community

21 that's contacted me, and I just would like to expedite this

22 matter.

23

Had I known that they issued the warrant this past

24 Friday, I would have turned myself in; however, I had a valid visa

25 to leave this country. I wasn't fleeing anything, and I wasn't

4

1 charged with any crime. So I just want to know is there, based on

2 those two choices that you gave me, when can I expedite -- you

3 know, I'm a witness for the Government -- so I want to expedite my

4 testimony in Idaho. I would like to get there as soon as

5 possible.

6

THE COURT: I think quite clearly the fastest way for

7 you to get to Idaho and see the people that can best determine

8 that information is to waive your right to a hearing here today,

9 or in the next three days and to have that hearing once you get

10 out to Idaho before the Magistrate Judge who issued the warrant

11 for a material witness. So you still will have the same rights.

12

You are still going to have the right to a detention

13 hearing. It's an absolute right. It's a question of where you Page 3

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 12 of 41

Transcript of VA hearing

14 have it. I think if you are looking to discuss why you were

15 arrested and whether it was the right thing to do, given what you

16 have just told me, then that probably is a discussion you need to

17 have with the people who know you and who are responsible for

18 requesting the material witness warrant.

19

So, if you want, I will order you to be transferred to

20 Idaho for further hearings on your detention and the grounds under

21 which you would proceed as a material witness.

22

THE DEFENDANT: How long would that possibly take for me

23 to be transferred to Idaho?

24

THE COURT: I think pretty quickly.

25

MR. McADAMS: Your Honor, I don't know the specifics.

5

1 The Marshal would make the arrangements, but we would certainly be

2 doing this as quickly as possible.

3

THE DEFENDANT: Okay, then I'll accept that route, to be

4 transferred to Idaho.

5

THE COURT: At your request, I'll transfer you to the

6 District of Idaho that has filed the arrest warrant for you as a

7 material witness, and you will be, as I said, entitled to the same

8 hearing that you could have had here when you get to Idaho, and

9 also at that stage you have the right to appointment of counsel if

10 you can't afford one. You are so ordered transferred.

11

THE DEFENDANT: Thank you.

12

MR. McADAMS: Thank you, Your Honor.

13

(Whereupon, the proceedings in the above-captioned

14 matter were concluded.)

15

16

17

Page 4

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 13 of 41

Transcript of VA hearing 18 19 20 21 22 23 24 25

6

1

CERTIFICATE OF OFFICIAL REPORTER

2 COMMONWEALTH OF VIRGINIA)

) ss.

3 CITY OF ALEXANDRIA

)

4

I, EDWARD DONOVAN McCOY, Registered Professional & Merit

5 Reporter, and Official Court Reporter for the United States

6 District Court for the Eastern District of Virginia, appointed

7 pursuant to the provisions of Title 28, United States Code,

8 Section 753, do hereby certify that I was authorized to report,

9 and did so report by computerized Stenograph machine the foregoing

10 proceedings;

11

THEREAFTER, my Stenograph notes were reduced to printed

12 form by computer-aided transcription under my supervision; and I

13 further certify that the pages herein numbered contain a true and

14 correct transcription of my Stenograph notes taken herein.

15

DONE and signed, this

day

16 of

, 2005, in the City of Alexandria,

17 Commonwealth of Virginia.

18

EDWARD DONOVAN McCOY, RMR

19

Official Court Reporter

20 (Virginia Court Reporters Association Certification
21 No. 0313168)

22 Page 5

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Transcript of VA hearing * * *
23 24 25
Page 6

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Exhibit 20

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 16 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,
Plaintiff,
vs.
ALBERTO GONZALES, Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) No. CV:05-093-S-EJL ) ) ) ) ) )

Page 1

The deposition of ABDULLAH AL-KIDD, taken pursuant to the Federal Rules of Civil Procedure of the United States District Courts pertaining to the taking of depositions, taken before Lisa R. Lisit, a Notary Public within and for the County of Cook and State of Illinois, and a Certified Shorthand Reporter of said State, taken at 219 South Dearborn Street, Suite 500, Chicago, Illinois, on the 11th day of December, 2007, at the hour of 9:35 a.m.

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 17 of 41

1

I N D E X

2 WITNESS

3 ABDULLAH AL-KIDD

4

Direct Examination By Mr. Meeks

5

6

E X H I B I T S

7 NUMBER

8 AL-KIDD DEPOSITION EXHIBIT

9

No. 1

10

No. 2

11

No. 3

12

No. 4

13

No. 5

14

No. 6

15

No. 7

16

No. 8

17

No. 9

18

19

20

21

22

23

24

25

Page 3
PAGE
4
PAGE
140 144 149 162 185 206 216 235 237

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648
d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 18 of 41

Page 236

1

(Witness viewing document.)

2 BY MR. MEEKS:

3

Q. Can you just generally describe this

4 document that's marked as Exhibit 8?

5

A. This is the Seattle Post-Intelligencer

6 article.

7

Q. Is this the article that you just

8 testified -- or is this a fair and accurate

9 representation of the article you just testified

10 you recalled seeing that was a result of your

11 meeting with the reporter from the Seattle

12 Post-Intelligencer?

13

A. Yes.

14

Q. If you turn to page 2, towards the

15 bottom, in fact the third paragraph from the

16 bottom, it says in the first sentence, "Among those

17 who have drawn the scrutiny of the FBI is a former

18 University of Idaho football player, an American

19 who converted to Islam nine years ago."

20

Is it your understanding that that's a

21 reference to you?

22

A. Yes.

23

Q. We may have already identified this

24 person, but I'm not sure. Who is -- I'm going to

25 spell this -- O-u-l-l-a, Oulla, perhaps, Mansowr,

LISIT COURT REPORTING SERVICE, INC. (312) 225-9648

d75e2dd4-8ca3-45b8-ae57-ab15af3e38a7

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 19 of 41

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Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 21 of 41

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 22 of 41

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 23 of 41
Exhibit 21

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 24 of 41
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,

:

Plaintiff,

:

vs.

: No. 05-cv-093-EJL-MHW

ALBERTO GONZALES, Attorney :

General of the United States, :

et al.,

:

Defendants.

:

DEPOSITION OF KIM LINDQUIST Wednesday, January 9, 2008 Washington, D.C. 1:04 p.m.

Job No. 1-117718 Pages: 1 - 119 Reported by: Janet A. Hamilton, RDR

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 25 of 41
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

I N D E X

2

3 EXAMINATION OF KIM LINDQUIST

4

By Mr. Gelernt

5

6

7

E X H I B I T S

8

(ATTACHED)

9 Plaintiff's

10 Deposition Exhibit

11 No. 1

Testimony of Director Mueller

12 No. 2 13 No. 3 14 No. 4 15 No. 5

Criminal docket document Interview priority list Affidavit of Special Agent Cleary Declaration of Kim Lindquist

16 No. 6 17 No. 7
18
19 No. 8

Affidavit of Special Agent Mace Letter of Kim Lindquist to Office of of Professional Responsibility Stipulation regarding trial testimony

20

21

22

Page 5
PAGE 6
PAGE 45 48 55 57 57 59 96
104

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

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Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 28 of 41

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 29 of 41

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 30 of 41

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Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 32 of 41

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 33 of 41
Exhibit 22

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 34 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

vs.

)

)

ALBERTO GONZALEZ, Attorney )

General of the United

)

States; et al.,

)

)

Defendant.

)

_____________________________)

Case No. 05-CV-093-EJL-MHW

DEPOSITION OF JOSEPH CLEARY TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO NOVEMBER 28, 2007, AT 10:00 A.M.

REPORTED BY:
PATRICIA L. PULLO, CSR Notary Public

M & M Court Reporting Service, Inc. 1-800-879-1700

CLEARY , JOSEPH
0dcc83de-f61a-4073-bf34-c48ef3b604cb

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 35 of 41

1

I N D E X

2 DEPOSITION EXHIBITS:

MARKED

3 No. 1 Excerpts from NCIC 2000,

55

Violent Gang and Terrorist

4

Organization File

5 No. 2 Department of Justice

75

Criminal Complaint

6

No. 3 Supplemental Response of

113

7

Defendant The United

States to Plaintiff's

8

First Interrogatories

9 No. 4 TECS entry

115

10 No. 5 Report of Investigation

117

11 No. 6 NCIC VGTOF

118

12 No. 7 Write-up of spot

122

surveillance in Utah

13

No. 8 Surveillance log cover

123

14

sheet

15 No. 9 Write-up of physical

125

surveillance

16

No. 10 Prepared statement

152

17

of Robert S. Mueller

18 No. 11 Response of Defendant

209

Michael Gneckow to

19

Plaintiff's First

Interrogatories

20

No. 12 FBI EC dated

217

21

07/06/2002

22 No. 13 FBI EC dated

217

07/06/2002

23

No. 14 FBI EC dated

218

24

07/22/2002

25

Page 4
IDENT'D 56
75 113
115 117 118 122 123 125 152 209
217 218 219

M & M Court Reporting Service, Inc. 1-800-879-1700

CLEARY , JOSEPH

0dcc83de-f61a-4073-bf34-c48ef3b604cb

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 36 of 41

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 37 of 41
Exhibit 23

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 38 of 41

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff, )

)

vs.

)

)

ALBERTO GONZALES,

)

Attorney General of the )

United States, et al., )

)

Defendants. )

_________________________)

Case No. 05-cv-093-EJL-MHW

DEPOSITION OF ROBERT DAVIS TAKEN ON BEHALF OF THE PLAINTIFF AT 115 SOUTH SECOND STREET, COEUR D'ALENE, IDAHO NOVEMBER 30, 2007, AT 10:00 A.M.

Page 1

REPORTED BY:
JULIE MCCAUGHAN, C.S.R. NO. 684 Notary Public

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
b5715917-3b4e-4fa9-ab3e-850bb953fb50

Case 1:05-cv-00093-EJL-MHW Document 310-6 Filed 12/21/11 Page 39 of 41

Page 11

1 questions based on your long career at the FBI. What's

2 the difference between a criminal investigation and an

3 intelligence investigation?

4

A.

Criminal investigations are generally

5 pointed towards prosecution. Normally intelligence

6 investigations have other goals.

7

Q.

Okay. What are some of those other goals,

8 if you know?

9

A.

Well, just by virtue of the name of it, to

10 develop intelligence information.

11

Q.

Okay. So you ask a stupid question, you

12 get -- can there be an intelligence investigation

13 without a corresponding criminal investigation?

14

A.

I guess it would depend on the time frame

15 you're talking about. Things change.

16

Q.

Things have changed at the FBI, you're

17 saying?

18

A.

They have.

19

Q.

Okay. And so what would the relevant time

20 period be?

21

A.

There again, I would only be speculating.

22 I'm not sure.

23

Q.

Okay. But you had some reason for saying

24 it would depend on the time frame?

25

A.

Well, years ago, in the 80s, there were

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
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Page 13

1 strike that. You're saying you don't know what they are

2 at this particular time?

3

A.

Correct.

4

Q.

Okay. I want to ask you about in 2001.

5 Do you know what the standards were for initiating a

6 JTTF intelligence investigation?

7

A.

I did then. I'm not sure I can remember

8 what they are, or what they were, now.

9

Q.

How about for a JTTF criminal

10 investigation?

11

A.

It would have been -- I would give you the

12 same answer because there would be a manual to look in,

13 and lots of manuals, and so you would always consult the

14 manual when you opened an investigation.

15

Q.

How about putting aside JTTF? Do you

16 recall what the standard was for opening a criminal

17 investigation by the FBI in 2002?

18

A.

Generally, it would have been information

19 beyond a reasonable suspicion that someone had committed

20 a criminal act.

21

Q.

Okay. And how about for an intelligence

22 investigation?

23

A.

I don't know. I couldn't answer that

24 question.

25

Q.

Was there a formal procedure for opening a

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
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Page 88

1

REPORTER'S CERTIFICATE

2

I, JULIE MCCAUGHAN, Certified Shorthand Reporter,

3 do hereby certify:

4

That the foregoing proceedings were taken

5 before me at the time and place therein set forth, at

6 which time any witnesses were placed under oath;

7

That the testimony and all objections made

8 were recorded stenographically by me and were thereafter

9 transcribed by me or under my direction;

10

That the foregoing is a true and correct

11 record of all testimony given, to the best of my

12 ability;

13

That I am not a relative or employee of

14 any attorney or of any of the parties, nor am I

15 financially interested in the action.

16

IN WITNESS WHEREOF, I have hereunto set my

17 hand and seal December 10, 2007.

18

19

20

21

____________________________________

JULIE MCCAUGHAN, ID C.S.R. No. 684

22

Notary Public

816 Sherman Avenue, Suite 7

23

Coeur d'Alene, ID 83814

24 My Commission Expires February 9, 2010.

25

M & M Court Reporting Service, Inc. 1-800-879-1700

DAVIS, ROBERT
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Case 1:05-cv-00093-EJL-MHW Document 310-7 Filed 12/21/11 Page 1 of 4

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S MOTION TO FILE DECLARATION AND EXHIBITS UNDER SEAL

Case 1:05-cv-00093-EJL-MHW Document 310-7 Filed 12/21/11 Page 2 of 4

Additional Counsel
KATHERINE DESORMEAU kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Plaintiff Abdullah al-Kidd, by and through his attorneys of record, respectfully moves this Court for an Order allowing plaintiff to file the Declaration of Lee Gelernt, and attached exhibits, under seal. This Declaration is in support of Plaintiff’s Opposition To Individual Defendants’ Motion For Summary Judgment And In Support Of Plaintiff’s Cross-Motion For Summary Judgment filed on this date herewith. Plaintiff is simultaneously filing a memorandum in support of this motion.

Dated: December 21, 2011

_/s/_____________________________ Lee Gelernt

1

Case 1:05-cv-00093-EJL-MHW Document 310-7 Filed 12/21/11 Page 3 of 4

MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

2

Case 1:05-cv-00093-EJL-MHW Document 310-7 Filed 12/21/11 Page 4 of 4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21 day of December, 2011, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 1 of 12
LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN mtan@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S RESPONSE TO INDIVIDUAL DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 2 of 12

Additional Counsel
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 3 of 12
1-2. Plaintiff does not dispute these facts. 3. Plaintiff disputes this fact insofar as Defendants are suggesting a bright line between criminal and intelligence investigations, or that intelligence investigations do not often lead to criminal investigation and/or charges. “Intelligence” and “criminal” investigations work in tandem, and both types of investigations can lead to criminal charges. See Ex. 8, Dezihan Dep. 51-52, 82-83 (intelligence and criminal investigations formally merged in 2002), 114-15, 161-62 (FBI shared periodic updates with U.S. Attorney’s Office); Ex. 2, Gneckow Dep. 17; Ex. 3, Cleary Dep. 18, 30. Plaintiff also disputes that the testimony establishes that the FBI could open an intelligence investigation in 2001 absent suspicion of criminal activity. Defendants’ witnesses could not articulate a clear standard for opening an intelligence investigation in 2001. See Ex. 2, Gneckow Dep. 26-27; Ex. 3, Cleary Dep. 30; Ex. 23, Davis Dep. 11, 13. 4. Plaintiff disputes these facts insofar as Defendants imply that Mr. al-Kidd was not a criminal suspect. Defendants omit that Plaintiff was under criminal suspicion from 2001 through at least 2003. See Ex. 2, Gneckow Dep. 45-46 (“a possible co-subject” has not been “ruled out definitively” from criminal suspicion); Ex. 6, Mace Dep. 73 (equating “subject” with “suspect”); Ex. 5, U.S. Docs 2724, 3002-03, 3007 (Plaintiff was a “subject” in Al-Hussayen’s criminal investigation); see also Ex. A, U.S. Docs 666 (filed under seal) (FBI sent al-Kidd’s name as a proposed “defendant[]”);Ex. 7, Lindquist Dep. 53. In addition, when Mr. al-Kidd was arrested at the airport, FBI agents took al-Kidd to a police station in the airport and, with Gneckow’s consent, interrogated him. Ex. 2, Gneckow Dep. 189-92. They questioned him at length, without counsel, about his own religious beliefs and opinions on various Islamic organizations, the purpose of his previous trip to Yemen, and the
1

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 4 of 12
contents of his luggage. Id. 192; see also Ex. 1, Pl. Docs 26-31. The FBI agents searched alKidd’s belongings, Ex. 5, U.S. Docs 2997, and seized numerous items, including his laptop. Ex. 2, Gneckow Dep. 125; Ex. 5, U.S. Docs 1982. The FBI later drafted a search warrant application to search al-Kidd’s laptop, stating that it likely contained relevant to Plaintiff’s possible criminal activities. Ex. 2, Gneckow Dep. 125-26; Ex. B, U.S. Docs 1583 (filed under seal).
5. Plaintiff disputes these facts to the extent they suggest Defendant Gneckow did not know that the transfers were salary when he prepared his affidavit. See Ex. 2, Gneckow Dep. 76 (testifying he knew “well before” submitting the affidavit that the payments were salary).
6. Plaintiff does not dispute these facts. 7. Plaintiff disputes that Gneckow ceased to view Plaintiff as a criminal suspect at some point in 2002. Plaintiff was the subject of an FBI investigation from December 2001 until at least 2004. See Ex. 2, Gneckow Dep. 55-57; Ex. 3, Cleary Dep. 109-10. The FBI conducted surveillance of al-Kidd and his then-wife in the spring and summer of 2002 (which indicated no illegality). Ex. 1, Pl. Docs 2400-24; Ex. 3, Cleary Dep. 121, 125-26. The FBI had al-Kidd’s name added to the Treasury Enforcement and Communication System (TECS) database, with a “lookout” to track his international travel. Ex. 4, Alvarez Dep. 18-19. The FBI also added alKidd’s name to the Violent Gang and Terrorist Organization File. See Ex. 3, Cleary Dep. 118; Ex. 22, NCIC Printout. Plaintiff was also a co-subject in Al-Hussayen’s criminal investigation. Ex. 5, U.S. Docs 2724, 3002-03, 3007; see also Ex. 2, Gneckow Dep. 45-46 (“a possible co-subject” has not been “ruled out definitively” from criminal suspicion); Ex. 6, Mace Dep. 73 (equating “subject” with “suspect”). The FBI sent al-Kidd’s name as a proposed “defendant[]” to the U.S. Attorney’s
2

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 5 of 12
Office, see Ex. A, U.S. Docs 666 (filed under seal), to evaluate him for potential prosecution. Ex. 7, Lindquist Dep. 53.
Prior to his arrest, Mr. al-Kidd had never failed to meet with the FBI when asked. Ex. 3, Cleary Dep. 170-71, 173-74, 179-81. No FBI agent told Mr. al-Kidd his testimony might be needed, asked him to surrender his passport, or attempted to serve him with a subpoena, Ex. 15, U.S. Resp. 1st RFA #10-13; Ex. 2, Gneckow Dep. 198-99. Within days of Plaintiff’s arrest, FBI Director Robert Mueller testified before Congress that Plaintiff’s arrest—along with that of Khalid Shaikh Mohammed, a “mastermind” of the September 11th attacks—was a “major success[]” in the government’s anti-terrorism efforts. Ex. 1, Pl. Docs 3-4 (testimony before House Subcommittee, Mar. 27, 2003); Ex. 21, Testimony before Senate Subcommittee (Apr. 10, 2003) (same). Director Mueller never mentioned that Plaintiff was arrested as a witness. The government has never been able to explain why Director Mueller’s testimony highlighted Mr. alKidd. See Ex. 18, U.S. Resp. 4th RFA, #73-84 (government was unable to determine how alKidd came to be mentioned in Director Mueller’s testimony).
In addition, when Mr. al-Kidd was arrested at Dulles Airport, FBI agents took him to a police station in the airport and, with Gneckow’s consent, interrogated him. Ex. 2, Gneckow Dep. 189-92. They questioned him at length, without counsel, about numerous matters unrelated to Al-Hussayen’s charges—including al-Kidd’s own religious beliefs and opinions on various Islamic organizations, the purpose of his previous trip to Yemen, and the contents of his luggage. Id. 192; see also Ex. 1, Pl. Docs 26-31. The FBI agents searched al-Kidd’s belongings, Ex. 5, U.S. Docs 2997, and seized numerous items, including his laptop. Ex. 2, Gneckow Dep. 125; Ex. 5, U.S. Docs 1982. The FBI later drafted a search warrant application to search al-Kidd’s laptop,
3

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 6 of 12
stating that it likely contained relevant to Plaintiff’s possible criminal activities. Ex. 5, U.S. Docs 1583 (filed under seal).
Following his interrogation, Mr. al-Kidd was incarcerated in three different facilities in Virginia, Oklahoma, and Idaho. Each time he was transferred, al-Kidd was shackled with leg restraints, a belly chain, and handcuffs. Ex. 13, Pl. Resp. 1st ROG #14; Ex. 1, Pl. Docs 123-24, 702-04; Ex. 14, al-Kidd v. Sugrue, No. 06-cv-1133, 2007 WL 2446750, at *1 (W.D. Okla. Aug. 23, 2007). Al-Kidd was strip-searched multiple times over the course of his detention. Ex. 1, Pl. Docs 2184, 703-04; Ex. 13, Pl. Resp. 1st ROG #14; see also Sugrue at *1. In Virginia, he was held under high-security conditions, often spending 22 to 23 hours a day in his cell. Ex. 1, Pl. Docs 123, 450, 2183; Ex. 13, Pl. Resp. 1st ROG #14. In the detention center in Oklahoma, alKidd was made to remove his clothes and sit naked in view of other, fully clothed detainees. Ex. 1, Pl. Docs 2184; Ex. 14, Sugrue at *1. While al-Kidd was incarcerated in Ada County Jail in Idaho, Gneckow and Cleary questioned him. Ex. 2, al-Kidd Dep. 185; Ex. 2, Gneckow Dep. 63, 187; Ex. 3, Cleary Dep. 141.
At al-Kidd’s detention hearing in Idaho on March 25, 2003, the government opposed his release, contending that he was dangerous. Ex. 1, Pl. Docs 1795, 1797. Al-Kidd was never called as a witness or deposed for Al-Hussayen’s trial. Ex. 7, Lindquist Dep. 35, 101-02. Even so, the government did not move to have al-Kidd’s release restrictions lifted, leaving al-Kidd to file a motion himself. Ex. 12, Motion, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #665).
8-11. Plaintiff does not dispute these facts. 12. Plaintiff disputes these facts insofar as Defendants imply that Mr. al-Kidd was not supposed to speak to the press. Defendants omit that the FBI’s investigation in Idaho was not secret, and that the reporter spoke with multiple people, including law enforcement officials. See
4

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 7 of 12
Ex. 20, Seattle Post-Intelligencer article. Defendants omit that the FBI never told Plaintiff not to talk to reporters or to keep his meetings with the FBI a secret. See Ex. 9, Gneckow RFA #21; Ex. 3, Cleary Dep. 176.
13. Plaintiff does not dispute these facts. 14. Plaintiff disputes these facts insofar as Defendants imply that Plaintiff prepared to leave the country “[d]uring th[e] same time period” as the Al-Hussayen indictment. Defendants omit that Plaintiff applied to the university in Saudi Arabia in April 2002, months before alHussayen’s arrest. See Ex. 10, al-Kidd Dep. 113, 118. Defendants also omit that Plaintiff began making plans to travel to Saudi Arabia for work in late 2002. Ex. 10, al-Kidd Dep. 132-33 (alKidd applied to Berlitz in December 2002); Ex. 1, Pl. Docs 9-18 (Berlitz employment contract, signed January 2003), 26 (al-Kidd obtained a work visa). Defendants also omit that, in the first week of February 2003, al-Kidd learned that the university had accepted him and awarded him a scholarship, Ex. 10, al-Kidd Dep. 119. That same month, before Al-Hussayen’s arrest, he began the process of applying for a visa. Ex. 10, al-Kidd Dep. 120-21, 137; see also Ex. 5, U.S. Docs 98 (reservation monitoring printout showing al-Kidd’s flight had a “visa” requirement); Ex. 11, Alvarado Dep. 229-30. The Saudi Cultural Mission paid for his plane ticket. Ex. 10, al-Kidd Dep. 125. 15. Plaintiff does not dispute these facts. 16. Plaintiff disputes the fact that his reservation did not list a return flight to the extent it suggests that he had a one-way ticket. Plaintiff’s ticket was open-ended. Open-ended tickets by definition have a return. Ex. 2, Gneckow Dep. 183. 17. Plaintiff does not dispute these facts.
5

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 8 of 12
18. Plaintiff disputes that Agent Alvarado had no reason to look for Plaintiff in particular. Plaintiff’s name was specifically added to the TECS in 2002 with a “lookout” to track his international travel. See Ex. 4, Alvarez Dep. 18-19.
19. Plaintiff disputes these facts. It is unclear what Agent Alvarado told Agent Alvarez regarding whether Plaintiff had a return flight. See Ex. 11, Alvarado Dep. 257, 263. Further, Agent Alvarado never learned how much the ticket cost, nor did he attempt to find out how much it cost even though he could have obtained that information by calling the airline. Id. 260-61.
20-23. Plaintiff does not dispute these facts. 24. Plaintiff disputes that Defendant Gneckow “determined” that Plaintiff had left his home in Kent, Washington before seeking the material witness warrant. Prior to contacting Lindquist, Gneckow had made no efforts to locate al-Kidd. Ex. 2, Gneckow Dep. 143. Nor did Gneckow recall what efforts were made to ascertain al-Kidd’s location after his conversation with Lindquist. Id. 143-44 (Gneckow could not recall whether he “ask[ed] someone to do a drive-by,” “mak[e] a phone call,” or take any other steps). 25. Plaintiff disputes that Defendant Gneckow simply “included the information” Agent Alvarez provided him regarding Plaintiff’s flight reservation in his affidavit. Instead, Gneckow “took [it] upon [him]self” to verify the information by calling an FBI agent stationed at Dulles Airport. Ex. 2, Gneckow Dep. 165-67. Gneckow learned of al-Kidd’s travel plans on March 13, 2003, from an oral conversation with ICE officer Robert Alvarez. Ex. 2, Gneckow Dep. 135-36, 162-63, 170; Ex. 4, Alvarez Dep. 31-32, 52. Gneckow and Alvarez worked in the same office. Ex. 2, Gneckow Dep. 13536. Alvarez told Gneckow verbally that Plaintiff was flying to Saudi Arabia on a one-way, firstclass ticket. Alvarez gave Gneckow a range of possible departure dates. Gneckow did not
6

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 9 of 12
inquire about the confusion regarding al-Kidd’s departure date. Id. 174-75. Nor did he ask to look at any paperwork showing al-Kidd’s flight information. Id. 163, 173. Gneckow also did not attempt to find out the class of the ticket, or whether al-Kidd had purchased a return flight. Id. 169-70, 173-74. Gneckow made no attempt to find out when al-Kidd had made his travel plans or booked his ticket. Ex. 16, Gneckow Resp. 1st ROG #12; Ex. 2, Gneckow Dep. 149-50. Gneckow did not ask Alvarez “to do any follow-up research” about al-Kidd’s travel plans or to show him any documents to verify the information. Instead, Gneckow contacted the FBI agent at Dulles Airport and asked whether al-Kidd’s name appeared on an upcoming flight manifest. Ex. 2, Gneckow Dep. 146, 166. Gneckow did not ask the agent about the class of the ticket, the booking date, the price, or whether a return trip had been purchased. Id. 169-70, 174-75; Ex. 16, Gneckow Resp. 1st ROG #7, 12.
26. Plaintiff disputes the fact that the FBI Headquarters did not provide guidance on Mr. al-Kidd’s investigation. To the contrary, FBI Headquarters received updates and provided guidance on al-Kidd’s investigation. See Ex. 8, Dezihan Dep. 85-86, 102, 104, 106, 161-62; Ex. 2, Gneckow Dep. 23-24; Ex. 5, U.S. Docs 2724-26 (electronic communication sent to headquarters); Ex. 1, Pl. Docs 3-4 (Mueller testimony).
27. Plaintiff disputes these facts insofar as they imply Mr. al-Kidd had information germane to the visa and false statement charges against Al-Hussayen. In fact, al-Kidd had little knowledge of Al-Hussayen. Ex. 10, al-Kidd Dep. 159-61. Further, the Al-Hussayen indictment pending at the time of al-Kidd’s arrest did not mention either al-Multaqa or al-multaqa.com. Ex. 12, Indictment, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #1). While working at al-Multaqa, Plaintiff’s duties were limited to arranging the English library, making tape labels, designing book covers, and speaking on Islam at public events. See Ex. 10, al-Kidd Dep. 156-57.
7

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Finally, prosecutors on Al-Hussayen’s case had obtained numerous of pages of documentary evidence about Al-Hussayen’s activities, making al-Kidd’s testimony redundant. See Ex. 2, Gneckow Dep. 54 (referencing bank records); Ex. 12, Indictment, Al-Hussayen, at ¶¶ 7-9, 11, 13, 15-21, 23 (Dkt. #1) (referencing business records, emails, websites, and other documents).
28. Plaintiff does not dispute these facts. 29. Plaintiff disputes that Defendant Mace had “no independent knowledge of al-Kidd.” Defendant Mace admitted that he may have had been aware of Plaintiff as a football player at the University of Idaho. Ex. 6, Mace Dep. 13. 30. Plaintiff does not dispute these facts. 31. Plaintiff disputes that he “requested” a continuance of his detention hearing so that he could be transported to Idaho. Plaintiff appeared before the Magistrate Judge in Virginia on March 17th without counsel, and asked for his testimony to be “expedite[d].” Ex. 19, Hearing, U.S. v. al-Kidd, No. 03-94 at 2-3 (E.D. Va. Mar. 17, 2003). The judge stated that “the fastest way for you to get to Idaho and see the people that can . . . discuss why you were arrested” would be to “waive your right to a hearing here today” and consent to a transfer to Idaho. Id. at 3. The government attorney represented that the transfer would occur “as quickly as possible,” and al-Kidd consented. Id. at 4. Yet the government delayed transferring al-Kidd until March 24. See Ex. 14, Sugrue at *1. 32-34. Plaintiff does not dispute these facts. 35. Plaintiff disputes that AUSA Lindquist decided not to call Mr. al-Kidd at trial “primarily” based on the defense’s strategy “as the trial progressed.” Mr. al-Kidd was never deposed for Al-Hussayen’s trial. Ex. 7, Lindquist Dep. 101-02. Further, prosecutors had
8

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obtained thousands of pages of documentary evidence about al-Hussayen’s activities, making alKidd’s testimony redundant. See Ex. 2, Gneckow Dep. 54 (referencing bank records); Ex. 12, Indictment ¶¶ 7-9, 11, 13, 15-21, 23, Al-Hussayen (Dkt. #1) (referencing business records, emails, websites, and other documents).
36. Plaintiff does not dispute these facts. 37. Defendants appear to have stated inadvertently that the jury found Al-Hussayen guilty on some counts, and could not reach a verdict on others. In fact, the jury found AlHussayen not guilty on all the terrorism charges and did not reach a verdict on the visa fraud charges. Ex. 12, Jury Verdict, Al-Hussayen (Dkt. #671). 38. Plaintiff disputes that the Chertoff memorandum is “guidance” on the use of the material witness statute, as it does not emphasize using the statute to preserve testimony. Rather, it is a letter template provided to prosecutors to use in response to inquiries. It is not probative of substantive Justice Department policy, but rather provides information about the Department’s public communications. See Ex. 5, U.S. Docs 78-79.
Respectfully submitted, _/s/_____________________________ Lee Gelernt
9

Case 1:05-cv-00093-EJL-MHW Document 310-8 Filed 12/21/11 Page 12 of 12

MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU* kdesormeau@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
*Pro Hac Vice Motion Forthcoming

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org MICHAEL K.T. TAN* mtan@aclu.org ESHA BHANDARI* ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

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 Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 1 of 26
LEE GELERNT, NY Bar 8511 lgelernt@aclu.org ESHA BHANDARI, NY Bar 4923140 ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT UNITED STATES, FILED ON DECEMBER 21, 2011 (Dkt. No. 308)

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Additional Counsel

KATHERINE DESORMEAU, CA Bar 266463 kdesormeau@aclu.org MICHAEL K.T. TAN, NY Bar 4654208* mtan@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

* Admitted in New York

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 3 of 26
TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................... ii INTRODUCTION............................................................................................................. 1 ARGUMENT..................................................................................................................... 2
I. THE DISCRETIONARY FUNCTION EXCEPTION IS INAPPLICABLE TO THIS CASE. ................................................................... 2
II. ABSOLUTE PROSECUTORIAL IMMUNITY IS NOT AVAILABLE. ....... 2 III. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS
FALSE IMPRISONMENT CLAIM BECAUSE PROBABLE CAUSE OF IMPRACTICABILITY AND MATERIALITY WERE LACKING. ...... 4 A. Traveling To Saudi Arabia Did Not Establish Probable Cause. ................ 4 B. The Government’s Theory Finds No Support In Ninth Circuit Law. ....... 7 C. The Government’s Reliance On Ancillary Facts Is Unpersuasive............. 8 D. The United States Cannot Avoid FTCA Liability In This Case By
Claiming That Their Agents Consulted With An AUSA Or Were Unaware Of The Relevant Facts. ............................................................... 10 IV. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS ABUSE OF PROCESS CLAIM. ...................................................................... 15 CONCLUSION ............................................................................................................... 20
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TABLE OF AUTHORITIES Cases Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) ................................................... 8 Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) .............................................. 7, 8, 13 Beco Constr. Co., Inc. v. City of Idaho Falls, 865 P.2d 950 (Id. 1993)............................ 19 Brown v. Savage, No. CV-08-382, 2011 WL 4584771 (D. Id. Sept. 30, 2011) ............... 19 Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004) ...................................................................... 2 Mendocino Envtl. Ctr. v. Mendocino Co., 192 F.3d 1283 (9th Cir.1999) ........................ 16 State v. Gibson, 108 P.3d 424 (Id. Ct. App. 2005) ........................................................... 14 State v. Julian, 922 P.2d 1059 (Id. 1996)...................................................................... 4, 12 Wright v. United States, 719 F.2d 1032 (9th Cir. 1983) ..................................................... 3
Statutes 18 U.S.C. § 3144............................................................................................................... 14 28 U.S.C. § 2680(h) ............................................................................................................ 3
Other Authorities Congressional Research Service, Extradition To and From the United States:
Overview of the Law and Recent Treaties 43 (Mar. 17, 2010), available at http://www.fas.org/sgp/crs/misc/98-958.pdf .................................................................. 5 S.Rep. No. 98–225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182................................... 17
Rules Fed. R. Evid. 801(c) .......................................................................................................... 16 Fed. R. Evid. 803(6).......................................................................................................... 16
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INTRODUCTION The issues have now been narrowed significantly given the government’s concessions in its response brief. First, the government has effectively conceded its discretionary function argument, recognizing that it is subsumed within its merits arguments. The government has also effectively acknowledged that prosecutorial immunity does not shield law enforcement officers seeking a warrant, and indeed, its response brief does not cite a single case in support of the novel argument that a police officer should receive absolute prosecutorial immunity. On the merits of plaintiff’s false imprisonment claim, the government has now conceded the critical fact that Mr. al-Kidd was fully cooperative and never disobeyed a single directive from the FBI. Thus, as the government’s own brief makes clear, the United States’ FTCA argument reduces to a single proposition: that it could arrest and detain Mr. al-Kidd based solely on the fact that he was travelling to Saudi Arabia to study and had not scheduled a specific date for his return. But that is not the law. At bottom, the government’s probable cause arguments suffer from one overriding flaw. The arguments conflate the material witness context involving innocent (and, in Mr. al-Kidd’s case, cooperative) individuals with the criminal context, where the ability to detain a charged individual is far greater. An innocent U.S. citizen simply cannot be arrested for traveling, especially one who has cooperated with past requests for assistance. Finally, the government argues that the Court must grant it summary judgment on plaintiff’s abuse of process claim because its officers state that they arrested Mr. al-Kidd for the purpose of securing his testimony, and Mr. al-Kidd has no direct testimonial proof to the contrary. But plaintiffs are not required to show direct proof of an officer’s
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motives; indeed, if plaintiffs were required to produce such evidence, summary judgment would be guaranteed in virtually every FTCA case because there is rarely a “smoking gun.” Mr. al-Kidd has pointed to more than enough objective evidence to merit summary judgment in his favor.
ARGUMENT I. THE DISCRETIONARY FUNCTION EXCEPTION IS INAPPLICABLE
TO THIS CASE. Plaintiff’s opening brief noted that, under settled Ninth Circuit law, the FTCA’s discretionary function exception does not apply where the government’s actions violate a legal mandate imposed by the constitution or statute, such as the requirement that there must be probable cause for a material witness arrest. Pl. FTCA Br. at 5 (citing, e.g., Galvin v. Hay, 374 F.3d 739, 758 & n.13 (9th Cir. 2004)). The government now concedes the point and acknowledges that it “is not arguing that the discretionary function exception shields the United States from liability for unlawfully seeking a warrant,” but only that “there is simply no evidence of unlawful conduct.” U.S. Opp. Br. at 2. Accordingly, as both parties now agree, the issue here is the merits question: was Mr. al-Kidd’s arrest supported by probable cause and otherwise lawful. II. ABSOLUTE PROSECUTORIAL IMMUNITY IS NOT AVAILABLE. The government now concedes that generally “law enforcement officers are not entitled to prosecutorial immunity for procuring an arrest warrant.” U.S. Opp. Br. at 3 (emphasis added). The government argues, however, that prosecutorial immunity should be available in this case because Agent Gneckow consulted with an Assistant U.S. Attorney and the warrant involved a witness for a prosecution. But as plaintiff explained in his opening brief, Pl. FTCA Br. at 3-4, the mere involvement of a prosecutor
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somewhere in the chain of events does not convert all the actions in that chain to prosecutorial ones. See, e.g., Wright v. United States, 719 F.2d 1032, 1035 (9th Cir. 1983) (although prosecutor’s decision to prosecute plaintiff was a discretionary function, the conduct of an IRS agent in implementing the decision to prosecute was not; therefore, the United States was not immune from liability under the FTCA for a claim of malicious prosecution arising out of the IRS agent’s actions).
Indeed, if the government’s argument were correct, law enforcement agents and the United States would routinely receive absolute prosecutorial immunity, since a prosecutor will almost invariably be involved at some level in these types of suits. In fact, the FTCA specifically recognizes tort liability for “abuse of process” and “malicious prosecution” arising from acts or omissions of investigative or law enforcement officers. See 28 U.S.C. § 2680(h). By definition, both of those torts involve some sort of judicial process—i.e., the issuance of a warrant, or the initiation of a prosecution—in which a prosecutor will inevitably have been involved. The government’s argument would read this provision out of the FTCA.1 In short, there is no support for the government’s theory that its law enforcement agents are entitled to complete prosecutorial immunity for their role in seeking the warrant. And, not surprisingly, the government’s response brief does not cite to a single case supporting its novel argument.
1 Plaintiff does not base his claim for abuse of process on prosecutors’ decisions “to request a detention hearing and not to call him as a witness at trial,” U.S. Opp. Br. at 3, but rather cites those facts as evidence of the improper purpose behind the law enforcement agents’ decision to seek a warrant for his arrest.
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III. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS FALSE IMPRISONMENT CLAIM BECAUSE PROBABLE CAUSE OF IMPRACTICABILITY AND MATERIALITY WERE LACKING. THE IMPRACTICABILITY PRONG
A. Traveling To Saudi Arabia Did Not Establish Probable Cause. Significantly, the parties agree that a claim for false imprisonment depends upon showing that there was no probable cause—not based solely on the face of the affidavit, but rather, based upon all of the available facts. See State v. Julian, 922 P.2d 1059, 1062 (Id. 1996); U.S. Opp. Br. at 6. Thus, the question on the merits is whether there was probable cause to arrest Mr. al-Kidd in light of all of the facts omitted from the affidavit and the plane ticket’s correct information. Equally critical, there is no longer any dispute about the central facts underlying plaintiff’s false imprisonment claim. Specifically, the government does not dispute any of the following: 1. Mr. al-Kidd had been fully cooperative in never refusing to meet with the FBI and
never having missed a scheduled meeting with the FBI; 2. Mr. al-Kidd was a native-born U.S. citizen; 3. Mr. al-Kidd had U.S. citizen family members residing in the United States; 4. Mr. al-Kidd was never told he might be needed as a witness; 5. Mr. al-Kidd was never asked not to travel, nor asked to surrender his passport; 6. Mr. al-Kidd was never asked to inform the FBI if he intended to travel; 7. Mr. al-Kidd had not heard from the FBI for roughly 8 months at the time of his
arrest; and 8. Mr. al-Kidd had a coach class, roundtrip ticket with an open-ended return.
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Moreover, the record demonstrates beyond dispute that all these facts were available to the FBI agents. See Pl. Facts ¶ 31. Indeed, Agent Gneckow specifically admitted that, at the time he submitted the affidavit, he was affirmatively aware of facts 1 through 7, see Pl. Facts ¶ 31(a)-(g), and fact 8 (the plane ticket) was easily verifiable. See Pl. Bivens Opp. Br. at 5, 9-10. Given this, the government’s argument hinges entirely on one proposition: that it was permissible to arrest Mr. al-Kidd because he was traveling to Saudi Arabia and did not have a specific date for his return (exactly what one would expect when a student goes abroad to study).
The implications of the government’s proposition are staggering. There are numerous countries that do not have an extradition treaty with the United States, including countries that American citizens, students and tourists routinely visit for lengthy periods of time, including China and Russia.2 Yet, under the government’s theory, all of these individuals could be arrested and detained solely because they were traveling to one of these countries and had not yet chosen a specific date for their return trip.
Moreover, under the government’s theory, U.S. citizens have no way to protect themselves from being arrested. Perhaps the government could establish probable cause if an uncooperative individual chose to leave the country after being told that he was needed as a witness and that he should inform the FBI if he intended to travel, especially in a case where the FBI had very recently been in contact with the individual and reiterated its need for the individual’s testimony. Here, however, Mr. al-Kidd—an
2 See Congressional Research Service, Extradition To and From the United States: Overview of the Law and Recent Treaties 43 (Mar. 17, 2010), available at http://www.fas.org/sgp/crs/misc/98-958.pdf.
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innocent and cooperative U.S. citizen—had no way to avoid being arrested. If he had been asked not to travel, to surrender his passport, or to alert the FBI of his travel, he could then have taken steps to avoid his arrest. Or, if he had been told his testimony might be needed, he then could have at least been on notice that traveling might be of concern to the FBI. But none of that occurred. Instead, he was blindsided at the airport, without any warning. That is the crux of this case: There was nothing Mr. al-Kidd could have done to avoid his arrest, since the government never told him his testimony may be needed or that he should not travel.
An example demonstrates the implications of the government’s argument. Suppose a U.S. citizen businessperson with U.S. citizen family members innocently witnessed a robbery. He cooperated with the police investigation, but then never heard from the police for 8 months. Suppose also that he was never told he might be needed as a witness or that he should contact the police if he intended to travel. If he then prepared to leave on a long-scheduled business trip to China without a specific return date, it is implausible that the government would believe it had probable cause to ambush the person at the airport and lead him away in handcuffs, as if he were a criminal defendant fleeing bond. And, indeed, Agent Gneckow effectively admitted as much when asked whether he would arrest a cooperative businessman. Def. Response to Pl. Facts ¶ 33. Yet that is precisely what occurred to Mr. al-Kidd.
Conceivably, the government might attempt to distinguish that scenario by arguing that, unlike the innocent businessman, Mr. al-Kidd was viewed as a potential suspect with connections to Al-Hussayen. But if that is the government’s argument, then it would effectively be admitting that it engaged in an abuse of process by using the
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material witness statute to arrest a suspect whom it could not arrest on criminal charges. And, if that is not what the government would argue, then it is incumbent upon the government to distinguish Mr. al-Kidd’s case from the scenario in which a businessman witnesses a robbery. Otherwise, the government is left with two choices: admitting that anyone flying to a country like China or Saudi Arabia without a return date could be arrested without any warning, or admitting that Mr. al-Kidd’s arrest was really for the impermissible investigative purpose of detaining a suspect. Neither choice is tenable under the law.
B. The Government’s Theory Finds No Support In Ninth Circuit Law. Given the implications of the government’s position that it can arrest someone merely for taking an innocent trip, including a fully cooperative witness, it is not surprising that the United States’ position finds no support in Ninth Circuit law. In fact, the Ninth Circuit has specifically rejected the very theory on which the government relies: that a witness may be arrested merely because it is possible he might avoid testifying and he had the means of doing so.
Indeed, the Ninth Circuit has rejected the government’s use of the material witness statute under circumstances where the witnesses had the ability to avoid a subpoena and had actually taken affirmative steps to reveal how uncooperative they intended to be—unlike Mr. al-Kidd. Pl. FTCA Br. at 8-10. In Bacon, the Ninth Circuit found a lack of probable cause even though the witness had “access to large sums of money” and “personal contacts with fugitives” and had fled to an adjoining rooftop when the FBI initially sought to arrest her. Bacon v. United States, 449 F.2d 933, 944-45 (9th Cir. 1971). Yet, as the Court explained, the facts merely “show[ed] that if Bacon wished
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to flee, she might be able to do so successfully. [They did] not support the conclusion that she would be likely to flee or go underground.” Id. Thus, the government’s “showing failed to support probable cause to believe that Bacon could not practicably be brought before the grand jury by a subpoena.” Id. at 945. And in Arnsberg, the Court held that a material witness warrant was invalid even after multiple attempts to locate the witness and serve a subpoena upon him. Arnsberg v. United States, 757 F.2d 971, 976-77 (9th Cir. 1985).
Here, Mr. al-Kidd did not take affirmative steps to avoid the FBI, much less flee when the FBI called upon him. To the contrary, he met with the FBI whenever they requested and talked with them at length. Nor did he ignore a directive from the FBI; indeed, he was never told he might be needed as a witness or not to travel. If the facts in Bacon and Arnsberg were not enough to establish probable cause for arrest, there is no way that the facts in Mr. al-Kidd’s case could suffice.
C. The Government’s Reliance On Ancillary Facts Is Unpersuasive. Ultimately, the government appears to recognize that it cannot arrest a cooperative U.S. citizen, without any warning, simply for taking a long-planned trip to Saudi Arabia to study. The government thus seeks to argue that there was more to support a showing of impracticability than merely Mr. al-Kidd’s travel plans. U.S. Opp. Br. at 5. In particular, the government relies on its assertion that Agent Gneckow attempted to check whether Mr. al-Kidd was still living in Kent, Washington, before the FBI sought the warrant, and that he did so because AUSA Lindquist told him that doing so was important. But that point cannot help the government for two reasons.
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First, and dispositively, the supposed fact that Mr. al-Kidd could not have been located in Kent is irrelevant. The FBI could have asked Mr. al-Kidd to postpone his trip when agents encountered him at the airport, or they could have seized his passport. Thus, it is irrelevant whether the government attempted to locate Mr. al-Kidd in Kent, because that does not establish that he would have been unlikely to respond to a subpoena or comply with other methods to guarantee his testimony short of arrest.
Second, in any event, the record does not support the claim that the government made any meaningful efforts to locate Mr. al-Kidd. If Agent Gneckow attempted to determine whether Mr. al-Kidd was still living in Kent, then one would expect him to mention in his affidavit that he attempted to locate Mr. al-Kidd. Yet, remarkably, that point appeared nowhere in the affidavit. Further, one would expect that there would be a record of such an attempt in the FBI’s notes. Yet there are no notes, and Agent Gneckow could recall only that he believes someone—whom he could not identify—made a “call” or perhaps did a “drive-by” of Mr. al-Kidd’s home. Pl. Ex.2, Gneckow Dep. at 144. The government also fails to explain why the FBI could not have contacted Mr. al-Kidd by other means—especially since Mr. al-Kidd had always been cooperative and met with the FBI on prior occasions, and nothing in the record indicates the FBI had ever before had difficulty reaching him.
In short, the government cannot defeat plaintiff’s summary judgment motion on the ground that it could not locate Mr. al-Kidd in Kent. At a minimum, the government cannot be awarded summary judgment in its favor by relying on the assertion that some unidentified individual may have done a “drive by” or made a call at some unspecified and unrecorded time.
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D. The United States Cannot Avoid FTCA Liability In This Case By Claiming That Their Agents Consulted With An AUSA Or Were Unaware Of The Relevant Facts.
1. AUSA Lindquist: The government attempts to make much of the fact that Agent Gneckow briefly consulted with AUSA Lindquist about the warrant application. The record shows, however, that Agent Gneckow could not “recall specifically” what revisions he made in response to speaking with AUSA Lindquist, Pl. Ex. 24, Gneckow Dep. at 140, nor could AUSA Lindquist recall giving any advice beyond stating that “the affidavit needed to clearly show [Mr. al-Kidd’s] connection with Sami Al-Hussayen and the Islamic Assembly of North America.” Pl. Ex. 26, Lindquist Dep. at 34.
In any event, the government’s argument fails for a more fundamental reason. AUSA Lindquist was not made aware of the basic facts by Agent Gneckow, including that: Mr. al-Kidd had been fully cooperative in attending every meeting requested by the FBI; Mr. al-Kidd was never told he might be needed as a witness; Mr. al-Kidd was never told not to travel; Mr. al-Kidd was never told to stay in contact with the FBI; Mr. al-Kidd did not have a one-way flight; and Mr. al-Kidd had not heard from the FBI for roughly 8 months. Pl. Facts ¶ 38; Pl. Ex. 2, Gneckow Dep. at 201 (Q: “So you didn’t provide [Lindquist] with additional facts beyond those in the affidavit? A. Right.”); Pl. Ex. 26, Lindquist Dep. at 17, 43-44, 65-66, 104 (admitting that at the time of the warrant request, he had no knowledge of whether Mr. al-Kidd was a U.S. citizen, whether he had been cooperative with the FBI in the past, whether he was ever informed that he might be needed as a witness, whether he was asked not to travel outside the United States, or whether he was asked to inform the FBI if he intended to travel). The government cannot therefore argue
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that AUSA Lindquist somehow authorized the affidavit when he was acting without the necessary facts. See also Pl. Bivens Opp. Br. at 14-15.
2. The Agents’ Knowledge: The government also contends that even if probable cause of impracticability was objectively lacking, the United States should be insulated from FTCA liability because its agents did not know the affidavit was incorrect, specifically that Mr. al-Kidd did not have a one-way plane ticket.
But even assuming Agents Gneckow and Mace could be excused for the affidavit’s false statements, it would not legally matter. As discussed, the flaw in the government’s probable cause argument is that a plane ticket alone is not sufficient to arrest an innocent and cooperative U.S. citizen—even if the ticket was a one-way flight. The critical facts omitted from the affidavit—which Agent Gneckow fully admits he knew at the time he sought the warrant—were that Mr. al-Kidd was a U.S. citizen with U.S. citizen family members, who had attended meetings requested by the FBI and had never been told he may be needed as a witness or that he should alert the FBI if he intended to travel. Thus, even assuming that Agent Gneckow and the United States could be excused for the blatant error regarding the plane trip, the lack of probable cause of impracticability is established by all of the facts available to Agent Gneckow that he knowingly omitted from the affidavit.
Moreover, even if the error regarding the plane ticket was necessary to establish a lack of probable cause, it is plain from the record that Agent Gneckow cannot distance himself from the errors. As explained in plaintiff’s opening brief and in his Bivens response brief, Agent Gneckow was well aware that there was confusion about the nature of the ticket and specifically told the other government agents that he would take over the
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investigation. See Pl. FTCA Br. at 12 n.6; Pl. Bivens Opp. Br. at 9, 12; Pl. Ex. 2, Gneckow Dep. at 166-70, 182; Pl. Facts ¶¶ 27-30. Yet Agent Gneckow never bothered to verify whether the ticket was roundtrip or one-way, a basic fact that could have been easily discovered. He cannot now blame others for the erroneous information provided to this Court. 3
Additionally, the FTCA does not focus only on the agents who submitted the warrant, but rather on all of the United States’ agents, since the suit is against the United States for the acts of all its employees. It simply cannot be the case that no one could have verified whether the ticket was one-way or roundtrip. The same is true for the completely inexplicable error in the affidavit that Mr. al-Kidd had a first-class ticket costing approximately $5,000, when in fact he had a coach class ticket costing less than $2,000.
Finally, the government’s argument regarding the plane ticket makes little overall sense. On the one hand, the government suggests that the nature of the ticket was of little importance. In the entire affidavit, however, there were only two substantive sentences concerning flight risk. Yet the government chose to use those sentences to inform the Court (erroneously) that Mr. al-Kidd had a first-class, expensive, one-way ticket.
The government also suggests that there is little difference between a one-way flight and a roundtrip ticket without a specific return date. It blinks reality, however, to believe the government included the one-way information for no reason and that the government
3 The government protests that “Plaintiff cites no Idaho law that imposes such a duty on Gneckow.” U.S. Opp. Br. at 7. But no special duty of care is needed to establish liability for false imprisonment. Under Idaho law, the probable cause element encompasses a reasonableness standard—that of a “person of ordinary care and prudence.” Julian, 922 P.2d at 1062. Given the confusion about Mr. al-Kidd’s ticket, a person of ordinary care and prudence would have made some inquiry into the ticket’s cost, class, and two-way nature before swearing to those facts in an affidavit for Mr. al-Kidd’s arrest.
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believed its affidavit would have been equally forceful if it had informed the Court that the witness simply had not scheduled his return trip yet. Moreover, the government has never explained why it would have mattered to the FBI if Mr. al-Kidd had in fact scheduled a date for his return trip. A witness who truly did not want to cooperate could always choose to stay longer or even cancel the return altogether once in Saudi Arabia. Conversely, what if Mr. al-Kidd or some other witness had not purchased a ticket at all and was then served with a subpoena? The witness could simply choose at that point to leave the country.
The government’s failure to explain these anomalies is not incidental. These anomalies go to the heart of this case. As the Ninth Circuit stressed, the government must show that it is “likely” that a witness will not cooperate, and not that the witness may have the capability of fleeing if he chooses to do so. Bacon, 449 F.2d at 944. At the end of the day, there is little to stop anyone from going underground or flying off to China if they are absolutely intent on avoiding testifying. That cannot give the government the right to arrest anyone who it decides might be needed as a witness. There must be something the witness does to demonstrate, or at least suggest, he would not be cooperative. Here, the exact opposite was true—everything pointed to someone who was cooperative, who had not disobeyed a single directive from the FBI, and who would have postponed his trip or relinquished his passport should the FBI have felt that necessary. Mr. al-Kidd did not disobey a request, let alone a subpoena, and he did not flee to a rooftop. Cf. Bacon, 449 F.2d at 944-45. Nothing in the facts of this case remotely suggests that it was appropriate for the FBI to publicly humiliate a cooperative
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U.S. citizen by handcuffing and arresting him in front of scores of onlookers, and to deprive him of his liberty without warning or any opportunity to comply.
THE MATERIALITY PRONG FBI agents Gneckow and Mace had no concrete information at the time they sought the warrant about what testimony Mr. al-Kidd could offer at Al-Hussayen’s trial. They knew only that Mr. al-Kidd had been in contact with members of IANA and had received money from Al-Hussayen and his associates. Contrary to the government’s suggestion, this meager information does not suggest that Mr. al-Kidd had any knowledge about AlHussayen’s activities on behalf of IANA, how much time Al-Hussayen spent developing al-Multaqa’s website, or anything else relevant to the visa fraud or false statement charges pending against Al-Hussayen. See Pl. Ex. 2, Gneckow Dep. 157-159; Ex. 12, Indictment, U.S. v. Al-Hussayen, No. 3:03-cr-0048 (Dkt. #1) (no mention of al-Multaqa in the indictment against Al-Hussayen). This is far from sufficient to establish that Mr. al-Kidd could offer testimony “material” to Al-Hussayen’s trial. 18 U.S.C. § 3144. If it were, anyone who worked for the same employer as a criminal defendant would satisfy the materiality requirement. Cf. State v. Gibson, 108 P.3d 424, 430 (Id. Ct. App. 2005) (“A person’s mere proximity to people who are suspected of criminal activity . . . does not give probable cause to search that person” for evidence of the suspected criminal activity). All the other reasons Agent Gneckow and AUSA Lindquist offered in their depositions are irrelevant to the visa fraud and false statement charges. Terrorism-related charges were not pending against Al-Hussayen at the time of Mr. al-Kidd’s arrest, so any suggestions that Mr. al-Kidd was involved in criminal activity or was dangerous—aside from being incorrect—are irrelevant to materiality.
14

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 19 of 26
IV. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS ABUSE OF PROCESS CLAIM. Contrary to the government’s claim, see U.S. Opp. Br. at 10, Mr. al-Kidd’s abuse
of process argument has not changed since this Court denied the government’s motion to dismiss. The existence of a national policy on material witness arrests after September 11th was necessary to establish the supervisory liability of various policymaking officials, who are no longer defendants in the Bivens action. But whether such a national policy existed is in no way determinative of the question before the Court now: whether the FBI procured Mr. al-Kidd’s arrest for an improper purpose.
Mr. al-Kidd has set forth numerous facts establishing the government’s improper purpose, facts from which a jury could easily find an improper purpose: (1) Mr. al-Kidd was the subject of an FBI investigation at the time of his arrest; (2) FBI Director Robert Mueller testified before Congress that Mr. al-Kidd’s arrest was an example of the FBI’s success in combating terrorism, without mentioning that Mr. al-Kidd was supposedly only a witness; (3) Mr. al-Kidd was arrested without ever being served with a subpoena, or being asked to postpone his trip or relinquish his passport, despite having never failed to meet with the FBI; (4) after his arrest, Mr. al-Kidd was interrogated by two FBI agents, with Agent Gneckow’s knowledge and consent, about Mr. al-Kidd’s own activities, including his personal religious beliefs; (5) after his interrogation, Mr. al-Kidd was subject to harsh incarceration conditions, including repeated strip searches and full shackling; (6) after the arrest, the FBI drafted an affidavit seeking a warrant to search Mr. al-Kidd’s laptop for evidence of possible criminal activity; (6) in opposing Mr. al-Kidd’s release, the government took the position that he was “dangerous,” even though dangerousness is not one of the factors that should be considered in the detention of a
15

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 20 of 26
witness; (7) the government did not call Mr. al-Kidd as a witness at the Al-Hussayen trial
and did not even move for his release from his draconian release restrictions at the end of
trial, forcing Mr. al-Kidd to move for his release himself after close to 14 months of those
restrictions. Pl. FTCA Br. at 16-22. The government does not dispute a single one of these facts.4 Instead, the
government argues that none of these facts directly show that the FBI arrested Mr. al-
Kidd for the purpose of investigating or preventively detaining him. U.S. Br. at 12. But
such “smoking gun” admissions of improper motive are exceedingly rare, and
unnecessary. As the Ninth Circuit has emphasized, “[d]irect evidence of improper
motive . . . will only rarely be available. . . . [I]t will almost always be necessary to infer
such agreements from circumstantial evidence.” Mendocino Envtl. Ctr. v. Mendocino
Cnty., 192 F.3d 1283, 1302 (9th Cir.1999).
The government ultimately appears to recognize that plaintiff need not produce
direct, smoking gun evidence and thus seeks to minimize plaintiff’s facts. First, the
4 In its response to plaintiff’s statement of facts, the government does not dispute that Mr. al-Kidd was the subject of an FBI investigation at the time of his arrest. U.S. Resp. to Pl. Facts at ¶ 5. Rather, the government attempts to distinguish between “criminal” and “intelligence” investigations, but this distinction is both irrelevant and undermined by testimony and documents in the record. See Pl. FTCA Br. at 21-22; Pl. Facts ¶¶ 5-7.
The government also argues that Pl. Ex. A, U.S. Docs 666 (filed under seal), a docketing document showing that the FBI referred Mr. al-Kidd to the U.S. Attorney’s Office for possible criminal prosecution, “is inadmissible for lack of foundation and hearsay,” and that Lindquist’s testimony about the document is “inadmissible for lack of foundation.” U.S. Resp. to Pl. Facts at ¶ 5. But as an official document from the U.S. Attorneys’ office that the government itself produced in discovery, the document speaks for itself and is submitted for its existence. Fed. R. Evid. 801(c), 803(6). Moreover, Lindquist stated that although he had not seen “this particular document” before, it “looks to me like it’s a docketing document from the U.S. Attorney’s Office”; he then proceeded to explain what a docketing document was, from his experience as an Assistant U.S. Attorney. Both the document and Lindquist’s testimony are thus admissible.
16

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 21 of 26
government argues that plaintiff’s evidence largely focuses on actors other than Mace, Gneckow, Cleary, and Lindquist, and that the Court must ignore the actions of these other actors. See U.S. Opp. Br. at 12-13, 15. That argument is legally and factually wrong.
Contrary to the government’s implication, the record does contain strong evidence of the motives of both Gneckow and Lindquist, and reveals that Mr. al-Kidd would not have been arrested but for their interest in investigating and detaining him as a possible dangerous suspect. Agent Gneckow, for instance, stated that he would not have arrested a “cooperative businessman.” Def. Response to Pl. Facts ¶ 33. And AUSA Lindquist personally opposed Mr. al-Kidd’s release, see Pl. Ex. 1, Pl. Docs 1795, 1797, and testified that one of his concerns about Mr. al-Kidd was dangerousness, even though that is not a proper consideration when deciding whether detention of a material witness is warranted under the statute. See S.Rep. No. 98–225, at 28 n.100 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3211 (legislative history of Bail Act). Moreover, and importantly, under the FTCA, the actions taken by all United States officials, and the overall circumstances surrounding Mr. al-Kidd’s arrest, can plainly illuminate the purpose of Mr. al-Kidd’s arrest.
Here, in fact, the record shows other officials had been in express communication with Agent Gneckow or were otherwise acting under his direction. For example, the government’s claim that “neither Gneckow nor Mace contacted the FBI Field Office in Washington before seeking the warrant to ensure agents from that office interviewed Plaintiff after his arrest,” U.S. Opp. Br. at 14, is highly misleading. It is undisputed that the FBI agents who executed the arrest warrant contacted Agent Gneckow and, with his prior permission, interrogated Mr. al-Kidd immediately after his arrest. Pl. Facts ¶ 15.
17

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 22 of 26
The government also fails to explain FBI Director Mueller’s congressional testimony:
On March 16, Abdullah al-Kidd, a U.S. native and former University of Idaho football player, was arrested by the FBI at Dulles International Airport en route to Saudi Arabia. The FBI arrested three other men in the Idaho probe in recent weeks. And the FBI is examining links between the Idaho men and purported charities and individuals in six other jurisdictions across the country. Pl. Facts ¶ 17; Pl. Ex. 1 at 3-4. Specifically, the government has not explained why the Director of the FBI would list Mr. al-Kidd directly after he mentioned the arrest of “Khalid Shaikh Mohammed . . . the mastermind of the September 11th attack,” id., without even noting that Mr. al-Kidd was supposedly arrested only as a witness, and not as a criminal suspect. The government also fails to offer any explanation for why, in the age of computers, the nation’s top law enforcement agency can locate no record whatsoever of who worked on Director Mueller’s testimony, much less any notes or prior drafts of the testimony, all of which might illuminate why Mr. al-Kidd was featured so prominently in the Director’s congressional testimony. The government nonetheless suggests that the Court should ignore the Director’s testimony because it does not bear on what Agent Gneckow or other Idaho actors were thinking. But the Director specifically referred to Mr. al-Kidd’s arrest as part of the “Idaho probe.” Id. If the Director viewed Mr. al-Kidd as a suspect (as he plainly suggested in his congressional testimony), then that impression would certainly have been informed from information supplied by those in Idaho. And Agent Gneckow, as lead agent on the Al-Hussayen investigation, was at the center of the “Idaho probe.” See Pl. Ex. 2, Gneckow Dep. at 217.
18

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 23 of 26
In short, all of this evidence—singularly and cumulatively—is strongly probative of why Mr. al-Kidd was arrested despite his cooperation with the FBI. The government thus falls back on the argument that even if plaintiff’s evidence is probative, it does not establish that an investigative motive was the primary reason for the arrest, but may only have been an “incidental” or “secondary” purpose. U.S. Opp. Br. at 14. But Idaho law requires only “‘an … improper purpose’” and not that such purpose was the primary one. Pl. FTCA Br. at 15 n.7 (quoting Beco Constr. Co., Inc. v. City of Idaho Falls, 865 P.2d 950, 954 (Id. 1993) (emphasis added)). The only case the government cites for its contrary position is Brown v. Savage, No. CV-08-382, 2011 WL 4584771 (D. Id. Sept. 30, 2011), but that case involved a Fourth Amendment probable cause analysis, not an abuse of process analysis. Thus, even assuming that the primary or exclusive motive for the arrest was not investigatory, there is more than sufficient evidence to find an abuse of process under Idaho law.
Finally, the government repeatedly mischaracterizes Mr. al-Kidd’s abuse of process argument, arguing that it “is, at bottom, a constitutional challenge to the government’s ability to seek a material witness warrant for a person who has previously cooperated with the government.” U.S. Opp. Br. at 15-16; see also id. at 10. But, as explained above, Mr. al-Kidd’s abuse of process argument is that the FBI agents used the material witness statute to preventively detain and investigate him—purposes that this Court has held are improper under the statute. See Dkt. No. 78, Mem. Order at 15-16. Mr. al-Kidd’s constitutional discussion simply provides one additional reason why the agents’ use of the material witness statute in this case was improper. See Pl. FTCA Br. at 15 (“Second, even if the purpose of Mr. al-Kidd’s arrest had in fact been to obtain his
19

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 24 of 26
testimony, there would have been an abuse of process, because the material witness statute may not constitutionally be used to arrest a cooperative witness.”). The Court need not decide this constitutional question, however, if it finds that the government had an improper purpose in using the material witness statute to arrest Mr. al-Kidd. Because the record evidence demonstrates that officials involved in the arrest and detention of Mr. al-Kidd were motivated by both investigation and preventive detention purposes, Mr. alKidd is entitled to summary judgment on his abuse of process claim.
* *** This Court was led to believe that Mr. al-Kidd was a well-funded Saudi national fleeing permanently to his home country to avoid trouble and deny information to the prosecution. Nothing could have been further from the truth. This Court should have been provided the correct information.
CONCLUSION Plaintiff should be granted summary judgment on his FTCA claims.

Dated: March 7, 2012

Respectfully

submitted,
/s/______________ Lee Gelernt

20

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 25 of 26

LEE GELERNT, NY Bar 8511 lgelernt@aclu.org ESHA BHANDARI, NY Bar 4923140 ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU, CA Bar 266463 kdesormeau@aclu.org MICHAEL K.T. TAN, NY Bar 4654208* mtan@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950

LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

* Admitted in New York

Case 1:05-cv-00093-EJL-CWD Document 327 Filed 03/07/12 Page 26 of 26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 7th day of March, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-CWD Document 327-1 Filed 03/07/12 Page 1 of 1
TABLE OF ADDITIONAL EXHIBITS Exhibit 24. Deposition of FBI Special Agent Michael Gneckow Exhibit 25. Deposition of ICE Agent Robert Alvarez Exhibit 26. Deposition of AUSA Kim Lindquist

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 1 of 19
Exhibit 24

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 2 of 19 Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLA AL-KIDD,

)

)

Plaintiff,

)

)

vs.

) NO. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney )

General of the United States; )

et al.,

)

)

Defendant.

)

DEPOSITION OF MICHAEL J. GNECKOW TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO DECEMBER 1, 2007, AT 9:00 A.M.

REPORTED BY: Charlotte R. Crouch, CSR NO. 192 Notary Public

M & M Court Reporting Service, Inc. 1-800-879-1700

GNECKOW, MICHAEL J.
087ea29c-bc74-43c8-8df1-8086b045e403

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 3 of 19

Page 140

1

to court, putting aside the opening preamble, which I

2

obviously know Agent Mace added?

3

A. Yes.

4

Q. Who did you show that to?

5

A. That would have been Assistant U.S.

6

Attorney Kim Lindquist.

7

Q. Did you revise the affidavit in response to

8

Assistant U.S. Attorney Lindquist?

9

A. I believe I did, yes.

10

Q. Do you know how many revisions it went

11

through?

12

A. Not specifically, but there had to have

13

been at least one revision.

14

Q. And you would have saved the prior version?

15

A. I doubt that I would have saved the draft.

16

Q. You would have just revised over it?

17

A. Correct.

18

Q. Do you recall what revisions he suggested

19

you make?

20

A. I don't recall specifically. There was a

21

particular paragraph I believe he wanted added to the

22

affidavit.

23

Q. Okay. Do you recall generally what that

24

paragraph was about?

25

A. I might be able to recall if I had the

M & M Court Reporting Service, Inc. 1-800-879-1700

GNECKOW, MICHAEL J.
087ea29c-bc74-43c8-8df1-8086b045e403

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 4 of 19

Page 222

1

REPORTER'S CERTIFICATE

I, CHARLOTTE R. CROUCH, Certified Shorthand

2

Reporter, do hereby certify:

That the foregoing proceedings were taken before

3

me at the time and place therein set forth, at which

time any witnesses were placed under oath;

4

That the testimony and all objections made

were recorded stenographically by me and were

5

thereafter transcribed by me or under my direction;

That the foregoing is a true and correct

6

record of all testimony given, to the best of my

ability;

7

That I am not a relative or employee of any

attorney or of any of the parties, nor am I

8

financially interested in the action.

IN WITNESS WHEREOF, I have hereunto set my

9

hand and seal this 10th day of December,

2007.

10

_________________________________

11

CHARLOTTE R. CROUCH, C.S.R. #192

Notary Public

12

816 Sherman Ave., Suite 7

Coeur d'Alene, ID 83814

13

14

My Commission Expires January 18, 2013.

15

16

17

18

19

20

21

22

23

24

25

M & M Court Reporting Service, Inc. 1-800-879-1700

GNECKOW, MICHAEL J.
087ea29c-bc74-43c8-8df1-8086b045e403

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 5 of 19
Exhibit 25

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 6 of 19

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

2

3

CASE NO.: 05-cv-093-EJL-MHW

4 ABDULLAH AL-KIDD,

5

Plaintiff,

6 VS.

7 ALBERTO GONZALES, Attorney General of the United States; et al.,
8 Defendant.
9 /
10

11

The Laws Group

12

44 West Flagler, Suite 1100

Miami, Florida 33130

13

November 9, 2007

10:40 a.m. to 4:00 p.m.

14

15

DEPOSITION OF ROBERT ALVAREZ

16

17

Taken on behalf of the Plaintiff before Dale W.

18 Tice, RPR, Notary Public in and for the State of

19 Florida at Large, pursuant to Notice of Taking

20 Deposition.

21

22

23

24

25

Page 1

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 7 of 19

1 understanding was that the price of the ticket was

2 $5,000.

3

Q. And he gave you that information?

4

A. That's what my understanding was after our

5 conversation.

6

Q. He told you it was a $5,000 ticket?

7

A. That was my understanding after talking to

8 him, that it was a -- that it would have cost $5,000.

9

Q. And what specifically do you recall about

10 the conversation with respect to the class of the

11 ticket?

12

A. What I recall is, I don't think that he

13 understood -- it seemed like he wasn't, when he read

14 the ResMon, that he was not 100 percent sure of

15 himself on the ticket information. But I don't know

16 what led me to believe that. It's just, it was a

17 first-class ticket, the second one wasn't. For

18 whatever reason, that was my impression.

19

Q. Okay. I understand.

20

Was he uncertain, as far as you can tell,

21 about what day Mr. Al-Kidd was actually leaving the

22 country, as best you recall?

23

A. It seemed like there was uncertainty

24 whether it was going to be the 13th or the 16th, as

25 best as I can remember and recall.

Page 44

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 8 of 19

1

Q. Did you tell him there was uncertainty

2 about what date he was departing?

3

A. I believe it was -- yes.

4

Q. Did you tell him there was uncertainty

5 about the price of the ticket?

6

MR. MEEKS: Objection. Foundation.

7

A. I don't remember -- no, not on that first

8 conversation. Because when I gave him the

9 information, he asked me to find out how much the

10 ticket cost.

11

Q. Did you advise Agent Gneckow of what class

12 of ticket it was?

13

A. At some point I did. I believe it was

14 after that first conversation. I don't remember

15 exactly when I advised.

16

Q. Did he ask you to find out what class of

17 ticket it was?

18

A. I don't remember him asking me that.

19

Q. Did you advise Agent Gneckow of whether Mr.

20 Al-Kidd had a round-trip ticket?

21

A. Can you repeat the question, sir.

22

Q. In this first conversation with Agent

23 Gneckow, did you mention one way or the other whether

24 Mr. Al-Kidd had a return ticket?

25

A. Whether he had -- no. Wait a minute. I

Page 53

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 9 of 19

1

2

REPORTER'S DEPOSITION CERTIFICATE

3

4 STATE OF FLORIDA COUNTY OF DADE
5

6

I, DALE W. TICE, RPR, do hereby certify

7 that I was authorized to and did stenographically

8 report the foregoing deposition; and that the

9 transcript is a true and correct transcription of the

10 testimony given by the witness; and that the reading

11 and signing of the deposition were not waived.

12

13

I further certify that I am not a relative,

14 employee, attorney or counsel of any of the parties,

15 nor am I a relative or employee of any of the

16 parties' attorney or counsel connected with the

17 action, nor am I financially interested in the

18 action.

19

20

Dated this 9th day of November, 2007.

21

22

__________________________________

23

DALE W. TICE, RPR

24

25

Page 115

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 10 of 19
Exhibit 26

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 11 of 19
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,

:

Plaintiff,

:

vs.

: No. 05-cv-093-EJL-MHW

ALBERTO GONZALES, Attorney :

General of the United States, :

et al.,

:

Defendants.

:

DEPOSITION OF KIM LINDQUIST Wednesday, January 9, 2008 Washington, D.C. 1:04 p.m.

Job No. 1-117718 Pages: 1 - 119 Reported by: Janet A. Hamilton, RDR

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 12 of 19
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

A. Probably.

Page 17

2

Q. Can you recall anything about that circumstance?

3

A. No.

4

Q. Do you know whether Mr. Al-Kidd is a United States

5 citizen or not?

6

A. I personally do not know.

7

Q. You had mentioned earlier that one of the general

8 circumstances you can recall using a material witness statute

9 was in relation to illegal aliens or aliens; is that correct?

10

A. Yes.

11

Q. Can you recall any other circumstances in which you

12 used the material witness statute other than Mr. Al-Kidd's

13 case?

14

A. Not offhand.

15

Q. Do you know what the statutory standard is for

16 seeking a material witness warrant without the statute in

17 front of you?

18

A. I'm not sure what you mean by statutory standard.

19

Q. Well, let me rephrase it. Do you know what the

20 standard is for obtaining a material witness warrant?

21

A. I can't quote you the statutory standard, no.

22

Q. Okay. Do you have a general sense of what it is?

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

Case 1:05-cv-00093-EJL-CWD Document 327-2 Filed 03/07/12 Page 13 of 19
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 happened. I don't recall.

Page 34

2

Q. If you had made suggestions to change the affidavit,

3 would there have been a standard protocol that you personally

4 would have used to change it on the document, fax, hand

5 changes, tell them over the phone?

6

A. Not a standard protocol. I would have communicated

7 the information over the phone probably.

8

Q. All right. You don't recall whether you did that or

9 not?

10

A. I don't have a specific recollection of doing that.

11 The thing that I have -- what I do recall is I believe in that

12 initial conversation was just telling whoever that was, and I

13 think it was Mike Gneckow that the affidavit needed to clearly

14 show his connection with Sami Al-Hussayen and the Islamic

15 Assembly of North America.

16

Q. Do you recall giving the agent any other advice?

17

A. I don't recall.

18

Q. Did you know where Mr. Al-Kidd was at that time when

19 you received the call from the agent?

20

A. I don't recall having knowledge as to where he was

21 at that particular time.

22

Q. Do you recall whether you asked the FBI agent where

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
d2112d17-d11b-4e88-947f-c7e3460dba32

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

Page 43

1

A. I believe one of the agents told me. That's my

2 recollection.

3

Q. Do you recall in what context they told you that?

4

A. I don't.

5

Q. You earlier said you inferred that the agents had

6 spoken with Mr. Al-Kidd. Do you know whether or not

7 Mr. Al-Kidd spoke to the agents voluntarily?

8

A. I have no knowledge of that.

9

Q. Do you know -- at the time you sought the warrant

10 did you know whether the FBI had ever told Mr. Al-Kidd that he

11 could not travel outside the United States?

12

A. I have no knowledge of that.

13

Q. Do you know whether they ever told him they should,

14 that Mr. Al-Kidd should instruct -- at the time the government

15 sought the warrant did you know whether the FBI had ever told

16 Mr. Al-Kidd he should inform them if he intended to travel

17 outside the United States?

18

A. I had no such knowledge.

19

Q. Did the FBI agents who gave the information to you

20 about Mr. Al-Kidd say that they had specifically talked to

21 him?

22

A. I have no rec -- I have no knowledge of that. I

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 have no recollection of them telling me that.

Page 44

2

Q. So you have no recollection then I assume of them

3 characterizing the interview one way or the other?

4

A. I have no recollection of them characterizing any

5 verbal contact with him.

6

Q. Okay. So I assume at the time the government sought

7 the warrant you had no knowledge of whether Mr. Al-Kidd had up

8 until that point been cooperative or uncooperative?

9

A. I have no knowledge.

10

Q. At the time the government sought the warrant did

11 you know when Mr. Al-Kidd made the decision to travel to Saudi

12 Arabia?

13

A. No. I never had any such knowledge.

14

Q. Did you know at the time the government sought the

15 warrant why Mr. Al-Kidd was traveling to Saudi Arabia?

16

A. No.

17

Q. At the time the government sought the warrant did

18 you know when Mr. Al-Kidd had actually booked his ticket to

19 Saudi Arabia?

20

A. No.

21

Q. Do you know whether Mr. Al-Kidd prior to his arrest

22 had ever spoken with any members of the media?

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

A. To availability.

Page 65

2

Q. And how about the price of the ticket? Does that

3 reflect on availability, relevant to availability?

4

A. As I sit here right now, and even then, again, I

5 don't recall that figure. Not particularly, no.

6

Q. So I gather from your testimony the relevant factor

7 is whether it was a one way ticket to Saudi Arabia?

8

A. Yes, sir.

9

Q. And if it was a one way ticket to New York, would

10 that have been sufficient on its own?

11

MR. MEEKS: Objection; speculation.

12

A. Well, on its own as far as availability?

13

Q. Yes.

14

A. Possibly. Just it probably would have prompted more

15 inquiry on my part as far as our ability to locate him in New

16 York. That's why I say it wouldn't have been -- it wouldn't

17 have screamed as loudly as a one way ticket out of the

18 country, but it would have -- it still would have prompted

19 inquiry.

20

Q. But just so I'm clear, because I think you've been

21 absolutely clear, I just want to make sure I'm clear. The

22 only factors you based -- the only factors on which you

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

Page 66 1 considered relevant for availability at the time you sought

2 the warrant were the one way ticket to Saudi Arabia?

3

A. That I recall at this point in time. That's what I

4 recall really screaming out to me, this witness is not going

5 to be available.

6

Q. Okay. And you don't recall basing your availability

7 assessment on any other factors?

8

A. I don't recall at this point in time.

9

Q. And when you say if he had a one way ticket, if the

10 individual had a one way ticket to New York, it would have

11 prompted inquiry; is that correct?

12

A. On my part, yes.

13

Q. Okay. And what kinds of questions would you have

14 wanted to ask in that situation?

15

MR. MEEKS: I'm going to object to speculation. I'm

16 not sure we're talking about just changing that fact for this

17 particular instance or in general.

18

Q. Well, let's deal with Mr. Al-Kidd. In this

19 situation if the FBI had said Mr. Al-Kidd had a one way ticket

20 to New York.

21

A. I would say I would like to know what additional

22 information the agents might have as to where in New York, the

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 witness.

Page 104

2

Q. Okay. It would have been -- do you know whether the

3 FBI ever told Mr. Al-Kidd that he may be needed as a witness?

4

A. I don't.

5

Q. If the FBI had not told him he may be needed as a

6 witness, would it have been unusual in your experience for

7 Mr. Al-Kidd to have affirmatively contacted the FBI after

8 learning about Hussayen's indictment?

9

A. Say that again. I'm sorry. If --

10

Q. Strike that. I'm sorry. I want to show you -- I

11 want to mark this as Plaintiff's 8.

12

(Plaintiff's Deposition Exhibit No. 8 was marked for

13 identification.)

14

A. Okay.

15

Q. Earlier I had mentioned a man named Al-Kraida. Does

16 this refresh your recollection?

17

A. You know, I'm embarrassed to say it really doesn't.

18 I still do not -- I just do not recall who this fellow is. I

19 apologize. I just do not recall.

20

Q. That's okay. Al-Hussayen was indicted on February

21 26, 2003; is that correct?

22

A. I don't recall the exact date, I'm sorry.

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 CERTIFICATE OF SHORTHAND REPORTER

Page 117

2

I, Janet A. Hamilton, Registered Diplomate Reporter,

3 before whom the foregoing deposition was taken, do hereby

4 certify that the foregoing transcript is a true and correct

5 record of the testimony given; that said testimony was taken 6 by me stenographically and thereafter reduced to typewriting 7 under my direction and that I am neither counsel for, related

8 to, nor employed by any of the parties to this case and have

9 no interest, financial or otherwise, in its outcome.

10

IN WITNESS WHEREOF, I have hereunto set my hand this

11 25th day of January, 2008.

12

13

14

15

16

17 Registered Diplomate Reporter
18

19

20

21

22

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LEE GELERNT, NY Bar 8511 lgelernt@aclu.org ESHA BHANDARI, NY Bar 4923140 ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-093-EJL-MHW
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST INDIVIDUAL FEDERAL DEFENDANTS, FILED ON DECEMBER 21, 2011 (Dkt. No. 310)

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 2 of 23

Additional Counsel

KATHERINE DESORMEAU, CA Bar 266463 kdesormeau@aclu.org MICHAEL K.T. TAN, NY Bar 4654208* mtan@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950
LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201

R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

* Admitted in New York

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 3 of 23
TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................... ii INTRODUCTION............................................................................................................. 1 ARGUMENT..................................................................................................................... 1
I. MR. AL-KIDD IS ENTITLED TO SUMMARY JUDGMENT ON HIS MALLEY CLAIM. .................................................................................................. 1
A. The Affidavit Patently Failed To Establish Impracticability......................... 1 B. The Affidavit Patently Failed to Establish Materiality................................... 3 II. MR. AL-KIDD IS ENTITLED TO SUMMARY JUDGMENT ON HIS
FRANKS CLAIM. .................................................................................................. 4 A. Reckless and Intentional Omissions ................................................................. 5 B. Reckless and Intentional False Statements ....................................................... 8 C. The Corrected Affidavit Lacks Probable Cause of Impracticability. ........... 13 III. GNECKOW’S CONSULTATION WITH LINDQUIST DOES NOT
ENTITLE DEFENDANTS TO QUALIFIED IMMUNITY............................. 14 CONCLUSION ............................................................................................................... 16
i

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TABLE OF AUTHORITIES
Cases Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) ............................................................. 4 Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) ............................................. 2, 16 Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) ....................................................................... 6 Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) ............................................... passim Barry v. United States, 279 U.S. 597 (1929) ...................................................................... 7 Beirer v. City of Lewiston, 354 F.3d 1058 (9th Cir. 2004) ............................................... 12 Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011) .................................... 10, 13 Brown v. Savage, No. 08-382, 2011 WL 4584771 (D. Id. Sept. 30, 2011) ...................... 13 Chism v. Washington, 661 F.3d 380 (9th Cir. 2011) ........................................................ 14 Espinosa v. City and County of San Francisco, 598 F.3d 528 (9th Cir. 2010) ................ 12 Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009) .......................................... 12, 14 Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995)...................................................................... 5 Illinois v. Gates, 462 U.S. 213 (1983) ............................................................................ 3, 4 Liston v. County of Riverside, 120 F.3d 965 (9th Cir. 1997) ............................ 7, 10, 14, 16 Lombardi v. City of El Cajon, 117 F.3d 1117 (9th Cir. 1997).......................................... 16 Maryland v. Garrison, 480 U.S. 79 (1987)....................................................................... 12 Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999) ................. 11 Messerschmidt v. Millender, --- S.Ct. ----, 2012 WL 555206 (2012)............................... 15 Michigan v. Fisher, 130 S. Ct. 546 (2009) ......................................................................... 4 Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) ......................................................... 11, 12 Swafford ex rel. White v. Gerbitz, 892 F.2d 457 (6th Cir. 1989) ........................................ 8
ii

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United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003) .................................................... 8 United States v. McVeigh, 940 F. Supp. 1541 (D. Colo. 1996) .......................................... 8 United States v. Whitley, 249 F.3d 614 (7th Cir. 2001) .................................................... 11 Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967)............................................... 3 Statutes 18 U.S.C. § 3142................................................................................................................. 5 U.S.C. § 3144.............................................................................................................. 5, 6, 8 Other Authorities Congressional Research Service, Extradition To and From the United States:
Overview of the Law and Recent Treaties 43 (Mar. 17, 2010), available at http://www.fas.org/sgp/crs/misc/98-958.pdf ................................................................ 14
iii

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INTRODUCTION In their opposition brief, defendants have disclaimed any suggestion that Mr. alKidd has done anything wrong. They do not argue that he was anything less than fully cooperative with the FBI, and they no longer imply that he was fleeing because he wished to avoid testifying. Compare Fed. Defs. Opp. Br. at 17-18 with Fed. Defs. Opening Br. at 20. With these distractions swept away, the true stakes of defendants’ argument become clear: They propose that an innocent, cooperative U.S. citizen may be arrested and imprisoned as a material witness simply because he is going on a trip abroad and has not yet scheduled a return leg. Fed. Defs. Opp. Br. at 5-6. Defendants contend that Mr. al-Kidd’s U.S. citizenship, his family ties, his past cooperation with the FBI, and the FBI’s failure to tell him his testimony might be needed, were all irrelevant. All those factors, defendants argue, should be considered after the fact at the detention hearing stage, but they need not be presented to the court when seeking the arrest warrant. According to defendants, they may arrest an innocent U.S. citizen—no matter how cooperative, no matter how deep his ties to the United States— simply by showing that he is traveling out of the country to Saudi Arabia without a specific return date. This is not a reasonable understanding of the law.
ARGUMENT I. MR. AL-KIDD IS ENTITLED TO SUMMARY JUDGMENT ON HIS
MALLEY CLAIM. A. The Affidavit Patently Failed To Establish Impracticability.
The affidavit falls far short of establishing probable cause to believe it would be impracticable to secure Mr. al-Kidd’s testimony by subpoena. Its only assertions pertaining to impracticability were that Mr. al-Kidd was taking a one-way trip to Saudi
1

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Arabia, and that he was flying first class on a ticket that cost $5000. See Pl. Bivens Br. at 8-9; see also Pl. Ex. 1. These assertions were untrue, as defendants now admit. But even taking them as true, they do not come close to establishing probable cause.
In essence, defendants are asking this Court to assume impracticability whenever the government can show that a potential witness has a one-way plane ticket abroad; they argue there is no need for particularized facts showing that the witness would likely refuse to comply with a subpoena. Defendants’ argument is entirely contrary to the Ninth Circuit’s settled case-law, which requires that the affidavit make a particularized showing not only that the witness could refuse to comply with a subpoena, but that he is “likely” to do so. Bacon v. United States, 449 F.2d 933, 944 (9th Cir. 1971); see also id. at 942 (“[A] judicial officer must be provided with information of sufficient specificity and apparent reliability to permit him to determine independently the existence vel non of probable cause.”).
In Bacon, the Ninth Circuit held that the FBI failed to establish impracticability even though the witness had “access to large sums of money” and “personal contact with fugitives from justice,” and even though she had fled to an “adjoining rooftop” when the FBI initially sought her arrest. Id. at 944-45. Similarly, in Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985), the Ninth Circuit held a material witness arrest invalid despite police officers’ multiple attempts to serve a subpoena on the witness, and after the witness told the officers that he would not testify voluntarily. Id. at 974, 976-77. If the facts in Bacon and Arnsberg were not enough to establish impracticability, then surely the impracticability-related assertions made in the affidavit here—all of which boil down to the fact that Mr. al-Kidd was traveling abroad—could not suffice.
2

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Defendants erroneously accuse Mr. al-Kidd of substituting a standard of “certainty” for that of probable cause. See Fed. Defs. Opp. Br. at 4-5. But Mr. al-Kidd’s argument is simply that, under controlling Ninth Circuit case law, the affidavit did not remotely establish probable cause of impracticability. The affidavit contained no assertions that Mr. al-Kidd had done anything to suggest he would be uncooperative. The mere fact that he was traveling abroad is not enough to show that he would “likely” refuse to honor a subpoena if one were issued. Bacon, 449 F.2d at 944.1
B. The Affidavit Patently Failed to Establish Materiality. The affidavit also failed to explain how Mr. al-Kidd’s testimony would be germane to the visa and false statement charges pending against Al-Hussayen. As explained in plaintiff’s opening brief, the affidavit asserted a handful of disparate facts and asked the Court to assume that Mr. al-Kidd had material information about the pending charges. See Pl. Bivens Br. at 12-13; see also Illinois v. Gates, 462 U.S. 213, 239 (1983); cf. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967) (holding that search warrant affidavit must establish a “nexus . . . between the item to be seized and [the suspected] criminal behavior.”). That is plainly insufficient.2
1 Defendants also accuse Mr. al-Kidd of re-litigating the question of whether a material witness warrant can ever be issued without first serving the witness with a subpoena. Fed. Defs. Opp. Br. at 3-4. But Mr. al-Kidd’s argument—discussed in more detail below, see infra Part II.A—is simply that a witness’s prior cooperation is relevant to the court’s impracticability determination, and not that he must be served with a subpoena first. 2 At the motion to dismiss stage, defendants argued that, under Bacon, “‘a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy’ the materiality criterion.” Mem. Order at 14 (citing Bacon, 449 F.2d at 943). But Bacon’s holding on this point was limited to the grand jury context, as the Ninth Circuit in this case noted. The Ninth Circuit “s[aw] no reason that the showing of materiality as to the witness in a trial . . . should be any different from the showing required for
3

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Plaintiff’s opening brief also made the additional (and independent) argument that the material witness statute must be construed consistently with the Fourth Amendment to permit only reasonable arrests, and that it would be unreasonable to allow the arrest of an innocent U.S. citizen purely for the sake of testimony that is cumulative and unnecessary to the prosecution. See Pl. Bivens Br. at 13-15. Defendants protest that Mr. al-Kidd is proposing a “novel” constitutional standard, Fed. Defs. Opp. Br. at 6, 8, but this is a mischaracterization. Mr. al-Kidd simply argues that, to establish probable cause of materiality, the government must show a “fair probability” that the need for this particular witness’s testimony is great enough to justify the deprivation of his liberty. Gates, 462 U.S. at 246. Otherwise, the material witness statute would violate the Fourth Amendment’s “ultimate touchstone” of reasonableness. Michigan v. Fisher, 130 S. Ct. 546, 548 (2009) (per curiam) (citation omitted). Nor does reading the statute to permit only reasonable arrests force courts to examine all the government’s evidence and intrude on the prosecutor’s pre-trial decision-making process, as defendants suggest. See Fed. Defs. Opp. Br. at 7. A simple statement in the affidavit explaining what knowledge this particular witness has, and how that knowledge relates to the pending charges, may well be enough. But the affidavit here contained no such statement.
II. MR. AL-KIDD IS ENTITLED TO SUMMARY JUDGMENT ON HIS FRANKS CLAIM.
Mr. al-Kidd has made a “substantial showing” that defendants intentionally or recklessly made false statements and omissions in the affidavit they submitted to this Court, and he has shown that the corrected affidavit is “insufficient to establish probable
impracticability.”). Al-Kidd v. Ashcroft, 580 F.3d 949, 967 n.18 (9th Cir. 2009). The Supreme Court’s decision cast no doubt on the Ninth Circuit’s reasoning on this point.
4

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cause.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995). Mr. al-Kidd has made the requisite showing for both impracticability and materiality,3 although only one is needed to prevail on his Franks claim.
A. Reckless and Intentional Omissions Defendants omitted the following facts from the affidavit: (1) Mr. al-Kidd had voluntarily cooperated with the FBI on multiple occasions in the past; (2) Mr. al-Kidd was a native-born U.S. citizen, with U.S. citizen family members living in the United States; and (3) the FBI never told Mr. al-Kidd his testimony might be needed or asked him not to travel, and they had not contacted Mr. al-Kidd in over 8 months. See Pl. Bivens Br. at 17-18. As explained in Mr. al-Kidd’s opening brief, the record—including Gneckow and Mace’s own deposition testimony—establishes that these omissions were all intentional or reckless. See id.; see also Pl. Facts ¶ 31 (citing record evidence showing Gneckow’s awareness of the omitted facts and his intentional decision not to include them), ¶ 41 (showing Mace’s recklessness). Defendants take the extraordinary position that these omissions were not “relevant” to impracticability. Fed. Defs. Opp. Br. at 17-18. They admit that these are relevant considerations for the judge at the detention hearing—after the individual has been arrested on a material witness warrant—but they contend that they need not be presented to the judge at the arrest warrant stage. Fed. Defs. Opening Br. at 27-28. Yet the applicable statutes make clear that flight risk is a relevant consideration at both the arrest warrant stage and the detention hearing stage. See 18 U.S.C. §§ 3144, 3142. Unlike in the criminal context, where officers may sometimes make warrantless arrests
3 To avoid repetition, Mr. al-Kidd will not repeat his arguments regarding materiality. See also Pl. Bivens Br. at 25-26.
5

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subject to an after-the-fact probable cause determination by a judge, the material witness statute does not allow for warrantless arrests. Instead, it specifically requires a judicial finding of probable cause prior to arrest. See 18 U.S.C. § 3144 (providing that “a judicial officer may order the arrest” of a material witness upon the filing of an affidavit); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011) (noting that the “federal materialwitness statute authorizes judges to order the arrest” of a material witness) (emphasis added) (citation omitted). Congress therefore required that officers provide the judicial officer with all available information relevant to probable cause up front, rather than at a later detention hearing.
On defendants’ view, FBI agents may knowingly withhold facts from a judge when seeking an arrest warrant—facts that they know are relevant to the judge’s assessment of whether detention is needed to secure testimony. Such a rule would give the government a free hand to procure material witness warrants even where no flight risk exists, securing two days of preventive detention before being put to its proof at the detention hearing. This would be a remarkably inefficient rule for the courts, and a profoundly unjust one for the witness.4
Because the affidavit failed to mention Mr. al-Kidd’s past cooperation with the FBI, his U.S. citizenship, his family ties to the United States, or the FBI’s failure to advise him that his testimony might be needed, defendants failed to put this Court “on
4 Relatedly, defendants suggest that the availability of a detention hearing after a witness’s arrest is sufficient to render the intrusion on the witness’s liberty interests per se reasonable. See Fed. Defs. Opp. Br. at 7-8 n.3. This argument is baseless. That an innocent U.S. citizen witness can be released from jail sometime after his arrest cannot eliminate the need to have probable cause for the arrest in the first place; otherwise, the requirement that the government establish probable cause of materiality and impracticability to justify the issuance of a warrant would be rendered meaningless.
6

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notice,” Liston v. County of Riverside, 120 F.3d 965, 974 (9th Cir. 1997), of vital information that would have called into question the affidavit’s assertion that it would be impracticable to secure Mr. al-Kidd’s presence without an arrest. Indeed, Gneckow himself conceded at his deposition that a “cooperative businessman” could not be arrested on a material witness warrant simply because he had a plane ticket to Saudi Arabia, Pl. Facts ¶ 33, and yet he knowingly failed to include any mention of Mr. alKidd’s prior cooperation with the FBI in the affidavit.
Defendants also reiterate their argument that the material witness statute does not require the government to serve a witness with a subpoena before an arrest warrant can be sought. See Fed. Defs. Opp. Br. at 17. But Mr. al-Kidd’s argument is not that the failure to serve a subpoena is a per se violation. Rather, Mr. al-Kidd’s argument, under settled Ninth Circuit law, is that government must show why it would have been impracticable to secure the testimony by subpoena. And that determination takes into account all of the factors discussed above, including past cooperation.5
Awadallah and the other out-of-circuit cases defendants cite are consistent with this principle and fully support plaintiff’s position. See Fed. Defs. Opp. Br. at 4. In Awadallah, the Second Circuit noted that the plaintiff revoked consent for the FBI to
5 That past cooperation is relevant to the impracticability determination is a matter of common sense. When trying to determine whether the government has made a sufficient showing that a witness would be unlikely to cooperate in the future, a decision-maker would want to know whether the witness had been given similar opportunities in the past, and if so, how he responded (or if not, why not). In Bacon, for example, the Ninth Circuit specifically noted the FBI’s failure to make any “showing of past attempts by Bacon to evade judicial process” as one of the reasons why the FBI fell short of showing “that Bacon would be likely to flee.” 449 F.2d at 944. In Barry v. United States, 279 U.S. 597, 619 (1929), the Supreme Court noted that the Senate “reasonably believ[ed]” evidence would be lost in light of the witness’s “repeated refus[al]” to answer questions when subpoenaed.
7

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search his car, and refused to appear for a polygraph test without a lawyer. United States v. Awadallah, 349 F.3d 42, 46 (2d Cir. 2003). In light of these twin refusals, the Second Circuit expressed doubts about his “ostensibl[e] cooperative[ness].” Id. at 47; see also id. at 46, 67 n.19, 68 n.20. Similarly, in United States v. McVeigh, 940 F. Supp. 1541 (D. Colo. 1996), factors strongly suggested that the witness would likely evade a subpoena, including that the witness “had publicly renounced his [U.S.] citizenship.” Id. at 1550. And in Swafford ex rel. White v. Gerbitz, 892 F.2d 457 (6th Cir. 1989), the Court relied heavily on the plaintiff’s statement to officers that he did not want to be a “snitch” and “did not want to testify about the [murder] in later court proceedings.” Id. at 459.
Here, in stark contrast, defendants do not argue that Mr. al-Kidd had been anything but cooperative with the FBI on all prior occasions. And defendants have no answer for why the FBI could not have asked Mr. al-Kidd to postpone his trip when agents encountered him at the airport, or why they could not have seized his passport.6
B. Reckless and Intentional False Statements The knowing omissions from the affidavit are enough, on their own, to negate probable cause and establish liability under Franks. But, in addition, the affidavit was also marred by false statements. Defendants now admit that the affidavit contained three false statements about impracticability: It stated (1) that Mr. al-Kidd’s ticket was a one-
6 Al-Hussayen’s trial did not begin for more than a year after Mr. al-Kidd’s arrest. See Fed. Defs. Facts ¶ 34. Defendants note, however, that it was originally scheduled for approximately thirty days from al-Kidd’s arrest. Fed. Defs. Opp. Br. at 5. But insofar as that fact is relevant, it cuts against defendants’ argument. With the trial scheduled to start in the relatively near future, it would have been that much more feasible for defendants to request that Mr. al-Kidd postpone his trip and surrender his passport until after he had testified. Moreover, defendants’ argument completely ignores Congress’s requirement that the government take the deposition of a material witness wherever possible, so as to avoid the hardship of unnecessary detention. See 18 U.S.C. § 3144.
8

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 14 of 23
way ticket, when in fact it was a round-trip open-return ticket; (2) that Mr. al-Kidd’s ticket was first-class, when in fact it was coach class; and (3) that Mr. al-Kidd’s ticket cost approximately $5000, when in fact it cost approximately $1700. As explained in plaintiff’s opening brief, defendants included these false statements in the affidavit in reckless disregard for their truth or falsity. See Pl. Bivens Br. at 23-25.
Defendants argue that Gneckow was not reckless because he “took steps to ensure that Plaintiff was in fact leaving the country.” Fed. Defs. Opp. Br. at 13. In particular, they point to his phone call to an FBI agent stationed at Dulles Airport, who told Gneckow that Mr. al-Kidd’s name appeared on an upcoming flight manifest. But is undisputed that Gneckow never—during that phone call or at any other time—attempted to ascertain the three facts at issue here.
Indeed, the record shows that Gneckow accepted Alvarez’s oral statements about Mr. al-Kidd’s flight without ever asking to see any documentation, even though he was aware of the confusion concerning Mr. al-Kidd’s ticket. Defendants argue that Gneckow “never testified” that he was confused about the ticket, Fed. Defs. Opp. Br. at 13, but that is not the question. The question is whether Gneckow was aware of his informants’ confusion over Mr. al-Kidd’s ticket, and the record shows beyond any doubt that he was. Alvarez testified that he knew Alvarado “was not 100 percent sure of himself on the ticket information,” was uncertain of the class of the ticket, and “was uncertain[] whether [the outbound flight] was going to be the 13th or the 16th.” Pl. Ex. 25, Alvarez Dep. at 44. Alvarez testified that he told Gneckow about this uncertainty. Id. at 53 (“Q. Did you tell [Gneckow] there was uncertainty about what date he was departing? A. I believe it was—yes.”).
9

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 15 of 23
Alvarez and Alvarado’s uncertainty about these basic facts would have put a reasonable officer on notice that more investigation was needed into the details of Mr. alKidd’s flight. At the very least, a reasonable officer would have acknowledged such uncertainty in the affidavit so that this Court could give the information appropriate weight when deciding whether to issue the warrant. See, e.g., Bravo v. City of Santa Maria, 665 F.3d 1076, 1086 (9th Cir. 2011) (inclusion of omitted facts would have put magistrate judge “on notice” of affiant’s uncertainty and “prompted . . . [him to] require[] additional information”) (internal quotation marks omitted); Liston, 120 F.3d at 974 (same). But Gneckow did none of this.
He did not bother to check the information he put into the affidavit about the cost, class, and round-trip nature of the ticket—even though he easily could have done so, either through Alvarez or the FBI agent at Dulles. See Pl. Bivens Br. at 24; Pl. Facts ¶¶ 27-30. See also Pl. Ex. 2, Gneckow Dep. at 166-67 (Gneckow did not ask Alvarez “to do any follow-up,” but rather “took [it] upon [him]self” to verify the information by calling the FBI agent at Dulles); id. at 169-70 (Gneckow did not ask FBI agent at Dulles to confirm the price, class, or one-way nature of the ticket); id. at 184 (testifying that he “wasn’t upset” when he learned that the flight information was incorrect because “it made no difference to me whether it was a one-way ticket, first class, or whether it was economy class, round-trip, open-ended ticket.”).
Defendants also assert that AUSA Lindquist “advised Gneckow to make sure Plaintiff had left his home before proceeding, and Gneckow followed this advice.” Fed. Defs. Opp. Br. at 9. But when asked, Gneckow could not recall what steps had been taken to determine whether Mr. al-Kidd had left his home. See Pl. Facts ¶ 39. Gneckow
10

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 16 of 23
testified only that he may have asked another agent to do a “drive-by” or make a “telephone call.” Id. In any event, Gneckow’s vague assertion that he took some undefined steps to ensure that Mr. al-Kidd had left his home is simply irrelevant in the face of the strong record evidence showing that defendants made no effort to verify the cost, class, or round-trip nature of the ticket before including those facts in the affidavit.
In sum, the undisputed record evidence shows Gneckow’s reckless disregard for the truth of the statements he put before this Court. Mace, too, acted recklessly in signing the affidavit; he admitted that he did not know the standard for seeking a material witness warrant, and that he made no effort whatsoever to determine whether the facts to which he was swearing were true. Pl. Facts ¶¶ 40-41; cf. United States v. Whitley, 249 F.3d 614, 624 (7th Cir. 2001) (warrant invalid where, among other things, officers made “no effort . . . to verify the accuracy of information”).7
The Ninth Circuit has repeatedly emphasized that “[a]lthough a police officer is entitled to rely on information obtained from fellow law enforcement officers, . . . this in no way negates a police officer’s duty to reasonably inquire or investigate these reported facts.” Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1293 n.16 (9th Cir. 1999). Indeed, “[a]ll officers . . . have an ongoing duty to make appropriate inquiries regarding the facts received or to further investigate if insufficient details are relayed.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005).
7 Defendants incorrectly assert that Mr. al-Kidd has “fail[ed] to argue that Mace’s conduct was not objectively reasonable.” Fed. Defs. Opp. Br. at 15 n.7. That is incorrect. See Pl. Bivens Br. at 8 n.4 (arguing that “[b]y signing and submitting the affidavit, Mace is responsible for its contents (and omissions)”); see also Pl. Facts ¶¶ 4041.
11

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 17 of 23
Here, it was incumbent upon both Gneckow and Mace to “make appropriate inquiries” into the facts on which they were relying for probable cause before submitting those facts to this Court. Id. This is most obviously true of Gneckow: He was affirmatively aware of Alvarez and Alvarado’s confusion about Mr. al-Kidd’s flight details, and yet he did not ask Alvarez “to do any follow-up research,” but instead “took [it] upon [him]self” to verify the information. Pl. Facts ¶¶ 29, 41.8
In arguing that they had no duty to ascertain whether the facts they presented to this Court were true, defendants cite only two cases, see Fed. Defs. Opp. Br. at 14, both of which actually support plaintiff’s position. In Ewing, the Ninth Circuit held that officers were not liable for seeking a warrant based on what turned out to be mistaken eyewitness identifications. The Court held that it was not reckless for the officers, after conducting a “reasonable” investigation that had already established probable cause, to stop interviewing additional potential witnesses and to apply for a warrant. Ewing v. City of Stockton, 588 F.3d 1218, 1227 (9th Cir. 2009). Ewing does not suggest that an officer has no duty to ensure that the facts he presents to a magistrate judge are true. On the contrary, Ewing specifically recognized that “[a]n officer should pursue reasonable avenues of investigation and may not close his eyes to facts that would clarify the situation[.]” Id. at 1227 (internal citations omitted).
8 See also Espinosa v. City and County of San Francisco, 598 F.3d 528, 535 (9th Cir. 2010) (“[O]fficer relying on the information [supplied by another officer] must make reasonable inquiries to determine if there is a sufficient basis for [probable cause to support] arrest and search.”); Beirer v. City of Lewiston, 354 F.3d 1058, 1071 (9th Cir. 2004); see generally Maryland v. Garrison, 480 U.S. 79, 85 (1987) (“The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate.”) (emphasis added).
12

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 18 of 23
And in Brown v. Savage, No. 08-382, 2011 WL 4584771 (D. Id. Sept. 30, 2011), this Court held that a sheriff’s detective was not liable for omissions in the warrant affidavit where he personally conducted an extensive investigation (including interviewing witnesses and subpoenaing bank records) to develop probable cause, id. at *1-*2, and where he was not on notice that any information might be incorrect or missing. Id. at *8. Here, defendants conducted no meaningful inquiry to ensure that their statements were true—despite Gneckow’s awareness of his informants’ uncertainty—and recklessly included them in the affidavit anyway.
C. The Corrected Affidavit Lacks Probable Cause of Impracticability. When the affidavit is revised to correct for the numerous omissions, all that remains is this: A U.S. citizen was traveling to Saudi Arabia; he had substantial ties to the United States; he had never failed to cooperate with the FBI; he was never told not to travel or that he might be needed as a witness; and he had not heard from the FBI in roughly 8 months. Those facts are clearly insufficient to establish probable cause to believe Mr. al-Kidd would refuse to comply with a subpoena under Ninth Circuit law. At the very least, the corrected affidavit “would have prompted the issuing judge to require additional information” from the affiants before deciding whether to issue the warrant. Bravo, 665 F.3d at 1086 (internal quotation marks omitted). Thus, even if the false statements regarding the plane ticket are left in the affidavit, probable cause was lacking. And, when the false statements are corrected, the affidavit even more plainly lacks probable cause of impracticability. The fact that Saudi Arabia lacks an extradition treaty with the United States does not change the probable cause determination. Many countries to which American
13

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 19 of 23
citizens regularly travel for business and pleasure lack extradition treaties with the United States, including China and Russia.9 Under defendants’ reasoning, any American citizen who is taking a trip to any of these countries, and who has not yet scheduled his return flight, would automatically satisfy the material witness statute’s impracticability prong— regardless of past cooperation. This flies in the face of common sense, and of Ninth Circuit case law. The lack of an extradition treaty does not mean that a traveler would be “likely” to evade a subpoena. Bacon, 449 F.2d at 944.
III. GNECKOW’S CONSULTATION WITH LINDQUIST DOES NOT ENTITLE DEFENDANTS TO QUALIFIED IMMUNITY.
Defendants contend that they are entitled to qualified immunity under both Malley and Franks because Gneckow “consulted” with AUSA Lindquist before submitting the affidavit to the Court. First, as to the Franks claim, defendants cannot claim qualified immunity. As the courts have repeatedly held in Franks cases, an officer cannot purport to have immunity where he intentionally or recklessly withheld material facts. Pl. Bivens Br. at 7 n.3. See Chism v. Washington, 661 F.3d 380, 393 (9th Cir. 2011); Ewing, 588 F.3d at 1228 n.16; Liston, 120 F.3d at 973 n.8. Nor does any purported consultation with AUSA Lindquist change that point, because the record in this case makes quite clear that Lindquist’s sign-off was based on incomplete information.
Critically, Gneckow admitted in his deposition that he gave Lindquist limited information. See Pl. Facts ¶ 38, Pl. Ex. 2, Gneckow Dep. 201 (“Q. So you didn’t provide [Lindquist] with additional facts beyond those in the affidavit? A. Right.”). And Lindquist himself testified that, at the time of the arrest, he had no knowledge of whether
9 See Congressional Research Service, Extradition To and From the United States: Overview of the Law and Recent Treaties 43 (Mar. 17, 2010), available at http://www.fas.org/sgp/crs/misc/98-958.pdf.
14

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Mr. al-Kidd was a U.S. citizen, see Pl. Ex. 26, Lindquist Dep. at 17, whether he had been cooperative with the FBI in the past, id. at 43-44, whether he was ever informed that he might be needed as a witness, id. at 104, whether he was asked not to travel outside the United States, id. at 43, or whether he was asked to inform the FBI if he intended to travel. Id. Lindquist therefore was in no position to assess the existence of probable cause or the adequacy of the affidavit, and his sign-off—as Gneckow had reason to know, having given him incomplete information—was meaningless.
Nor is qualified immunity appropriate as to plaintiff’s Malley claim. Defendants cite Messerschmidt v. Millender, --- S.Ct. ----, 2012 WL 555206 (2012), for the proposition that consultation with a prosecutor may be “pertinent” to qualified immunity—at least on the Malley claim. Id. at *12; see also Dkt. No. 326, Fed. Defs. Fed. R. App. P. 28(j) Letter (Feb. 27, 2012). But the facts of Messerschmidt could not be further afield from this case. The Supreme Court concluded that qualified immunity was proper in Messerschmidt because the police officers “prepared a detailed warrant application that truthfully laid out the pertinent facts” with no material omissions, and submitted the application to a deputy district attorney. Id. at *12 (emphasis added). Based on these facts, the Court concluded that the officers in Messerschmidt “took every step that could reasonably be expected of them” to ensure that their affidavit established probable cause. Id. The facts here could not be more different. Thus, far from supporting defendants’ arguments, Messerschmidt illustrates why Gneckow’s consultation with Lindquist is wholly insufficient to merit qualified immunity protection.
Finally, defendants reiterate their argument that they deserve qualified immunity because Mr. al-Kidd’s Malley and Franks arguments are premised upon a “novel”
15

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 21 of 23

constitutional theory. Fed. Defs. Opp. Br. at 10-12, 19.10 This argument lacks merit. Mr. al-Kidd’s arguments do not rest on novel constitutional theories, but rather on straightforward applications of longstanding Ninth Circuit case law. Indeed, Bacon and Arnsberg have long been the precedents in this Circuit, spelling out what is needed to establish probable cause for a material witness arrest. In any event, as explained in Plaintiff’s opening brief, courts do not apply the “clearly established” test when deciding Malley or Franks claims, because the standard for liability in both kinds of cases already incorporates immunity protection. Pl. Bivens Br. at 7 n.3.
CONCLUSION Defendants ask this court to hold that a cooperative, innocent U.S. citizen may be arrested and detained on a material witness warrant solely for taking a trip abroad with no specific return date. This Court should reject that assertion and, in light of the undisputed evidence, grant summary judgment in favor of Mr. al-Kidd on both his Malley and Franks claims.

Dated: March 7, 2012

Respectfully submitted,
/s/______________ Lee Gelernt

10 Defendants assert that it is “not ‘obvious’ that a neutral magistrate would not have issued the warrant.” Fed. Defs. Opp. Br. at 19 (citing Lombardi v. City of El Cajon, 117 F.3d 1117, 1126-27 (9th Cir. 1997)). To the extent defendants are implying that the applicable standard is “obviousness,” they misread Lombardi. Lombardi was simply commenting that in Hervey, the materiality of the missing information was “obvious,” making it an especially easy case. Lombardi, 117 F.3d at 1126 (“The facts in Hervey made the materiality inquiry easy . . . . But whether the magistrate would not have issued the warrant with false information redacted, or omitted information restored, is not always so obvious.”). The rule remains that liability attaches if the court concludes that the affidavit would not make out probable cause with the omissions added and the false statements corrected. Liston, 120 F.3d at 973.
16

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 22 of 23

LEE GELERNT, NY Bar 8511 lgelernt@aclu.org ESHA BHANDARI, NY Bar 4923140 ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
KATHERINE DESORMEAU, CA Bar 266463 kdesormeau@aclu.org MICHAEL K.T. TAN, NY Bar 4654208* mtan@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: 415-343-0773 F: 415-395-0950

LEA COOPER, ISB No. 3505 lcooper@acluidaho.org AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 T: 208-344-9750 F: 208-344-7201
R. KEITH ROARK, ISB No. 2230 Keith@roarklaw.com THE ROARK LAW FIRM, LLP 409 N. Main St. Hailey, ID 83333 T: 208-788-2427 F: 208-788-3918
CYNTHIA WOOLLEY, ISB No. 6018 Cynthia@ketchumidaholaw.com LAW OFFICES OF CYNTHIA J. WOOLLEY, PLLC P.O. Box 6999 180 First St. West, Suite 107 Ketchum, ID 83340 T: 208-725-5356 F: 208-725-5569

* Admitted in New York

Case 1:05-cv-00093-EJL-CWD Document 328 Filed 03/07/12 Page 23 of 23

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 7th day of March, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Brant S. Levine brant.levine@usdoj.gov

J. Marcus Meeks marcus.meeks@usdoj.gov

/s/_Lee Gelernt_______________ Attorney for Abdullah al-Kidd

Case 1:05-cv-00093-EJL-CWD Document 328-1 Filed 03/07/12 Page 1 of 1
TABLE OF ADDITIONAL EXHIBITS Exhibit 24. Deposition of FBI Special Agent Michael Gneckow Exhibit 25. Deposition of ICE Agent Robert Alvarez Exhibit 26. Deposition of AUSA Kim Lindquist

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 1 of 19
Exhibit 24

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 2 of 19 Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLA AL-KIDD,

)

)

Plaintiff,

)

)

vs.

) NO. 05-CV-093-EJL-MHW

)

ALBERTO GONZALES, Attorney )

General of the United States; )

et al.,

)

)

Defendant.

)

DEPOSITION OF MICHAEL J. GNECKOW TAKEN ON BEHALF OF THE PLAINTIFF
AT COEUR D'ALENE, IDAHO DECEMBER 1, 2007, AT 9:00 A.M.

REPORTED BY: Charlotte R. Crouch, CSR NO. 192 Notary Public

M & M Court Reporting Service, Inc. 1-800-879-1700

GNECKOW, MICHAEL J.
087ea29c-bc74-43c8-8df1-8086b045e403

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 3 of 19

Page 140

1

to court, putting aside the opening preamble, which I

2

obviously know Agent Mace added?

3

A. Yes.

4

Q. Who did you show that to?

5

A. That would have been Assistant U.S.

6

Attorney Kim Lindquist.

7

Q. Did you revise the affidavit in response to

8

Assistant U.S. Attorney Lindquist?

9

A. I believe I did, yes.

10

Q. Do you know how many revisions it went

11

through?

12

A. Not specifically, but there had to have

13

been at least one revision.

14

Q. And you would have saved the prior version?

15

A. I doubt that I would have saved the draft.

16

Q. You would have just revised over it?

17

A. Correct.

18

Q. Do you recall what revisions he suggested

19

you make?

20

A. I don't recall specifically. There was a

21

particular paragraph I believe he wanted added to the

22

affidavit.

23

Q. Okay. Do you recall generally what that

24

paragraph was about?

25

A. I might be able to recall if I had the

M & M Court Reporting Service, Inc. 1-800-879-1700

GNECKOW, MICHAEL J.
087ea29c-bc74-43c8-8df1-8086b045e403

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 4 of 19

Page 222

1

REPORTER'S CERTIFICATE

I, CHARLOTTE R. CROUCH, Certified Shorthand

2

Reporter, do hereby certify:

That the foregoing proceedings were taken before

3

me at the time and place therein set forth, at which

time any witnesses were placed under oath;

4

That the testimony and all objections made

were recorded stenographically by me and were

5

thereafter transcribed by me or under my direction;

That the foregoing is a true and correct

6

record of all testimony given, to the best of my

ability;

7

That I am not a relative or employee of any

attorney or of any of the parties, nor am I

8

financially interested in the action.

IN WITNESS WHEREOF, I have hereunto set my

9

hand and seal this 10th day of December,

2007.

10

_________________________________

11

CHARLOTTE R. CROUCH, C.S.R. #192

Notary Public

12

816 Sherman Ave., Suite 7

Coeur d'Alene, ID 83814

13

14

My Commission Expires January 18, 2013.

15

16

17

18

19

20

21

22

23

24

25

M & M Court Reporting Service, Inc. 1-800-879-1700

GNECKOW, MICHAEL J.
087ea29c-bc74-43c8-8df1-8086b045e403

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 5 of 19
Exhibit 25

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 6 of 19

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

2

3

CASE NO.: 05-cv-093-EJL-MHW

4 ABDULLAH AL-KIDD,

5

Plaintiff,

6 VS.

7 ALBERTO GONZALES, Attorney General of the United States; et al.,
8 Defendant.
9 /
10

11

The Laws Group

12

44 West Flagler, Suite 1100

Miami, Florida 33130

13

November 9, 2007

10:40 a.m. to 4:00 p.m.

14

15

DEPOSITION OF ROBERT ALVAREZ

16

17

Taken on behalf of the Plaintiff before Dale W.

18 Tice, RPR, Notary Public in and for the State of

19 Florida at Large, pursuant to Notice of Taking

20 Deposition.

21

22

23

24

25

Page 1

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 7 of 19

1 understanding was that the price of the ticket was

2 $5,000.

3

Q. And he gave you that information?

4

A. That's what my understanding was after our

5 conversation.

6

Q. He told you it was a $5,000 ticket?

7

A. That was my understanding after talking to

8 him, that it was a -- that it would have cost $5,000.

9

Q. And what specifically do you recall about

10 the conversation with respect to the class of the

11 ticket?

12

A. What I recall is, I don't think that he

13 understood -- it seemed like he wasn't, when he read

14 the ResMon, that he was not 100 percent sure of

15 himself on the ticket information. But I don't know

16 what led me to believe that. It's just, it was a

17 first-class ticket, the second one wasn't. For

18 whatever reason, that was my impression.

19

Q. Okay. I understand.

20

Was he uncertain, as far as you can tell,

21 about what day Mr. Al-Kidd was actually leaving the

22 country, as best you recall?

23

A. It seemed like there was uncertainty

24 whether it was going to be the 13th or the 16th, as

25 best as I can remember and recall.

Page 44

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 8 of 19

1

Q. Did you tell him there was uncertainty

2 about what date he was departing?

3

A. I believe it was -- yes.

4

Q. Did you tell him there was uncertainty

5 about the price of the ticket?

6

MR. MEEKS: Objection. Foundation.

7

A. I don't remember -- no, not on that first

8 conversation. Because when I gave him the

9 information, he asked me to find out how much the

10 ticket cost.

11

Q. Did you advise Agent Gneckow of what class

12 of ticket it was?

13

A. At some point I did. I believe it was

14 after that first conversation. I don't remember

15 exactly when I advised.

16

Q. Did he ask you to find out what class of

17 ticket it was?

18

A. I don't remember him asking me that.

19

Q. Did you advise Agent Gneckow of whether Mr.

20 Al-Kidd had a round-trip ticket?

21

A. Can you repeat the question, sir.

22

Q. In this first conversation with Agent

23 Gneckow, did you mention one way or the other whether

24 Mr. Al-Kidd had a return ticket?

25

A. Whether he had -- no. Wait a minute. I

Page 53

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The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 9 of 19

1

2

REPORTER'S DEPOSITION CERTIFICATE

3

4 STATE OF FLORIDA COUNTY OF DADE
5

6

I, DALE W. TICE, RPR, do hereby certify

7 that I was authorized to and did stenographically

8 report the foregoing deposition; and that the

9 transcript is a true and correct transcription of the

10 testimony given by the witness; and that the reading

11 and signing of the deposition were not waived.

12

13

I further certify that I am not a relative,

14 employee, attorney or counsel of any of the parties,

15 nor am I a relative or employee of any of the

16 parties' attorney or counsel connected with the

17 action, nor am I financially interested in the

18 action.

19

20

Dated this 9th day of November, 2007.

21

22

__________________________________

23

DALE W. TICE, RPR

24

25

Page 115

Electronically signed by Dale Tice (501-021-913-5179) Electronically signed by Dale Tice (501-021-913-5179)

The Laws Group 800-305-LAWS www.laws-group.com

421124c7-23ab-40cc-9e4d-1ffbdf95c229

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Exhibit 26

Case 1:05-cv-00093-EJL-CWD Document 328-2 Filed 03/07/12 Page 11 of 19
DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

Page 1

ABDULLAH AL-KIDD,

:

Plaintiff,

:

vs.

: No. 05-cv-093-EJL-MHW

ALBERTO GONZALES, Attorney :

General of the United States, :

et al.,

:

Defendants.

:

DEPOSITION OF KIM LINDQUIST Wednesday, January 9, 2008 Washington, D.C. 1:04 p.m.

Job No. 1-117718 Pages: 1 - 119 Reported by: Janet A. Hamilton, RDR

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
(202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664
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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

A. Probably.

Page 17

2

Q. Can you recall anything about that circumstance?

3

A. No.

4

Q. Do you know whether Mr. Al-Kidd is a United States

5 citizen or not?

6

A. I personally do not know.

7

Q. You had mentioned earlier that one of the general

8 circumstances you can recall using a material witness statute

9 was in relation to illegal aliens or aliens; is that correct?

10

A. Yes.

11

Q. Can you recall any other circumstances in which you

12 used the material witness statute other than Mr. Al-Kidd's

13 case?

14

A. Not offhand.

15

Q. Do you know what the statutory standard is for

16 seeking a material witness warrant without the statute in

17 front of you?

18

A. I'm not sure what you mean by statutory standard.

19

Q. Well, let me rephrase it. Do you know what the

20 standard is for obtaining a material witness warrant?

21

A. I can't quote you the statutory standard, no.

22

Q. Okay. Do you have a general sense of what it is?

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 happened. I don't recall.

Page 34

2

Q. If you had made suggestions to change the affidavit,

3 would there have been a standard protocol that you personally

4 would have used to change it on the document, fax, hand

5 changes, tell them over the phone?

6

A. Not a standard protocol. I would have communicated

7 the information over the phone probably.

8

Q. All right. You don't recall whether you did that or

9 not?

10

A. I don't have a specific recollection of doing that.

11 The thing that I have -- what I do recall is I believe in that

12 initial conversation was just telling whoever that was, and I

13 think it was Mike Gneckow that the affidavit needed to clearly

14 show his connection with Sami Al-Hussayen and the Islamic

15 Assembly of North America.

16

Q. Do you recall giving the agent any other advice?

17

A. I don't recall.

18

Q. Did you know where Mr. Al-Kidd was at that time when

19 you received the call from the agent?

20

A. I don't recall having knowledge as to where he was

21 at that particular time.

22

Q. Do you recall whether you asked the FBI agent where

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

Page 43

1

A. I believe one of the agents told me. That's my

2 recollection.

3

Q. Do you recall in what context they told you that?

4

A. I don't.

5

Q. You earlier said you inferred that the agents had

6 spoken with Mr. Al-Kidd. Do you know whether or not

7 Mr. Al-Kidd spoke to the agents voluntarily?

8

A. I have no knowledge of that.

9

Q. Do you know -- at the time you sought the warrant

10 did you know whether the FBI had ever told Mr. Al-Kidd that he

11 could not travel outside the United States?

12

A. I have no knowledge of that.

13

Q. Do you know whether they ever told him they should,

14 that Mr. Al-Kidd should instruct -- at the time the government

15 sought the warrant did you know whether the FBI had ever told

16 Mr. Al-Kidd he should inform them if he intended to travel

17 outside the United States?

18

A. I had no such knowledge.

19

Q. Did the FBI agents who gave the information to you

20 about Mr. Al-Kidd say that they had specifically talked to

21 him?

22

A. I have no rec -- I have no knowledge of that. I

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 have no recollection of them telling me that.

Page 44

2

Q. So you have no recollection then I assume of them

3 characterizing the interview one way or the other?

4

A. I have no recollection of them characterizing any

5 verbal contact with him.

6

Q. Okay. So I assume at the time the government sought

7 the warrant you had no knowledge of whether Mr. Al-Kidd had up

8 until that point been cooperative or uncooperative?

9

A. I have no knowledge.

10

Q. At the time the government sought the warrant did

11 you know when Mr. Al-Kidd made the decision to travel to Saudi

12 Arabia?

13

A. No. I never had any such knowledge.

14

Q. Did you know at the time the government sought the

15 warrant why Mr. Al-Kidd was traveling to Saudi Arabia?

16

A. No.

17

Q. At the time the government sought the warrant did

18 you know when Mr. Al-Kidd had actually booked his ticket to

19 Saudi Arabia?

20

A. No.

21

Q. Do you know whether Mr. Al-Kidd prior to his arrest

22 had ever spoken with any members of the media?

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1

A. To availability.

Page 65

2

Q. And how about the price of the ticket? Does that

3 reflect on availability, relevant to availability?

4

A. As I sit here right now, and even then, again, I

5 don't recall that figure. Not particularly, no.

6

Q. So I gather from your testimony the relevant factor

7 is whether it was a one way ticket to Saudi Arabia?

8

A. Yes, sir.

9

Q. And if it was a one way ticket to New York, would

10 that have been sufficient on its own?

11

MR. MEEKS: Objection; speculation.

12

A. Well, on its own as far as availability?

13

Q. Yes.

14

A. Possibly. Just it probably would have prompted more

15 inquiry on my part as far as our ability to locate him in New

16 York. That's why I say it wouldn't have been -- it wouldn't

17 have screamed as loudly as a one way ticket out of the

18 country, but it would have -- it still would have prompted

19 inquiry.

20

Q. But just so I'm clear, because I think you've been

21 absolutely clear, I just want to make sure I'm clear. The

22 only factors you based -- the only factors on which you

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

Page 66 1 considered relevant for availability at the time you sought

2 the warrant were the one way ticket to Saudi Arabia?

3

A. That I recall at this point in time. That's what I

4 recall really screaming out to me, this witness is not going

5 to be available.

6

Q. Okay. And you don't recall basing your availability

7 assessment on any other factors?

8

A. I don't recall at this point in time.

9

Q. And when you say if he had a one way ticket, if the

10 individual had a one way ticket to New York, it would have

11 prompted inquiry; is that correct?

12

A. On my part, yes.

13

Q. Okay. And what kinds of questions would you have

14 wanted to ask in that situation?

15

MR. MEEKS: I'm going to object to speculation. I'm

16 not sure we're talking about just changing that fact for this

17 particular instance or in general.

18

Q. Well, let's deal with Mr. Al-Kidd. In this

19 situation if the FBI had said Mr. Al-Kidd had a one way ticket

20 to New York.

21

A. I would say I would like to know what additional

22 information the agents might have as to where in New York, the

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 witness.

Page 104

2

Q. Okay. It would have been -- do you know whether the

3 FBI ever told Mr. Al-Kidd that he may be needed as a witness?

4

A. I don't.

5

Q. If the FBI had not told him he may be needed as a

6 witness, would it have been unusual in your experience for

7 Mr. Al-Kidd to have affirmatively contacted the FBI after

8 learning about Hussayen's indictment?

9

A. Say that again. I'm sorry. If --

10

Q. Strike that. I'm sorry. I want to show you -- I

11 want to mark this as Plaintiff's 8.

12

(Plaintiff's Deposition Exhibit No. 8 was marked for

13 identification.)

14

A. Okay.

15

Q. Earlier I had mentioned a man named Al-Kraida. Does

16 this refresh your recollection?

17

A. You know, I'm embarrassed to say it really doesn't.

18 I still do not -- I just do not recall who this fellow is. I

19 apologize. I just do not recall.

20

Q. That's okay. Al-Hussayen was indicted on February

21 26, 2003; is that correct?

22

A. I don't recall the exact date, I'm sorry.

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DEPOSITION OF KIM LINDQUIST CONDUCTED ON WEDNESDAY, JANUARY 9, 2008

1 CERTIFICATE OF SHORTHAND REPORTER

Page 117

2

I, Janet A. Hamilton, Registered Diplomate Reporter,

3 before whom the foregoing deposition was taken, do hereby

4 certify that the foregoing transcript is a true and correct

5 record of the testimony given; that said testimony was taken 6 by me stenographically and thereafter reduced to typewriting 7 under my direction and that I am neither counsel for, related

8 to, nor employed by any of the parties to this case and have

9 no interest, financial or otherwise, in its outcome.

10

IN WITNESS WHEREOF, I have hereunto set my hand this

11 25th day of January, 2008.

12

13

14

15

16

17 Registered Diplomate Reporter
18

19

20

21

22

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY
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 Case 1:05-cv-00093-EJL-CWD Document 330 Filed 03/27/12 Page 1 of 3

Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146, Ben Franklin Sta. Washington, D.C. 20044 Tel: 202-616-4176 Fax: 202-616-4314
Attorneys for Defendant John Ashcroft

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. 1:05-cv-093-EJL-MHW
CONSENT MOTION FOR ENTRY OF ORDER DISMISSING WITH PREJUDICE THE CLAIMS AGAINST FORMER ATTORNEY GENERAL JOHN ASHCROFT

Former Attorney General John Ashcroft, through undersigned counsel, hereby moves for entry of an order, consistent with the Supreme Court’s decision in Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), that dismisses with prejudice Plaintiff’s claims against him. Undersigned counsel has conferred with Plaintiff’s counsel and Plaintiff consents to the entry of such an order. In support of this motion, Defendant Ashcroft states as follows:
1. On May 31, 2011, the United States Supreme Court entered an order and judgment in Ashcroft v. al-Kidd that reversed the Ninth Circuit’s decision upholding this Court’s denial of Defendant Ashcroft’s Motion to dismiss the claims against him. That order and

Case 1:05-cv-00093-EJL-CWD Document 330 Filed 03/27/12 Page 2 of 3

judgment was transmitted to the Ninth Circuit Court of Appeals by letter dated July 5, 2011. See Dkt. No. 297.
2. On August 3, 2011, the Ninth Circuit Court of Appeals issued an order reversing this Court’s denial of Ashcroft’s motion to dismiss and remanding the matter to this Court for further proceedings consistent with the Supreme Court’s ruling. See Dkt. No. 300.
3. On September 27, 2011, the Ninth Circuit issued its Mandate effectuating the August 3 order. See Dkt. No. 301.
4. Consistent with the Supreme Court’s decision, order and judgment issued in Ashcroft v. al-Kidd, and the Ninth Circuit’s August 3 order, Defendant Ashcroft respectfully requests that this Court enter an order dismissing Plaintiff’s claims against him with prejudice.

Dated: March 27, 2012

Respectfully submitted,
STUART DELERY Acting Assistant Attorney General
C. SALVATORE D’ALESSIO, JR. Acting Director, Torts Branch
/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4176 Fax: (202) 616-4314

Case 1:05-cv-00093-EJL-CWD Document 330 Filed 03/27/12 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on March 27, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following counsel for Plaintiff to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Lee Gelernt lgelernt@aclu.org Esha Bhandari ebhandari@aclu.org Lea Candy Cooper lcooper@acluidaho.org Katherine Desormeau kdesormeau@alcu.org Michale K.T. Tan mtan@aclu.org Michael J. Wishne michael.wishne@yale.edu Cynthia Jane Woolley cynthia@ketchumidaholaw.com R. Keith Roark keith@roarklaw.com
/s/ J. Marcus Meeks U.S. Department of Justice

 
 Case 1:05-cv-00093-EJL-CWD Document 331 Filed 03/27/12 Page 1 of 4

Brant S. Levine brant.levine@usdoj.gov J. Marcus Meeks marcus.meeks@usdoj.gov UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146, Ben Franklin Sta. Washington, D.C. 20044 Tel: 202-616-4176 Fax: 202-616-4314
Attorneys for Defendants United States, Michael Gneckow and Scott Mace

LEE GELERNT, Bar NY 8511 lgelernt@aclu.org ESHA BHANDARI ebhandari@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE, CT Juris. No. 429553 michael.wishnie@yale.edu YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. 1:05-cv-093-EJL-MHW
STIPULATION REGARDING TERMINATION OF CERTAIN PARTIES AGAINST WHOM CLAIMS ARE NO LONGER PENDING AND CORRECTION OF THE CAPTION

Pursuant to Local Rule 7.3, the Parties hereby enter into the following stipulation: WHEREAS the Plaintiff initially alleged claims in this action against the following

Case 1:05-cv-00093-EJL-CWD Document 331 Filed 03/27/12 Page 2 of 4
federal government entities and government officials in their official capacities only: the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation, the Terrorist Screening Center, Donna Bucella, Michael Chertoff, Alberto Gonzales, and Robert Mueller;
WHEREAS the claims alleged against the governmental entities and government officials in their official capacities were for the expungement of any records of Plaintiff’s material witness arrest and time in detention following that arrest;
WHEREAS the governmental entity defendants provided Plaintiff with evidence showing that no such records are maintained;
WHEREAS, based on the evidence provided by the governmental entities, the Plaintiff withdrew the claims against those entities and the federal government officials sued in their official capacities;
WHEREAS the only defendants remaining in this action are Michael James Gneckow and Scott Mace, who are sued in their individual capacities, and the United States, on claims brought under the Federal Tort Claims Act;
NOW THEREFORE, it is hereby stipulated by and between the Plaintiff and the Defendants that:
1. Because Plaintiff has withdrawn his claims against the governmental entities that were initially parties to this action—the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation, the Terrorist Screening Center—those entities are no longer parties to this action and the Clerk should terminate them as parties;
2. Because Plaintiff has withdrawn his claims against the government officials sued in their official capacities that were initially parties to this action—Donna Bucella, Michael

Case 1:05-cv-00093-EJL-CWD Document 331 Filed 03/27/12 Page 3 of 4

Chertoff, Alberto Gonzales, and Robert Mueller—those officials are no longer parties to this action and the Clerk should terminate them as parties;
3. The caption of this case should reflect only those parties who remain defendants in this case—the United States, Michael James Gneckow, and Scott Mace;
4. The proper caption for this case is Abdullah al-Kidd v. United States, et al.

Dated: March 27, 2012

Respectfully submitted,

/s/ BRANT S. LEVINE J. MARCUS MEEKS Trial Attorneys UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146 Washington, D.C. 20530 Tel: (202) 616-4176 Fax: (202) 616-4314
Attorneys for Defendants the United States, Michael Gneckow and Scott Mace

/s/ LEE GELERNT ESHA BHANDARI AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 T: 212-549-2616 F: 212-549-2654
MICHAEL J. WISHNIE YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 T: 203-436-4780 F: 203-432-1426 (Cooperating Counsel for the ACLU)
Counsel for Plaintiff

Case 1:05-cv-00093-EJL-CWD Document 331 Filed 03/27/12 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on March 27, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following counsel for Plaintiff to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Lee Gelernt lgelernt@aclu.org Esha Bhandari ebhandari@aclu.org Lea Candy Cooper lcooper@acluidaho.org Katherine Desormeau kdesormeau@alcu.org Michale K.T. Tan mtan@aclu.org Michael J. Wishne michael.wishne@yale.edu Cynthia Jane Woolley cynthia@ketchumidaholaw.com R. Keith Roark keith@roarklaw.com
/s/ J. Marcus Meeks U.S. Department of Justice

 
 Case 1:05-cv-00093-EJL-CWD Document 332 Filed 03/28/12 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. 1:05-cv-093-EJL-MHW ORDER

Before the Court is the Parties’ Stipulation Regarding Termination of Certain Parties Against

Whom Claims Are No Longer Pending and Correction Of the Caption. The Stipulation asks that the

Clerk terminate those parties who are no longer a party to this action. (Dkt. 331.) The Court has

reviewed the Stipulation and approves the same.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED that the Stipulation (Dkt. 331) is

APPROVED. Consistent with the Stipulation, the Clerk of the Court shall terminate as parties to this

action the following defendants: the Department of Homeland Security, the Department of Justice, the

Federal Bureau of Investigation, the Terrorist Screening Center, Donna Bucella, Michael Chertoff,

Alberto Gonzales, and Robert Mueller. Hereafter, the caption of this case shall read Abdullah al-Kidd

v. United States, et al.

DATED: March 28, 2012

Honorable Edward J. Lodge U. S. District Judge

 
 Case 1:05-cv-00093-EJL-CWD Document 333 Filed 03/29/12 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

) Case No. 1:05-cv-093-EJL-MHW

)

v.

) ORDER

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Before the Court is a Consent Motion for Entry of Dismissal as to the Claims against

Former Attorney General John Ashcroft. (Dkt. 330.) The parties agree to the entry of such order

in light and in consideration of the Supreme Court’s decision, order and judgment entered in

Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), the Order of the Ninth Circuit dated August 3, 2011,

remanding that matter to this Court for proceedings consistent with the Supreme Court’s

decision, and the Consent Motion filed by former Attorney General John Ashcroft for entry of an

order dismissing the claims against him consistent with the Supreme Court’s decision. The Court

has reviewed the same and will grant the Motion.

NOW THEREFORE IT IS HEREBY ORDERED that the Motion (Dkt. 330) is

GRANTED and the claims against former Attorney General John Ashcroft are DISMISSED

WITH PREJUDICE.

DATED: March 29, 2012

Honorable Edward J. Lodge U. S. District Judge

 
 Case 1:05-cv-00093-EJL-CWD Document 336 Filed 06/18/12 Page 1 of 43

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-00093-EJL-MHW
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
INDIVIDUAL DEFENDANTS MICHAEL GNECKOW AND SCOTT MACE

INTRODUCTION Before the Court are two cross-motions for summary judgment filed by Plaintiff Abdullah al-Kidd and two Federal Bureau of Investigation agents, Defendants Michael Gneckow and Scott Mace. (Dkt. Nos. 307, 308, 310.) The motions are the last chapter of Plaintiff Abdullah al-Kidd’s (“al-Kidd”) complaint stemming from his allegations that he was unlawfully arrested and held as a material witness in the case of United States v.
REPORT AND RECOMMENDATION - 1

Case 1:05-cv-00093-EJL-CWD Document 336 Filed 06/18/12 Page 2 of 43
Sami Omar al-Hussayen, Case No. 3:03-cr-00048-EJL, then pending in the United States District Court for the District of Idaho.
At the time of his arrest on March 16, 2003, al-Kidd, a United States citizen who converted to Islam while studying at the University of Idaho, was about to board a flight leaving from Dulles Airport in Virginia bound for Saudi Arabia, where he was going to continue his religious studies at Umm al-Qora University. Al-Kidd was arrested on a material witness warrant issued by this Court1 based upon an affidavit presented by agents of the Federal Bureau of Investigation (“FBI”) on the grounds that al-Kidd’s testimony was necessary to the prosecution of the al-Hussayen case, and he was about to leave the United States on the eve of trial. Individual defendants Michael Gneckow and Scott Mace (“Agent Mace” and “Agent Gneckow”) are the agents who sought and presented the application for the material witness warrant.2
Defendants Gneckow and Mace assert they are entitled to qualified immunity for their actions in pursuing the warrant, contending that there was probable cause to obtain the warrant pursuant to 18 U.S.C. § 3144. Al-Kidd argues to the contrary, arguing the warrant was facially deficient and, even if amended, could not support a probable cause
1 When the term “the Court” is used in this Report and Recommendation, the term refers to the author of this Report and Recommendation. On March 14, 2003, I considered the application and affidavit submitted by Agent Mace and issued the arrest warrant in my capacity as a United States Magistrate Judge for the District of Idaho.
2 The other remaining Defendant is the United States of America. The pending cross-motions for summary judgment between al-Kidd and the United States will be addressed in a separate Report and Recommendation, which will be issued within the week. (See Dkt. 333, 250, 74, 79 85,230, 248.) REPORT AND RECOMMENDATION - 2

Case 1:05-cv-00093-EJL-CWD Document 336 Filed 06/18/12 Page 3 of 43
determination. The Court conducted a hearing on the motions on May 10, 2012. After careful
consideration of the parties’ submissions and arguments, and for the reasons discussed below, the Court first recommends that al-Kidd’s motion seeking summary judgment against Agent Gneckow be granted and Agent Gneckow’s motion for summary judgment be denied. Pursuant to the reasoning of Franks v. Delaware, 438 U.S. 154 (1978), the Court concludes that Agent Gneckow is not entitled to qualified immunity because he drafted the affidavit and decided what information to include and what to exclude from the affidavit. With the omitted and corrected information, the application and affidavit would not have been supported by probable cause.
As to Agent Mace, who made the formal application for the warrant to this Court on behalf of Agent Gneckow and who simply received the factual information for inclusion in the affidavit, the Court will request that the District Court conduct a de novo review of the application and affidavit upon which the warrant was based. Based on the District Court’s findings following the de novo review, then one of the following rulings could result:
1. If the District Court finds the application and affidavit submitted to this Court established probable cause to arrest al-Kidd as a material witness, then Agent Mace’s motion for summary judgment should be granted and al-Kidd’s motion denied.
2. If the District Court finds that the application and affidavit did not even established an indicia of probable cause, then al-Kidd’s motion for summary judgment
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should be granted and Agent Mace’s motion denied. 3. If the District Court concludes that the application and affidavit fell within the
range where there was more than an indicia of probable cause, but less than legally sufficient probable cause, then this Court would recommend that the District Court find Agent Mace is entitled to qualified immunity in seeking the warrant, and grant Agent Mace’s motion for summary judgment and deny al-Kidd’s motion.
REPORT FACTS The Court is well versed in the facts over the course of this matter’s history. Since the existence of probable cause to arrest al-Kidd as a material witness, or the lack thereof, is of crucial importance in the resolution of the motions before the Court, a detailed account of the events leading up to the request for the material witness arrest warrant and the information submitted in support of the application will be discussed. Based on the parties’ statements of fact, the Court finds the following facts material and undisputed.3 Al-Kidd’s claim that he was improperly arrested as a material witness flows from a three-year criminal investigation and the thirty-three day jury trial of Sami Omar alHussayen (“al-Hussayen”), which concluded on June 10, 2004. Al-Hussayen, a citizen of Saudi Arabia, had been admitted to the United States on a student visa and was a computer science Ph.D. student at the University of Idaho, with emphasis on computer
3 The Court takes judicial notice of the record in U.S. v. al-Hussayen, Case No. 3:03-cr-00048EJL, in connection with the motions. The Court presided over all pretrial proceedings in the al-Hussayen matter, including the arraignment and subsequent detention hearing of al-Hussayen. REPORT AND RECOMMENDATION - 4

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security and intrusion techniques. FBI Special Agent Michael Gneckow was the lead agent investigating the scope of al-Hussayen’s business and other activities, aside from his university studies. Al-Hussayen had been allowed to enter the United States solely as a full time student, and the FBI was investigating whether he had been engaging in business activities that would contravene the limitations of his student visa.
During the course of the three year investigation, in December of 2001, Agent Gneckow became aware of al-Kidd’s relationship with al-Hussayen. (Gneckow Depo. at 57–69, Dkt. 306-5 at 54–56.)4 Surveillance was conducted of al-Kidd. (Gneckow Depo. at 76, Dkt. 306-5 at 61.)
In the fall of 2001, Agent Gneckow obtained documents indicating that money from one of al-Hussayen’s bank accounts had been transferred to al-Kidd. (Gneckow Depo. at 54, Dkt. 306-5 at 51.) Agent Gneckow later determined that the transfers to alKidd probably constituted regular monthly salary payments made by al-Hussayen to alKidd for work al-Kidd did for an entity called al-Multaqa and its website, almultaqa.com.5 (Gneckow Depo. at 70, 76, 78, Dkt. 306-5 at 57, 61, 63.)
As part of the investigation, Agent Joe Cleary interviewed al-Kidd twice, and on both occasions al-Kidd voluntarily participated in the interviews. Agent Cleary discussed the interviews with Agent Gneckow. The FBI determined that, in its view, al-Kidd
4 Because of the voluminous nature of the record, the Court will cite to documents submitted without reference to the record attachments and page numbers, as none were provided, and will instead include the Docket Number and corresponding page number of the docket entry.
5 See Defs.’ Statement of Facts ¶ 6, Dkt. 306-2. REPORT AND RECOMMENDATION - 5

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possessed material information relating to al-Hussayen’s activities that could be useful in their investigation.
Following the second interview, al-Kidd spoke to a reporter with the Seattle PostIntelligencer. Later, on August 2, 2002, an article in the paper asserted that the FBI was investigating charitable donations by Muslim students at the University of Idaho and Washington State University for possible links to international terrorism. The article discussed a “source” described as a “former University of Idaho football player and part of a “small Muslim community in Moscow and nearby Pullman” between 1992 and 2000. (Defs.’ Ex. 2, Dkt. 306-3 at 6.) The FBI agents involved with the investigation decided against future contact with al-Kidd out of concern that the case against al-Hussayen could be compromised if their conversations were discussed with the media. (Gneckow Depo. at 195, Dkt. 306-5 at 110; Defs.’ Statement of Facts ¶¶ 10–12, Dkt. 306-2.)
Although contact with al-Kidd ceased after August 2, 2002, Agent Gneckow at that point in time knew al-Kidd was a citizen of the United States and had converted to Islam. (Gneckow Depo. at 79–80, Dkt. 306-5 at 64–65.) Agent Gneckow knew also that al-Kidd had a wife and son, a mother residing in Kent, Washington, and that al-Kidd had attended the University of Idaho and played football for the University. (Gneckow Depo. at 156–57, Dkt. 306-5 at 82–83.)
After a lengthy investigation into al-Hussayen’s activities, on February 13, 2003, an eighteen page, eleven count indictment, was filed against al-Hussayen in the District of
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Idaho.6 The Government’s position is that, at the time it requested the warrant for the arrest of al-Kidd as a material witness, the prosecutor believed al-Kidd could provide material testimony in support of the charges in the indictment.
The evidence al-Kidd could provide at trial is best analyzed by first reviewing the facts the Grand Jury found supported probable cause to return the indictment. The indictment, paragraphs 1–28, set forth the facts the Grand Jury found in support of the eleven counts of visa fraud and making false statements to the United States. The essence of the visa fraud charges is that al-Hussayen entered the United States for purposes other than solely pursuing his studies, such as providing material support for the Islamic Assembly of North America (“IANA”) and other web-site and business activities. The indictment recounted that large sums of money were being transferred to and from bank accounts controlled by al-Hussayen to the IANA, as well as to individuals and groups in the Middle East.
The factual summary of the indictment focused the criminal charges on the years 1999, 2000 and 2002, when al-Hussayen submitted various Immigration and Naturalization Forms in connection with his student visa application, in which he stated he was submitting his application “solely for pursuing a full course of study at the [University of Idaho.] However, the indictment included statements that from
6 The original indictment was superceded and ultimately included charges that al-Hussayen had provided material support to terrorism. Al-Hussayen was eventually acquitted on those particular charges, but the jury was unable to reach a verdict on the visa fraud and false statement charges contained in the original indictment. REPORT AND RECOMMENDATION - 7

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approximately December of 1994 to approximately July of 2002, al-Hussayen used the money in his bank accounts to travel and fund travel for others, including travel related to the IANA, and to travel to locations in various states as well as in foreign countries.7
The indictment alleged that on January 14, 2002, in addition to the F-1 student visa, al-Hussayen submitted a DOS Form 157 requiring him to list “all Professional, Social, and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked).” The indictment states that alHussayen listed only the Association for Computive Machinery and the Institute of Electrical Engineers, but failed to list the Islamic Assembly of North America and other entities to which he belonged.
Paragraphs 17–21 set forth the web-site activities that al-Hussayen was involved with, including that he was the registered agent of IANA in Idaho. Paragraph 19 listed eleven websites for which al-Hussayen was either the sole registered agent, the administrative contact person, head of the supervisory committee, or the contact person.
The indictment described in paragraphs 22 – 28 the financial and business activities the Grand Jury found probable cause to believe that al-Hussayen had been involved with while he was in the United States on his student visa. Since August of 1994, he had maintained six bank accounts in various states. From 1997 until the filing of the indictment, he had used the accounts to transfer or cause to be transferred large sums
7 The indictment states that between August 7, 1994 and September 1998, al-Hussayen studied in the United States as a foreign student. REPORT AND RECOMMENDATION - 8

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of money to IANA and individuals. Specifically, the Grand Jury found that al-Hussayen had received an additional $300,000 apart from the funds that could be traced directly to payment for al-Hussayen’s university studies. Although the indictment contained facts that the Government would have to prove beyond a reasonable doubt at trial, the facts stated in the indictment provide the backdrop to the investigation of and eventual application for al-Kidd’s arrest as a material witness.8
Agent Gneckow believed al-Kidd had information germane to the visa fraud charges, al-Hussayen’s status as a student, and al-Hussayen’s involvement with the IANA. (Gneckow Depo. at 157, Dkt. 306-5 at 84.) Importantly, al-Kidd may have been able to talk about al-Multaqa in relation to the other websites mentioned in the indictment, specifically how much time al-Hussayen was spending on those websites and the amount of work required to build and maintain the websites in light of al-Hussayen’s representation he was a full time student. (Gneckow Depo. at 157–58, Dkt. 306-5 at 84–85.)
Al-Hussayen’s detention hearing was held on March 11 and 12, 2003, and within hours of its conclusion, Agent Gneckow received information that al-Kidd was flying to Saudi Arabia and leaving in a few days. (Gneckow Depo. at 147, Dkt. 306-5 at 79.) Agent Gneckow believed that all appearances indicated al-Kidd was fleeing to avoid being called as a witness at trial. (Gneckow Depo. at 148, Dkt. 306-5 at 80.) Based on his
8 Plaintiff was never considered as a criminal suspect by the FBI. (Gneckow Dep. At 73-75, Dkt. 306.5 at 58-60.) REPORT AND RECOMMENDATION - 9

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experience, Agent Gneckow knew at the time that Saudi Arabia did not have an extradition treaty with the United States. (Gneckow Depo. at 148, Dkt. 306-5 at 80.) The al-Hussayen trial was scheduled for April 15, 2003. (Defs.’ Statement of Facts ¶ 34, Dkt. 306-2.) What Agent Gneckow did not know, and which al-Kidd argues was because of Agent Gneckow’s inadequate investigation, was that al-Kidd had made plans to travel to Saudi Arabia to further his course of study in Arabic language and Islamic law, and had begun making arrangements to do so beginning in April of 2002. (al-Kidd Depo. at 112–114, 132–33, Dkt. 306-4 at 64–67 and Dkt. 308-5 at 15–16; Pl.’s Statement of Facts ¶ 11–13, Dkt. 310-2 at 5.)
The specific information Agent Gneckow received on March 13, 2003, from Immigration and Customs Enforcement Agent Robert Alvarez prompting the decision to seek a material witness warrant was that al-Kidd had purchased a one-way ticket, first class, to Saudi Arabia, leaving within a few days and that it cost approximately $5,000. (Gneckow Depo. at 163–64, Dkt. 306-5 at 87–88; Defs.’ Statement of Facts ¶ 8, Dkt. 3062.) Gneckow suggested a material witness warrant to “stop al-Kidd from leaving the country.” (Gneckow Depo. at 165, Dkt. 306-5 at 89.) Agent Gneckow followed up by contacting the FBI at Dulles airport to confirm al-Kidd’s departure. (Gneckow Depo. at 167, Dkt. 306-5 at 91.) However, Agent Gneckow did not confirm the price of the ticket, or whether it was first class or one way. (Gneckow Depo. at 169–70, Dkt. 306-5 at 93–94.) Al-Kidd had actually purchased the ticket on March 6, 2003, for less than $2,000, and it was an open ended coach class ticket with no scheduled return date. (Defs.’
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Statement of Facts ¶ 14, 21, Dkt. 306-2.) Prior to seeking the arrest of al-Kidd, Agent Gneckow had never sought a material
witness warrant. (Gneckow Depo. at 128, Dkt. 306-5 at 67.) Agent Gneckow consulted with the Government’s primary trial attorney in the pending al-Hussayen case, Assistant United States Attorney Kim Lindquist (“AUSA Lindquist”), who raised a concern with Agent Gneckow about whether al-Kidd was still at his home in Kent, Washington. (Gneckow Depo. at 142, Dkt. 306-5 at 76.) Agent Gneckow undertook efforts to locate alKidd, although he could not recall what efforts were in fact made to confirm al-Kidd was no longer at his home. (Gneckow Depo. at 143–44, Dkt. 306-5 at 77–78.) Later, Agent Gneckow had AUSA Lindquist review the draft affidavit, and he “absolutely rel[ied] on Kim Lindquist to make sure” the elements of the material witness warrant were met. (Gneckow Depo. at 185, Dkt. 306-5 at 103.)
The two page application for the warrant itself was based upon a three page affidavit and the eighteen page, eleven count indictment of Sami Omar al-Hussayen filed on February 13, 2003. The affidavit stated that, based upon al-Kidd’s “demonstrated involvement” with al-Hussayen, “he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” (Dkt. 307-3 at 39.) The affidavit concluded with the statement that if al-Kidd “travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.”
The first ten pages of the al-Hussayen indictment for visa fraud and making false statements to the United States set forth the facts the Grand Jury had found during their
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investigation of al-Hussayen. These “indictment” facts, in addition to the “affidavit” facts, constituted the basis for the material witness warrant for al-Kidd on the grounds that he was about to board a plane for Saudi Arabia and that he could provide material testimony to support the criminal charges against al-Hussayen.
The affidavit stated that during the course of the investigation, information was developed regarding the involvement of al-Kidd with al-Hussayen. The affidavit went on to recite that al-Kidd, aka Lavoni T. Kidd, had received from al-Hussayen “in excess of $20,000” between March 2000 and November 2001. The affidavit discussed that al-Kidd had traveled to Yemen between August of 2001 and April of 2002; that upon his return al-Kidd met with al-Hussayen’s associates and emptied out a storage facility in Moscow, Idaho; that personal items belonging to al-Kidd were recovered by the FBI from the storage facility; and that these personal items included a program for an IANA conference held in December 1994, a hotel receipt from Sacramento, California, dated April 26, 2001, identifying al-Kidd’s company as Al-Multaqa, and telephone numbers for IANA in Ann Arbor, Michigan and for Basem Khafagi, a former Director of the IANA, who had been recently arrested.
Concerning al-Kidd’s departure, the affidavit states, in relevant part: Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia. (Dkt. 307-3).
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As previously mentioned, the affidavit was prepared by Agent Gneckow. According to him, it was not relevant that al-Kidd was a citizen of the United States, that he had a family, including a wife and son living in the United States, or that al-Kidd had cooperated with the FBI in the past. In his view, it was also not relevant that al-Kidd had never been told by the FBI not to travel outside of the United States or to contact the FBI if he intended to do so. Therefore, that information was not included in the affidavit. (Gneckow Depo. at 194, Dkt. 306-5 at 109.)
Agent Mace was the duty agent in Boise on March 14, 2003, and was tasked with presenting the warrant to a magistrate judge in Boise because neither Agent Gneckow nor a judge were available in Northern Idaho, in particular Coeur d’Alene, Idaho, where Agent Gneckow was stationed. (Gneckow Depo. at 138, Dkt. 306-5 at 72.) The only information Agent Mace added to the affidavit in support of the arrest warrant application was the first paragraph, identifying that the affidavit was based upon facts he acquired from Agent Gneckow. (Id.; Aff. of Mace, Dkt. 307-3 at 37.) Otherwise, the entirety of the affidavit was based upon information acquired by Agent Gneckow and other law enforcement agents. (Aff. of Mace, Dkt. 307-3 at 73.) Agent Mace was not involved in the investigation of al-Hussayen, and had no independent knowledge of al-Kidd. (Defs.’ Statement of Facts ¶ 29, Dkt. 306-2.)
Al-Kidd was arrested in Virginia on March 16, 2003, and eventually transferred to Boise, Idaho, arriving on March 25, 2003. (Defs.’ Statement of Facts ¶ 31–32, Dkt. 3062.) That same day, al-Kidd briefly met with a Federal Public Defender before appearing
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in front of this Court. (Defs.’ Statement of Facts ¶ 31–32 Dkt. 306-2.) A detention hearing was held on March 31, 2003, and following the hearing al-
Kidd was released into the custody of his wife in Nevada. (United States v. Sami Omar al-Hussayen, Case No. 3:03-cr-00048-EJL, Dkt. 40, ¶ 103). The conditions of his release included surrender of his passport, limitation of travel to four states, reporting to a probation officer in Idaho and Nevada as directed, and home visits. (Case No. 3:03-cr-00048-EJL, Dkt. 40, ¶ 103). Al-Hussayen’s trial was continued until January 13, 2004, and after the government filed its superseding indictment on January 9, 2004, the trial was continued again to April 14, 2004. (Defs.’ Statement of Facts ¶ 34, Dkt. 306-2.)
AUSA Lindquist made the decision not to call al-Kidd as a witness because of the defense strategy that became apparent as the trial progressed, which was not to contest that al-Hussayen had engaged in business activities on behalf of IANA. (Defs.’ Statement of Facts ¶ 35, Dkt. 306-2.) Consequently, the government never called al-Kidd to testify and his release conditions were removed on June 16, 2004. (U.S. v. al-Hussayen, 3:03-cr00048-EJL, Dkt. 680).
ANALYSIS 1. Summary Judgment Standards
Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary judgment “is to isolate and dispose of factually unsupported claims ....” Celotex
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Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Material facts are those that may affect the outcome of the case. Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the nonmovant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the non-moving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
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support a jury verdict in his favor. Id. at 526–57. The non-moving party must go beyond the pleadings and show by “affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. The existence of a scintilla of evidence in support of the non-moving party’s position is insufficient. Rather, “there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, 477 U.S. at 252.
When, as here, parties submit cross-motions for summary judgment, “each motion must be considered on its own merits.” Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 136 (9th Cir. 2001). The Court must therefore review the evidence submitted in support of each cross-motion. Id.
But the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the “party opposing summary judgment must direct [the Court’s] attention to specific triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed.R.Civ.P. 56(c)(2). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003). If the contents of the evidence could
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be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony of contents would not be hearsay).
Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n. 3 (9th Cir. 1995). The Ninth Circuit Court of Appeals “has repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.” Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). 2. Material Witness Statute
Title18 U.S.C. § 3144 permits the detention of a material witness “[i]f it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena.” Because probable cause is required before a warrant will issue, an application for a material witness warrant must establish probable cause to believe that (1) the witness’s testimony is material, and (2) it may become impracticable to secure the presence of the person by subpoena. United States v. Awadallah, 349 F.3d. 42, 64 (2nd Cir. 2003) (citing Bacon v. United States, 449 F.2d 933, 942-43 (9th Cir. 1971)). Both materiality and impracticability must be satisfied to establish probable cause. Awadallah, 349 F.3d at 64.
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3. Qualified Immunity The doctrine of qualified immunity protects federal and state officials from
liability for civil damages unless a plaintiff pleads facts showing (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. Ashcroft v. al-Kidd, __ U.S. __, 131 S.Ct. 2074, 2080 (2011). Courts considering the qualified immunity question have discretion to decide which of the two prongs of the qualified immunity analysis to decide first. Pearson v. Callahan, 129 S.Ct. 808, 821-22 (2009).
The Fourth Amendment protects the right of persons to be free from unreasonable searches and seizures, including arrests. Ashcroft, 131 S.Ct. at 2080. An arrest, including one pursuant to the federal material-witness statute, 18 U.S.C. § 3144, must therefore be objectively reasonable in order to pass constitutional muster. Ashcroft, 131 S.Ct. at 2080; See also Messerschmidt v. Millender, 132 S.Ct. 1235, 1245 (2012) (“The ‘shield of immunity’ otherwise conferred by the warrant will be lost, for example, where the warrant was ‘based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”).
While it is true that review of an affidavit by one’s superiors or a prosecuting attorney and issuance by a neutral magistrate judge does not automatically render an officer’s conduct reasonable, the Supreme Court has recently made it clear that third party review is not irrelevant to the objective reasonableness of the officer’s determination that the warrant was valid. As the Supreme Court stated, “[t]he fact that the officers secured
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these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.” Messerschmidt, 132 S.Ct. at 1250. However, if a warrant is so lacking in probable cause that official reliance is unreasonable, the officer executing the warrant “cannot excuse his own default by pointing to the greater incompetence of the magistrate.” KRL v. Estate of Moore, 512 F.3d 1184, 1190 (9th Cir. 2008). Probable cause is examined based upon the facts and circumstances known to the officer at the time of the arrest. Wilson v. City of Coeur d’Alene, No. 2:09-cv-381-EJL, 2010 WL 4853342 *5 (D. Idaho Nov. 19, 2010) (citing Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir. 2002)). 4. Cross-Motions For Summary Judgment as to Agent Gneckow
Al-Kidd presents two arguments why Agent Gneckow’s motion for summary judgment should be denied and why his motion should be granted. The first argument is that the affidavit was facially deficient and Agent Gneckow is not be entitled to immunity under Malley v. Briggs, 475 U.S. 335 (1986). The second argument is that Agent Gneckow is liable under Franks v. Delaware, 438 U. S. 154 (1978), for preparing an affidavit based upon false and misleading statements. Considering Agent Gneckow prepared the warrant and the affidavit, the claim under Franks is the logical starting point in the analysis as to Agent Gneckow.
A. The Franks Claim as to Agent Gneckow Ordinarily, a search or seizure pursuant to a warrant is presumed valid. Awadallah, 349 F.3d at 64. However, if the affidavit is based on false statements and misleading
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omissions, or both, a subsequent arrest would be unconstitutional. In Franks, the United States Supreme Court held that a defendant may challenge a warrant by making a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit, and that the allegedly false statement was necessary to the finding of probable cause. Franks, 438 U.S. at 155–56. Franks has since been applied with equal strength to omissions of material facts. By reporting less than the total story, an affiant can “manipulate the inferences a magistrate will draw,” and “to allow a magistrate to be misled in this manner could denude the probable cause requirement of all real meaning.” U.S. v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985); see also Bender v. City of Seattle, 664 P.2d 492, 500 (Wash. 1983) (stating that an officer may not cleanse a transaction by supplying only those facts favorable to the issuance of a warrant.)
Although statements recited in an application for a warrant do not have to be truthful in the sense that every statement is correct, the statements must be truthful “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Franks, 438 U.S. at 164–65. The defendant must allege deliberate falsehood or reckless disregard for the truth, specifically pointing out the portions of the warrant affidavit claimed to be false; “[a]llegations of negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171.
In 2003, the time of the events here, the law was clearly established that the United States Constitution did not permit a police officer deliberately, or with reckless disregard
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for the truth, to make material misrepresentations or omissions to obtain a warrant that would otherwise be without probable cause. Miller v. Prince George’s Cnty., MD, 475 F.3d 621, 632 (4th Cir. 2007); see also Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1295 (9th Cir. 1999) (“a police officer who recklessly or knowingly includes false material information in, or omits material information from, a search warrant affidavit ‘cannot be said to have acted in an objectively reasonable manner.’”). Accordingly, if there is a Franks violation, no issue of qualified immunity can ever be raised by a law enforcement officer in defense of his position.
When faced with a motion for summary judgment by a police officer in a case involving a Franks claim, a plaintiff need only “establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information ... the affidavit is insufficient to establish probable cause.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir.1995). The Court will now turn to whether al-Kidd has raised a valid Franks challenge with respect to Agent Gneckow, considering he was involved with the investigation and drafted the affidavit for Agent Mace to present.
Al-Kidd alleges that Agent Gneckow deliberately or recklessly included facts about his plane ticket which were not true, and omitted facts that were material to the probable cause determination. With respect to his plane ticket, al-Kidd had an open ended round trip ticket to Saudi Arabia with no scheduled return date, coach class, which cost approximately $2,000, not a first class, one-way ticket that cost $5,000. As for the alleged
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omissions, al-Kidd asserts that the affidavit did not inform the magistrate judge that alKidd: (1) had voluntarily cooperated with the FBI on multiple occasions in the past; (2) was a native-born United States citizen with a wife, son, and other family living in the United States; (3) had not been informed that his testimony might be needed or that he should not travel; (4) had not been informed that if he decided to travel overseas he should first advise the FBI; and (5) had not been contacted by the FBI in over eight months.
Based upon the above allegations, Al-Kidd has made the requisite showing not only to survive the Government’s motion for summary judgment, but also with respect to his own motion. The Court finds the statements about the plane ticket, coupled with the omissions about al-Kidd’s citizenship, family, past cooperation, and the FBI’s failure to contact him, were material to the probable cause determination regarding the impracticability of securing al-Kidd’s presence at trial by subpoena. Had the information been included, the affidavit would not have been supported by probable cause under the totality of the circumstances.
Defendants admit that the information about the plane ticket, which was the only information in the affidavit regarding impracticability, was not true. Defendants argue, however, that even if the correct information about the plane ticket—that it was open ended (not one way), economy (not first class), and cost $2,000 (not $5,000)—was included in the affidavit, the information was not material to the probable cause determination. The Government claims al-Kidd was a flight risk regardless of the type of
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ticket he had simply because al-Kidd was leaving the country for an indefinite period of time. But Defendants fail to consider the totality of the information in the affidavit juxtaposed with the information about the plane ticket.
Probable cause to determine that it would be impracticable to secure al-Kidd’s presence at trial by subpoena depended entirely upon the inference that al-Kidd was leaving the country, possibly returning home to Saudi Arabia, and was “involved” with suspected terrorists or terrorist activity, thus leading to the assumption he was a flight risk and was, in fact, fleeing the country on the eve of trial and just days after the indictment was returned against al-Hussayen. Considering the affidavit as a whole, the information included about the plane ticket, coupled with the information chosen to link al-Kidd to alHussayen, is misleading and highly suggestive of illicit involvement with criminal activity, inferring a motive to flee.
First, the affidavit identified al-Kidd by his Muslim name, and absent any information about al-Kidd’s family background, his name was suggestive of foreign birth. In addition, by referring to him as “also known as” Lavoni T. Kidd, the affidavit cast suspicion, without further explanation, that al-Kidd had possibly changed his name once he was in the United States to a more “American” sounding name for some nefarious purpose. The truth was that al-Kidd had changed his birth name of “Lavoni T. Kidd” to “Abdullah al-Kidd” when he converted to Islam. Finally, the affidavit referenced the indictment against al-Hussayen, who was identified as a Saudi Arabian citizen in the indictment, and al-Kidd’s “involvement” with al-Hussayen, again suggesting that al-Kidd
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may have been a citizen of Saudi Arabia. The affidavit stated that the investigation of al-Hussayen was conducted by the
Inland Northwest Joint Terrorism Task Force, suggesting that al-Kidd was involved with a suspected terrorist. Moreover, the affidavit identified that al-Kidd received “in excess of $20,000” from al-Hussayen, but did not mention what the money was for or how it was paid to al-Kidd, thereby inferring he could have received more than $20,000, including the $5,000 for his first class plane ticket. The indictment also included information that al-Hussayen had funded travel for individuals in the past. Finally, the affidavit indicated al-Kidd had traveled to Yemen in 2002, and upon returning to the United States met with al-Hussayen’s associates and emptied a storage facility, again suggestive of a trip taken at someone else’s direction as well as casting suspicion on the purpose of the trip by juxtaposing it with the emptying of the storage locker. Further, the information the FBI recovered from the storage locker included a telephone number for another Saudi individual recently arrested in New York.
Taken as a whole, the information included in the affidavit, together with the incorrect flight information, was highly suggestive that al-Kidd was a Saudi national involved with suspected terrorists, with no ties to the United States, fleeing the country within one month of the al-Hussayen indictment. Further, al-Kidd’s flight was on the heels of the arrest of another suspected terrorist whom it appeared he knew, on an expensive first class ticket, possibly purchased with funds received from al-Hussayen
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after al-Hussayen had been indicted.9 Although an affiant cannot be expected to include in an affidavit every piece of
information gathered during the course of his investigation, a finding that the omissions were “designed to mislead” or made in “reckless disregard of whether they would mislead” the magistrate judge satisfies the intent element under Franks. United States v. Awadallah, 349 F.3d 42, 67–68 (2nd Cir. 2003) (citing United States v. Colkley, 899 F.2d 297, 300–301 (4th Cir. 1990). Further, the nature of the omissions themselves may suggest concealment. Awadallah, 349 F.3d at 68, n.20. See also Colkley, 899 F.2d at 301 (recognizing that courts may infer intent or recklessness from the fact of omission itself).
Properly corrected and supplemented, the paragraph about the impracticability of securing al-Kidd’s presence at trial with a subpoena would have been expanded to read that: al-Kidd, a United States citizen with a wife, a son, and other family in the United States, was traveling to Saudi Arabia to attend a university on an open ended coach class ticket; that al-Kidd had previously met with FBI agents and cooperated with questioning; that the FBI had made no attempt to contact al-Kidd in the previous eight months of an otherwise extensive and protracted investigation; and that the FBI had never asked alKidd not to leave the United States without first advising them of his intent to do so.
The omitted information about al-Kidd would have put a reasonable magistrate judge on notice that al-Kidd may have been a cooperative witness, with no intention of
9 Al-Kidd notes in his brief that the affidavit cast him in a suspicious light. (Pl.’s Mem. at 13, Dkt. 310-1 at 17.) REPORT AND RECOMMENDATION - 25

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fleeing the United States to evade testifying, and that consideration should have been given to the less drastic alternative of issuing a subpoena rather than arrest.10 See Liston v Cnty. of Riverside, 120 F.3d 965, 974 (9th Cir. 1997). But by omitting the facts favorable to al-Kidd which should have been presented to a magistrate judge, the affidavit was “cleansed.” Had a magistrate judge been given the omitted information, he may have inquired of the agents about their attempt prior to seeking the warrant to contact either alKidd or his wife and family to question them about al-Kidd’s upcoming travel. If Agent Gneckow had inquired, he might have learned that al-Kidd’s plans were to attend university, and included periodic returns to the United States during semester breaks. (alKidd Depo. at 112, Dkt. 308-5 at 7.) Accordingly, the Court holds al-Kidd has demonstrated that had the correct information about the plane ticket and the omitted facts been included, a magistrate judge would not simply have issued the warrant without more probing inquiry.
Defendants argue that Agent Gneckow is shielded because he reasonably relied upon information provided to him by other law enforcement officials concerning alKidd’s plane ticket to Saudi Arabia. However, the false information about the plane ticket was only one factor giving rise to the inference that al-Kidd was a flight risk.
Agent Gneckow had led the three-year investigation into the activities of al-
10 Al-Kidd argues that the affidavit must establish that the FBI tried to serve him with a subpoena before obtaining the warrant. However, a court in the exercise of its sound discretion has the power to issue a warrant of arrest, not preceded by a subpoena, for a material witness. United States v. Anfield, 539 F.2d 674, 677 (9th Cir. 1976). REPORT AND RECOMMENDATION - 26

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Hussayen and, since 2001, of al-Kidd. Prior to the February 2003 indictment and the issuance of the arrest warrant one month later, al-Kidd had been the subject of surveillance. Agent Gneckow knew that the $20,000 received by al-Kidd was likely salary payment, received in monthly increments over a period of time, for work related to al-Kidd’s employment with al-Multaqa, not a one time sum.
Agent Gneckow had ruled out al-Kidd as a suspect for criminal activity once he and others had determined there was nothing worth investigating as far as the money flow was concerned. Yet the manner in which the affidavit was crafted suggested anything other than innocent activity. Agent Gneckow chose to characterize the money al-Kidd received as “payments,” not salary, “in excess of $20,000.” The characterization of the payments indicated al-Kidd could have received the $5,000 for his plane ticket in a lump sum from al-Hussayen, especially considering the indictment detailed how al-Hussayen funded travel for others. The affidavit was further crafted in such a way so as to cast doubt upon al-Kidd’s motives for leaving the country by mentioning his travel to Yemen, and the subsequent emptying of a storage locker, both of which could have been innocent activities.
Al-Kidd was interviewed twice in the summer of 2002, both times agreeing to speak voluntarily. Thus, agents knew how to contact al-Kidd. Yet when the decision was made to seek the material witness warrant, Agent Gneckow could not recall the specific effort made to locate al-Kidd after more than eight months without any contact. When told about al-Kidd’s travel, he asked no questions about al-Kidd’s intinerary, even though
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he was not given a specific departure date from Agent Alvarez. Agent Gneckow undertook follow up by contacting the FBI agent at Dulles airport, but did not confirm any details about the ticket price or type of ticket. Had he done so, Agent Gneckow could very well have obtained sufficient information that would have led him to question his assumption about the reasons for al-Kidd’s trip to the Middle East.
Agent Gneckow also did not consider the fact that al-Kidd was a United States citizen with family, instead taking a myopic view that the only relevant fact was al-Kidd’s imminent departure out of the country. And although agents were under pressure to act quickly considering al-Kidd was scheduled to depart in a few days, when agents did not locate al-Kidd at his home in Washington, no effort was made to contact al-Kidd’s family members, wife or mother to learn about the purpose for al-Kidd’s travel. Instead, Agent Gneckow assumed al-Kidd was fleeing the country upon hearing about the plane ticket and never thought al-Kidd should first be contacted and asked if the trip could be postponed.
The bottom line is that Agent Gneckow assumed al-Kidd was a flight risk based on the first class, one-way ticket, even though he had no other concrete information upon which to cross-check his assumption. The failure to take a few additional steps in an otherwise extremely lengthy and thorough investigation spanning over three years was, in the Court’s view, reckless.
Agent Gneckow cannot in this case absolve himself of his own inaction by relying upon AUSA Lindquist, whom he said reviewed the affidavit before it was presented to
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this Court. Although consultation with one’s superiors is relevant to the objective
reasonableness of an officer’s determination that a warrant is valid, an officer is not
automatically insulated by the shield of qualified immunity simply because someone
else—whether a judge or prosecutor— had approved the application. See Messerschmidt
v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1250 (2012). In its decision overruling
Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010), in which the Ninth
Circuit had failed to consider consultation with superiors relevant, Messerschmidt noted
that:
[b]efore seeking to have the warrant issued by a magistrate, Messerschmidt conducted an extensive investigation into Bowen’s background and the facts of the crime. Based on this investigation, Messerschmidt prepared a detailed warrant application that truthfully laid out the pertinent facts. The only facts omitted—the officers’ knowledge of Bowen’s arrest and conviction records, . . . would only have strengthened the warrant. Messerschmidt then submitted the warrant application for review by Lawrence, another superior officer, and a deputy district attorney, all of whom approved the application without any apparent misgivings. Only after this did Messerschmidt seek the approval of a neutral magistrate, who issued the requested warrant. The officers thus “took every step that could reasonably be expected of them.”
Messerschmidt, 132 S.Ct. at 1250 (italics added). In contrast, Agent Gneckow’s conduct
was not reasonable. His failure to conduct any further investigation beyond simply
receiving the information from Agent Alvarez resulted in an affidavit that was lacking in
details and did not truthfully lay out the pertinent facts. Agent Gneckow’s conduct
therefore resulted in an affidavit crafted with a reckless disregard as to whether it would
mislead a magistrate judge in his probable cause finding regarding the impracticability of
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securing al-Kidd’s presence at trial by a subpoena.11 B. The Malley Claim as to Agent Gneckow Because the Court finds a Franks violation as to Agent Gneckow’s conduct, the
Court determines it is not necessary to also discuss al-Kidd’s claim that the affidavit supporting the warrant was facially deficient under Malley, as applied to Agent Gneckow.
C. Recommendation The Court would recommend that al-Kidd’s motion for summary judgment against Agent Gneckow be granted and Agent Gneckow’s motion be denied. 5. Cross-Motions for Summary Judgment as to Agent Mace Al-Kidd presents the same two arguments for summary judgment against Agent Mace as he does against Agent Gneckow: first that the application and affidavit in support of the warrant were facially deficient and Mace is not entitled to immunity under Malley; and second, that Agent Mace should be held liable under Franks for the same false statements and omissions in the affidavit drafted by Agent Gneckow. Again, the alleged Franks violation will be addressed first. A. The Franks Claim as to Agent Mace Al-Kidd argues that Agent Mace was under a legal obligation to investigate all of the facts contained in the affidavit to ensure there were no false statements or omissions
11 Because the undisputed material facts establish al-Kidd’s Franks claim on the element of impracticability, the Court finds it unnecessary to consider the materiality prong of 18 U.S.C. § 3144 as to Agent Gneckow, since both materiality and impracticability must be shown before a material witness warrant may be issued. REPORT AND RECOMMENDATION - 30

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of material facts. The Court disagrees. In general, officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting assistance provided the magistrate judge the information required to support an independent judicial assessment of probable cause. Shiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971). Because Agent Gneckow was unable to present his affidavit in person, he relayed the information to Agent Mace in Boise. Agent Mace had no involvement in the investigation, no independent knowledge of al-Kidd, and was nothing other than the duty agent in Boise on March 14, 2003. Considering Agent Gneckow was the primary investigating officer of the al-Hussayen matter for over three years and had knowledge of al-Kidd, under the circumstances Agent Mace was entitled to rely upon Agent Gneckow’s information.
Agent Mace contributed nothing to the affidavit other than informing this Court that he received the information from Agent Gneckow. There is no indication that Agent Mace distrusted the information provided by Agent Gneckow. He had no reason to know that the affidavit contained false statements or failed to include other information that might have been pertinent to the Court’s probable cause determination.
For these reasons, the Court finds that al-Kidd’s Franks claim against Agent Mace cannot, as a matter of law, satisfy the Franks requirements. There is an absence of any facts that Agent Mace knowingly and intentionally, or with reckless disregard for the truth, included a false statement or omitted pertinent facts.
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B. The Malley Claim as to Agent Mace The Court’s finding that Agent Mace cannot be liable under Franks does not end the inquiry with respect to his liability. Al-Kidd’s claim that the affidavit supporting the arrest was facially deficient under Malley v. Briggs, 475 U.S. 335 (1986), is applicable to Agent Mace. He reviewed the affidavit prior to presenting it to this Court. He was the last person in the chain of events before the application and affidavit were presented to the Court, and therefore he should have considered whether the application and affidavit, in the form presented, should have been presented to a magistrate judge for issuance of the warrant.
(1) Request For De Novo Review by District Court Al-Kidd first argues that the affidavit in support of the warrant was so facially and patently deficient that it failed to establish probable cause. However, al-Kidd’s claim directly challenges whether probable cause was established, despite review of the affidavit by AUSA Lindquist and its ultimate approval by this Court. As previously stated, this Court reviewed the application and affidavit on March 14, 2003, and determined that probable cause existed to issue the warrant for al-Kidd’s arrest. A claim that the affidavit was so facially deficient so as to lack any indicia of probable cause would require this Court to revisit its own initial determination and, as argued by al-Kidd, reach the opposite conclusion that the application and affidavit did not meet the probable cause standard. In other words, al-Kidd’s argument would compel a
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conclusion that not only Agent Mace was “plainly incompetent,” but also that AUSA Lindquist, who reviewed the warrant in its final form at Agent Gneckow’s request, and this Court, were as well. While judges are at times requested to reconsider their earlier decisions, the Court believes another approach would be more appropriate in this case.
At oral argument, the Court advised counsel that rather than making a recommendation on the argument that the affidavit was facially deficient, the Court would request that the District Court make a de novo determination of the probable cause issue. The following constitutes a report of the factual information this Court considered in making the initial determination that the arrest warrant was supported by probable cause to find that al-Kidd’s testimony was material and that it would be impracticable to secure his presence at trial by subpoena. After reviewing this information the District Court can reach a legal conclusion of whether or not the warrant was supported by probable cause.
(a) Information the Court Considered Relevant to Materiality The application and affidavit incorporated the al-Hussayen indictment, and therefore this Court considered both the “indictment” facts and the “affidavit” facts contained in the application. The indictment states that in the years 1999, 2000 and 2002, al-Hussayen submitted various Immigration and Naturalization Forms representing that he wanted to enter the United States solely to pursue a full course of study at the University of Idaho. The indictment alleges that these were false statements and in
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contravention of al-Hussayen’s student visa, because al-Hussayen was engaged in a variety of business activities not related to his studies. The indictment alleges that alHussayen was engaged in computer web-site activities that exceeded his course of studies, including expert computer services, advice, assistance and support to organizations, including the IANA.
The indictment states that al-Hussayen was the formal registered agent for IANA in Idaho, and further that al-Hussayen had telephonic contact with many individuals in several states, including IANA, who maintain it offices in Ann Arbor, Michigan. The indictment alleges also that on January 14, 2002, in addition to the F-1 student visa, alHussayen submitted a DOS Form 157 where he was required to list “all Professional, Social, and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked). Instead, the indictment alleges that al-Hussayen listed only the Association for Computive Machinery and the Institute of Electrical Engineers and failed to list the IANA and other entities to which he belonged.
The indictment went back further, stating that from about December 1994 to about July 2002, al-Hussayen, through several bank accounts in various states, funded travel for other individuals, including travel to events related to IANA. It states also that he funded travel for individuals to locations in various states as well as foreign countries.
The application and affidavit for the arrest of al-Kidd averred that al-Kidd could provide crucial evidence to support the criminal charges made in the indictment against
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al-Hussayen. To determine whether there was a fair probability, to paraphrase the probable cause standard, that al-Kidd could provide testimony on these allegations, it is necessary then to evaluate the statements in the affidavit presented to the Court, and consider the testimony the prosecution could have elicited from al-Kidd at trial as to the charges in the indictment.
The affidavit states that from March 2000 to November 2001, an individual identified as al-Kidd and/or his spouse, Nadine Zegura, received payments from alHussayen and his associates in excess of $20,000. The affidavit recounted al-Kidd’s travel to Sana’a Yemen in August 2001, and that he remained there until April 2002, when he returned to Moscow, Idaho and met with al-Hussayen’s associates.
Questioning of al-Kidd at trial could elicit testimony as to the circumstances under which and the reasons why he received the money from al-Hussayen, and whether the funds received were related to al-Hussayen’s university studies or his business activities. As to al-Kidd’s earlier travel to Yemen, the prosecution could question whether alHussayen funded al-Kidd’s travel based upon the allegations in the indictment that alHussayen was funding international travel for certain individuals.
The affidavit states that after al-Kidd returned from Yemen he emptied a storage locker in Moscow, Idaho and that several of his personal documents were left behind. One item was a conference program for the second annual IANA conference held in Dearborn, Michigan, in December 1994. Paragraph 27 of the indictment expressly asserts that from at least December 1994, the same month as the conference brochure, al-
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Hussayen funded travel for individuals relating to IANA events. In presenting proof on these allegations, the Government could ask al-Kidd if he attended the IANA conference in December of 1994 and if al-Hussayen paid for the trip, providing proof that alHussayen was engaging in business activities in alleged contravention to the limitation of his student visa.
The affidavit mentions also that one of the personal documents found at al-Kidd’s storage facility included the Michigan telephone numbers for IANA. The prosecution could question al-Kidd about his contacts with IANA and his knowledge of al-Hussayen’s involvement with IANA. The facts elicited could support the allegations in the indictment that al-Hussayen was providing material computer and financial support to IANA that were not connected with his course of studies.
Another telephone number found at al-Kidd’s storage facility and described in the affidavit was the telephone number of Basem Khafagi, a former University of Idaho student and former director of IANA. The affidavit stated that Kafagi had recently been arrested in New York. The indictment alleged the al-Hussayen had telephonic contact with a number of individuals associated with IANA. Questioning al-Kidd as to why he had Basem Khafagi’s telephone number and what conversations al-Kidd may have had with Basem Khafagi could tie in with other evidence the prosecution would be presenting as to the positions and responsibilities that al-Hussayen had with IANA.
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(b) Information the Court Considered Relevant to Impracticability
Title 18 U.S.C. § 3144 frames the issue of impracticability as whether it “may become impracticable to secure the presence of the person by subpoena . . .” (Emphasis added). The affidavit presented to the Court on March 14, 2003, stated that al-Kidd was scheduled to take a one-way, first class flight, (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003. It was also stated that if al-Kidd traveled to Saudi Arabia, the United States Government would be unable to secure his presence at trial via subpoena. At the time the affidavit was presented, the trial was due to commence in thirty-two days.
Al-Kidd relies on Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), in asserting that the preceding facts do not establish impracticability. In Bacon, the witness had fled to a roof top in response to the FBI’s appearance at her door for questioning. The FBI gave chase, and because of her actions together with her access to large sums of money and her acquaintance with fugitives from justice, the FBI feared she would evade judicial process.
The court in Bacon declined to find that the facts supported probable cause to believe that Bacon could not practicably be brought before the grand jury by a subpoena. Bacon, 449 F.2d at 945. In contrast, as represented in the affidavit presented to the Court, al-Kidd’s efforts had gone well beyond speculation as to what he might do in the future, because he had actually purchased a one-way plane ticket and was about to board an
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airplane bound for the Middle East in the midst of an investigation involving suspected terrorists, and if he left, he could not be subpoenaed to return to the United States for trial.
(c) Summary In Malley, the United States Supreme Court framed the issue of what standard to apply to the officer’s conduct and held that an officer is not entitled to qualified immunity if the warrant application is “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Malley, 475 U.S. at 344–45. The defendant’s conduct is viewed from an standard of “objective reasonableness.” Id. at 341. Therefore, Agent Mace “will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Id. After reviewing the factual information in the application and affidavit, as to both materiality and impracticability, the District Court can determine if these statements are legally sufficient to establish probable cause for the arrest of al-Kidd. If they do establish probable cause, Agent Mace’s motion for summary judgment should be granted and alKidd’s motion denied. If after conducting its review, the District Court concludes that the application and affidavit are completely lacking in any indicia of probable cause, then alKidd’s motion for summary judgment should be granted.
(2) Is Agent Mace Entitled to Qualified Immunity. The Supreme Court in Malley describes that, in the event a magistrate judge acts mistakenly in issuing a warrant based upon less than probable cause, but within the range of professional competence of a magistrate, the officer who requested the warrant would
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not be liable if a reasonably well-trained officer would not have known that the affidavit failed to establish probable cause and he should not have applied for the warrant. Malley 475 U.S. at 345–56, and n.9.
When confronted with a Malley claim in Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1245 (2012), the Supreme Court reaffirmed that qualified immunity protects an officer for his mistaken judgment that an application and affidavit in support of a warrant was supported by probable cause. Messerschmidt, 132 S.Ct. at 1249–50. In other words, “if officers of reasonable competence could disagree on this issue [of probable cause], immunity should be recognized.” Malley, 475 U.S. at 341. This question can only be answered by “a close parsing of the warrant application . . . and the affidavit.” Messerschmidt, 132 S.Ct. at 1250.
Reconciling Malley and Messerschmidt, it would appear that the Supreme Court is describing a zone lying between two extremes, for example where an affidavit established at least an indicia of probable cause but fell short of legal probable cause. That zone encompasses an affidavit that was still lacking probable cause even though it contained a collection of facts but had been mistakenly issued by the magistrate judge. Under such circumstances, the Court would then examine whether the officer is entitled to qualified immunity as stated in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and United States v. Leon, 468 U.S. 986 (1984).
Viewing Agent Mace’s actions within this zone to determine if they were objectionably reasonable directs this Court to the conclusion that he would be entitled to
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qualified immunity. He had no knowledge that false statements had been made in the affidavit or that material facts had been omitted. The affidavit had been reviewed for probable cause by an AUSA and a second AUSA accompanied Agent Mace when he presented the application and affidavit to this Court. After reviewing the application and affidavit, this Court found probable cause and issued the arrest warrant.
As the Supreme Court stated, the shield of immunity will only be lost if the defect is “obvious from the face of the warrant,” and “just a simple glance” would have revealed its existence. Messerschmidt, 132 S.Ct. at 1250. The question in such circumstances is whether the magistrate judge “so obviously erred that any reasonable officer would have recognized the error. The occasions on which this standard will be met may be rare, but so too are the circumstances in which it will be appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions.” Messerschmidt, 132 S.Ct. at 1250.12 As noted, review by a neutral magistrate is the clearest indication that officers acted in an objectively reasonable manner, or in “objective good faith.” Messerschmidt, 132 S.Ct. at 1245. In other words, in an ordinary case, an officer cannot be expected to question the magistrate judge’s probable cause determination, because it is the magistrate judge’s responsibility to determine whether the allegations in an affidavit establish probable cause , and if so, to issue the warrant. Id.
12 The Supreme Court’s example of an instance where this extreme was present was Groh v. Ramirez, 540 U.S. 551 (2004). In Groh, the officers who carried out a warrant-approved search were not entitled qualified immunity because the warrant completely failed to describe the items to be seized. Messerschmidt, 132 S.Ct. at 1250. REPORT AND RECOMMENDATION - 40

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Assuming the District Court reaches this level in the analysis, I would recommend that Agent Mace be found to have qualified immunity for his actions and that his motion for summary judgment be granted and al-Kidd’s motion be denied.
CONCLUSION The Court cannot consider the affidavit, and the statements made therein, in a vacuum. Under the totality of the circumstances, which included Agent Gneckow’s investigation and the facts he knew, coupled with the lack of any reasonable inquiry to confirm his assumption al-Kidd was fleeing from authorities, the Court concludes based on the undisputed material facts that Al-Kidd is entitled to judgment as a matter of law on his Franks claim against Agent Gneckow. However, with respect to Agent Mace, the duty officer in charge on March 14, 2003, absent any independent knowledge, or any reason to doubt the veracity of Agent Gneckow’s recitation of the facts as they related to the indictment, the Court concludes that the undisputed material facts establish Agent Mace cannot be liable under Franks. The District Court has been requested to conduct a de novo review to determine if the application and affidavit on their face established probable cause to arrest al-Kidd. If the District Court concludes that there was probable cause, then Agent Mace’s motion for summary judgment should be granted and al-Kidd’s motion denied. If the District Court concludes that the application and affidavit do not even support an indicia of probable cause, then al-Kidd’s motion for summary judgment should be granted and Agent Mace’s motion denied.
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Case 1:05-cv-00093-EJL-CWD Document 336 Filed 06/18/12 Page 42 of 43 If the District Court determines that the application and affidavit fall within a zone
where there is more than an indicia of probable cause but less than legal probable cause, this Court would recommend that Agent Mace be found to have qualified immunity from al-Kidd’s claims. Under those circumstances, Agent Mace’s motion for summary judgment should be granted and al-Kidd’s motion denied.
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RECOMMENDATION NOW THEREFORE IT IS HEREBY RECOMMENDED:
1) That Plaintiff’s Cross-Motion for Summary Judgment (Dkt. 310) as to Agent Gneckow be GRANTED.
2) That Defendants’ Motion for Summary Judgment (Dkt. 306) as to Agent Gneckow be DENIED.
3) That as to Agent Mace, Defendants’ Motion for Summary Judgment (Dkt. 306) and Plaintiff’s Cross-Motion for Summary Judgement (Dkt. 310) be decided by the District Court following DE NOVO REVIEW.
Written objections to this Report and Recommendation must be filed within fourteen (14) days pursuant to 28 U.S.C. § 636(b)(1) and Dist. Idaho L. Rule 72.1(b), or as a result of failing to do so, that party may waive the right to raise factual and/or legal objections to the United States Court of Appeals for the Ninth Circuit.
June 18, 2012
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-00093-EJL-MHW
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
UNITED STATES

INTRODUCTION Before the Court are the cross-motions for summary judgment by the Plaintiff Abdullah al-Kidd and the United States of America. (Dkt. 307, 308.) These are the last motions currently pending in the case Plaintiff Abdullah al-Kidd (“al-Kidd”) has brought in this jurisdiction stemming from his allegations that he was unlawfully arrested and held as a material witness in the case of United States v. Sami Omar al-Hussayen, Case No. 3:03-cr-00048-EJL, then pending in the United States District Court for the District of Idaho. At the time of his arrest on March 16, 2003, al-Kidd, a United States citizen who converted to Islam while studying at the University of Idaho, was about to board a flight
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leaving from Dulles Airport in Virginia bound for Saudi Arabia, where he was going to continue his religious studies at Umm al-Qora University. Al-Kidd was arrested on a material witness warrant issued by this Court1 based upon an affidavit presented by agents of the Federal Bureau of Investigation (“FBI”) on the grounds that al-Kidd’s testimony was necessary to the prosecution of the al-Hussayen case, and he was about to leave the United States on the eve of trial. Individual defendants Scott Mace and Michael Gneckow (“Agent Mace” and “Agent Gneckow”) are the agents who sought and presented the application for the material witness warrant.2 (See Dkt. 333, 250, 74, 79, 85, 230, 248.)
Al-Kidd’s remaining claims against the United States are asserted under the Federal Tort Claims Act. He claims false imprisonment based upon his initial arrest, premised upon the conduct of Agents Mace and Gneckow. The United States argues it is entitled to summary judgment because al-Kidd’s claims are barred by the discretionary function exception and prosecutorial immunity, and alternatively because the warrant was supported by probable cause. Al-Kidd argues to the contrary, contending he was falsely imprisoned since the warrant was not supported by probable cause. As to the abuse of process claim, al-Kdid asserts that the Attorney General and federal prosecutors were using the material witness warrant to take individuals like al-Kidd into custody as part of
1 When the term “the Court” is used in this Report and Recommendation, the term refers to the author of this Report and Recommendation. On March 14, 2003, I considered the application and affidavit submitted by Federal Bureau of Investigation Agent Scott Mace, and I issued the arrest warrant in my capacity as a United States Magistrate Judge for the District of Idaho. 2 The pending cross-motions for summary judgment between al-Kidd and the individual defendants are addressed in a separate Report and Recommendation. REPORT AND RECOMMENDATION - 2

Case 1:05-cv-00093-EJL-CWD Document 337 Filed 06/26/12 Page 3 of 29 their on-going criminal investigation of the individual, and not solely to secure their testimony and attendance at trial.
The Court conducted a hearing on the motions on May 10, 2012. After careful consideration of the parties’ submissions and arguments, and for the reasons discussed below, the Court recommends that al-Kidd’s motion seeking summary judgment against the United States be granted in part and denied in part. In its Report and Recommendation issued on June 18, 2012, the Court recommended that al-Kidd’s motion for summary judgment be granted as to Agent Gneckow for his role in recklessly crafting the affidavit that included false information and material omissions. Based on that recommendation, the Court recommends that al-Kidd’s motion for summary judgment regarding his claim for false imprisonment be granted. As to the abuse of process claim, the Court finds there are disputed issues of material fact precluding summary judgment for either party. Finally, the Court finds the United States cannot establish as a matter of law that al-Kidd’s claims are barred by the discretionary function exception or prosecutorial immunity. The Court’s analysis is presented more fully below.
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REPORT FACTS The Court has discussed at length in its companion Report and Recommendation the facts that it finds are undisputed. Those facts are incorporated by reference as if fully set forth herein. (See Dkt. 336.) The following facts, however, are material and undisputed for purposes of resolving the motions relating to the United States. Al-Kidd’s claim that he was improperly arrested as a material witness flows from a three-year criminal investigation and the thirty-three day jury trial of Sami Omar alHussayen (“al-Hussayen”),3 which concluded on June 10, 2004. Al-Hussayen, a citizen of Saudi Arabia, had been admitted to the United States on a student visa and was a computer science Ph.D. student at the University of Idaho, with emphasis on computer security and intrusion techniques. FBI Special Agent Michael Gneckow was the lead agent investigating the scope of al-Hussayen’s business and other activities, aside from his university studies. Al-Hussayen had been allowed to enter the United States solely as a full time student, and the FBI was investigating whether he had been engaging in business activities that would contravene the limitations of his student visa. During the course of the three year investigation, in December of 2001, Agent Gneckow became aware of al-Kidd’s relationship with al-Hussayen. (Gneckow Depo. at
3 The Court takes judicial notice of the record in U.S. v. al-Hussayen, Case No. 3:03-cr-00048-EJL, in connection with the motions. The Court presided over all pretrial proceedings in the al-Hussayen matter, including the arraignment and subsequent detention hearing of al-Hussayen. REPORT AND RECOMMENDATION - 4

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57–69, Dkt. 306-5 at 54–56.)4 Surveillance was conducted of al-Kidd. (Gneckow Depo. at 76, Dkt. 306-5 at 61.)
Agent Joe Cleary obtained approval to open an intelligence investigation of alKidd on December 13, 2001. (Def.’s Stmt. of Facts ¶¶ 2, 4, Dkt. 307-2.) Agent Cleary had also asked Immigration and Customs Enforcement to enter a “lookout” for al-Kidd into the Treasury Enforcement Communications System (“TECS”) to track al-Kidd’s international travel. (Id. ¶ 8.)
In the fall of 2001, Agent Gneckow had obtained documents indicating that money from one of al-Hussayen’s bank accounts had been transferred to al-Kidd. (Gneckow Depo. at 54, Dkt. 306-5 at 51.) Agent Gneckow later determined that the transfers to alKidd probably constituted regular monthly salary payments made by al-Hussayen to alKidd for work al-Kidd did for an entity called al-Multaqa and its website, almultaqa.com.5 (Gneckow Depo. at 70, 76, 78, Dkt. 306-5 at 57, 61, 63.)
As part of the investigation, Agent Joe Cleary interviewed al-Kidd twice, and on both occasions al-Kidd voluntarily participated in the interviews. Agent Cleary discussed the interviews with Agent Gneckow. The FBI determined that, in its view, al-Kidd possessed material information relating to al-Hussayen’s activities that could be useful in their investigation.
Following the second interview, al-Kidd spoke to a reporter with the Seattle PostIntelligencer. Later, on August 2, 2002, an article in the paper asserted that the FBI was
4 Because of the voluminous nature of the record, the Court will cite to documents submitted without reference to the record attachments and page numbers, as none were provided, and will instead include the Docket Number and corresponding page number of the docket entry. 5 See Defs.’ Statement of Facts ¶ 6, Dkt. 306-2. REPORT AND RECOMMENDATION - 5

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investigating charitable donations by Muslim students at the University of Idaho and Washington State University for possible links to international terrorism. The article discussed a “source” described as a “former University of Idaho football player and “part of a small Muslim community in Moscow and nearby Pullman” between 1992 and 2000. (Defs.’ Ex. 2, Dkt. 306-3 at 6.) The FBI agents involved with the investigation decided against future contact with al-Kidd out of concern that the case against al-Hussayen could be compromised if their conversations were discussed with the media. (Gneckow Depo. at 195, Dkt. 306-5 at 110; Defs.’ Statement of Facts ¶¶ 10–12, Dkt. 306-2.)
Although contact with al-Kidd ceased after August 2, 2002, Agent Gneckow at that point in time knew al-Kidd was a citizen of the United States and had converted to Islam. (Gneckow Depo. at 79–80, Dkt. 306-5 at 64–65.) Agent Gneckow knew also that al-Kidd had a wife and son, a mother residing in Kent, Washington, and that al-Kidd had attended the University of Idaho and played football for the University. (Gneckow Depo. at 156–57, Dkt. 306-5 at 82–83.)
After a lengthy investigation into al-Hussayen’s activities, on February 13, 2003, an eighteen page, eleven count indictment, was filed against al-Hussayen in the District of Idaho. The Government’s position is that, at the time it requested the warrant for the arrest of al-Kidd as a material witness, the prosecutor believed al-Kidd could provide material testimony in support of the charges in the indictment.
Agent Gneckow believed al-Kidd had information germane to the visa fraud charges, al-Hussayen’s status as a student, and al-Hussayen’s involvement with the Islamic Assembly of North America (“IANA”). (Gneckow Depo. at 157, Dkt. 306-5 at 84.) Importantly, al-Kidd may have been able to discuss al-Multaqa in relation to the
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other websites mentioned in the indictment, specifically how much time al-Hussayen was spending on those websites and the amount of work required to build and maintain the websites in light of al-Hussayen’s representation he was a full time student. (Gneckow Depo. at 157–58, Dkt. 306-5 at 84–85.)
Al-Hussayen’s detention hearing was held on March 11 and 12, 2003, and within hours of its conclusion, Agent Gneckow received information that al-Kidd was flying to Saudi Arabia and leaving in a few days. (Gneckow Depo. at 147, Dkt. 306-5 at 79.) Agent Gneckow believed that all appearances indicated al-Kidd was fleeing to avoid being called as a witness at trial. (Gneckow Depo. at 148, Dkt. 306-5 at 80.) Based on his experience, Agent Gneckow knew at the time that Saudi Arabia did not have an extradition treaty with the United States. (Gneckow Depo. at 148, Dkt. 306-5 at 80.) The al-Hussayen trial was scheduled for April 15, 2003. (Defs.’ Statement of Facts ¶ 34, Dkt. 306-2.) What Agent Gneckow did not know, and which al-Kidd argues was because of Agent Gneckow’s inadequate investigation, was that al-Kidd had made plans to travel to Saudi Arabia to further his course of study in Arabic language and Islamic law, and had begun making arrangements to do so beginning in April of 2002. (al-Kidd Depo. at 112– 114, 132–33, Dkt. 306-4 at 64–67 and Dkt. 308-5 at 15–16; Pl.’s Statement of Facts ¶ 11–13, Dkt. 310-2 at 5.)
The specific information Agent Gneckow received on March 13, 2003, from Immigration and Customs Enforcement Agent Robert Alvarez prompting the decision to seek a material witness warrant was that al-Kidd had purchased a one-way ticket, first class, to Saudi Arabia, leaving within a few days and that it cost approximately $5,000. (Gneckow Depo. at 163–64, Dkt. 306-5 at 87–88; Defs.’ Statement of Facts ¶ 8, Dkt.
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306-2.) Agent Gneckow followed up on Agent Alvarez’s information by contacting the FBI at Dulles airport to confirm al-Kidd’s departure. (Gneckow Depo. at 167, Dkt. 306-5 at 91.) However, Agent Gneckow did not confirm the price of the ticket, or whether it was first class or one way. (Gneckow Depo. at 169–70, Dkt. 306-5 at 93–94.) Al-Kidd had actually purchased the ticket on March 6, 2003, for less than $2,000, and it was an open ended coach class ticket with no scheduled return date. (Defs.’ Statement of Facts ¶ 14, 21, Dkt. 306-2.)
Within minutes of hearing the information from Agent Alvarez, Agent Gneckow suggested a material witness warrant to “stop al-Kidd from leaving the country.” (Gneckow Depo. at 165, Dkt. 306-5 at 89.) But prior to seeking the arrest of al-Kidd, Agent Gneckow had never sought a material witness warrant. (Gneckow Depo. at 128, Dkt. 306-5 at 67.) And although the final decision whether to seek the material witness warrant rested with Assistant United States Attorney Kim Lindquist (“AUSA Lindquist”), it was Agent Gneckow who recommend to the U.S. Attorney’s Office that it seek the material witness arrest warrant in the first instance. (Def’s. Statement of Facts ¶ 22-23 (Dkt. 306-2.) Agent Gneckow consulted with Agent Cleary before making this recommendation, and then called AUSA Lindquist to recommend that the Government seek the warrant. Id.
AUSA Lindquist raised a concern with Agent Gneckow about whether al-Kidd was still at his home in Kent, Washington. (Gneckow Depo. at 142, Dkt. 306-5 at 76.) Agent Gneckow undertook efforts to locate al-Kidd, although he could not recall what efforts were in fact made to confirm al-Kidd was no longer at his home. (Gneckow Depo. at 143–44, Dkt. 306-5 at 77–78.) Later, Agent Gneckow had AUSA Lindquist review the
REPORT AND RECOMMENDATION - 8

Case 1:05-cv-00093-EJL-CWD Document 337 Filed 06/26/12 Page 9 of 29
draft affidavit, and he “absolutely rel[ied] on Kim Lindquist to make sure” the elements of the material witness warrant were met. (Gneckow Depo. at 185, Dkt. 306-5 at 103.)
The two page application for the warrant itself was based upon a three page affidavit and the eighteen page, eleven count indictment of Sami Omar al-Hussayen filed on February 13, 2003. The affidavit stated that, based upon al-Kidd’s “demonstrated involvement” with al-Hussayen, “he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” (Dkt. 307-3 at 39.) The affidavit concluded with the statement that if al-Kidd “travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.”
The first ten pages of the al-Hussayen indictment for visa fraud and making false statements to the United States set forth the facts the Grand Jury had found during their investigation of al-Hussayen. These “indictment” facts,6 in addition to the “affidavit” facts, constituted the basis for the material witness warrant for al-Kidd on the grounds that he was about to board a plane for Saudi Arabia and that he could provide material testimony to support the criminal charges against al-Hussayen.
The affidavit stated that during the course of the investigation, information was developed regarding the involvement of al-Kidd with al-Hussayen. The affidavit went on to recite that al-Kidd, aka Lavoni T. Kidd, had received from al-Hussayen “in excess of $20,000” between March 2000 and November 2001. The affidavit discussed that al-Kidd had traveled to Yemen between August of 2001 and April of 2002; that upon his return al-Kidd met with al-Hussayen’s associates and emptied out a storage facility in Moscow,
6 The facts set forth in the Indictment which the Court considered are discussed at length in the Court’s companion Report and Recommendation, (Dkt. 336), and will not be repeated in their entirety for sake of brevity. REPORT AND RECOMMENDATION - 9

Case 1:05-cv-00093-EJL-CWD Document 337 Filed 06/26/12 Page 10 of 29
Idaho; that personal items belonging to al-Kidd were recovered by the FBI from the storage facility; and that these personal items included a program for an IANA conference held in December 1994, a hotel receipt from Sacramento, California, dated April 26, 2001, identifying al-Kidd’s company as Al-Multaqa, and telephone numbers for IANA in Ann Arbor, Michigan and for Basem Khafagi, a former Director of the IANA, who had been recently arrested.
Concerning al-Kidd’s departure, the affidavit states, in relevant part: Kidd is scheduled to take a one-way, first class flight (costing
approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia. (Dkt. 307-3). As previously mentioned, the affidavit was prepared by Agent Gneckow. According to him, it was not relevant that al-Kidd was a citizen of the United States, that he had a family, including a wife and son living in the United States, or that al-Kidd had cooperated with the FBI in the past. In his view, it was also not relevant that al-Kidd had never been told by the FBI not to travel outside of the United States or to contact the FBI if he intended to do so. Therefore, that information was not included in the affidavit, and he did not provide AUSA Lindquist with any information that was not ultimately included in the affidavit. (Gneckow Depo. at 194, Dkt. 306-5 at 109; Pl.’s Statement of Facts ¶ 38, Dkt. 308-2; Defs.’ Response ¶ 38, Dkt. 322-1.) Agent Mace was the duty agent in Boise on March 14, 2003, and was tasked with presenting the warrant to a magistrate judge in Boise because neither Agent Gneckow nor a judge were available in Northern Idaho, in particular Coeur d’Alene, Idaho, where
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Agent Gneckow was stationed. (Gneckow Depo. at 138, Dkt. 306-5 at 72.) The only information Agent Mace added to the affidavit in support of the arrest warrant application was the first paragraph, identifying that the affidavit was based upon facts he acquired from Agent Gneckow. (Id.; Aff. of Mace, Dkt. 307-3 at 37.) Otherwise, the entirety of the affidavit was based upon information acquired by Agent Gneckow and other law enforcement agents. (Aff. of Mace, Dkt. 307-3 at 73.) Agent Mace was not involved in the investigation of al-Hussayen, and had no independent knowledge of al-Kidd. (Defs.’ Statement of Facts ¶ 29, Dkt. 306-2.)
Al-Kidd was arrested in Virginia on March 16, 2003, and eventually transferred to Boise, Idaho, arriving on March 25, 2003. (Defs.’ Statement of Facts ¶ 31–32, Dkt. 3062.) That same day, al-Kidd briefly met with a Federal Public Defender before appearing in front of this Court. (Defs.’ Statement of Facts ¶ 31–32 Dkt. 306-2.)
A detention hearing was held on March 31, 2003, and following the hearing alKidd was released into the custody of his wife in Nevada. (United States v. Sami Omar al-Hussayen, Case No. 3:03-cr-00048-EJL, Dkt. 40, ¶ 103). The conditions of his release included surrender of his passport, limitation of travel to four states, reporting to a probation officer in Idaho and Nevada as directed, and home visits. (Case No. 3:03-cr00048-EJL, Dkt. 40, ¶ 103). Al-Hussayen’s trial was continued until January 13, 2004, and after the government filed its superseding indictment on January 9, 2004, the trial was continued again to April 14, 2004. (Defs.’ Statement of Facts ¶ 34, Dkt. 306-2.)
AUSA Lindquist made the decision not to call al-Kidd as a witness because of the defense strategy that became apparent as the trial progressed, which was not to contest that al-Hussayen had engaged in business activities on behalf of IANA. (Defs.’ Statement
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of Facts ¶ 35, Dkt. 306-2.) Consequently, the government never called al-Kidd to testify and his release conditions were removed on June 16, 2004. (U.S. v. al-Hussayen, 3:03-cr00048-EJL, Dkt. 680).
Although al-Kidd was, according to Agent Gneckow and AUSA Lindquist, never regarded as a criminal suspect or as a possible subject for indictment, there is evidence in the record reflecting how the Government viewed al-Kidd. (Pl.’s Statement of Facts ¶ 5, Dkt. 308-2; Defs.’ Response ¶5 Dkt. 322-1.) Al-Kidd remained the subject of an intelligence investigation until 2004. (Id.) AUSA Lindquist identified a docketing document which, in its caption, identified al-Kidd as an individual suspected of international terrorism. (Lindquist Depo. at 49—54, Dkt. 308-4 at 237—242.)7 The Government contends that the appearance of al-Kidd’s name in the title of an FBI document does not necessarily mean that the person was suspected of engaging in criminal activity. (Defs.’ Response ¶ 5, Dkt. 322-1.) FBI Headquarters received updates regarding the investigation of al-Kidd. (Pl.’s Statement of Facts ¶7, Dkt. 308-2; Defs.’ Response ¶ 7, Dkt. 322-1.)
When al-Kidd was arrested at the Dulles airport on March 16, 2003, agents took al-Kidd to a police station in the airport and, with Agent Gneckow’s consent, interrogated him. (Pl.’s Statement of Facts ¶ 15; Defs.’ Response ¶15.) FBI agents searched al-Kidd’s belongings, and seized his laptop. Later, FBI agents drafted a search warrant application to search al-Kidd’s laptop, and although it was not served it avers that al-Kidd’s computer contained evidence in support of criminal activity “as to … al-Kidd.” (Id. ¶16.)
7 The Government raised an evidentiary objection to the admissibility of the docketing document which is addressed later in this Report and Recommendation. (Defs.’ Response ¶ 5, Dkt. 322-1 at 2.) REPORT AND RECOMMENDATION - 12

Case 1:05-cv-00093-EJL-CWD Document 337 Filed 06/26/12 Page 13 of 29 Within days of al-Kidd’s arrest, FBI Director Robert Mueller testified before Congress that al-Kidd’s arrest—along with that of Khalid Sheikh Mohammed, a “mastermind” of the September 11th attacks—was a “major success[]” in the government’s anti-terrorism efforts. Director Mueller never mentioned that Plaintiff was arrested as a witness. The Government has never been able to explain why Director Mueller’s testimony highlighted al-Kidd. (Id. ¶17.)
During his fifteen day transport to Idaho, al-Kidd was incarcerated in three different facilities in Virginia, Oklahoma, and Idaho. Each time he was transferred, alKidd was shackled with handcuffs, leg restraints, and a belly chain. Al-Kidd was stripsearched multiple times over the course of his detention. In Virginia, he was held under high-security conditions, often spending 22 to 23 hours a day in his cell. In the detention center in Oklahoma, al-Kidd was made to remove his clothes and sit naked in view of other, fully clothed detainees. (Id. ¶18-20.)
At al-Kidd’s detention hearing, conducted on March 26, 2003, the Government opposed his release, contending that al-Kidd was “dangerous.” (Id. ¶ 43.)
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ANALYSIS8 1. Summary Judgment Standards
Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary judgment “is to isolate and dispose of factually unsupported claims ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Material facts are those that may affect the outcome of the case. Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the nonmovant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
8 Under the FTCA, liability is determined by the tort law of the state where the claim arose. Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir. 1994). Because al-Kidd’s claims are based on the procurement of an arrest warrant in Idaho and the claims arose in Idaho, Idaho law applies. REPORT AND RECOMMENDATION - 14

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The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. Id. at 526–57. The non-moving party must go beyond the pleadings and show by “affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. The existence of a scintilla of evidence in support of the non-moving party’s position is insufficient. Rather, “there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, 477 U.S. at 252.
When, as here, parties submit cross-motions for summary judgment, “each motion must be considered on its own merits.” Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 136 (9th Cir. 2001). The Court must therefore review the evidence submitted in support of each cross-motion. Id.
But the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the “party opposing summary judgment must direct [the Court’s] attention to specific triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
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Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed.R.Civ.P. 56(e). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of the plaintiff’s diary on summary judgment because at trial, the plaintiff’s testimony of contents would not be hearsay).
Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The Ninth Circuit Court of Appeals “has repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.” Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). 2. The Prosecutorial Immunity and Discretionary Function Exceptions Do Not
Apply A. Prosecutorial Immunity The Government argues that Assistant United States Attorney Kim Lindquist decided to actually seek the material witness arrest warrant for al-Kidd, and was responsible for all subsequent decisions regarding whether to call him at the al-Hussayen trial based upon the defense strategy that unfolded. The Government contends these are typical judgment calls made by federal prosecutors and as such, these decisions are protected by prosecutorial immunity.
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The doctrine of prosecutorial immunity shields a prosecutor from civil suit for damages under Section 1983 in initiating a prosecution and presenting the case, provided the activities were intimately associated with the judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The Government cites to several cases, including Adams v. Hanson, 656 F.3d 397 (6th Cir. 2011), for its argument that prosecutorial immunity applies here.
But the logic of the Government’s argument fails in this case, because al-Kidd is not relying upon AUSA Lindquist’s conduct, but rather Agent Gneckow’s decision to pursue the warrant in the first instance. Although AUSA Lindquist approved the application and affidavit for the warrant that was later presented to the Court, Agent Gneckow controlled the information presented to Lindquist for review. While Lindquist may be shielded from a civil suit for damages, Agent Gneckow is not. To allow the Government to rely solely upon AUSA Lindquist’s conduct, and argue that the agents are absolved from suit because Agent Gneckow sought approval, would prevent any claim against the agents in this case. Prosecutorial immunity therefore does not apply under the facts and circumstances before the Court.
B. Discretionary Function Exception The discretionary function exception states that the FTCA does not permit recovery for claims arising from the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The government bears the burden of showing that the discretionary function exception applies. Reed v. U.S. Dept. of Interior, 231 F.3d 501, 504 (9th Cir. 2000).
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The United States Supreme Court has dictated a two-part test to determine whether the discretionary function applies. Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). First, the court must determine whether the action is a matter of choice for the employee, such that it involves an element of judgment or choice. Id. Second, the exception only applies to actions based on considerations of public policy. Id. at 537. Therefore, the government is shielded from liability when the challenged action “involves the permissible exercise of policy judgment.” Id. The purpose of the discretionary function exception is to prevent judicial second-guessing of administrative decisions based in social, economic, and political policy. United States v. Gaubert, 499 U.S. 315, 323 (1991). When determining whether the discretionary function applies, the court should examine the conduct in question, not the status of the actor. Berkovitz, 123 F.3d at 536.
In its earlier Memorandum Order denying the Government’s motion to dismiss, filed on September 18, 2006, the District Court held that the discretionary function exception based upon the prosecutor’s decision to seek the warrant did not apply to the claims raised in the complaint, because al-Kidd alleged that Agents Mace and Gneckow improperly used the warrant for investigative, not prosecutorial, decisions. (Dkt. 78 at 14.) The Court then examined whether the discretionary function exception would apply to the actions of the investigative officers. The Court explained generally that police investigations also are protected by the discretionary function exception because they involve policy considerations. See Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002). The Ninth Circuit has held that “the discretionary function exception protects agency decisions concerning the scope and manner in which it conducts an investigation so long
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as the agency does not violate a mandatory directive.” Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000). This protection is afforded because federal investigations often require the officers to consider relevant political and social circumstances. Alfrey, 276 F.3d at 565.
The discretionary function exception does not apply, however, if the investigators violated a legal mandate. Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004). The discretionary function only applies if the “decision made is a permissible exercise of policy judgment.” Conrad v. United States, 447 F.3d 760, 765 (9th Cir. 2006). Thus, if an officer violates the constitution or a statute during his or her investigation, that action is not protected by the discretionary function exception. 3. False Imprisonment
Al-Kidd premises his claim for false imprisonment upon the same theory utilized to hold the FBI Agents liable—that the arrest warrant was invalid because the supporting affidavit contained misrepresentations, and a corrected affidavit was not supported by probable cause. The Government counters that there was probable cause to arrest al-Kidd pursuant to the warrant.
To be liable for false imprisonment in Idaho, a person must unlawfully restrain the physical liberty of another without adequate legal justification or without probable cause. Clark v. Alloway, 170 P.2d 425, 428 (Idaho 1946). In its September 18, 2006 Memorandum Order deciding the United States’ motion to dismiss, the District Court concluded that the Idaho Supreme Court would recognize al-Kidd’s false imprisonment claim premised upon the agents’ misstatements and omitted information to obtain the arrest warrant. (Mem. Order at 7, Dkt. 78.) In its June 18, 2012 Report and
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Recommendation the Court concluded that Agent Gneckow was not entitled to qualified immunity for his role in procuring the warrant. (See Dkt. 336) Agent Gneckow drafted the affidavit prior to presenting it to AUSA Lindquist, and Agent Gneckow decided what information to include and exclude from the affidavit. The Court found that Agent Gneckow’s failure to conduct even a cursory investigation into the facts and circumstances of al-Kidd’s travel, and the resulting affidavit, was reckless. The Court therefore recommended that al-Kidd’s motion for summary judgment be granted and the Government’s motion be denied as to Agent Gneckow’s liability.9
At the hearing, the Government asserted that a lack of probable cause would not necessarily result in a finding for al-Kidd on his false imprisonment claim, considering Idaho law requires the Court to examine whether al-Kidd’s arrest occurred “without probable cause.” Clark v. Alloway, 170 P.2d 425, 428 (Idaho 1945). The Government relies upon State v. Gomez, 172 P.3d 1140, 1145 (Idaho 2007), for its argument that the Court must to determine whether “the facts available” to Agent Gneckow “warranted a person of reasonable caution to believe that the action taken [seeking the material witness warrant] was appropriate.” The Government argues that, at the time Agent Gneckow prepared the warrant, he knew money had been given to al-Kidd by al-Hussayen; trial was to begin on April 15, 2003; al-Kidd had left his apartment; and al-Kidd was boarding a plane on a first class, one way ticket that cost $5,000.
9 An officer may not cleanse a transaction by supplying only those facts favorable to the issuance of a warrant. Bender v. City of Seattle, 664 P.2d 492, 500 (Wash. 1983). The Court concluded that the affidavit was highly suggestive precisely because of the facts Agent Gneckow chose, consciously or not, to include in the affidavit. Further, the Court found that the lack of any investigation by Agent Gneckow to verify the facts he received was reckless. Agent Mace, however, had no role in drafting the warrant, and was not in a position to fully know the underlying facts presented in the application and affidavit. REPORT AND RECOMMENDATION - 20

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However, the Court found that Agent Gneckow’s conduct in failing to probe further into the reasons for al-Kidd’s trip and the particulars of his plane ticket, when he had the means and opportunity to do so given al-Kidd had cooperated in the past, was reckless considering the breadth of the investigation up to that time. In that regard, Agent Gneckow did not exercise reasonable caution. He failed to ask any follow-up questions of the FBI Agent at Dulles Airport, and based his decision solely upon the fact that al-Kidd was leaving for Saudi Arabia with trial one month away. Consequently, the resulting affidavit was highly suggestive of illicit criminal activity and a motive to flee.
Moreover, State v. Gomez is factually distinguishable. There, the court considered the officer’s reasonableness at the time of conducting a warrantless search, given the information available to the officers at that moment. Here, in contrast, Agent Gneckow had conducted a three year investigation, which included surveillance of and interviews with al-Kidd. Agent Alvarez informed Agent Gneckow about al-Kidd’s plane ticket on March 13, 2003, the warrant was presented to the Court on March 14, 2003, and al-Kidd was arrested at Dulles National Airport on March 16, 2003, a span of three days versus an on the spot assessment.
Not only did Agent Gneckow have information from his prior investigative inquiries into al-Kidd’s relationship with al-Hussayen and his familial ties to the United States, which he failed to include in the affidavit, he had three days to conduct follow up. But Agent Gneckow could not recall the steps taken to confirm al-Kidd was not at his apartment in Kent, Washington. When he called the FBI agent at Dulles Airport to inquire about al-Kidd’s plane ticket, he asked no questions. Had he done so, he might
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have learned the truth about the plane ticket,10 prompting him to doubt his initial assumption that al-Kidd was fleeing the country. Further, agent Gneckow knew al-Kidd had a wife and son, as well as other family, in the United States but never thought to call them. Agent Gneckow cannot absolve himself of his responsibility to conduct follow-up under the circumstances, and therefore did not exercise reasonable caution.
Moreover, excusing an officer’s lack of follow up in the context of this matter, considering the ease in which it could have been accomplished, would be to shield the officer from liability when the exigencies of the situation are not the same as those that exist for a warrantless search. During a warrantless search, the officers have limited information and little time at their disposal to make a probable cause assessment. In contrast, Agent Gneckow had the results of a three year investigation, and three days within which to confirm his initial assumption that al-Kidd was fleeing the country. To excuse Agent Gneckow’s lack of follow up in this matter would be akin to sanctioning an officer’s failure to conduct an adequate investigation before seeking a warrant.
The Court therefore concludes that al-Kidd is entitled to summary judgment on his false imprisonment claim based upon Agent Gneckow’s conduct.11
10 The Government objected to the information about al-Kidd’s travel plans on relevance grounds. (Defs.’ Response ¶ 11-13, Dkt. 322-1.) However, the information about al-Kidd’s travel plans, their purpose, and the time al-Kidd spent to make arrangements to travel to Saudi Arabia is relevant. Although Agent Gneckow did not know the information at the time, it is his lack of follow up, which could have revealed the information, that is material, and therefore the information is relevant. 11 The Court requested that the District Court conduct a de novo review of al-Kidd’s claim that the warrant application and affidavit was facially defective as it pertains to the claims against Agent Mace. If the District Court concludes that the warrant was not facially defective under Malley v.Briggs, 475 U.S. 335 (1986), then al-Kidd’s false imprisonment claim against Agent Mace would fail. Agent Mace could be held liable depending on the determinations made by the District court following its de novo review. REPORT AND RECOMMENDATION - 22

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4. Abuse of Process Al-Kidd alleges that the Government misused the material witness statute to detain
him preventatively, to investigate him criminally, or both, instead of to secure him as a witness, and contends that the material witness statute may not constitutionally be used to arrest a cooperative witness. Al-Kidd argues that, although the agents disclaim the warrant was used for a purpose other than to secure testimony, the objective evidence in the record supports his position that he was the subject of an investigation until 2004, well after his arrest. He relies upon the FBI’s investigation sheets and memoranda, which includes a docketing document identifying al-Kidd as an individual suspected of international terrorism; FBI Director Meuller’s testimony before Congress that al-Kidd’s arrest was an example of the government’s success in combating terrorism; the facts and circumstances surrounding his arrest and subsequent conditions of incarceration during transport to Idaho; a draft of a search warrant seeking permission to examine the contents of al-Kidd’s laptop computer, which stated that it may yield “evidence” of criminal activity “as to … al-Kidd;” the Government’s position at al-Kidd’s detention hearing that al-Kidd was “dangerous;” and lastly, the Government’s failure to call al-Kidd as a witness at the al-Hussayen trial and its failure to have al-Kidd’s release conditions removed.
The Government, on the other hand, argues that al-Kidd was arrested because the undisputed facts establish that the material witness statute was used properly to secure the material testimony of a witness who was a flight risk. It relies upon the testimony of Agent Gneckow, as well as the prosecutor in the al-Hussayen trial, AUSA Kim Lindquist. The Government acknowledges that al-Kidd was the subject of an FBI investigation, but
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argues that fact does not lead to an inference that al-Kidd was arrested because of the investigation. And it argues that the way others in the government viewed him, such as Director Meuller, is irrelevant because al-Kidd’s claims are limited to the conduct of Agents Mace and Gneckow. Finally, the Government contends al-Kidd’s constitutional theory---that the material witness statute cannot be used except to arrest an uncooperative witness---is without legal foundation.
A. Evidentiary Objection At the hearing, the Government raised an evidentiary objection under Fed. R. Evid. 803(6) to the admission of Exhibit A (Dkt. 309-2 at 2, filed under seal), a docketing document with a list of names of individuals suspected of “International Terrorism,” which list included al-Kidd and al-Hussayen. Although AUSA Lindquist was not familiar with the actual document, he identified it as a docketing document from the U.S. Attorney’s Office, and explained that docketing documents reflect the creation of a file in the U.S. Attorney’s Office. He further explained that a docketing document would be received by the U.S. Attorney’s office from the investigating agency to evaluate potential prosecution of the individuals named. (Lindquist Depo. at 49—54, Dkt. 308-4 at 237— 242.) Fed. R. Civ. P. 56(c)(2) permits parties to object to material cited to support or dispute a fact if it cannot be presented in a form that would be admissible in evidence. See Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (affirming consideration of hearsay contents of the plaintiff’s diary on summary judgment because at trial, the plaintiff’s testimony of contents would not be hearsay). Fed. R. Evid. 803(6) allows records of regularly conducted business activities to be admitted as evidence provided the
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record was made at or near the time by, or from information transmitted by, someone with knowledge; the record was kept in the course of a regularly conducted activity of a business or organization; making the record was a regular practice of that activity; these conditions are shown by the testimony of the custodian or another qualified witness; and there are no indicia of untrustworthiness.
The docketing document is admissible for purposes of summary judgment under Rule 56(c)(2), because the document would be admissible at trial. Although AUSA Lindquist was not familiar with the particular document, he identified that “docketing documents” are regularly submitted by agencies to the U.S. Attorney’s Office for further evaluation, and for the purpose of opening a file. Presuming al-Kidd could obtain the testimony of the custodian or author of the document, or both, the docketing document would be admissible in evidence at trial. Therefore, the Government’s objection to the document’s admissibility for purposes of summary judgment is denied.
B. Analysis Under Idaho law, the elements of an abuse of process claim are “(1) an ulterior, improper purpose; and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.” Beco Constr. Co., Inc v. City of Idaho Falls, 865 P.2d 950, 954 (Idaho 1993). It is sufficient if the acting party had an ulterior, improper purpose, but it is unnecessary for the improper purpose to be the primary purpose. Beco Constr. Co., Inc., 865 P.2d at 954—55. The Idaho Supreme Court recently explained that “[t]he ulterior motive or purpose generally required in an abuse of process action may take the form of coercion to obtain a collateral advantage not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the
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process as a threat or a club....” Berkshire Investments, LLC v. Taylor, Case No. 38599, 2012 WL 1970066 *9 (June 1, 2012) (quoting Am.Jur.2d, Abuse of Process §6 (2012)).12
In an historic case from 1919, Barton v. Woodward, 182 P. 916 (Idaho 1919), the Idaho Supreme Court explained the rationale behind an abuse of process claim involving a criminal prosecution. “[A] person seeking to accomplish some collateral or ulterior purpose will act upon much less convincing evidence than one whose only purpose is to promote the public good. . . the attempt to use the machinery provided for the enforcement of the law to accomplish and cloak some private collateral or ulterior purpose” is not permitted. Barton, 182 P. at 918—919
Despite the Government’s protest that no one at the Department of Justice or FBI Headquarters in Washington, D.C., contributed to the decision by Agent Gneckow and AUSA Kim Lindquist to seek the warrant to secure al-Kidd’s testimony at trial, the circumstantial evidence supports the inference that al-Kidd may have been detained for reasons in addition to securing his testimony at trial. The statements of Director Meuller before Congress just days after al-Kidd’s arrest, together with the docketing document unambiguously identifying al-Kidd as a suspected terrorist, the draft search warrant, and the prosecution’s characterization of al-Kidd as “dangerous,” provide evidence that the Government regarded al-Kidd as perhaps more than a material witness. And although the Government represents al-Kidd was a “flight risk,” the unrefuted evidence established alKidd was on his way to Saudi Arabia to further his religious studies, not fleeing the United States to avoid testifying at the al-Hussayen trial. Finally, the brutal conditions of
12 The opinion cited herein has not been released for official publication, and until released, is subject to revision or withdrawal. REPORT AND RECOMMENDATION - 26

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al-Kidd’s confinement during his sixteen days of incarceration while on his way to Idaho led Justice Ginsberg to question the arguably legitimate basis upon which the Government relies. See Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2089 (2011) (J. Ginsberg, Concurrence.) If Justice Ginsberg drew conclusions from the circumstantial evidence supporting an ulterior, improper motive, so too, could a jury.
The Court finds that there are material issues of disputed fact that preclude summary judgment for either the United States or al-Kidd. A fact-finder could believe the testimony of AUSA Lindquist and Agent Gneckow that they never considered al-Kidd as a criminal suspect and their sole purpose in obtaining the material witness warrant was to assure his testimony and presence at trial, and not to use the material witness warrant for ulterior purposes. On the other hand, a fact-finder could conclude from all of the circumstances that the Government wanted to detain al-Kidd while they pursued a criminal investigation of his conduct. Because the facts are conflicting, it is not for the Court to decide the matter on cross-motions for summary judgment.
As for al-Kidd’s argument that the material witness statute may not be used to arrest a cooperative witness, the Court declines to address the argument at this time, considering disputed facts exist which preclude the grant of summary judgment to either party with respect to al-Kidd’s primary claim that the warrant was used for an improper purpose. See Ashcroft v. al-Kidd, 131 S.Ct. at 2086 (noting that the Supreme Court’s holding left unresolved whether material witness arrests in general were consistent with constitutional requirements).
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Case 1:05-cv-00093-EJL-CWD Document 337 Filed 06/26/12 Page 28 of 29 CONCLUSION
Based upon the above analysis, the Court recommends that al-Kidd’s motion for summary judgment be granted in part and denied in part, and the Government’s motion denied. Given the Court’s determination that there were material omissions and false statements in the application and affidavit utilized to seek the warrant, the Court recommends that al-Kidd’s motion for summary judgment on his false imprisonment claim based upon Agent Gneckow’s reckless conduct be granted and the Government’s motion denied. However, there remain triable issues of material fact concerning al-Kidd’s claim for abuse of process that cannot be resolved on cross-motions for summary judgment by the parties.
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Case 1:05-cv-00093-EJL-CWD Document 337 Filed 06/26/12 Page 29 of 29 RECOMMENDATION
NOW THEREFORE IT IS HEREBY RECOMMENDED: 1) Plaintiff’s Motion for Summary Judgment Against the United States (Dkt. 308) be DENIED IN PART AND GRANTED IN PART. 2) Defendant United States Motion for Summary Judgment (Dkt. 307) be DENIED.
Written objections to this Report and Recommendation must be filed within fourteen (14) days pursuant to 28 U.S.C. § 636(b)(1) and Dist. Idaho L. Rule 72.1(b), or as a result of failing to do so, that party may waive the right to raise factual and/or legal objections to the United States Court of Appeals for the Ninth Circuit.
June 26, 2012
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 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

) Case No. 1:05-cv-093-EJL-MHW

)

v.

) ORDER ADOPTING REPORT AND

) RECOMMENDATION

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

On June 18, 2012, United States Magistrate Judge Mikel H. Williams issued a Report and Recommendation, on the parties’ Cross-Motions for Summary Judgment concerning the individual Defendants remaining in this case. Any party may challenge a Magistrate Judge’s proposed recommendation by filing written objections within fourteen days after being served with a copy of the Magistrate Judge’s Report and Recom mendation. 28 U.S.C. § 636(b)(1)(C).1 The district court must then “make a de novo determination of those portions of the report or specified proposed findingsor recommendations to which objection is made.” Id. The district court m ay accept, reject, or m odify in whole or in part, the findings and recommendations made by the Magistrate Judge. Id.; see also Fed. R. Civ. P. 72(b). Both sides filed objections to the Report and Recommendation which the Court has consideredde novo and finds as follows.

1 In this case, the Court granted the par ties’ request for extension of tim e to file objections and responses thereto. (Dkt. 339.) The parties objections and responses have been timely filed in this matter.
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DISCUSSION The factual and procedural background in this m atter has been thoroughly and properly set forth in the Report and Recommendation (“Report”). (Dkt. 336.) As such, this Court incorporates that discussion in this Order and will restate the same only as necessary to this Court’s discussion of the m atters considered in this Order. The Cross-Motions for Summary Judgment considered here are those pertaining to the Plaintiff’s Fourth Amendment claim against the individual Defendants FBI Agents Michael Gneckow and Scott Mace. The Plaintiff’s Fourth Am endment claim is premised on two argum ents: a Malley claim and a Franks claim. (Dkt. 310 at 6) (Dkt. 340 at 1.) Both claims assert the Defendants’ failed to satisfy the materiality and impracticability prongs of the material witness statute. See 18 U.S.C. § 3144. The Malley claim alleges the warrant was facially deficient such that no reasonable officer could have believed the warrant established probable causSe.ee Malley v. Briggs, 475 U.S. 335 (1986). The Franks claim requires the Court to determine whether a substantial preliminary showing has been m ade that the warrant affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement or material omission in the warrant affidavit, and that theallegedly false statement was necessary to the probable cause finding. See Franks v. Delaware , 438 U.S. 154 (1978). The Report recommends that Plaintiff be granted sum mary judgment as to the Franks claim against Agent Gneckow. As to Agent Mace, the Report suggests that this Court undertakedae novo review of the warrant application to determine whether probable cause to arrest Plaintiff had
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been established. (Dkt. 336 at 41.) The Court will take up the parties objections as to each of the individual Defendants in turn below. 1. Cross-Motions for Summary Judgment as to Agent Gneckow
A. Defendants’ Objections i. Improper Finding of Reckless Disregard for the Truth2
The Report concludes that sum mary judgment should be granted in favor of the Plaintiff on the Franks claim against Agent Gneckow. (Dkt. 336 at 19.) Essentially, the Report found the Plaintiff had m ade a substantial showing that Agent Gneckow ma de a deliberate falsehood or recklessly disregarded the truth in the warrant affidavit and that without the false information the affidavit was insufficient to establish probable cause. (Dkt. 336 at 22.) In particular, as to the impracticability prong of the material witness statute.3 The Report discusses the misrepresentations concerning Plaintiff’s plane ticket; that it was a first class, one-way ticket to Saudi Arabia, costing $5,000 when in reality it was a round trip ticket with no scheduled return date, coach class, costing approximately $2,000. (Dkt. 336 at 21.) In addition, the Report points to several omissions from the warrant application: 1) Plaintiffs prior cooperation with the FBI, 2) Plaintiff was a native-born United States citizen with a wife, son, and other family living in the United States, 3) Plaintiff was not informed that his testimony may be needed or that he should not travel, 4) Pla intiff was not told to
2 The Court has taken up this objection out of the order presented btyhe Defendants as it seems more logical for the Court to address this objection first. (Dkt. 342.)
3 The two prongs of the material witness statute inquiry are that 1) the subject individual’s testimony is material and 2) it may become impracticable to secure their presence by subpoena. See 18 U.S.C. § 3144.
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inform the FBI prior to any oversea’s travel, and 5) Plaintiff had not been contacted by the FBI in over eight months. (Dkt. 336 at 22.)
Defendants challenge the Report’s conclusion that the warrant application did not meet the second requirement of the material witness statute, probable cause as to whether it is impracticable to secure the presence of the person by subpoena. (Dkt. 342 at 7.) Defendants argue the record does not support finding Plaintiff had m ade a “substantial showing” that Agent Gneckow was reckless in failing to include material facts in the warrant application as to whether a subpoena would not have secured the Plaintiff’s presence at the al-Hussayen trial in 2003. (Dkt. 342 at 13.) The Report, the defense argues, im properly analyzed the im pact of: 1) Agent Gneckow’s failure to ascertain the purpose for the Plaintiff’s travel to Saudi Arabia, 2) the omission of Plaintiff’s ties to the United States, and 3) the prosecutor’s role in deciding whetherto seek a material witness warrant. (Dkt. 342 at 9-12.) Plaintiff counters that the Report properly analyzed the impracticability prong of the material witness statute in concluding that the om itted information – i.e. past cooperation, citizenship, and family/community ties – was relevant to the probable cause determination. (Dkt. 348 at 6.) Further, the Plaintiff asserts the Report properly concluded that Agent Gneckow acted intentionally or recklessly in om itting material facts and m aking false statements in the warrant application. (Dkt. 348 at 1.) This Court has reviewed de novo the record in this matter as well as the parties’ arguments and finds as follows.
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As to the facts surrounding the plane ticket, the Defendants disagree with the Report, arguing Agent Gneckow received the information he ultimately put in the warrant affidavit from ICE Agent Alvarez on March 13, 2003. Defenda nts point out that Agent Gneckow called the FBI Agent assigned to Dulles International Airport to confirm the Plaintiff was scheduled to leave for Saudi Arabia and also the precise date and tim e of his scheduled departure; all of which was accurate as stated in the warrant. (Dkt. 342 at 14-15.) In addition, Defendants state, Agent Gneckow did not know the other details concerning the Plaintiff’s plane ticket – its price, first class, and round trip – were inaccurate as he relied upon ICE Agent Alvarez’s information.
Although he failed to confirm all of the details concerning the plane ticket, the Court recognizes that Agent Gneckow did confirm the scheduled departure date and time for the flight. As to the details concerning the ticket that were in error, with the exception of the fact that the ticket was not round trip, the Court generally agrees that inaccurate details, in and of themselves, would not support a finding of recklessness. The particular facts about the plane ticket, however, are not the only ones relevant to the issue presented here. (Dkt. 336 at 21-28.) The importance of the facts concerning the flight taken together with the material omissions discussed below is the basis upon which this Court is in agreem ent with the Report’s finding of a reckless disregard for the truth and the necessity of those omitted facts to the probable cause finding. (Dkt. 336 at 22-23) (discussing “the totality of the inforamtion in the affidavit juxtaposed with the information about the plane ticket.”)
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As to the facts omitted from the warrant affidavit, this Court agrees with the Report that they were material and necessary to the probable cause finding and their omission was reckless. Agent Gneckow had been conducting a thre e-year investigation into Mr. alHussayen’s activities which included knowledge of and contact with Plaintiff. In particular, this Court finds the omissions that the Plaintiff 1) is a United States citizen with familial and community ties to the United States and 2) had previously cooperated with law enforcement were material and necessary to the Magistrate Judge’s probable cause determination. Based on his involvement in the al-Hussayen investigation, the Court agrees that these oimtted facts were known to Agent Gneckow and it was recklessfor him to have not included themin the warrant affidavit. The defense argument that the investigation was as to Mr. al-Hussayen and not the Plaintiff is unpersuasive. Agent Gneckow’s investigation clearly included contacts, interviews, and knowledge of the Plaintiff such that he would have or should have known of the omissions in the affidavit. In addition, thisCourt agrees that the omissions were material and had they been known to the Magistrate Judge reviewing the warrant they certainly would have gone against finding probable cause.
Moreover, without the om issions, the warrant affidavit is drafted such tha t it misrepresents the facts and circumstances surrounding the Plaintiff and the impracticability of securing his presence by subpoena at the trial. As the Report describes, without the relevant information concerning the Plaintiff that was omitted, the affidavit makes it appear as if the Plaintiff was a citizen of Saudi Arabia, was involved with money transfers from a suspected terrorist, and was fleeing the country shortly after those he was involved with had
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been indicted and/or arrested. (Dkt. 336 at 23-27.) This is particularly troubling for the Court. When presented with a warrant application, courts are tasked with making a decision that necessarily is based upon the information presented to it by law enforcement. Undoubtedly law enforcement officers who bring a warrant application to a court truly believe the warrant is lawfully sought. The problem in this case is that the failure to include the om itted information cast an incomplete picture of the individual and the surrounding circumstances such that the affidavit misrepresented the true nature of the situation and the Plaintiff hismelf. This evidences the reckless disregard for the truth as to Agent Gneckow.
Further, AUSA Lindquist’s review of the warrant application does not cure the Franks violation here. AUSA Lindquist was in no better position that the Magistrate Judge to evaluate probable cause given he, like the Magistrate Judge, did not know the om itted material facts which this Court has determined Agent Gneckow should have included in the warrant application and his failure to do so was a reckless disregard for the truth. (Dkt. 3104, Ex. 2, Gneckow Dep. at 201) (Dkt. 310-4, Ex. 7, Lindquist Dep. at 17, 43-44, 104.) Thus, the fact that AUSA Lindquist reviewed the warrant application does not absolve Agent Gneckow from liability.
As to the Defendants’ objections regarding the Report’s statem ent that Agent Gneckow failed to further investigate the information he received from Agent Alvarez, this Court clarifies that the conduct found to have violated Franks here is not the failure to conduct a further investigation, in and of itself, but the fact that the om issions from the warrant application would ha ve negated the finding of probable cause and the
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misrepresentation of the facts and circumstances in the drafting of the warrant application.

It was reckless for Age nt Gneckow to have not included those m aterial omissions in the

warrant application given what he knew from his investigation. (Dkt. 336 at 26-29.) That

some of the information included in the warrant application ultimately turned out to be false

does not, in and of itself, amount to a Franks violation. This Court recognizes that inFranks,

the Court stated that “truthful” does not mean that “every fact recited in the warrant affidavit

is necessarily correct, for probable cause may be founded upon hearsay and upon information

received from informants.” Franks, 438 U.S. at 165. The critical elem ent is tha t the

“information put forth is believed or appropriately accepted by the affiant as true.”Id. Here

Agent Gneckow verified certain of the facts concerning the flight – date, time

, and

destination – thus it seems reasonable for him to have believed all of the information given

to him by Agent Alvarez was correct even though he did not verify all of the inform ation

about the Plaintiff’s ticket – price, class, and round trip. Again though, theFranks violation

in this case is the reckless disregard for the truth stemming from the omission of material

facts in the warrant application.

The Report does discuss avenues in which Agent Gneckow could have verified the

facts concerning the ticket information and/or other efforts he could have m ade to further

investigate information possibly relevant to the warrant application; including verifying the

ticket information and/or investigating the Plaintiff’s purpose for traveling to Saudi Arabia.

(Dkt. 336.) This Court clarifies that it is not concluding that Agent Gneckow was required

to conduct further investigation.See Ewing v. City of Stockton, 588 F.3d 1218, 1227 (9th Cir.

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2009) (stating once an officer has probable cause he or she is not required to continue to investigate or seek further corroboration.). Here, Agent Gneckow’s action we re reckless because the omissions were basic information about the Plaintiff known to Agent Gneckow which were obviously material to the Magistrate Judge’s probable cause determination. To this end, the Court agrees with and incorporates herein the Report’s discussion concerning the misleading and highly suggestive picture of the facts and circumstances surrounding the Plaintiff painted in the warrant application. (Dkt. 336 at 23-28.) What Agent Gneckow knew and left out of the warrant application, this Court finds, constitutes a reckless disregard for the truth and/or was designed to m islead the Magistrate Judge in his proba ble cause determination. Franks, 349 F.3d at 67-68. Furtherm ore, the very nature of the om issions themselves as well as the manner in which the warrant application was misleadingly drafted further support the conclusion that there was a reckless disregard for the truth in this case. Under these facts, the Court concludes that the Plaintiff is entitled to sum mary judgment against Agent Gneckow on his Franks claim.
ii. An Incorrect Assumption is Not Judicial Deception Defendants argue that a law enforcement officer does not engage in judicial deception when he or she m akes an incorrect assum ption and fails to conduct further investigation. (Dkt. 342 at 4.) Specifically, Defendants challenge the Report’s c onclusion that Agent Gneckow is liable because he failed to conduct further investigation to affirmhis assumption that the Plaintiff was fleeing the country. Just the opposite, Defendants argue based on what Agent Gneckow knew at the tim e, he had probable cause to believe it m ay become
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impracticable to secure Plaintiff’s presence at the al-Hussayen trial by subpoena; which is what is required under the material witness statute 18 U.S.C. § 3144. (Dkt. 342 at 5.)
In response to the Defendants’ objections, Plaintiff argues that it does not m atter whether Agent Gneckow actually knew the information omitted but, rather, the question here is whether Agent Gneckow acted recklessly in failing to verify certain facts and om itting other facts in the warrant application. (Dkt. 348 at 1-5.) Stated differently, Plaintiff argues he is not required to show that Agent Gn eckow deliberately intended to m islead the Magistrate Judge, he is liable if he included or excluded informa tion recklessly thereby misleading the court.
To survive summary judgment on a claim of judicial deception, a plaintiff need not establish specific intent to deceive the issuing court.Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011) (citing Lombardi v. City of El Cajon, 117 F.3d 1117, 1124 (9th Cir. 1997)). Rather, the plaintiff m ust (1) establish that the warrant affidavit contained misrepresentations or omissions material to the finding of probable cause, and (2) m ake a “substantial showing” that the misrepresentations or omissions were made intentionally or with reckless disregard for the truth.Id. (citing Ewing, 588 F.3d at 1223–24);Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002); Liston v. County of Riverside, 120 F.3d 965, 973–74 (9th Cir. 1997)). As discussed in the preceding section, the Court finds both of these elenmts have been shown by the Plaintiff in this case.
“The federal m aterial-witness statute authorizes judges to ‘order the arrest of [a] person’ whose testimony ‘is material in a criminal proceeding ... if it is shown that it m ay
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become impracticable to secure the presence of the person by subpoena.’” Ashcroft v. alKidd, ___ U.S. ___, 131 S.Ct. 2074, 2079 (2011) (quoting 18 U.S.C. § 3144). Thus, the two prongs of the inquiry are that 1) the subject individual’s testimony is material and 2) it may become impracticable to secure their presence by subpoena. Here, it is the impracticability prong that is in dispute. Law enforcem ent concluded the Plaintiff was fleeing the United States making it im practicable to secure his presence at the al-Hussayen trial. This conclusion, however, was based on false facts and mischaracterized and/or omitted material facts concerning the totality of the circumstances surrounding the Plaintiff and his travel.
The Court does not find fault in the fact that the Defendants arrived at a conclusion or assumption concerning the Plaintiff’s travel intentions that now appears to be in error. Doing so would be to view the case with twenty-twenty hindsight which is unfair to those involved at the tim e who were not afforde d such clarity or had the ability to see into the future. The fact that law enforcement may ultimately have been wrong in their conclusions when viewed through such hindsight is not the basis for a Fourth Amendment claim nor the way in which this Court has viewed this case. The constitutional violation in this case is the failure by lawenforcement to properly present the complete picture of the circumstances with accurate facts in the warrant application so that the Magistrate Judge could m ake an appropriate probable cause determination. The recklessness found here is based on the type, nature, and num ber of m isstatements and om issions in the warrant affidavit that were material to the probable cause determ ination. Particularly given the length of the investigation concerning the m atter in which the Plaintiff was sought to te stify in, the
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circumstances of that investigation including the Plaintiff’s cooperation, and the facts about Plaintiff known to law enforcement at the time the warrant was submitted but not included in the warrant application.
As noted above, the om itted facts were clearly m aterial to the Ma gistrate Judge’s probable cause determination. Further, the m anner in which the wa rrant application was drafted was extremely misleading so much so that once the omitted facts known to Agent Gneckow are considered it evidences a reckless disregard for the truth. As the warrant and affidavit read at the time they were submitted, it makes it seem that the Plaintiff is a citizen of Saudi Arabia with apparent ties to another Saudi Arabian citizen who is suspected of possible terrorist activities. However, when the om itted facts are included, the Plaintiff is then known to be a United States citizen, who attended college in the United Sta tes, has a wife and children in the United States, and had previously cooperated with law enforcement in their investigation. With the om itted facts included, the warrant application does not establish probable cause as to the impracticability of securing the Plaintiff’s presence at the al-Hussayen trial. Thus, the failure of Agent Gneckow to include those material facts in the warrant application was reckless and the basis upon which the Motion for Sum mary Judgement is granted in favor of the Plaintiff.
iii. Improper Denial of Qualified Immunity Defendants maintain they should be afforded qualifie d immunity. (Dkt. 345 at 6.) Plaintiff asserts that Defendants are not entitled to qualified immunity once Franks liability has been established and, regardless, Agent Gneckow’s actions were unreasonable thus
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precluding the application of qualified immunity. (Dkt. 348 at 7-8.) The parties do not appear to question the law on qualified immunity as stated in the
Report. (Dkt. 336 at 18-19.) What is in question on this objection is the Magistrate Judge’s application of the facts of this case to that law on the Franks claim. Here, however, once it is determined that a Franks violation occurred, qualified im munity does not apply. See Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1295 (9th Cir. 1999); Harvey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995) (In order to defeat qualified immunity, a plaintiff must “establish both a substantial showing of the deliberate falsity or reckless disregard of the truth of the statem ents in the affidavit and the materiality of those statem ents to the ultimate determination of probable cause.”); see also (Dkt. 336 at 21.) Because the Plaintiff established both prongs of the Franks claim against Agent Gneckow, the Court concludes Agent Gneckow is not entitled to qualified immunity. Accordingly, the objection is denied.
iv. Improper Granting of Summary Judgment to Plaintiff Defendants challenge the Report’s recommendation that Plaintiff be granted summary judgment, arguing instead that a trial is required. (Dkt. 342 at 16.) Plaintiffs dispute the objection arguing summary judgment in favor of a plaintiff in aFranks cases is proper. (Dkt. 348 at 9.) Here, the Report recom mends that summary judgment be entered in favor of the Plaintiff on his Franks claim against Agent Gneckow. (Dkt. 336 at 41.) In doing so the Report details the m aterial facts surrounding the events in question and concludes that Plaintiff prevails on his Franks claim. (Dkt. 336 at 19-30.) This Court has re viewed the
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record de novo and, as discussed in this Order, is in agreement with the conclusion reached in the Report. The Defendants’ objection cites to cases distinct from this case where questions of fact remained as to the Franks claim. (Dkt. 342 at 16.) That is not the case here. The undisputed material facts establish as a matter of law that the Plaintiff prevails on his Franks claim against Agent Gneckow and, therefore, is entitled to sumary judgment on that claim. This is true even viewing the facts in the light most favorable to Agent Gneckow, the non-moving party. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990);see also (Dkt. 336 at 16.) Accordingly, the Court finds it proper and appropriate in this case to grant the Plaintiff’s Motion for Summary Judgment on the Franks claim against Agent Gneckow.
B. Plaintiff’s Objections In the event the Court were to not grant summary judgment as to Agent Gneckow on the Franks claim, Plaintiff argues summary judgment is appropriate against Agent Gneckow on the Malley claim. (Dkt. 340.) Defendants oppose this argument asserting that both Agents are entitled to summary judgment on the Malley claim. (Dkt. 345 at 6.) Defendants contend that the warrant application established probable cause and even if it did not, that both Agents acted reasonably under the circum stances such that they are entitled to qualified immunity. The Defendants further assert Agent Gneckow is entitled to qualified immunity because “he did not know that the flight information included in the affidavit was incorrect, he consulted with AUSA Lindquist regarding what information to include in the affidavit, and Magistrate Judge Williams signed the warrant application authorizing issuance of the
ORDER ADOPTING REPORT AND RECOMMENDATION - 14

arrest warrant.” (Dkt. 345 at 7.) Because the Court has adopted the Report’s recommendation and will grant Plaintiff summary judgment on the Franks claim as to Agent Gneckow, the Court need not discuss the alternative argument concerning the Malley claim. 2. Cross-Motions for Summary Judgment as to Agent Mace
A. Plaintiff’s Objections i. Franks Claim
Plaintiff objects to the Report’s conclusion that Agent Mace is not liable under Franks. Plaintiff argues Agent Mace, as the agent submitting a sworn affidavit in support of the warrant to a court, was required to assess tehwarrant application for himself to determine that it satisfied the relevant legal standard regardless of the fact that he appears to be only a “proxy” affiant. (Dkt. 340.) Defendants counter that the Report correctly conclude s that Agent Mace is entitled to summary judgment on Plaintiff’s judicial deception theory. (Dkt. 345 at 2.) In particular, that Agent Mace reasonably relied upon Agent Gneckow and AUSA Lindquist’s determination that probable cause existed to seek the material witness warrant. (Dkt. 345 at 6.)
The Report concluded that Plaintiff’s claim against Agent Mace cannot, as a matter of law, satisfy the Franks requirements because there “is an absence of any facts that Agent Mace knowingly and intentionally, or with reckless disregard for the truth, included a false statement or omitted pertinent facts.” (Dkt. 336 at 31.) This Court agrees with the Report. Unlike Agent Gneckow, Agent Mace contributed nothing to the warrant application or affidavit. His involvement was limited to relaying the inform ation received from Agent
ORDER ADOPTING REPORT AND RECOMMENDATION - 15

Gneckow to the Magistrate Judge. Thus, AgenMt ace did not intend to deceive the Magistrate Judge or recklessly disregard the truth in submitting the warrant application and affidavit.
Plaintiff challenges this conclusion arguing Agent Mace should be liable for failing to know the proper legal standard for issuance of a material witness warrant and questioning the affidavit’s sufficiency. The Court disagrees. Base d on the undisputed facts and circumstances in this case, which this Court has reviewedde novo, this Court is in agreement with and incorporates herein the Report’s recitation of the same and concludes that Agent Mace acted reasonably and is entitled to summary judgment on the Franks claim.
ii. Malley Claim The Report recommends that this Court make a de novo determination as to whether the arrest warrant on its face was supported by probable cause to find the Plaintiff’s testimony was material and that it would be impracticable to secure his presence at trial by subpoena. (Dkt. 336 at 33.) The outcome of that review then dictates the next analytical step this Court takes concerning the Malley claim. (Dkt. 336 at 38.) The Court agrees this is the best approach for addressing the issues surrounding this claim.
a) Probable Cause Determination The application for arrest warrant of material witness presented in this case is straight forward in that it refers to the al-Hussayen Indictm ent, the charges in that case, alleges Plaintiff’s testimony is material to the prosecutionin that case, and alleges there is a risk that Plaintiff’s testimony may be unavailable if he is not detained or his travel restricted. (Dkt. 306, Ex. 5.)
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The al-Hussayen Indictment was filed February 13, 2003; just over a month before the warrant at issue in this case was sought. The nineteen page Indictment details the eleven visa fraud and false statement charges against Mr. al-Hussaye n which include that he is a citizen of Saudi Arabia and was attending the University of Idaho in the Computer Science PhD program. (Dkt. 306, Ex. 4.) The Indictm ent goes on to detail the Governm ent’s allegations concerning Mr . al-Hussayen’s web-site activities which allegedly involved IANA, accom modating materials that advocated violence against the United States, recruitment of members to IANA, and instig ation of acts of violen ce and terrorism. (Dkt. 306, Ex. 4.) Finally, the Indictment contains allegations of Mr. al-Hussayen’s financial and business activities including multiple bank accounts, receipts, disbursements, and transfers of large sums of money from those accounts, payments to IANA, funding of travel related to IANA for himself and others, and telephone contacts. (Dkt. 306, Ex. 4.)
The warrant application also references the Affidavit of Agent Mace and is signed by AUSA Lindquist. The Affidavit of Agent Mace ocntains eight numbered paragraphs relaying the information provided to him by Agent Gneckow. (Dkt. 306, Ex. 5.) Paragraph 6 of the Affidavit details the information law enforcement had discovered in its investigation of Mr. al-Hussayen concerning Plaintiff’s alleged connection to Mr. al-Hussayen including that Plaintiff had: received payments in excess of $20,000 from Mr. al-Hussayen, traveled to Yemen, met with Mr. al-Hussayen and his associates upon his return, attended an IANA conference, and had connections to other IANA individuals. (Dkt. 306, Ex. 5.) Paragraph 7 provides the alleged travel information for Plaintiff and states:
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Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is schedule to fly from Dulles International Airport to JF K International Airport in New York and then to Saudi Arabia.
(Dkt. 306, Ex. 5.) The final paragraph states:
Due to Al-Kidd’s demonstrated involvement with the defendant, Sami Omar Al-Hussayen, he is believed to be in possession of information germane to this matter which will be crucial to the prosecution. It is believed that if Al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.
(Dkt. 306, Ex. 5.) The Affidavit is dated March 14, 2003, som e two days before the
scheduled flight, and signed by Agent Mace.
Having reviewed these materials de novo, this Court concludes that the undisputed
record shows that the warrant application was not facially deficient such that sum mary
judgment in favor of the Plaintiff on the Malley claim as to Agent Mace is appropriate. See
Malley, 475 U.S. 335. The Court does not, however , conclude the affidavit and warrant
application established legal probable cause for the issuance of the warrant. As discussed
elsewhere in this Order, the om issions of material fact and m isstatements of fact do not
support a finding of probable cause to have gratned the warrant. Instead, this Court finds that
the above mentioned documents and the allega tions contained therein as presented to the
Magistrate Judge in March of 2003 on their face present an indicia of probable cause to
believe that the Plaintiff’s testimony was material to the case against Mr. al-Hussayen and
if Plaintiff were not prevented fromtraveling to Saudi Arabia on his scheduled flight in two
days that it may become impracticable to secure his presence at trial. See United States v.
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Awadallah, 349 F.3d 42, 64 (2nd Cir. 2003) (citation omitted). Thus, this Court’s de novo review leads to the conclusion that while the warrant
application and affidavit have more than an indicia of probable cause they do not contain legal probable cause. Thus, the warrant lies within the interm ediate zone described in the Report. (Dkt. 336 at 39.)4 Accordingly, the Court must now consider whether Agent Mace is entitled to qualified immunity.
b) Qualified Immunity Plaintiff objects to the Report’s recommendation that if the Court, after conducting a de novo review, concludes that the affidavit had at least some indicia of probable cause that summary judgment should be entered in fa vor of Agent Mace on qualified im munity grounds. (Dkt. 340 at 6.) Plaintiff maintains that it is never reasonable for an agent to submit a sworn affidavit to a court without knowing the proper legal standard and assured himself that the affidavit satisfies that standard. Defendants respond arguing both Agents are entitled to summary judgment on the Malley claim and, alternatively, should be afforded qualified immunity. (Dkt. 345 at 6.) In particular asto Agent Mace, Defendants argue Agent Mace is entitled to qualified immunity on the Malley claim because Plaintiff has not shown that the warrant application lacks any indicia of probable cause and, therefore, Agent Mace acted reasonably in that: his only role in the matter was to serve as a proxy for Agent Gneckow in submitting the warrant application, he reasonably relied on Agent Gneckow to present true
4 This Court agrees with the Magistrate Judge’s discussion and analysis of the law applicable on this point that qualified immunity is available to an officer if there was more than an indicia of probable cause existed even though legal probable cause is not shown. (Dkt. 336 at 39.)
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and accurate facts, he reasonably relied on Agent Gneckow and AUSA Lindquist’s probable cause determination, and he was accom panied by another AUSA to present the warrant application who had also signed th e warrant applica tion. (Dkt. 345 at 7.) 5 Essentially, Defendants dispute the Plaintiff’s judicial deception argument.
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the tim e of the challenged conduc t.” Ashcroft, 131 S.Ct. at 2080 (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). District courts have discretion to decide which of the two prongs for qualified immunity to address first. Id. (citation omitted). This Court takes up the second prong first.
“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of [the] right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”Padilla v. Yoo, 678 F.3d 748, 750 (9th Cir. 2012) (quotingAshcroft, 131 S.Ct. at 2083) (citations and marks omitted). “We do not require a case directly on point, but existing precedentumst have placed the statutory or constitutional question beyond debate.”Id. To that end, the Court has explained that “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” and directs that we not define “clearly established law at a high level of generality.” Id. (citations and m arks
5 The Court has addressed this issue as to AgentGneckow above. Thus, the discussionin this section of the Order is only as to Agent Mace.
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omitted). The constitutional right at issue in this case is the Fourth Amendment’s protection of
a person’s right to be free fromunreasonable searches and seizures, which includes freedom from unreasonable arrests.Ashcroft, 131 S.Ct. at 2080 (citation omitted). Thus, an arrest must be reasonable in order to be deemed constitutional. Id. “Fourth Amendment reasonableness is predominantly an objective inquiry asking whether the circumstances, viewed objectively, justify [the challenged] action, whatever the subjective inte nt motivating the relevant officials.” Padilla, 678 F.3d 758 (marks and citations omitted). On theMalley claim, Plaintiff maintains the warrant affidavit was facially deficient in that it failed to establish probable cause for the issuance of the m aterial witness warrant and no reasonable officer in Agent Mace’s position could have believed probable cause was shown. (Dkt. 310 at 8-16) (Dkt. 328 at 1-4.) In the objections to the Report, Pl aintiff reasserts his position on the claim and, in particular, challenges that Agent Mace did not act reasonably in submitting a sworn affidavit to a court without knowing whether it is legally sufficient. (Dkt. 310 at 8-16) (Dkt. 328 at 14) (Dkt. 340 at 9.) Essentially, Plaintiffs challenge that Agent Mace should not be shielded by qualified im munity, which is designed to protect officers from reasonable m istakes, because his errors/actions were not reasonable. (Dkt. 340.)
Based on its own de novo review of the record in this case, this Court concludes that Agent Mace’s conduct was objectively reasonable in this case such that he is entitled to qualified immunity. The fact that Agent Mace stated later that he did not know the legal standard does not preclude qualified im munity. Again, Agent Mace had no independent
ORDER ADOPTING REPORT AND RECOMMENDATION - 21

knowledge of the falsity of the statem ents and/or the m aterial omissions in the warrant application and affidavit. Thus, Agent Mace’s reliance on the m aterials provided was reasonable given his lim ited role and knowledge of the facts and circum stances of the investigation. Moreover, as the Court has determined above, the warrant contains an indicia of probable cause such that given what Agent Mace knew at the time, his reliance upon the information provided by other law enforcement officers was reasonable as was his belief that the warrant application supported a finding of probable cause. Agent Mace is precisely the kind of individual for which qualified im munity is meant to protect; one who acted in an objectively reasonable manner in presenting a warrant application and affidavit which, based on what he knew at the time, appeared to be supported by probable cause. See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (“We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials – like other officials who act in ways they reasonably believe to be lawful – should not be held personally liable) (citing Malley, 475 U.S. at 344–345) (stating police officers applying for wa rrants are immune if a reasonable officer could have believed that there was probable cause to support the application).6 The fact that the warrant was later determined to be lacking does not open Agent Mace up to liability where his actions were objectively reasonable.See Rosenblum v.
6 This finding as to Agent Mace isdistinct from the Court’s conclusion as to Agent Gneckow based on the knowledge and facts known to Agent Gneckow at the time the warrant application was m ade. See Cunningham v. Gates, 229 F.3d 1271, 1288 (9th Cir. 2000) (“in resolving a motion for summary judgment based on qualified immunity, a court must carefully examine the specific factual allegations against each individual defendant (as viewed in a light most favorable to the plaintiff).”) (citation omitted).
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Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011) (“An officer who m akes an arrest

without probable cause, however, may still be entitled to qualified immunity if he reasonably

believed there to have been probable cause.”) (citation om itted). The facts in this case

evidence that Agent Mace acted reasonably and is entitled to qualified im

munity.

Accordingly, the Court will grant the Defendants’ Motion for Sum mary Judgment as to

Agent Mace on this claim and deny the Plaintiff’s Motion for Sum mary Judgment on the

same.

ORDER

Having conducted a de novo review of the Report and Recommendation, this Court

finds that Magistrate Judge Williams’ Report and Recommendation is well founded in law

and consistent with this Court’s own view of the evidence in the record. Acting on the

recommendation of Magistrate Judge William s, and this Court being fully advised in the

premises, IT IS HEREBY ORDERED that the Report a nd Recommendation entered on

June 18, 2012 (Dkt. 336), should be, and is hereby, INCORPORATED by reference and

ADOPTED in its entirety.

NOW THEREFORE IT IS HEREBY ORDERED as follows:

1) Plaintiff’s Cross-Motion for Summary Judgment as to Agent Gneckow (Dkt. 310) is GRANTED.

2) Defendants’ Motion for Summary Judgment as to Agent Gneckow (Dkt. 306) is DENIED.

3) Plaintiff’s Motion for Sum mary Judgment as to Agent Mace (Dkt. 310) is DENIED.

ORDER ADOPTING REPORT AND RECOMMENDATION - 23

4) Defendants’ Motion for Summary Judgment as to Agent Mace (Dkt. 306) is GRANTED. DATED: September 27, 2012 Honorable Edward J. Lodge U. S. District Judge
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD,

)

)

Plaintiff,

)

)

v.

)

)

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

____________________________________)

Case No. 1:05-cv-093-EJL-MHW
ORDER ADOPTING REPORT AND RECOMMENDATION

On June 26, 2012, United States Magistrate Judge Mikel H. Williams issued a Report and Recommendation concerning the Plaintiff’s Federal Tort Claims Act claim, recommending that Plaintiff’s Motion for Summary Judgment be granted in part and denied in part and that Defendants’ Motion for Summary Judgment be denied. Any party may challenge a Magistrate Judge’s proposed recommendation by filing written objections within fourteen days after being served with a copy of the Magistrate Judge’s Report and Recommendation. 28 U.S.C. § 636(b)(1)(C).1 The district court must then “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The district court may accept, reject, or modify in whole or in part, the findings and recommendations made by

1 In this case, the Court granted the par ties’ request for extension of tim e to file objections and responses thereto. (Dkt. 339.) The parties objections and responses have been timely filed in this matter.
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

the Magistrate Judge. Id.; see also Fed. R. Civ. P. 72(b). Both sides filed objections to the Report and Recommendation which the Court has considered de novo and finds as follows.
DISCUSSION The factual and procedural background in this matter has been thoroughly and properly set forth in the Report and Recommendation (“Report”). (Dkt. 337.) As such, this Court incorporates that discussion in this Order and will restate the same only as necessary to this Court’s discussion of the matter in this Order. In the Report, the Magistrate Judge considered the Cross-Motions for Summary Judgment on Plaintiff’s Federal Tort Claims Act (“FTCA”) claim. (Dkt. 337.) Plaintiff’s FTCA claim raises two arguments: abuse of process and false imprisonment. The Report concludes that Plaintiff’s Motion for Summary Judgment should be granted in part and denied in part and that the Defendants’ Motion should be denied. (Dkt. 337 at 29.) Essentially that Plaintiff be granted summary judgment on the false imprisonment claim and that the abuse of process claim proceed to trial. The Defendants object to this conclusion and ask for a de novo review of the issues presented; arguing they are entitled to summary judgment on the Plaintiff’s FTCA claim. (Dkt. 343.) Defendant’s maintain the Plaintiff failed to meet his burden to show a genuine issue of material fact exists on either of his FTCA claim arguments. (Dkt. 344.) The Plaintiff does not object to the Report but notes that in the event this Court does not adopt the Report’s conclusions then Plaintiff requests entry of summary judgment in his favor on the reserved claim that there was an abuse of
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

process because the material witness statue is unconstitutional as applied to a cooperating witness. (Dkt. 341.)
ANALYSIS 1. Discretionary Function Exception
While generally agreeing with the Report’s discussion of the law relevant to the discretionary function exception, Defendants object to the Report’s conclusion arguing the Plaintiff’s FTCA claim arguments are barred by the discretionary function exception because Agent Gneckow did not violate a clearly established constitutional right. (Dkt. 343 at 4.) This exception, Defendants argue, entitles them to summary judgment on both the false imprisonment and abuse of process arguments. In response, the Plaintiff points out that the discretionary function exception is inapplicable where, as here, the agents violated a mandatory duty; i.e. the requirement of probable cause for an arrest. (Dkt. 346 at 3.)
The discretionary function exception states that the FTCA does not permit recovery for claims arising from the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Government bears the burden of showing that the discretionary function exception applies. Reed v. U.S. Dept. of Interior, 231 F.3d 501, 504 (9th Cir. 2000).The United States Supreme Court has established a two-part test to determine whether the discretionary function applies. Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536
ORDER ADOPTING REPORT AND RECOMMENDATION - 3

(1988). First, the court must determine whether the action is a matter of choice for the
employee, such that it involves an element of judgement or choice. Id. Second, the exception only applies to actions based on considerations of public policy. Id. at 537. Therefore, the government is shielded from liability when the challenged action “involves the permissible exercise of policy judgement.” Id. The purpose of the discretionary function exception is to prevent judicial second-guessing of administrative decisions based in social, economic, and political policy. United States v. Gaubert, 499 U.S. 315, 323 (1991). When determining whether the discretionary function applies, the court should examine the conduct in question, not the status of the actor. Berkovitz, 123 F.3d at 536.
Generally, police investigations are protected by the discretionary function exception because they involve policy considerations. See Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002). The Ninth Circuit has held that “the discretionary function exception protects agency decisions concerning the scope and manner in which it conducts an investigation so long as the agency does not violate a mandatory directive.” Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000). This protection is afforded because federal investigations often require the officers to consider relevant political and social circumstances. Alfrey, 276 F.3d at 565. The discretionary function exception does not apply, however, if the investigators violated a legal mandate. Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004). The discretionary function only applies if the “decision made is
ORDER ADOPTING REPORT AND RECOMMENDATION - 4

a permissible exercise of policy judgement. Conrad v. United States, 447 F.3d 760, 765 (9th Cir. 2006) (emphasis added). Thus, if an officer violates the constitution or a statute during his or her investigation, that action is not protected by the discretionary function exception.
The statute at issue on the abuse of process argument is the material witness statute. (Dkt. No. 40, ¶ 56, 111–14). The purpose of the material witness statute is to secure a material witness when it would be impractical to secure that witness through a subpoena. 18 U.S.C. § 3144. “It would be improper for the government to use [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.” United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003). The false imprisonment argument asks whether probable cause actually existed based on all of the facts available to Agent Gneckow such that those available facts would have led a reasonable person to believe that probable cause existed to arrest the Plaintiff under the material witness statute. See State v. Julian, 922 P.2d 1059, 1062 (Idaho 1996).
The Government’s objection on this point is essentially that there was no violation of any mandatory duty in this case. As the Court determined in it’s Order adopting the Report concerning the Motions for Summary Judgment as to the individual Defendants, Agent Gneckow did violate a mandatory duty in this case and, therefore, the discretionary function exception is inapplicable here to overcome the FTCA claim for both abuse of
ORDER ADOPTING REPORT AND RECOMMENDATION - 5

process and false imprisonment.2 2. Prosecutorial Immunity
Defendants argue the Report improperly relied upon conduct covered by prosecutorial immunity in denying them summary judgment on the FTCA claims; specifically AUSA Lindquist’s conduct. (Dkt. 343 at 5.) Plaintiff responds to the objection asserting there is no authority for the proposition that a law enforcement officer is entitled to absolute prosecutorial immunity under the facts here; the mere involvement of the prosecutor does not immunize law enforcement from liability for a defective factual affidavit. (Dkt. 346 at 1.) Further, Plaintiff points out that AUSA Lindquist’s role in securing the material witness arrest warrant in this case was minimal such that it could not serve as a basis for granting Agent Gneckow immunity in this case.
A. False Imprisonment Because Agent Gneckow did not provide incorrect or misleading information to AUSA Lindquist, the Defendants argue the Court should conclude that the claim is barred by prosecutorial immunity as it was AUSA Lindquist who made the final decision to request the warrant. (Dkt. 343 at 5-6.) Defendants make clear that this claim challenges the Plaintiff’s arrest, not any investigative conduct by Agent Gneckow. In Idaho, false imprisonment is the unlawful restraint by one person of the physical liberty of another without adequate legal justification or without probable cause. Clark v.
2 The Court expressly refers to its prior Order on the related Report and incorporates it herein to this Order as is relevant to its discussion on these cross-motions for summary judgment.
ORDER ADOPTING REPORT AND RECOMMENDATION - 6

Alloway, 170 P.2d 425 (Idaho 1946). Probable cause exists when, under the totality of the circumstances known to the arresting officers (or within the knowledge of the other officers at the scene), a prudent person would believe the individual is subject to arrest. Dubner v. City and County of San Francisco, 266 F.3d 959, 966 (9th Cir. 2001) (citation omitted). Thus, as claimed here, the false imprisonment argument raises a tort action asking whether probable cause actually existed based on all of the facts available to Agent Gneckow such that those available facts would have led a reasonable person to believe that probable cause existed to arrest the Plaintiff under the material witness statute. See State v. Julian, 922 P.2d 1059, 1062 (Idaho 1996). The facts making up the probable cause determination are viewed from an objective perspective; the officer’s subjective beliefs are immaterial. Id. at 1062-63.
In this case, Agent Gneckow supplied the information contained in the warrant application. Some of the information was later discovered to be in error; such as the information concerning the price, class, and type of plane ticket the Plaintiff had for his March of 2003 flight to Saudi Arabia. As this Court stated in the Order on the related Report, the Court does not fault Agent Gneckow for not having further investigated the details concerning the ticket in and of itself. On the same note, the Court does not find the fact that law enforcement did not investigate the purpose of the Plaintiff’s travel, to further his course of study in Arabic language and Islamic law, prior to seeking the warrant to be the basis for finding a lack of probable cause. Certainly it would have been a good practice to have verified these details, but the Court does not find liability on this
ORDER ADOPTING REPORT AND RECOMMENDATION - 7

Motion solely because the agent failed to do so in this case. The telling information upon which this claim turns is the information known to Agent Gneckow that was omitted from the warrant application even though it was clearly relevant and, more importantly, went against a finding of probable cause. Specifically, the fact that the Plaintiff is a United States citizen, had a wife and children living in the United States, he had previously cooperated with law enforcement concerning its investigation, and he had never been told by law enforcement that he could not travel outside of the United States or asked to notify law enforcement prior to any such travel. These facts were known and available to Agent Gneckow and, just as this Court found in its Order on the related Report, it was reckless for these facts to not have been included as they would lead an ordinary reasonable person to not find probable cause to issue an arrest warrant in this case. Knowing those omitted facts, probable cause did not exist and law enforcement was required to pursue further investigation before submitting the warrant application because they did not yet have a basis for finding probable cause. See Ewing v. City of Stockton, 588 F.3d 1218, 1227 (9th Cir. 2009) (stating that once an officer has probable cause, he or she is not required to continue to investigate or seek further corroboration).
To be clear, the Court recognizes it need not conclude that Agent Gneckow acted recklessly in order to grant Plaintiff summary judgment on this claim. The reference in this Order as well as the related Order and both Reports to the finding that Agent Gneckow’s actions were reckless is relevant on this claim because the same actions go to the determination at issue here: whether a reasonable and ordinary person would believe
ORDER ADOPTING REPORT AND RECOMMENDATION - 8

probable cause to issue an arrest warrant for the Plaintiff existed here based on the facts available. In recklessly omitting relevant facts from the warrant application, Agent Gneckow did not act reasonably. Furthermore, as discussed herein and in the Order on the related Report, the involvement of AUSA Lindquist does not cure the errors of law enforcement in this case.
B. Abuse of Process Defendants argue Plaintiff has failed to produce any admissible evidence to proceed on his abuse of process argument. (Dkt. 343 at 10.) In particular, Defendants contend that the Report improperly relied upon conduct by persons not involved with the decision to arrest Plaintiff, the Report’s factual determinations do not support the recommendation, and the Report improperly considered inadmissible evidence. (Dkt. 343 at 10-15.) The Report, the Defendants assert, relies upon the conduct of AUSA Lindquist, not that of Agent Gneckow, to conclude that the claim should proceed to trial. (Dkt. 343 at 6.) Because AUSA Lindquist’s conduct is covered by prosecutorial immunity, Defendants argue, it cannot serve as a basis for proceeding with the claim against Agent Gneckow. Plaintiff counters that the Report correctly denies the Defendants’ Motion because “there is extensive evidence suggesting (and from which a reasonable juror could infer) that plaintiff was arrested for a purpose other than to secure testimony” and, therefore, a question of fact exists that must be determined by a jury. (Dkt. 346 at 6.) This Court has reviewed the record de novo and is in agreement with the Report’s conclusion that genuine issues of material fact exist that preclude entry of summary
ORDER ADOPTING REPORT AND RECOMMENDATION - 9

judgment on this claim. Plaintiff has come forward with evidence, albeit much of it circumstantial, that could lead a jury to find in favor of the Plaintiff on the claim at trial. Defendants question any reliance upon AUSA Lindquist’s conduct and object to not focusing solely upon that of Agent Gneckow in making this determination. Agent Gneckow’s conduct cannot, however, be evaluated in a vacuum blind to any influences that others may have had on Agent Gneckow’s actions related to the arrest warrant. Prosecutorial immunity may protect AUSA Lindquist from liability but it does not obliterate the actions he and other officials took as they may be relevant to Agent Gneckow’s conduct. The Court makes no determination at this stage as to whether and what evidence will be admissible at trial. The ruling here is only that Plaintiff has pointed to sufficient evidence to over come the Motion for Summary Judgment. What happens at trial remains to be seen.
Finally, this Court finds that the Magistrate Judge applied the appropriate legal standard to this claim. (Dkt. 337 at 25.) Under Idaho law, the elements of an abuse of process claim are “(1) an ulterior, improper purpose; and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.” Beco Constr.Co., Inc v. City of Idaho Falls, 865 P.2d 950, 954 (Idaho 1993). Contrary to what Defendants’ argue, Plaintiff need not establish that the improper purpose was the Defendants’ primary purpose. (Dkt. 343 at 13-14.) Abuse of process is a tort action where, in order to recover, the defendant’s conduct must be a proximate cause of the harm, not merely an incidental motive or collateral effect. Such a claim may allege there is one sole cause of the damages
ORDER ADOPTING REPORT AND RECOMMENDATION - 10

or there may be multiple causes of the damages. Where there is alleged to be more than one cause, the jury is instructed that the improper purpose must have been a “substantial factor” in bringing about the damage complained of. See Garcia v. Windley, 164 P.3d 819, 823-25 (Idaho 2007). The abuse of process claim here appears to allege multiple causes for the harm and, therefore, the Defendants’ argument that the improper purpose must be the primary purpose is denied. 3. Probable Cause Defeats False Imprisonment
Defendants challenge the Report’s conclusion that Plaintiff is entitled to summary judgment on the false imprisonment claim because there is no substantive analysis of whether probable cause to arrest actually existed. (Dkt. 343 at 6.) Contending the Report only considered its conclusion that Agent Gneckow acted recklessly by not conducting a sufficient follow-up investigation before seeking the warrant. Defendants argue the Report is in error on this point as the false imprisonment claim turns on whether or not probable cause existed; not on whether Agent Gneckow should have conducted further investigation. In addition, the Defendants maintain that Agent Gneckow’s conduct was not reckless. (Dkt. 343 at 7.) Plaintiff counters that the Magistrate Judge did resolve the probable cause question as the false imprisonment claim and Bivens claims are overlapping. (Dkt. 346 at 3 n. 1.)
“To be liable for false imprisonment in Idaho, a person must unlawfully restrain the physical liberty of another without adequate legal justification or without probable cause.” Clark, 170 P.2d at 428. Probable cause is a complete defense to a false
ORDER ADOPTING REPORT AND RECOMMENDATION - 11

imprisonment claim. See Sprague v. City of Burley, 710 P.2d 566, 574 (Idaho 1985). The probable cause determination is made from an objective standpoint. Julian, 922 P.2d at 1062-1063 (“Because the facts making up a probable cause determination are viewed from an objective standpoint, the officer’s subjective beliefs concerning that determination are not material.”).
Here, both this Court and the Magistrate Judge considered the probable cause question both on these Motions and in the related Order and Report. Both determined that legal probable cause to issue the arrest warrant did not exist based upon the information known to Agent Gneckow at the time the warrant was sought. Further, this Court has clarified that its probable cause determination does not turn solely upon any failure by Agent Gneckow to conduct a further investigation. 4. Constitutionality of the Material Witness Statute
In the event the Court were to grant summary judgment in favor of the Defendants on either claim, the Plaintiff objects and requests that the Court rule on his alternative theory as to the abuse of process argument asserting the material witness statute is unconstitutional as applied to a cooperative witness. (Dkt. 341 at 3.) Defendants oppose this alternative argument on the ground that it is without merit because: 1) the FTCA does not waive the United States’s sovereign immunity from damages for constitutional torts, 2) the Supreme Court has recognized that the material witness statute will invariably lead to the arrest of those who committed no wrongdoing, and 3) no court has ever held that an arrest that satisfies the elements of the material witness statute could be unconstitutional,
ORDER ADOPTING REPORT AND RECOMMENDATION - 12

or even a common law tort. (Dkt. 344.) Because the Court has adopted the Report it does not address the Plaintiff’s alternative theory on the abuse of process claim.
ORDER Having conducted a de novo review of the Report and Recommendation, this Court finds that Magistrate Judge Williams’ Report and Recommendation is well founded in law and consistent with this Court’s own view of the evidence in the record. Acting on the recommendation of Magistrate Judge Williams, and this Court being fully advised in the premises, IT IS HEREBY ORDERED that the Report and Recommendation entered on June 26, 2012 (Dkt. 337), should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety. NOW THEREFORE IT IS HEREBY ORDERED as follows: 1) Plaintiff’s Motion for Summary Judgment Against the United States (Dkt.
308) is GRANTED IN PART AND DENIED IN PART. 2) Defendants’ Motion for Summary Judgment (Dkt. 307) is DENIED.
DATED: September 27, 2012
Honorable Edward J. Lodge U. S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION - 13

 
 CaCsaes:e112:-0355-9c5v7-0001913/-1E9J/L2-0C1W2 D DoIDcu: m84e0n7t 535503 FDilekdtE1n1tr/y1:91/1-42 PPaaggee1: 1ofo1f 3

Molly C. Dwyer Clerk of Court

Office of the Clerk United States Court of Appeals for the Ninth Circuit
Post Office Box 193939 San Francisco, California 94119-3939
415-355-8000
November 19, 2012

No.: D.C. No.: Short Title:

12-35957 1:05-cv-00093-EJL-MHW Abdullah Al-Kidd v. Michael Gneckow, et al

Dear Appellant/Counsel
A copy of your notice of appeal/petition has been received in the Clerk's office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number shown above has been assigned to this case. You must indicate this Court of Appeals docket number whenever you communicate with this court regarding this case.
Please furnish this docket number immediately to the court reporter if you place an order, or have placed an order, for portions of the trial transcripts. The court reporter will need this docket number when communicating with this court.
The due dates for filing the parties' briefs and otherwise perfecting the appeal have been set by the enclosed "Time Schedule Order," pursuant to applicable FRAP rules. These dates can be extended only by court order. Failure of the appellant to comply with the time schedule order will result in automatic dismissal of the appeal. 9th Cir. R. 42-1.

 
 CaCsaes:e112:-0355-9c5v7-0001913/-1E9J/L2-0C1W2 D DoIDcu: m84e0n7t 535504 FDilekdtE1n1tr/y1:91/1-42 PPaaggee1: 2ofo2f 3

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
NOV 19 2012
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ABDULLAH AL-KIDD, Plaintiff - Appellee,
v. UNITED STATES OF AMERICA,
Defendant, and MICHAEL GNECKOW,
Defendant - Appellant.

No. 12-35957
D.C. No. 1:05-cv-00093-EJL-MHW U.S. District Court for Idaho, Boise
TIME SCHEDULE ORDER

The parties shall meet the following time schedule.
If there were reported hearings, the parties shall designate and, if necessary, crossdesignate the transcripts pursuant to 9th Cir. R. 10-3.1. If there were no reported hearings, the transcript deadlines do not apply.

Mon., November 26, 2012

Mediation Questionnaire due. If your registration for Appellate ECF is confirmed after this date, the Mediation Questionnaire is due within one day of receiving the email from PACER confirming your registration.

Wed., December 19, 2012 Transcript shall be ordered.

Fri., January 18, 2013 Transcript shall be filed by court reporter.

CaCsaes:e112:-0355-9c5v7-0001913/-1E9J/L2-0C1W2 D DoIDcu: m84e0n7t 535504 FDilekdtE1n1tr/y1:91/1-42 PPaaggee2: 3ofo2f 3

Wed., February 27, 2013 Fri., March 29, 2013

Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1.
Appellee's answering brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1.

The optional appellant's reply brief shall be filed and served within fourteen days of service of the appellee's brief, pursuant to FRAP 32 and 9th Cir. R. 32-1.

Failure of the appellant to comply with the Time Schedule Order will result in automatic dismissal of the appeal. See 9th Cir. R. 42-1.

FOR THE COURT: Molly C. Dwyer Clerk of Court

Gerald Rosen Deputy Clerk

 
 Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)

KeyCite Red Flag - Severe Negative Treatment Reversed by Al-Kidd v. Ashcroft, 9th Cir., August 3, 2011
2006 WL 5429570 Only the Westlaw citation is currently available.
United States District Court, D. Idaho.
Abdullah AL–KIDD, Plaintiff, v.
Alberto GONZALES, Attorney General of the United States; et al., Defendants.
No. CV:05–093–S–EJL. | Sept. 27, 2006.
Attorneys and Law Firms
Cynthia Jane Woolley, Law Offices of Cynthia J. Woolley PLLC, Ketchum, ID, Kathleen J. Elliott, Teresa A. Hampton, Hampton & Elliott, Boise, ID, Lee Gelernt, American Civil Liberties Union Foundation, New York, NY, Michael J. Wishnie, ACLU Cooperating Attorney, New Haven, CT, R. Keith Roark, Roark Law Firm, Hailey, ID, Robin L. Goldfaden, ACLU Immigrants’ Rights Project, San Francisco, CA, for Plaintiff.
J. Marcus Meeks, Civil Division, Torts Branch, Brant S. Levine, United States Department of Justice, Washington, DC, Sherry A. Morgan, Lorna K. Jorgensen, ADA County Prosecutor’s Office, Civil Division, Boise, ID, for Defendants.
Opinion

Factual and Procedural Background
On March 16, 2003 Mr. al-Kidd was handcuffed and arrested pursuant to a material witness warrant at the ticket counter of the Dulles International Airport while he was checking in for his flight to Saudi Arabia. He was taken to various different detention centers and eventually transported back to Idaho where, on March 31, 2003, he was released pursuant to certain terms and conditions which precluded him from leaving a four-state area of the United States. Mr. al-Kidd remained subject to these restrictions until June of 2004 when the trial of United States v. Sami Omar Al–Hussayen was completed, the trial in which Mr. al-Kidd was named as a material witness. The claims raised in the complaint here relate to the circumstances surrounding Mr. al-Kidd’s arrest, detention, and treatment. The complaint alleges violations of the material witness statute and bail reform act, violations of the Fourth and Fifth Amendments, § 1983 claims, and claims under the Federal Tort Claims Act. The Defendants relevant to this motion are the individually named Defendants (collectively referred to as “the individual Defendants”): Federal Bureau of Investigation Special Agents Scott Mace and James Gneckow, former Attorney General of the United States John Ashcroft, and former Warden of the Oklahoma Federal Transfer Center Dennis M. Callahan. Mr. al-Kidd seeks civil damages from these individuals under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

MEMORANDUM ORDER
EDWARD J. LODGE, District Judge.
*1 Pending before the Court in the above entitled matter are a motion to dismiss filed by the individually named Defendants and Plaintiff’s motion to substitute. The parties have filed their responsive briefing and the matters are now ripe for the Court’s review. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument. Local Rule 7.1.

Standard of Review
I. Rule 12(b)(2)—Lack of Personal Jurisdiction: Motions to dismiss for lack of personal jurisdiction are raised pursuant to Federal Rule of Civil Procedure 12(b)(2). Because this motion is resolved without a hearing, the plaintiff need only make out a prima facie case to withstand a motion to dismiss for lack of personal jurisdiction. See Data Disc, Inc. v. System Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir.1977). This requires that the plaintiff demonstrate facts that, if taken as true, would support exercising jurisdiction over the Defendants. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir.2001). “Although the plaintiff cannot ‘simply rest on the bare allegations of its complaint,’ uncontroverted allegations in the complaint must be taken as true.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (citations omitted). Factual conflicts between the parties contained in their affidavits are resolved in the plaintiff’s
1

Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)
favor. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996).
II. Rule 12(b)(6)—Failure to State a Claim: *2 In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit P’ship v. Turner Broad. Sys ., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). However, the court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in plaintiff’s complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir.1994). There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation omitted). “ ‘The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence in support of the claims.’ “ Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Consequently, the court should not grant a motion to dismiss “for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80, (1957); see also Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995). A claim is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, even if the complaint asserts the wrong legal theory or asks for improper relief. See United States v. Howell, 318 F.2d 162, 166 (9th Cir.1963).
Discussion
I. Claims as to Defendant Ashcroft: The Defendant argues the claims against Mr. Ashcroft should be dismissed because this Court is without personal jurisdiction over him and he is entitled to absolute and qualified immunity on all claims against him.
A. Personal Jurisdiction: Mr. al-Kidd argues that personal jurisdiction exists over Mr. Ashcroft because following the September 11, 2001 terrorist attacks he created a national policy to improperly seek material witness warrants, oversaw the execution of such warrants, and failed to correct the constitutional

violations of conducting such actions. In sum, Mr. al-Kidd contends that Mr. Ashcroft’s actions in adopting a policy which results in the depravation of his constitutional rights is sufficient to overcome the motion to dismiss or, at least, allow for further discovery into the claims against Mr. Ashcroft. Mr. Ashcroft asserts these actions cannot form the basis for personal jurisdiction and that there are no facts alleged that Mr. Ashcroft had any personal involvement in the decision to arrest or detain Mr. al-Kidd.
Personal jurisdiction is required before a court may decide a case in controversy. U.S. CONST. amend. XIV. Where a defendant makes a motion to dismiss for lack of personal jurisdiction, the plaintiff has the burden to demonstrate that jurisdiction is appropriate. Schwarzenegger, 374 F.3d at 800. In a Rule 12(b)(2) motion, the Court may consider affidavits and other documents not mentioned in the complaint to make the personal jurisdiction determination. National Union Fire Ins. Co. v. Aerohawk Aviation, Inc., 259 F.Supp.2d 1096, 1101 (D.Idaho 2003). Where a motion is based only on written materials, “the plaintiff need only make a prima facie showing of jurisdictional facts.” Schwarzenegger, 374 F.3d at 800. During review, uncontroverted allegations in the complaint must be taken as true and conflicts between the parties must be resolved in favor of the plaintiff. Id .
*3 Because there is no applicable federal statute governing personal jurisdiction, this Court applies the law of the state in which it sits, in this case Idaho. Id. To properly exercise personal jurisdiction over Mr. Ashcroft pursuant to Idaho’s long-arm statute, Mr. Ashcroft must meet the requirements of the long-arm statute and the exercise of personal jurisdiction must comply with due process. See State of Idaho v. M.A. Hanna Co., 819 F.Supp. 1464 (D.Idaho 1993). The Ninth Circuit has recognized that when the Idaho Legislature adopted the long-arm statute it intended to exercise all of the jurisdiction available under the Due Process Clause of the United States Constitution. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir.1987), see also Houghland Farms, Inc. v. Johnson, 803 F.2d 978, 981 (Idaho 1990). Thus, the state and federal limits are co-extensive and an independent review of whether jurisdiction exists under the long-arm clause is unnecessary. See Data Disc, 557 F.2d at 1286.
There are two forms of personal jurisdiction: general and specific. Lake, 817 F.2d at 1420. If the defendant has “continuous and systematic” or “substantial” activities within the forum state, that state has general jurisdiction over the defendant. Id. Specific jurisdiction over the defendant is based on the quality and nature of the defendant’s contacts with the forum state. Id. at 1421. Neither party alleges that this Court has general jurisdiction over Mr. Ashcroft, so the Court will determine whether it has specific personal jurisdiction
2

Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)

over him.
To show that the defendant has sufficient contacts with the forum state to meet the specific personal jurisdiction requirements, the plaintiff must show that (1) the defendant purposefully availed himself of the privileges of the forum state, which invoked the benefits and protections of its laws; (2) the claims arose out of the defendant’s forum-state related activities; and (3) the exercise of jurisdiction would be reasonable. Ziegler v. Indian River Co., 64 F.3d 470, 473 (9th Cir.1995).
There is no respondeat superior liability in either a § 1983 or a Bivens action; thus, to hold a supervisory official liable the plaintiff must show one or more of the following are met:

(1) actual direct participation in the

constitutional violation, (2) failure

to remedy a wrong after being

informed through a report or

appeal, (3) creation of a policy or

custom that sanctioned conduct

amounting to a constitutional

violation, or allowing such a policy

or custom to continue, (4) grossly

negligent

supervision

of

subordinates who committed a

violation, or (5) failure to act on

information indicating that

unconstitutional acts were

occurring.

Elmaghraby v. Ashcroft, et. al, No. 04–CV–1409–JG–SMG, 2005 WL 2375202 *14 (E.D.N.Y.) (quoting Richardson v. Goord, 347 F.3d 431, 435 (2nd Cir.2003)). Because “[p]ersonal jurisdiction cannot be based solely on a defendant’s supervisory position,” it must instead be shown that “defendant ‘personally took part in the activities giving rise to the action at issue.’ “ Ontel Prods. Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1148 (S.D.N.Y.1995). Where the complaint fails to sufficiently allege a defendant’s involvement in any of the alleged violations of plaintiff’s rights, a motion to dismiss should be granted. Where, however, such involvement is alleged but discovery is necessary to ascertain the extent of that involvement, the jurisdiction question overlaps with the merits of the claims and the motion to dismiss should be denied so as to allow discovery to go forward to resolve the question. See Crawford–El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1989); see also Data Disc, 557 F.2d at 1285 (stating where “the jurisdictional facts are enmeshed with the merits, ... [the Plaintiff need only] establish a prima facie showing of jurisdictional facts with affidavits and perhaps discovery materials”). What is required on a motion to dismiss is that the complaint

provide the defendant with “fair notice of what the plaintiff’s claim is and the grounds upon which it rests” as required by Federal Rule of Civil Procedure 8(a). See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citation omitted).
*4 The complaint here is replete with general allegations regarding the Department of Justice policies following September 11, 2001 including that the Department of Justice adopted a new policy and practice after September 11, 2001 which used the material witness statute as “a pretext to arrest and hold individuals whom the government lacked probable cause to charge with a crime but nonetheless wished to detain preventively and/or investigate for possible criminal wrongdoing....” (Dkt. No. 40). The complaint goes on to allege that as a result of this new practice individuals were held for “unreasonably prolonged” periods of time as material witnesses and routinely detained in high-security detention conditions as “terrorism suspects, rather than true witnesses.” (Dkt. No. 40). These generalized and conclusory allegations alone are insufficient to invoke personal jurisdiction over any of the named Defendants in this action. They do, however, lend weight to the complaint’s allegations that Mr. Ashcroft knew or should have known of the alleged violations given the level of publicity coverage over the allegations that the Department of Justice was using the material witness statute in an unlawful and abusive manner. (Dkt. No. 40, ¶ 136–41).
The complaint asserts Mr. Ashcroft, as the head of the Department of Justice, was the “principal architect of, authorized and set into motion, these policies and practices regarding the material witness statute, and had responsibility for their implementation and administration” and that Mr. Ashcroft knew or should have known of the “unlawful, excessive, and punitive manner in which the federal material witness statute was being used” and should have foreseen the resulting constitutional violations and failed to act to correct such violations. (Dkt. No. 40, ¶ 136–141).
These allegations against Mr. Ashcroft are sufficient to withstand the motion to dismiss based on a lack of personal jurisdiction. While a superior cannot be held liable simply by virtue of his position, where a plaintiff alleges sufficient facts to state a claim that the defendant was personally involved in the alleged violations and/or knew or should have known of the violations and failed to correct the conduct the superior may be liable. See Hydrick v. Hunter, 449 F.3d 978, 991 (9th Cir.2006) (recognizing “a supervisor is liable for the constitutional violations of subordinates ‘if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.’ ”) (citation omitted). The allegations in the complaint in this case are based on more than Mr. Ashcroft’s supervisory status, as the Defendant
3

Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)
argues. Here the claims against Mr. Ashcroft contend that he spear-headed the post-September 11, 2001 practice of the Department of Justice to use the material witness statute to detain individuals whom they sought to investigate but had not charged with a crime. Additionally, that Mr. Ashcroft either knew or should have known the violations were occurring and did not act to correct the violations. Further, the complaint alleges Mr. Ashcroft knew or should have known of the constitutional violations to witnesses held pursuant to the unlawful policy, including Mr. al-Kidd. As such, the complaint has alleged facts which, if true, would subject Mr. Ashcroft to jurisdiction in this District and have stated a claim upon which relief could be granted. These allegations are sufficient to withstand the motion to dismiss. See Elmaghraby v. Ashcroft, No. 04–CV–1409–JG–SMG, 2005 WL 2375202 *10 (E.D.N.Y.2005).
B. Absolute Immunity: *5 Mr. Ashcroft argues that he enjoys absolute immunity against these claims arguing the prosecutorial immunity doctrine applies. Such immunity, he argues, exists here because the complaint’s allegations fail to state a claim as they improperly focus on the Defendant’s motives in seeking the warrant when the proper inquiry for the claims turns on the nature or function of the Defendant’s activity, not the intent or motive. Prosecutors are absolutely immune from civil liability for their conduct insofar as it is “intimately associated” with the judicial phase of the criminal process. Botello v. Gammick, 413 F.3d 971, 975–76 (9th Cir.2005) (quoting Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)) (citations omitted). The Ninth Circuit has recently detailed the immunity afforded to prosecutors in the context of § 1983 actions:
A prosecutor is protected by absolute immunity from liability for damages under § 1983 “when performing the traditional functions of an advocate.” Kalina v. Fletcher, 522 U.S. 118, 131, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). However, “the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Prosecutorial immunity depends on “the nature of the function performed, not the identity of the actor who performed it.” Kalina, 522 U.S. at 127 (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Prosecutors are entitled to qualified immunity, rather than absolute immunity, when they perform administrative functions, or “investigative functions normally performed by a detective or police officer.” Id. at 126; see also Burns v. Reed, 500 U.S. 478, 494–96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir.2005); see also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (recognizing that Bivens cases employ the same standard as that used in § 1983 cases). Mr. al-Kidd argues that the nature and function of Mr. Ashcroft’s actions were not prosecutorial but investigative and, at best are only afforded qualified immunity. Mr. Ashcroft maintains that any involvement on his part was as a prosecutor.
Although the line between the functions is not entirely clear, it is clear that absolute prosecutorial immunity is justified “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.” Botello, 413 F.3d at 975–76 (quoting Burns, 500 U.S. at 494). “On the one hand, it is well established that a prosecutor has absolute immunity for the decision to prosecute a particular case, and for the decision not to prosecute a particular case or group of cases.” Id. In addition, a prosecutor’s professional evaluation of a witness is entitled to absolute immunity “even if that judgment is harsh, unfair or clouded by personal animus.” Id.; see also Genzler, 410 F.3d at 636–38 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (“The Supreme Court rejected the idea that prosecutors are only entitled to qualified immunity when they are engaged in investigation” stating in Buckley, that “ ‘evaluating evidence and interviewing witnesses’ in preparation for trial is advocacy even though such pretrial activities may be ‘investigatory’ in nature.”).
*6 However, “prosecutors are not entitled to absolute immunity for advising police officers during the investigative phase of a criminal case, performing acts which are generally considered functions of the police, acting prior to having probable cause to arrest, or making statements to the public concerning criminal proceedings.” Botello, 413 F.3d at 976–77 (citations omitted). “A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274. “[A] determination of probable cause does not guarantee a prosecutor absolute immunity for liability for all actions taken afterwards. Even after that determination ... a prosecutor may engage in ‘police investigative work’ that is entitled to only qualified immunity.” Id. at 274 n. 5.
“The question is whether a prosecutor’s investigation is of the type normally done by police, in which case prosecutors enjoy only qualified immunity, or whether an investigation is bound up with the judicial process, thus affording prosecutors the heightened protection of absolute immunity.” Genzler, 410 F.3 d at 636–38. To determine whether an action is judicial, administrative or investigative, the court looks at “the nature of the function performed, not the identity of the actor who performed it.” Botello, 413 F.3d at 975–76 (quoting Kalina v.
4

Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)
Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)) (citation omitted). Thus, whether a prosecutor benefits from absolute or qualified immunity depends on which of the prosecutor’s actions are challenged. Id. The official seeking absolute immunity bears the burden of demonstrating that absolute immunity is justified for the function in question. Id. (citing Buckley, supra ). The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the course of their duties. Id. (citing Burns, supra).
The particular function which Mr. al-Kidd alleges was taken by Mr. Ashcroft resulting in the constitutional violations was the development and implementation of a new policy and practice for use of the material witness statute as an investigative tool to detain and/or investigate for possible criminal wrongdoing or to otherwise hold certain individuals preventively where the Government lacked probable cause. The allegations are that Mr. Ashcroft “directed and oversaw an investigative law enforcement policy and that he used the material witness statute to preventively detain and investigate suspects.” (Dkt. No. 63, p. 30). As a result of this policy, Mr. al-Kidd alleges his constitutional rights were violated and Mr. Ashcroft knew, should have known, or acted with reckless disregard and deliberate indifference in failing to correct the policy. As this new policy applies to Mr. al-Kidd’s case, he points to various Government reports and the testimony of Director Mueller’s testimony before Congress.
*7 The allegations here relate to Mr. Ashcroft’s actions which fall within the investigation realm of the type normally done by police. The development and practice of using the material witness statute to detain individuals while investigating possible criminal activity qualifies as police type investigative activity, not prosecutorial advocacy. Accordingly, Mr. Ashcroft is not entitled to absolute immunity but may be entitled to qualified immunity, which is discussed below.
II. Qualified Immunity: Government officials enjoy qualified immunity when performing discretionary functions such that they are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The test for evaluating a qualified immunity claim is to first “determine whether the plaintiff has shown that the action complained of constituted a violation of his or her constitutional rights. If the court is satisfied that a constitutional violation occurred at the hands of a government official, the second step is to determine: (1) whether the violated right was clearly established and (2)

whether a reasonable public official could have believed that the particular conduct at issue was lawful. As such, the process of determining qualified immunity is an examination of the ‘objective legal reasonableness’ of a government official’s conduct.” Id. at 818.
A. Defendants Mace and Gneckow: The claims against Defendants Mace and Gneckow are primarily related to their involvement in obtaining the material witness warrant. Agent Mace prepared and signed the affidavit supporting the warrant application and Agent Gneckow provided the information to Agent Mace upon which the application and affidavit were based.1 The motion to dismiss asserts Defendants Mace and Gneckow are entitled to qualified immunity because the arrest warrant was supported by probable cause, or at least “arguable” probable cause, as required by 18 U.S.C. § 3144. Mr. al-Kidd alleges the complaint properly states a claim against agents Mace and Gneckow because probable cause for the issuance of the warrant did not exist; raising arguments involving the Franks and Malley tests arguing the statements made in the affidavit were deliberately false and contained material omissions.
Mr. al-Kidd further asserts that the probable cause requirements for issuance of a material witness warrant are a different inquiry than that for an arrest warrant for a criminal suspect. In support of this argument, Mr. al-Kidd relies upon Bacon v. United States, 449 F.2d 933 (9th Cir.1971). In that case, Bacon was arrested under a material witness arrest warrant in order to secure her testimony before a grand jury. Mr. al-Kidd relies on dicta in the opinion where the court, after finding the affidavit submitted in support of the arrest warrant failed to show that Bacon was likely to flee, distinguished the case from the situation where a witness was served with a subpoena. The service of a subpoena, the court noted, would have given Bacon an opportunity, as afforded to most witnesses, to voluntarily comply with the subpoena before being arrested and/or detained. The court concluded that the denial of that opportunity was not warranted on the facts in Bacon’s case. Id. at 945. This language and reasoning does not, as Mr. al-Kidd contends, stand for the proposition that all potential witnesses must be given to an opportunity to appear to testify prior to a material witness arrest warrant being sought and executed. What is required for the issuance of a material witness arrest warrant is that “the judicial officer must have probable cause to believe (1) ‘that the testimony of a person is material’ and (2) ‘that it may become impracticable to secure his [or her] presence by subpoena.’ ” Id. at 943 (quoting 18 U.S.C. § 3149). Here, the Government asserts that probable cause was shown on both prongs of the test and, therefore, the individual Defendants are entitled to qualified immunity.
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Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)
*8 As to the materiality question the Government states that the “warrant application presented evidence that plaintiff was involved in business activities that served as the basis for the underlying prosecution of Sami Omar Al–Hussayen” and “[o]n that basis, Judge Williams correctly concluded that there was probable cause to believe that plaintiff’s testimony could be material.” (Dkt. No. 71, p. 7 n. 4). Further, the Government points out that “ ‘a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy’ the materiality criterion.” Bacon, 449 F.2d 943 (distinguishing between the first prong and the second prong concluding that the second prong requires more than mere assertions). As to the second prong, the Government maintains that the impracticability requirement is analyzed consistent with the case law addressing whether an individual is a flight risk and that the Court should look at the totality of the circumstances in making the determination. (Dkt. No. 71, p. 9). Applying this standard, the Government argues Mr. al-Kidd was a flight risk as he was business associate and potential witness in the trial of Mr. Al–Hussayen which involved terrorism related charges; he was scheduled to travel to Saudi Arabia where there is no extradition treaty with the United States after Mr. Al–Hussayen’s indictment and arrest; it appeared that Mr. al-Kidd had the resources, connections, and skills necessary to remain abroad for an extensive period of time and avoid apprehension; he did not report his travel plans to law enforcement nor offer to return for trial or provide any contact information. (Dkt. No. 71, p. 12). The Government also contends Mr. al-Kidd should have consulted with law enforcement regarding his travel plans before leaving because he was aware of the investigation and indictment of Mr. Al–Hussayen and that he was a potential witness in the case. (Dkt. No. 71, p. 12 n. 10).
On the other hand, Mr. al-Kidd argues probable cause was not shown in the warrant affidavit as to either prong of the test. In addition, Mr. al-Kidd asserts that the affidavit contained false statements and omissions which were misleading to the magistrate judge’s determination of whether to issue the warrant. In particular, he notes that the affidavit omitted the fact that he was a native-born United States citizen with family ties to the United States, had cooperated with the FBI previously, was not informed that he could not travel or that he needed to inform the FBI of his travel plans, and was not asked to testify or make himself available to testify prior to the Government seeking a warrant.2 The affidavit also, he contends, falsely represented that he had a one-way first class ticket costing $5,000 to Saudi Arabia when he actually had a round-trip coach ticket costing $1,700.
The question before the Court on this motion is the limited question of whether or not the complaint states a cause of action upon which relief can be granted. To establish a prima facie case under 42 U.S.C. § 1983,

Plaintiffs “must adduce proof of two elements: (1) the action occurred ‘under color of law’ and (2) the action resulted in a deprivation of a constitutional right or a federal statutory right.” Souders v. Lucero, 196 F.3d 1040, 1043 (9th Cir.1999) (citation omitted); see also Wilson, 526 U.S. at 609 (recognizing that Bivens cases employ the same standard as that used in § 1983 cases). “In order to state a claim under § 1983 for statements in an affidavit to procure a warrant, a plaintiff must show that the investigator made deliberately false statements or recklessly disregarded the truth in the affidavit and that the fabrications were material to the finding of probable cause .” Gailbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002) (citations and quotations omitted). The threshold inquiry is “whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
*9 Taking the allegations as true, as the Court must on this motion, the Court concludes that the complaint adequately states causes of action upon which relief can be granted. The parties both raise arguments as to the question of whether probable cause existed for the issuance of the material witness arrest warrant in this case.3 Generally, police officers are entitled to qualified immunity if a reasonable officer in his or her position would have an arguable basis to believe probable cause existed to arrest or to seek an arrest warrant “in light of clearly established law and the information the [arresting] officers possessed.’ ” Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1294 (9th Cir.1999) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citation omitted).
Mr. al-Kidd’s allegations are that probable cause was not shown in the warrant application and, therefore, his constitutional rights were violated. Mr. al-Kidd asserts that in seeking the warrant the officers made material omissions and misstatements upon which the magistrate judge relied in determining probable cause existed and granting the request for a warrant. The Defendants have challenged these allegations and have asserted their own affirmative defenses to the claims. The Defendants’ arguments dispute the factual allegations in the complaint and ask the Court to weigh the facts going to the probable cause determination contrary to the facts alleged in the complaint. This is not the appropriate inquiry on this motion. The question of whether qualified immunity applies to the officers in this case can not be resolved on a motion to dismiss for failure to state claim in light of requirement to assume the truth of facts as plead. Morley v. Walker, 175 F.3d 756, 760 (9th Cir.1999). While true that “arguable probable cause” could entitle the officers to the qualified immunity defense, Hunter, 502 U.S. at 227, Mr. al-Kidd’s factual allegations here regarding the officers’ misrepresentations and omissions in the warrant application, if true, would negate the possibility of
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Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)
qualified immunity regardless of the probable cause finding and, therefore, the complaint survives the motion to dismiss. See Morley, 175 F.3d at 761; see also Mendocino Environmental Center, 192 F.3d at 1294 n. 18 (“The issue is not whether the contents of the affidavits, if true, were adequate to provide probable cause. Rather, here, the [plaintiff’s] contention is that the [defendants] obtained the warrants by misrepresenting the facts in the affidavits .”). The Court also notes that many of the cases cited by the Defendants to support their arguments involved motions for summary judgment which apply a different standard. Because the facts alleged in the complaint state causes of action upon which relief can be granted, the Court will deny the motion to dismiss.
B. Defendant Ashcroft: Mr. Ashcroft also asserts that qualified immunity precludes any liability against him because there are no factual allegations that he was personally involved in any decisions relating to Mr. al-Kidd’s arrest, detention, and conditions of confinement or even aware of such conditions or detention. Defendant argues the vague and conclusory allegations in the complaint allege nothing more than a claim against Mr. Ashcroft based upon his supervisory status but not upon his actual personal involvement. The Court finds the allegations in the complaint, if true, are sufficient on this motion to raise a claim for relief against Mr. Ashcroft as to his involvement in the constitutional violations allegedly incurred by Mr. al-Kidd. As decided above in the personal jurisdiction section, the allegations against Mr. Ashcroft involve more than vicarious liability but assert claims involving Mr. Ashcroft’s own knowledge and actions related to Mr. al-Kidd’s alleged constitutional deprivations. Whether these allegations can be substantiated is a question to be decided later.
III. Claims as to Defendant Callahan: *10 Mr. Callahan argues dismissal of all claims against him is warranted as he did not become the warden of the Oklahoma Federal Transfer Center until after Mr. al-Kidd was released. In response, Mr. al-Kidd has conceded that Mr. Callahan should be dismissed and filed a motion to substitute John Sugrue, the Warden of the Oklahoma Federal Transfer Center at the time of Mr. al-Kidd’s detention. (Dkt. No. 58). Accordingly the Court will dismiss Mr. Callahan as a party in this action.
As to the motion to substitute Mr. Sugrue in this case, the Defendants have filed an opposition to the motion arguing the motion is untimely, fails to meet the precepts of Rule 15(c), and because the Court lacks personal jurisdiction over Mr. Sugrue and the claims are without merit. Mr. al-Kidd disagrees and maintains the substitution should be

allowed and his claims should relate back to the time of the filing of the complaint pursuant to Federal Rule of Civil Procedure 15(c)(3).
The Government argues the requirements for service and notice of Rule 15(c)(3) are not met here because they do not allow for notice by way of service upon the United States in the case of claims raised against a person in their individual capacity. Mr. al-Kidd maintains that Rule 15(c)(3) allows for relation-back of claims against government defendants sued individually. Rule 15(c) states:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The delivery or mailing of process to the United States Attorney, or United States Attorney’s designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.
Four factors generally guide a court’s determination regarding whether to allow an amendment to a pleading: undue delay, bad faith, prejudice to the opposing party, and futility of amendment. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir.1997). Amendments to the complaint are allowed in cases where “the previously unknown defendants were identified only after the statute of limitations had run.” Blackhawk v. City of Chubbuck, No. 04–CV–629–E–BLW, 2005 WL 3244406 *1 (D.Idaho Nov.21, 2005) (citations omitted).
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Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)

*11 Here, Mr. Callahan was named in his individual capacity as warden of the Oklahoma Federal Transfer Center at the time Mr. al-Kidd was held there. Upon discovering that Mr. Sugrue was actually the warden at the time applicable here, Mr. al-Kidd has sought to amend the complaint to name the appropriate individual. This was clearly a mistake on the part of Mr. al-Kidd caused by the fact that he was wrongly informed at the time of the filing of the initial complaint. Further, it appears the Defendants “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Fed.R.Civ.P. 15(c)(3)(B); see also Blackhawk v. City of Chubbuck, No. 04–CV–629–E–BLW, 2005 WL 3244406 *1 (D.Idaho Nov.21, 2005) (“In the Ninth Circuit, the mistake requirement is construed more liberally than in other circuits.”). Therefore, the question on this motion turns on whether the notice requirements of Rule 15(c)(3) are met.
Here, Mr. al-Kidd argues the notice was timely made by service of the complaint upon the United States, that the requested amendment will not prejudice the defense, and that the Government knew or should have known that but for the mistake the action would have been brought against the proper party. The Government disputes that the notice requirements were met. “The Ninth Circuit recognizes the ‘imputed notice’/ ‘community of interest’ theory which, for the purpose of applying relation back, allows courts to infer notice when the party actually notified and the party assumedly notified ‘are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.’ “ Blackhawk v. City of Chubbuck, No. 04–CV–629–E–BLW, 2005 WL 3244406 * 1 (D.Idaho Nov.21, 2005) (citing G.F. Co. v. Pan Ocean Shipping, 23 F.3d 1498, 1503 (9th Cir.1994) (quoting 6A Charles Miller, et al., Federal Practice and Procedure § 1499 at 146 (2d ed.1990)). The Court finds the notice requirement here is satisfied. “Informal notice is sufficient if it allows the defendant the opportunity to prepare a defense.” Abels v. JBC Legal Group, P.C ., 229 F.R.D. 152, 157 (N.D.Cal. Jun.23, 2005) (citing Craig v. United States, 479 F.2d 35, 36 (9th Cir.1973)). The Government was properly served with the initial complaint in this matter, the claims against Mr. Sugrue remain the same as those raised against Mr. Callahan, the attorney’s representing Mr. Sugrue remain the same, and the Government’s response to the motion itself demonstrates that Mr. Sugrue will not be prejudiced and

is able to present a defense to the charges. Accordingly, the Court will grant the motion to substitute Mr. Sugrue for Mr. Callahan. The amendments shall relate back to the date of the filing of the original complaint.
The Government also alleges that the proposed amendment should be denied as it is frivolous because the Court lacks jurisdiction over Mr. Sugrue and/or because Bivens actions do not allow for vicarious liability. Mr. al-Kidd opposes both claims. Though the Court recognizes that “[f]utility of amendment can, by itself, justify the denial of a motion for leave to amend,” the question of whether or not Mr. Sugrue is subject to personal jurisdiction and/or whether the complaint states a cause of action upon which relief can be granted are issues not yet fully briefed by the parties. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). In response to the Government’s motion to dismiss, Mr. al-Kidd conceded the error in naming Mr. Callahan and filed the instant request to substitute parties. Accordingly neither party completed the briefing on these questions on the motion to dismiss or as the arguments apply to this Defendant. Therefore, the Court will allow Mr. Sugrue leave to file a motion to dismiss on or before October 30, 2006. The parties shall file their responsive briefing accordingly and the Court will render its decision in due course.
ORDER
*12 Based on the foregoing and being fully advised in the premises, the Court HEREBY ORDERS as follows:
1) The Motion to Substitute Party (Dkt. No. 58) is GRANTED. The Clerk of the Court is directed to DISMISS Defendant Dennis Callahan from the action and SUBSTITUTE Defendant John Sugrue, Former Warden, Oklahoma Federal Transfer Center, in the place of Defendant Dennis Callahan.
2) The Motions to Dismiss (Dkt.Nos.47, 55) are DENIED.
3) The Government is granted leave to file a motion to dismiss as to Defendant Sugrue on or before October 30, 2006.
	  

Footnotes

1

The three paragraphs of the affidavit (Dkt. No. 40, pp. 50–51) most applicable here state:

6) On February 13, 2003, an Indictment was filed ... alleging ... False Statement to the United States; and ... Visa Fraud.

During the course of that investigation, information was developed regarding the involvement of Abdullah Al–Kidd with

[Sami Omar Al–Hussayen]. That information includes that from March 2000 to November 2001, an individual identified as

8

Al-Kidd v. Gonzales, Not Reported in F.Supp.2d (2006)

[Mr. al-Kidd], and/or his spouse, Nadine Zegura, received payments from Sami Omar Al–Hussayen and his associates in excess of $20,000.00. Al–Kidd traveled to Sana‘a, Yemen, in August 2001 and remained there until April 2002, when he returned to the United States. Upon his return to the United States, Al–Kidd traveled to Moscow, Idaho, and met with Al–Hussayen’s associates. While in Moscow, Al–Kidd emptied a storage facility which contained personal items belonging to him. Among those personal items were documents Al–Kidd left behind, which included a conference program for the second annual IANA conference in Dearborn, Michigan, in December 1994; a hotel receipt from Sacramento, California, dated 4/26/2001, in the name of Abdullah Al–Kidd, listing his company name as “Al–Multaqa;” and telephone numbers for IANA (734–528–0006) and Basem Khafagi (734–481–1930). Khafagi is a former Director of IANA and former University of Idaho student (graduated in 1988) who was recently arrested in New York. 7) Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia. 8) Due to Al–Kidd’s demonstrated involvement with the defendant, Sami Omar Al–Hussayen, he is believed to be in possession of information germane to this matter which will be crucial to the prosecution. It is believed that if Al–Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.

2

Specifically, Mr. al-Kidd notes the following omissions and false statements:

1) failing to state Mr. al-Kidd and Mr. Al–Hussayen worked together for the same charitable Islamic organization and that Mr.

Al–Hussayen was responsible for paying Mr. al-Kidd’s salary; thus the $20,000 he received was his salary for work

performed over a significant period of time. (Dkt. No. 40, ¶ 60).

2) failing to state that Mr. al-Kidd was a native-born United States citizen with substantial ties to the United States, including

his native-born United States citizen mother, father, sibling, wife, and child. (Dkt. No. 40, ¶¶ 15, 39, 40).

3) failing to state that Mr. al-Kidd had previously cooperated and talked with the FBI, voluntarily answering questions and

appearing at all pre-arranged meetings. (Dkt. No. 40, ¶¶ 15, 54).

4) failing to state that the FBI had not contacted Mr. al-Kidd for six months at the time of the application and the FBI had not

told him he might be needed as a witness, could not travel abroad, or that he needed to inform the FBI of such travel. (Dkt.

No. 40, ¶¶ 15, 54).

5) failing to state that the FBI had not sought Mr. al-Kidd’s voluntary cooperation, agreement to testify, or willingness to

remain in the United States to be available to testify prior to seeking the warrant.

6) falsely stating the facts related to his air travel as being a one-way, first-class ticket costing approximately $5,000 when the

ticket was a round-trip coach ticket costing approximately $1,700. (Dkt. No. 40, ¶¶ 14, 53).

3

The Government states in its reply that Mr. al-Kidd has not challenged the materiality requirement of 18 U.S.C. § 3144 (Dkt. No.

71, p. 7), however, in his response brief Mr. al-Kidd does contend that probable cause did not exist as to the materiality question.

(Dkt. No. 63, p. 17).

	  

9

 
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ABDULLAH AL-KIDD, Plaintiff,
v. ALBERTO GONZALES, Attorney General of the United States; et al.,
Defendants.

Case No. 1:05-cv-00093-EJL-MHW
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
INDIVIDUAL DEFENDANTS MICHAEL GNECKOW AND SCOTT MACE

INTRODUCTION Before the Court are two cross-motions for summary judgment filed by Plaintiff Abdullah al-Kidd and two Federal Bureau of Investigation agents, Defendants Michael Gneckow and Scott Mace. (Dkt. Nos. 307, 308, 310.) The motions are the last chapter of Plaintiff Abdullah al-Kidd’s (“al-Kidd”) complaint stemming from his allegations that he was unlawfully arrested and held as a material witness in the case of United States v.
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Sami Omar al-Hussayen, Case No. 3:03-cr-00048-EJL, then pending in the United States District Court for the District of Idaho.
At the time of his arrest on March 16, 2003, al-Kidd, a United States citizen who converted to Islam while studying at the University of Idaho, was about to board a flight leaving from Dulles Airport in Virginia bound for Saudi Arabia, where he was going to continue his religious studies at Umm al-Qora University. Al-Kidd was arrested on a material witness warrant issued by this Court1 based upon an affidavit presented by agents of the Federal Bureau of Investigation (“FBI”) on the grounds that al-Kidd’s testimony was necessary to the prosecution of the al-Hussayen case, and he was about to leave the United States on the eve of trial. Individual defendants Michael Gneckow and Scott Mace (“Agent Mace” and “Agent Gneckow”) are the agents who sought and presented the application for the material witness warrant.2
Defendants Gneckow and Mace assert they are entitled to qualified immunity for their actions in pursuing the warrant, contending that there was probable cause to obtain the warrant pursuant to 18 U.S.C. § 3144. Al-Kidd argues to the contrary, arguing the warrant was facially deficient and, even if amended, could not support a probable cause
1 When the term “the Court” is used in this Report and Recommendation, the term refers to the author of this Report and Recommendation. On March 14, 2003, I considered the application and affidavit submitted by Agent Mace and issued the arrest warrant in my capacity as a United States Magistrate Judge for the District of Idaho.
2 The other remaining Defendant is the United States of America. The pending cross-motions for summary judgment between al-Kidd and the United States will be addressed in a separate Report and Recommendation, which will be issued within the week. (See Dkt. 333, 250, 74, 79 85,230, 248.) REPORT AND RECOMMENDATION - 2

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determination. The Court conducted a hearing on the motions on May 10, 2012. After careful
consideration of the parties’ submissions and arguments, and for the reasons discussed below, the Court first recommends that al-Kidd’s motion seeking summary judgment against Agent Gneckow be granted and Agent Gneckow’s motion for summary judgment be denied. Pursuant to the reasoning of Franks v. Delaware, 438 U.S. 154 (1978), the Court concludes that Agent Gneckow is not entitled to qualified immunity because he drafted the affidavit and decided what information to include and what to exclude from the affidavit. With the omitted and corrected information, the application and affidavit would not have been supported by probable cause.
As to Agent Mace, who made the formal application for the warrant to this Court on behalf of Agent Gneckow and who simply received the factual information for inclusion in the affidavit, the Court will request that the District Court conduct a de novo review of the application and affidavit upon which the warrant was based. Based on the District Court’s findings following the de novo review, then one of the following rulings could result:
1. If the District Court finds the application and affidavit submitted to this Court established probable cause to arrest al-Kidd as a material witness, then Agent Mace’s motion for summary judgment should be granted and al-Kidd’s motion denied.
2. If the District Court finds that the application and affidavit did not even established an indicia of probable cause, then al-Kidd’s motion for summary judgment
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should be granted and Agent Mace’s motion denied. 3. If the District Court concludes that the application and affidavit fell within the
range where there was more than an indicia of probable cause, but less than legally sufficient probable cause, then this Court would recommend that the District Court find Agent Mace is entitled to qualified immunity in seeking the warrant, and grant Agent Mace’s motion for summary judgment and deny al-Kidd’s motion.
REPORT FACTS The Court is well versed in the facts over the course of this matter’s history. Since the existence of probable cause to arrest al-Kidd as a material witness, or the lack thereof, is of crucial importance in the resolution of the motions before the Court, a detailed account of the events leading up to the request for the material witness arrest warrant and the information submitted in support of the application will be discussed. Based on the parties’ statements of fact, the Court finds the following facts material and undisputed.3 Al-Kidd’s claim that he was improperly arrested as a material witness flows from a three-year criminal investigation and the thirty-three day jury trial of Sami Omar alHussayen (“al-Hussayen”), which concluded on June 10, 2004. Al-Hussayen, a citizen of Saudi Arabia, had been admitted to the United States on a student visa and was a computer science Ph.D. student at the University of Idaho, with emphasis on computer
3 The Court takes judicial notice of the record in U.S. v. al-Hussayen, Case No. 3:03-cr-00048EJL, in connection with the motions. The Court presided over all pretrial proceedings in the al-Hussayen matter, including the arraignment and subsequent detention hearing of al-Hussayen. REPORT AND RECOMMENDATION - 4

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security and intrusion techniques. FBI Special Agent Michael Gneckow was the lead agent investigating the scope of al-Hussayen’s business and other activities, aside from his university studies. Al-Hussayen had been allowed to enter the United States solely as a full time student, and the FBI was investigating whether he had been engaging in business activities that would contravene the limitations of his student visa.
During the course of the three year investigation, in December of 2001, Agent Gneckow became aware of al-Kidd’s relationship with al-Hussayen. (Gneckow Depo. at 57–69, Dkt. 306-5 at 54–56.)4 Surveillance was conducted of al-Kidd. (Gneckow Depo. at 76, Dkt. 306-5 at 61.)
In the fall of 2001, Agent Gneckow obtained documents indicating that money from one of al-Hussayen’s bank accounts had been transferred to al-Kidd. (Gneckow Depo. at 54, Dkt. 306-5 at 51.) Agent Gneckow later determined that the transfers to alKidd probably constituted regular monthly salary payments made by al-Hussayen to alKidd for work al-Kidd did for an entity called al-Multaqa and its website, almultaqa.com.5 (Gneckow Depo. at 70, 76, 78, Dkt. 306-5 at 57, 61, 63.)
As part of the investigation, Agent Joe Cleary interviewed al-Kidd twice, and on both occasions al-Kidd voluntarily participated in the interviews. Agent Cleary discussed the interviews with Agent Gneckow. The FBI determined that, in its view, al-Kidd
4 Because of the voluminous nature of the record, the Court will cite to documents submitted without reference to the record attachments and page numbers, as none were provided, and will instead include the Docket Number and corresponding page number of the docket entry.
5 See Defs.’ Statement of Facts ¶ 6, Dkt. 306-2. REPORT AND RECOMMENDATION - 5

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possessed material information relating to al-Hussayen’s activities that could be useful in their investigation.
Following the second interview, al-Kidd spoke to a reporter with the Seattle PostIntelligencer. Later, on August 2, 2002, an article in the paper asserted that the FBI was investigating charitable donations by Muslim students at the University of Idaho and Washington State University for possible links to international terrorism. The article discussed a “source” described as a “former University of Idaho football player and part of a “small Muslim community in Moscow and nearby Pullman” between 1992 and 2000. (Defs.’ Ex. 2, Dkt. 306-3 at 6.) The FBI agents involved with the investigation decided against future contact with al-Kidd out of concern that the case against al-Hussayen could be compromised if their conversations were discussed with the media. (Gneckow Depo. at 195, Dkt. 306-5 at 110; Defs.’ Statement of Facts ¶¶ 10–12, Dkt. 306-2.)
Although contact with al-Kidd ceased after August 2, 2002, Agent Gneckow at that point in time knew al-Kidd was a citizen of the United States and had converted to Islam. (Gneckow Depo. at 79–80, Dkt. 306-5 at 64–65.) Agent Gneckow knew also that al-Kidd had a wife and son, a mother residing in Kent, Washington, and that al-Kidd had attended the University of Idaho and played football for the University. (Gneckow Depo. at 156–57, Dkt. 306-5 at 82–83.)
After a lengthy investigation into al-Hussayen’s activities, on February 13, 2003, an eighteen page, eleven count indictment, was filed against al-Hussayen in the District of
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Idaho.6 The Government’s position is that, at the time it requested the warrant for the arrest of al-Kidd as a material witness, the prosecutor believed al-Kidd could provide material testimony in support of the charges in the indictment.
The evidence al-Kidd could provide at trial is best analyzed by first reviewing the facts the Grand Jury found supported probable cause to return the indictment. The indictment, paragraphs 1–28, set forth the facts the Grand Jury found in support of the eleven counts of visa fraud and making false statements to the United States. The essence of the visa fraud charges is that al-Hussayen entered the United States for purposes other than solely pursuing his studies, such as providing material support for the Islamic Assembly of North America (“IANA”) and other web-site and business activities. The indictment recounted that large sums of money were being transferred to and from bank accounts controlled by al-Hussayen to the IANA, as well as to individuals and groups in the Middle East.
The factual summary of the indictment focused the criminal charges on the years 1999, 2000 and 2002, when al-Hussayen submitted various Immigration and Naturalization Forms in connection with his student visa application, in which he stated he was submitting his application “solely for pursuing a full course of study at the [University of Idaho.] However, the indictment included statements that from
6 The original indictment was superceded and ultimately included charges that al-Hussayen had provided material support to terrorism. Al-Hussayen was eventually acquitted on those particular charges, but the jury was unable to reach a verdict on the visa fraud and false statement charges contained in the original indictment. REPORT AND RECOMMENDATION - 7

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approximately December of 1994 to approximately July of 2002, al-Hussayen used the money in his bank accounts to travel and fund travel for others, including travel related to the IANA, and to travel to locations in various states as well as in foreign countries.7
The indictment alleged that on January 14, 2002, in addition to the F-1 student visa, al-Hussayen submitted a DOS Form 157 requiring him to list “all Professional, Social, and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked).” The indictment states that alHussayen listed only the Association for Computive Machinery and the Institute of Electrical Engineers, but failed to list the Islamic Assembly of North America and other entities to which he belonged.
Paragraphs 17–21 set forth the web-site activities that al-Hussayen was involved with, including that he was the registered agent of IANA in Idaho. Paragraph 19 listed eleven websites for which al-Hussayen was either the sole registered agent, the administrative contact person, head of the supervisory committee, or the contact person.
The indictment described in paragraphs 22 – 28 the financial and business activities the Grand Jury found probable cause to believe that al-Hussayen had been involved with while he was in the United States on his student visa. Since August of 1994, he had maintained six bank accounts in various states. From 1997 until the filing of the indictment, he had used the accounts to transfer or cause to be transferred large sums
7 The indictment states that between August 7, 1994 and September 1998, al-Hussayen studied in the United States as a foreign student. REPORT AND RECOMMENDATION - 8

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of money to IANA and individuals. Specifically, the Grand Jury found that al-Hussayen had received an additional $300,000 apart from the funds that could be traced directly to payment for al-Hussayen’s university studies. Although the indictment contained facts that the Government would have to prove beyond a reasonable doubt at trial, the facts stated in the indictment provide the backdrop to the investigation of and eventual application for al-Kidd’s arrest as a material witness.8
Agent Gneckow believed al-Kidd had information germane to the visa fraud charges, al-Hussayen’s status as a student, and al-Hussayen’s involvement with the IANA. (Gneckow Depo. at 157, Dkt. 306-5 at 84.) Importantly, al-Kidd may have been able to talk about al-Multaqa in relation to the other websites mentioned in the indictment, specifically how much time al-Hussayen was spending on those websites and the amount of work required to build and maintain the websites in light of al-Hussayen’s representation he was a full time student. (Gneckow Depo. at 157–58, Dkt. 306-5 at 84–85.)
Al-Hussayen’s detention hearing was held on March 11 and 12, 2003, and within hours of its conclusion, Agent Gneckow received information that al-Kidd was flying to Saudi Arabia and leaving in a few days. (Gneckow Depo. at 147, Dkt. 306-5 at 79.) Agent Gneckow believed that all appearances indicated al-Kidd was fleeing to avoid being called as a witness at trial. (Gneckow Depo. at 148, Dkt. 306-5 at 80.) Based on his
8 Plaintiff was never considered as a criminal suspect by the FBI. (Gneckow Dep. At 73-75, Dkt. 306.5 at 58-60.) REPORT AND RECOMMENDATION - 9

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experience, Agent Gneckow knew at the time that Saudi Arabia did not have an extradition treaty with the United States. (Gneckow Depo. at 148, Dkt. 306-5 at 80.) The al-Hussayen trial was scheduled for April 15, 2003. (Defs.’ Statement of Facts ¶ 34, Dkt. 306-2.) What Agent Gneckow did not know, and which al-Kidd argues was because of Agent Gneckow’s inadequate investigation, was that al-Kidd had made plans to travel to Saudi Arabia to further his course of study in Arabic language and Islamic law, and had begun making arrangements to do so beginning in April of 2002. (al-Kidd Depo. at 112–114, 132–33, Dkt. 306-4 at 64–67 and Dkt. 308-5 at 15–16; Pl.’s Statement of Facts ¶ 11–13, Dkt. 310-2 at 5.)
The specific information Agent Gneckow received on March 13, 2003, from Immigration and Customs Enforcement Agent Robert Alvarez prompting the decision to seek a material witness warrant was that al-Kidd had purchased a one-way ticket, first class, to Saudi Arabia, leaving within a few days and that it cost approximately $5,000. (Gneckow Depo. at 163–64, Dkt. 306-5 at 87–88; Defs.’ Statement of Facts ¶ 8, Dkt. 3062.) Gneckow suggested a material witness warrant to “stop al-Kidd from leaving the country.” (Gneckow Depo. at 165, Dkt. 306-5 at 89.) Agent Gneckow followed up by contacting the FBI at Dulles airport to confirm al-Kidd’s departure. (Gneckow Depo. at 167, Dkt. 306-5 at 91.) However, Agent Gneckow did not confirm the price of the ticket, or whether it was first class or one way. (Gneckow Depo. at 169–70, Dkt. 306-5 at 93–94.) Al-Kidd had actually purchased the ticket on March 6, 2003, for less than $2,000, and it was an open ended coach class ticket with no scheduled return date. (Defs.’
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Statement of Facts ¶ 14, 21, Dkt. 306-2.) Prior to seeking the arrest of al-Kidd, Agent Gneckow had never sought a material
witness warrant. (Gneckow Depo. at 128, Dkt. 306-5 at 67.) Agent Gneckow consulted with the Government’s primary trial attorney in the pending al-Hussayen case, Assistant United States Attorney Kim Lindquist (“AUSA Lindquist”), who raised a concern with Agent Gneckow about whether al-Kidd was still at his home in Kent, Washington. (Gneckow Depo. at 142, Dkt. 306-5 at 76.) Agent Gneckow undertook efforts to locate alKidd, although he could not recall what efforts were in fact made to confirm al-Kidd was no longer at his home. (Gneckow Depo. at 143–44, Dkt. 306-5 at 77–78.) Later, Agent Gneckow had AUSA Lindquist review the draft affidavit, and he “absolutely rel[ied] on Kim Lindquist to make sure” the elements of the material witness warrant were met. (Gneckow Depo. at 185, Dkt. 306-5 at 103.)
The two page application for the warrant itself was based upon a three page affidavit and the eighteen page, eleven count indictment of Sami Omar al-Hussayen filed on February 13, 2003. The affidavit stated that, based upon al-Kidd’s “demonstrated involvement” with al-Hussayen, “he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” (Dkt. 307-3 at 39.) The affidavit concluded with the statement that if al-Kidd “travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.”
The first ten pages of the al-Hussayen indictment for visa fraud and making false statements to the United States set forth the facts the Grand Jury had found during their
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investigation of al-Hussayen. These “indictment” facts, in addition to the “affidavit” facts, constituted the basis for the material witness warrant for al-Kidd on the grounds that he was about to board a plane for Saudi Arabia and that he could provide material testimony to support the criminal charges against al-Hussayen.
The affidavit stated that during the course of the investigation, information was developed regarding the involvement of al-Kidd with al-Hussayen. The affidavit went on to recite that al-Kidd, aka Lavoni T. Kidd, had received from al-Hussayen “in excess of $20,000” between March 2000 and November 2001. The affidavit discussed that al-Kidd had traveled to Yemen between August of 2001 and April of 2002; that upon his return al-Kidd met with al-Hussayen’s associates and emptied out a storage facility in Moscow, Idaho; that personal items belonging to al-Kidd were recovered by the FBI from the storage facility; and that these personal items included a program for an IANA conference held in December 1994, a hotel receipt from Sacramento, California, dated April 26, 2001, identifying al-Kidd’s company as Al-Multaqa, and telephone numbers for IANA in Ann Arbor, Michigan and for Basem Khafagi, a former Director of the IANA, who had been recently arrested.
Concerning al-Kidd’s departure, the affidavit states, in relevant part: Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia. (Dkt. 307-3).
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As previously mentioned, the affidavit was prepared by Agent Gneckow. According to him, it was not relevant that al-Kidd was a citizen of the United States, that he had a family, including a wife and son living in the United States, or that al-Kidd had cooperated with the FBI in the past. In his view, it was also not relevant that al-Kidd had never been told by the FBI not to travel outside of the United States or to contact the FBI if he intended to do so. Therefore, that information was not included in the affidavit. (Gneckow Depo. at 194, Dkt. 306-5 at 109.)
Agent Mace was the duty agent in Boise on March 14, 2003, and was tasked with presenting the warrant to a magistrate judge in Boise because neither Agent Gneckow nor a judge were available in Northern Idaho, in particular Coeur d’Alene, Idaho, where Agent Gneckow was stationed. (Gneckow Depo. at 138, Dkt. 306-5 at 72.) The only information Agent Mace added to the affidavit in support of the arrest warrant application was the first paragraph, identifying that the affidavit was based upon facts he acquired from Agent Gneckow. (Id.; Aff. of Mace, Dkt. 307-3 at 37.) Otherwise, the entirety of the affidavit was based upon information acquired by Agent Gneckow and other law enforcement agents. (Aff. of Mace, Dkt. 307-3 at 73.) Agent Mace was not involved in the investigation of al-Hussayen, and had no independent knowledge of al-Kidd. (Defs.’ Statement of Facts ¶ 29, Dkt. 306-2.)
Al-Kidd was arrested in Virginia on March 16, 2003, and eventually transferred to Boise, Idaho, arriving on March 25, 2003. (Defs.’ Statement of Facts ¶ 31–32, Dkt. 3062.) That same day, al-Kidd briefly met with a Federal Public Defender before appearing
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in front of this Court. (Defs.’ Statement of Facts ¶ 31–32 Dkt. 306-2.) A detention hearing was held on March 31, 2003, and following the hearing al-
Kidd was released into the custody of his wife in Nevada. (United States v. Sami Omar al-Hussayen, Case No. 3:03-cr-00048-EJL, Dkt. 40, ¶ 103). The conditions of his release included surrender of his passport, limitation of travel to four states, reporting to a probation officer in Idaho and Nevada as directed, and home visits. (Case No. 3:03-cr-00048-EJL, Dkt. 40, ¶ 103). Al-Hussayen’s trial was continued until January 13, 2004, and after the government filed its superseding indictment on January 9, 2004, the trial was continued again to April 14, 2004. (Defs.’ Statement of Facts ¶ 34, Dkt. 306-2.)
AUSA Lindquist made the decision not to call al-Kidd as a witness because of the defense strategy that became apparent as the trial progressed, which was not to contest that al-Hussayen had engaged in business activities on behalf of IANA. (Defs.’ Statement of Facts ¶ 35, Dkt. 306-2.) Consequently, the government never called al-Kidd to testify and his release conditions were removed on June 16, 2004. (U.S. v. al-Hussayen, 3:03-cr00048-EJL, Dkt. 680).
ANALYSIS 1. Summary Judgment Standards
Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary judgment “is to isolate and dispose of factually unsupported claims ....” Celotex
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Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Material facts are those that may affect the outcome of the case. Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the nonmovant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the non-moving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
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support a jury verdict in his favor. Id. at 526–57. The non-moving party must go beyond the pleadings and show by “affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. The existence of a scintilla of evidence in support of the non-moving party’s position is insufficient. Rather, “there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, 477 U.S. at 252.
When, as here, parties submit cross-motions for summary judgment, “each motion must be considered on its own merits.” Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 136 (9th Cir. 2001). The Court must therefore review the evidence submitted in support of each cross-motion. Id.
But the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the “party opposing summary judgment must direct [the Court’s] attention to specific triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed.R.Civ.P. 56(c)(2). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003). If the contents of the evidence could
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be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony of contents would not be hearsay).
Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n. 3 (9th Cir. 1995). The Ninth Circuit Court of Appeals “has repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.” Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). 2. Material Witness Statute
Title18 U.S.C. § 3144 permits the detention of a material witness “[i]f it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena.” Because probable cause is required before a warrant will issue, an application for a material witness warrant must establish probable cause to believe that (1) the witness’s testimony is material, and (2) it may become impracticable to secure the presence of the person by subpoena. United States v. Awadallah, 349 F.3d. 42, 64 (2nd Cir. 2003) (citing Bacon v. United States, 449 F.2d 933, 942-43 (9th Cir. 1971)). Both materiality and impracticability must be satisfied to establish probable cause. Awadallah, 349 F.3d at 64.
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3. Qualified Immunity The doctrine of qualified immunity protects federal and state officials from
liability for civil damages unless a plaintiff pleads facts showing (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. Ashcroft v. al-Kidd, __ U.S. __, 131 S.Ct. 2074, 2080 (2011). Courts considering the qualified immunity question have discretion to decide which of the two prongs of the qualified immunity analysis to decide first. Pearson v. Callahan, 129 S.Ct. 808, 821-22 (2009).
The Fourth Amendment protects the right of persons to be free from unreasonable searches and seizures, including arrests. Ashcroft, 131 S.Ct. at 2080. An arrest, including one pursuant to the federal material-witness statute, 18 U.S.C. § 3144, must therefore be objectively reasonable in order to pass constitutional muster. Ashcroft, 131 S.Ct. at 2080; See also Messerschmidt v. Millender, 132 S.Ct. 1235, 1245 (2012) (“The ‘shield of immunity’ otherwise conferred by the warrant will be lost, for example, where the warrant was ‘based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”).
While it is true that review of an affidavit by one’s superiors or a prosecuting attorney and issuance by a neutral magistrate judge does not automatically render an officer’s conduct reasonable, the Supreme Court has recently made it clear that third party review is not irrelevant to the objective reasonableness of the officer’s determination that the warrant was valid. As the Supreme Court stated, “[t]he fact that the officers secured
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these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.” Messerschmidt, 132 S.Ct. at 1250. However, if a warrant is so lacking in probable cause that official reliance is unreasonable, the officer executing the warrant “cannot excuse his own default by pointing to the greater incompetence of the magistrate.” KRL v. Estate of Moore, 512 F.3d 1184, 1190 (9th Cir. 2008). Probable cause is examined based upon the facts and circumstances known to the officer at the time of the arrest. Wilson v. City of Coeur d’Alene, No. 2:09-cv-381-EJL, 2010 WL 4853342 *5 (D. Idaho Nov. 19, 2010) (citing Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir. 2002)). 4. Cross-Motions For Summary Judgment as to Agent Gneckow
Al-Kidd presents two arguments why Agent Gneckow’s motion for summary judgment should be denied and why his motion should be granted. The first argument is that the affidavit was facially deficient and Agent Gneckow is not be entitled to immunity under Malley v. Briggs, 475 U.S. 335 (1986). The second argument is that Agent Gneckow is liable under Franks v. Delaware, 438 U. S. 154 (1978), for preparing an affidavit based upon false and misleading statements. Considering Agent Gneckow prepared the warrant and the affidavit, the claim under Franks is the logical starting point in the analysis as to Agent Gneckow.
A. The Franks Claim as to Agent Gneckow Ordinarily, a search or seizure pursuant to a warrant is presumed valid. Awadallah, 349 F.3d at 64. However, if the affidavit is based on false statements and misleading
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omissions, or both, a subsequent arrest would be unconstitutional. In Franks, the United States Supreme Court held that a defendant may challenge a warrant by making a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit, and that the allegedly false statement was necessary to the finding of probable cause. Franks, 438 U.S. at 155–56. Franks has since been applied with equal strength to omissions of material facts. By reporting less than the total story, an affiant can “manipulate the inferences a magistrate will draw,” and “to allow a magistrate to be misled in this manner could denude the probable cause requirement of all real meaning.” U.S. v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985); see also Bender v. City of Seattle, 664 P.2d 492, 500 (Wash. 1983) (stating that an officer may not cleanse a transaction by supplying only those facts favorable to the issuance of a warrant.)
Although statements recited in an application for a warrant do not have to be truthful in the sense that every statement is correct, the statements must be truthful “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Franks, 438 U.S. at 164–65. The defendant must allege deliberate falsehood or reckless disregard for the truth, specifically pointing out the portions of the warrant affidavit claimed to be false; “[a]llegations of negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171.
In 2003, the time of the events here, the law was clearly established that the United States Constitution did not permit a police officer deliberately, or with reckless disregard
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for the truth, to make material misrepresentations or omissions to obtain a warrant that would otherwise be without probable cause. Miller v. Prince George’s Cnty., MD, 475 F.3d 621, 632 (4th Cir. 2007); see also Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1295 (9th Cir. 1999) (“a police officer who recklessly or knowingly includes false material information in, or omits material information from, a search warrant affidavit ‘cannot be said to have acted in an objectively reasonable manner.’”). Accordingly, if there is a Franks violation, no issue of qualified immunity can ever be raised by a law enforcement officer in defense of his position.
When faced with a motion for summary judgment by a police officer in a case involving a Franks claim, a plaintiff need only “establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information ... the affidavit is insufficient to establish probable cause.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir.1995). The Court will now turn to whether al-Kidd has raised a valid Franks challenge with respect to Agent Gneckow, considering he was involved with the investigation and drafted the affidavit for Agent Mace to present.
Al-Kidd alleges that Agent Gneckow deliberately or recklessly included facts about his plane ticket which were not true, and omitted facts that were material to the probable cause determination. With respect to his plane ticket, al-Kidd had an open ended round trip ticket to Saudi Arabia with no scheduled return date, coach class, which cost approximately $2,000, not a first class, one-way ticket that cost $5,000. As for the alleged
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omissions, al-Kidd asserts that the affidavit did not inform the magistrate judge that alKidd: (1) had voluntarily cooperated with the FBI on multiple occasions in the past; (2) was a native-born United States citizen with a wife, son, and other family living in the United States; (3) had not been informed that his testimony might be needed or that he should not travel; (4) had not been informed that if he decided to travel overseas he should first advise the FBI; and (5) had not been contacted by the FBI in over eight months.
Based upon the above allegations, Al-Kidd has made the requisite showing not only to survive the Government’s motion for summary judgment, but also with respect to his own motion. The Court finds the statements about the plane ticket, coupled with the omissions about al-Kidd’s citizenship, family, past cooperation, and the FBI’s failure to contact him, were material to the probable cause determination regarding the impracticability of securing al-Kidd’s presence at trial by subpoena. Had the information been included, the affidavit would not have been supported by probable cause under the totality of the circumstances.
Defendants admit that the information about the plane ticket, which was the only information in the affidavit regarding impracticability, was not true. Defendants argue, however, that even if the correct information about the plane ticket—that it was open ended (not one way), economy (not first class), and cost $2,000 (not $5,000)—was included in the affidavit, the information was not material to the probable cause determination. The Government claims al-Kidd was a flight risk regardless of the type of
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ticket he had simply because al-Kidd was leaving the country for an indefinite period of time. But Defendants fail to consider the totality of the information in the affidavit juxtaposed with the information about the plane ticket.
Probable cause to determine that it would be impracticable to secure al-Kidd’s presence at trial by subpoena depended entirely upon the inference that al-Kidd was leaving the country, possibly returning home to Saudi Arabia, and was “involved” with suspected terrorists or terrorist activity, thus leading to the assumption he was a flight risk and was, in fact, fleeing the country on the eve of trial and just days after the indictment was returned against al-Hussayen. Considering the affidavit as a whole, the information included about the plane ticket, coupled with the information chosen to link al-Kidd to alHussayen, is misleading and highly suggestive of illicit involvement with criminal activity, inferring a motive to flee.
First, the affidavit identified al-Kidd by his Muslim name, and absent any information about al-Kidd’s family background, his name was suggestive of foreign birth. In addition, by referring to him as “also known as” Lavoni T. Kidd, the affidavit cast suspicion, without further explanation, that al-Kidd had possibly changed his name once he was in the United States to a more “American” sounding name for some nefarious purpose. The truth was that al-Kidd had changed his birth name of “Lavoni T. Kidd” to “Abdullah al-Kidd” when he converted to Islam. Finally, the affidavit referenced the indictment against al-Hussayen, who was identified as a Saudi Arabian citizen in the indictment, and al-Kidd’s “involvement” with al-Hussayen, again suggesting that al-Kidd
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may have been a citizen of Saudi Arabia. The affidavit stated that the investigation of al-Hussayen was conducted by the
Inland Northwest Joint Terrorism Task Force, suggesting that al-Kidd was involved with a suspected terrorist. Moreover, the affidavit identified that al-Kidd received “in excess of $20,000” from al-Hussayen, but did not mention what the money was for or how it was paid to al-Kidd, thereby inferring he could have received more than $20,000, including the $5,000 for his first class plane ticket. The indictment also included information that al-Hussayen had funded travel for individuals in the past. Finally, the affidavit indicated al-Kidd had traveled to Yemen in 2002, and upon returning to the United States met with al-Hussayen’s associates and emptied a storage facility, again suggestive of a trip taken at someone else’s direction as well as casting suspicion on the purpose of the trip by juxtaposing it with the emptying of the storage locker. Further, the information the FBI recovered from the storage locker included a telephone number for another Saudi individual recently arrested in New York.
Taken as a whole, the information included in the affidavit, together with the incorrect flight information, was highly suggestive that al-Kidd was a Saudi national involved with suspected terrorists, with no ties to the United States, fleeing the country within one month of the al-Hussayen indictment. Further, al-Kidd’s flight was on the heels of the arrest of another suspected terrorist whom it appeared he knew, on an expensive first class ticket, possibly purchased with funds received from al-Hussayen
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after al-Hussayen had been indicted.9 Although an affiant cannot be expected to include in an affidavit every piece of
information gathered during the course of his investigation, a finding that the omissions were “designed to mislead” or made in “reckless disregard of whether they would mislead” the magistrate judge satisfies the intent element under Franks. United States v. Awadallah, 349 F.3d 42, 67–68 (2nd Cir. 2003) (citing United States v. Colkley, 899 F.2d 297, 300–301 (4th Cir. 1990). Further, the nature of the omissions themselves may suggest concealment. Awadallah, 349 F.3d at 68, n.20. See also Colkley, 899 F.2d at 301 (recognizing that courts may infer intent or recklessness from the fact of omission itself).
Properly corrected and supplemented, the paragraph about the impracticability of securing al-Kidd’s presence at trial with a subpoena would have been expanded to read that: al-Kidd, a United States citizen with a wife, a son, and other family in the United States, was traveling to Saudi Arabia to attend a university on an open ended coach class ticket; that al-Kidd had previously met with FBI agents and cooperated with questioning; that the FBI had made no attempt to contact al-Kidd in the previous eight months of an otherwise extensive and protracted investigation; and that the FBI had never asked alKidd not to leave the United States without first advising them of his intent to do so.
The omitted information about al-Kidd would have put a reasonable magistrate judge on notice that al-Kidd may have been a cooperative witness, with no intention of
9 Al-Kidd notes in his brief that the affidavit cast him in a suspicious light. (Pl.’s Mem. at 13, Dkt. 310-1 at 17.) REPORT AND RECOMMENDATION - 25

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fleeing the United States to evade testifying, and that consideration should have been given to the less drastic alternative of issuing a subpoena rather than arrest.10 See Liston v Cnty. of Riverside, 120 F.3d 965, 974 (9th Cir. 1997). But by omitting the facts favorable to al-Kidd which should have been presented to a magistrate judge, the affidavit was “cleansed.” Had a magistrate judge been given the omitted information, he may have inquired of the agents about their attempt prior to seeking the warrant to contact either alKidd or his wife and family to question them about al-Kidd’s upcoming travel. If Agent Gneckow had inquired, he might have learned that al-Kidd’s plans were to attend university, and included periodic returns to the United States during semester breaks. (alKidd Depo. at 112, Dkt. 308-5 at 7.) Accordingly, the Court holds al-Kidd has demonstrated that had the correct information about the plane ticket and the omitted facts been included, a magistrate judge would not simply have issued the warrant without more probing inquiry.
Defendants argue that Agent Gneckow is shielded because he reasonably relied upon information provided to him by other law enforcement officials concerning alKidd’s plane ticket to Saudi Arabia. However, the false information about the plane ticket was only one factor giving rise to the inference that al-Kidd was a flight risk.
Agent Gneckow had led the three-year investigation into the activities of al-
10 Al-Kidd argues that the affidavit must establish that the FBI tried to serve him with a subpoena before obtaining the warrant. However, a court in the exercise of its sound discretion has the power to issue a warrant of arrest, not preceded by a subpoena, for a material witness. United States v. Anfield, 539 F.2d 674, 677 (9th Cir. 1976). REPORT AND RECOMMENDATION - 26

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Hussayen and, since 2001, of al-Kidd. Prior to the February 2003 indictment and the issuance of the arrest warrant one month later, al-Kidd had been the subject of surveillance. Agent Gneckow knew that the $20,000 received by al-Kidd was likely salary payment, received in monthly increments over a period of time, for work related to al-Kidd’s employment with al-Multaqa, not a one time sum.
Agent Gneckow had ruled out al-Kidd as a suspect for criminal activity once he and others had determined there was nothing worth investigating as far as the money flow was concerned. Yet the manner in which the affidavit was crafted suggested anything other than innocent activity. Agent Gneckow chose to characterize the money al-Kidd received as “payments,” not salary, “in excess of $20,000.” The characterization of the payments indicated al-Kidd could have received the $5,000 for his plane ticket in a lump sum from al-Hussayen, especially considering the indictment detailed how al-Hussayen funded travel for others. The affidavit was further crafted in such a way so as to cast doubt upon al-Kidd’s motives for leaving the country by mentioning his travel to Yemen, and the subsequent emptying of a storage locker, both of which could have been innocent activities.
Al-Kidd was interviewed twice in the summer of 2002, both times agreeing to speak voluntarily. Thus, agents knew how to contact al-Kidd. Yet when the decision was made to seek the material witness warrant, Agent Gneckow could not recall the specific effort made to locate al-Kidd after more than eight months without any contact. When told about al-Kidd’s travel, he asked no questions about al-Kidd’s intinerary, even though
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he was not given a specific departure date from Agent Alvarez. Agent Gneckow undertook follow up by contacting the FBI agent at Dulles airport, but did not confirm any details about the ticket price or type of ticket. Had he done so, Agent Gneckow could very well have obtained sufficient information that would have led him to question his assumption about the reasons for al-Kidd’s trip to the Middle East.
Agent Gneckow also did not consider the fact that al-Kidd was a United States citizen with family, instead taking a myopic view that the only relevant fact was al-Kidd’s imminent departure out of the country. And although agents were under pressure to act quickly considering al-Kidd was scheduled to depart in a few days, when agents did not locate al-Kidd at his home in Washington, no effort was made to contact al-Kidd’s family members, wife or mother to learn about the purpose for al-Kidd’s travel. Instead, Agent Gneckow assumed al-Kidd was fleeing the country upon hearing about the plane ticket and never thought al-Kidd should first be contacted and asked if the trip could be postponed.
The bottom line is that Agent Gneckow assumed al-Kidd was a flight risk based on the first class, one-way ticket, even though he had no other concrete information upon which to cross-check his assumption. The failure to take a few additional steps in an otherwise extremely lengthy and thorough investigation spanning over three years was, in the Court’s view, reckless.
Agent Gneckow cannot in this case absolve himself of his own inaction by relying upon AUSA Lindquist, whom he said reviewed the affidavit before it was presented to
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this Court. Although consultation with one’s superiors is relevant to the objective
reasonableness of an officer’s determination that a warrant is valid, an officer is not
automatically insulated by the shield of qualified immunity simply because someone
else—whether a judge or prosecutor— had approved the application. See Messerschmidt
v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1250 (2012). In its decision overruling
Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010), in which the Ninth
Circuit had failed to consider consultation with superiors relevant, Messerschmidt noted
that:
[b]efore seeking to have the warrant issued by a magistrate, Messerschmidt conducted an extensive investigation into Bowen’s background and the facts of the crime. Based on this investigation, Messerschmidt prepared a detailed warrant application that truthfully laid out the pertinent facts. The only facts omitted—the officers’ knowledge of Bowen’s arrest and conviction records, . . . would only have strengthened the warrant. Messerschmidt then submitted the warrant application for review by Lawrence, another superior officer, and a deputy district attorney, all of whom approved the application without any apparent misgivings. Only after this did Messerschmidt seek the approval of a neutral magistrate, who issued the requested warrant. The officers thus “took every step that could reasonably be expected of them.”
Messerschmidt, 132 S.Ct. at 1250 (italics added). In contrast, Agent Gneckow’s conduct
was not reasonable. His failure to conduct any further investigation beyond simply
receiving the information from Agent Alvarez resulted in an affidavit that was lacking in
details and did not truthfully lay out the pertinent facts. Agent Gneckow’s conduct
therefore resulted in an affidavit crafted with a reckless disregard as to whether it would
mislead a magistrate judge in his probable cause finding regarding the impracticability of
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securing al-Kidd’s presence at trial by a subpoena.11 B. The Malley Claim as to Agent Gneckow Because the Court finds a Franks violation as to Agent Gneckow’s conduct, the
Court determines it is not necessary to also discuss al-Kidd’s claim that the affidavit supporting the warrant was facially deficient under Malley, as applied to Agent Gneckow.
C. Recommendation The Court would recommend that al-Kidd’s motion for summary judgment against Agent Gneckow be granted and Agent Gneckow’s motion be denied. 5. Cross-Motions for Summary Judgment as to Agent Mace Al-Kidd presents the same two arguments for summary judgment against Agent Mace as he does against Agent Gneckow: first that the application and affidavit in support of the warrant were facially deficient and Mace is not entitled to immunity under Malley; and second, that Agent Mace should be held liable under Franks for the same false statements and omissions in the affidavit drafted by Agent Gneckow. Again, the alleged Franks violation will be addressed first. A. The Franks Claim as to Agent Mace Al-Kidd argues that Agent Mace was under a legal obligation to investigate all of the facts contained in the affidavit to ensure there were no false statements or omissions
11 Because the undisputed material facts establish al-Kidd’s Franks claim on the element of impracticability, the Court finds it unnecessary to consider the materiality prong of 18 U.S.C. § 3144 as to Agent Gneckow, since both materiality and impracticability must be shown before a material witness warrant may be issued. REPORT AND RECOMMENDATION - 30

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of material facts. The Court disagrees. In general, officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting assistance provided the magistrate judge the information required to support an independent judicial assessment of probable cause. Shiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971). Because Agent Gneckow was unable to present his affidavit in person, he relayed the information to Agent Mace in Boise. Agent Mace had no involvement in the investigation, no independent knowledge of al-Kidd, and was nothing other than the duty agent in Boise on March 14, 2003. Considering Agent Gneckow was the primary investigating officer of the al-Hussayen matter for over three years and had knowledge of al-Kidd, under the circumstances Agent Mace was entitled to rely upon Agent Gneckow’s information.
Agent Mace contributed nothing to the affidavit other than informing this Court that he received the information from Agent Gneckow. There is no indication that Agent Mace distrusted the information provided by Agent Gneckow. He had no reason to know that the affidavit contained false statements or failed to include other information that might have been pertinent to the Court’s probable cause determination.
For these reasons, the Court finds that al-Kidd’s Franks claim against Agent Mace cannot, as a matter of law, satisfy the Franks requirements. There is an absence of any facts that Agent Mace knowingly and intentionally, or with reckless disregard for the truth, included a false statement or omitted pertinent facts.
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B. The Malley Claim as to Agent Mace The Court’s finding that Agent Mace cannot be liable under Franks does not end the inquiry with respect to his liability. Al-Kidd’s claim that the affidavit supporting the arrest was facially deficient under Malley v. Briggs, 475 U.S. 335 (1986), is applicable to Agent Mace. He reviewed the affidavit prior to presenting it to this Court. He was the last person in the chain of events before the application and affidavit were presented to the Court, and therefore he should have considered whether the application and affidavit, in the form presented, should have been presented to a magistrate judge for issuance of the warrant.
(1) Request For De Novo Review by District Court Al-Kidd first argues that the affidavit in support of the warrant was so facially and patently deficient that it failed to establish probable cause. However, al-Kidd’s claim directly challenges whether probable cause was established, despite review of the affidavit by AUSA Lindquist and its ultimate approval by this Court. As previously stated, this Court reviewed the application and affidavit on March 14, 2003, and determined that probable cause existed to issue the warrant for al-Kidd’s arrest. A claim that the affidavit was so facially deficient so as to lack any indicia of probable cause would require this Court to revisit its own initial determination and, as argued by al-Kidd, reach the opposite conclusion that the application and affidavit did not meet the probable cause standard. In other words, al-Kidd’s argument would compel a
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conclusion that not only Agent Mace was “plainly incompetent,” but also that AUSA

Lindquist, who reviewed the warrant in its final form at Agent Gneckow’s request, and

this Court, were as well. While judges are at times requested to reconsider their earlier

decisions, the Court believes another approach would be more appropriate in this case.

At oral argument, the Court advised counsel that rather than making a

recommendation on the argument that the affidavit was facially deficient, the Court

would request that the District Court make a de novo determination of the probable cause

issue. The following constitutes a report of the factual information this Court considered

in making the initial determination that the arrest warrant was supported by probable

cause to find that al-Kidd’s testimony was material and that it would be impracticable to

secure his presence at trial by subpoena. After reviewing this information the District

Court can reach a legal conclusion of whether or not the warrant was supported by

probable cause.

(a)

Information the Court Considered Relevant to Materiality

The application and affidavit incorporated the al-Hussayen indictment, and

therefore this Court considered both the “indictment” facts and the “affidavit” facts

contained in the application. The indictment states that in the years 1999, 2000 and 2002,

al-Hussayen submitted various Immigration and Naturalization Forms representing that

he wanted to enter the United States solely to pursue a full course of study at the

University of Idaho. The indictment alleges that these were false statements and in

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contravention of al-Hussayen’s student visa, because al-Hussayen was engaged in a variety of business activities not related to his studies. The indictment alleges that alHussayen was engaged in computer web-site activities that exceeded his course of studies, including expert computer services, advice, assistance and support to organizations, including the IANA.
The indictment states that al-Hussayen was the formal registered agent for IANA in Idaho, and further that al-Hussayen had telephonic contact with many individuals in several states, including IANA, who maintain it offices in Ann Arbor, Michigan. The indictment alleges also that on January 14, 2002, in addition to the F-1 student visa, alHussayen submitted a DOS Form 157 where he was required to list “all Professional, Social, and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked). Instead, the indictment alleges that al-Hussayen listed only the Association for Computive Machinery and the Institute of Electrical Engineers and failed to list the IANA and other entities to which he belonged.
The indictment went back further, stating that from about December 1994 to about July 2002, al-Hussayen, through several bank accounts in various states, funded travel for other individuals, including travel to events related to IANA. It states also that he funded travel for individuals to locations in various states as well as foreign countries.
The application and affidavit for the arrest of al-Kidd averred that al-Kidd could provide crucial evidence to support the criminal charges made in the indictment against
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al-Hussayen. To determine whether there was a fair probability, to paraphrase the probable cause standard, that al-Kidd could provide testimony on these allegations, it is necessary then to evaluate the statements in the affidavit presented to the Court, and consider the testimony the prosecution could have elicited from al-Kidd at trial as to the charges in the indictment.
The affidavit states that from March 2000 to November 2001, an individual identified as al-Kidd and/or his spouse, Nadine Zegura, received payments from alHussayen and his associates in excess of $20,000. The affidavit recounted al-Kidd’s travel to Sana’a Yemen in August 2001, and that he remained there until April 2002, when he returned to Moscow, Idaho and met with al-Hussayen’s associates.
Questioning of al-Kidd at trial could elicit testimony as to the circumstances under which and the reasons why he received the money from al-Hussayen, and whether the funds received were related to al-Hussayen’s university studies or his business activities. As to al-Kidd’s earlier travel to Yemen, the prosecution could question whether alHussayen funded al-Kidd’s travel based upon the allegations in the indictment that alHussayen was funding international travel for certain individuals.
The affidavit states that after al-Kidd returned from Yemen he emptied a storage locker in Moscow, Idaho and that several of his personal documents were left behind. One item was a conference program for the second annual IANA conference held in Dearborn, Michigan, in December 1994. Paragraph 27 of the indictment expressly asserts that from at least December 1994, the same month as the conference brochure, al-
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Hussayen funded travel for individuals relating to IANA events. In presenting proof on these allegations, the Government could ask al-Kidd if he attended the IANA conference in December of 1994 and if al-Hussayen paid for the trip, providing proof that alHussayen was engaging in business activities in alleged contravention to the limitation of his student visa.
The affidavit mentions also that one of the personal documents found at al-Kidd’s storage facility included the Michigan telephone numbers for IANA. The prosecution could question al-Kidd about his contacts with IANA and his knowledge of al-Hussayen’s involvement with IANA. The facts elicited could support the allegations in the indictment that al-Hussayen was providing material computer and financial support to IANA that were not connected with his course of studies.
Another telephone number found at al-Kidd’s storage facility and described in the affidavit was the telephone number of Basem Khafagi, a former University of Idaho student and former director of IANA. The affidavit stated that Kafagi had recently been arrested in New York. The indictment alleged the al-Hussayen had telephonic contact with a number of individuals associated with IANA. Questioning al-Kidd as to why he had Basem Khafagi’s telephone number and what conversations al-Kidd may have had with Basem Khafagi could tie in with other evidence the prosecution would be presenting as to the positions and responsibilities that al-Hussayen had with IANA.
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(b) Information the Court Considered Relevant to Impracticability
Title 18 U.S.C. § 3144 frames the issue of impracticability as whether it “may become impracticable to secure the presence of the person by subpoena . . .” (Emphasis added). The affidavit presented to the Court on March 14, 2003, stated that al-Kidd was scheduled to take a one-way, first class flight, (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003. It was also stated that if al-Kidd traveled to Saudi Arabia, the United States Government would be unable to secure his presence at trial via subpoena. At the time the affidavit was presented, the trial was due to commence in thirty-two days.
Al-Kidd relies on Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), in asserting that the preceding facts do not establish impracticability. In Bacon, the witness had fled to a roof top in response to the FBI’s appearance at her door for questioning. The FBI gave chase, and because of her actions together with her access to large sums of money and her acquaintance with fugitives from justice, the FBI feared she would evade judicial process.
The court in Bacon declined to find that the facts supported probable cause to believe that Bacon could not practicably be brought before the grand jury by a subpoena. Bacon, 449 F.2d at 945. In contrast, as represented in the affidavit presented to the Court, al-Kidd’s efforts had gone well beyond speculation as to what he might do in the future, because he had actually purchased a one-way plane ticket and was about to board an
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airplane bound for the Middle East in the midst of an investigation involving suspected terrorists, and if he left, he could not be subpoenaed to return to the United States for trial.
(c) Summary In Malley, the United States Supreme Court framed the issue of what standard to apply to the officer’s conduct and held that an officer is not entitled to qualified immunity if the warrant application is “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Malley, 475 U.S. at 344–45. The defendant’s conduct is viewed from an standard of “objective reasonableness.” Id. at 341. Therefore, Agent Mace “will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Id. After reviewing the factual information in the application and affidavit, as to both materiality and impracticability, the District Court can determine if these statements are legally sufficient to establish probable cause for the arrest of al-Kidd. If they do establish probable cause, Agent Mace’s motion for summary judgment should be granted and alKidd’s motion denied. If after conducting its review, the District Court concludes that the application and affidavit are completely lacking in any indicia of probable cause, then alKidd’s motion for summary judgment should be granted.
(2) Is Agent Mace Entitled to Qualified Immunity. The Supreme Court in Malley describes that, in the event a magistrate judge acts mistakenly in issuing a warrant based upon less than probable cause, but within the range of professional competence of a magistrate, the officer who requested the warrant would
REPORT AND RECOMMENDATION - 38

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not be liable if a reasonably well-trained officer would not have known that the affidavit failed to establish probable cause and he should not have applied for the warrant. Malley 475 U.S. at 345–56, and n.9.
When confronted with a Malley claim in Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1245 (2012), the Supreme Court reaffirmed that qualified immunity protects an officer for his mistaken judgment that an application and affidavit in support of a warrant was supported by probable cause. Messerschmidt, 132 S.Ct. at 1249–50. In other words, “if officers of reasonable competence could disagree on this issue [of probable cause], immunity should be recognized.” Malley, 475 U.S. at 341. This question can only be answered by “a close parsing of the warrant application . . . and the affidavit.” Messerschmidt, 132 S.Ct. at 1250.
Reconciling Malley and Messerschmidt, it would appear that the Supreme Court is describing a zone lying between two extremes, for example where an affidavit established at least an indicia of probable cause but fell short of legal probable cause. That zone encompasses an affidavit that was still lacking probable cause even though it contained a collection of facts but had been mistakenly issued by the magistrate judge. Under such circumstances, the Court would then examine whether the officer is entitled to qualified immunity as stated in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and United States v. Leon, 468 U.S. 986 (1984).
Viewing Agent Mace’s actions within this zone to determine if they were objectionably reasonable directs this Court to the conclusion that he would be entitled to
REPORT AND RECOMMENDATION - 39

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qualified immunity. He had no knowledge that false statements had been made in the affidavit or that material facts had been omitted. The affidavit had been reviewed for probable cause by an AUSA and a second AUSA accompanied Agent Mace when he presented the application and affidavit to this Court. After reviewing the application and affidavit, this Court found probable cause and issued the arrest warrant.
As the Supreme Court stated, the shield of immunity will only be lost if the defect is “obvious from the face of the warrant,” and “just a simple glance” would have revealed its existence. Messerschmidt, 132 S.Ct. at 1250. The question in such circumstances is whether the magistrate judge “so obviously erred that any reasonable officer would have recognized the error. The occasions on which this standard will be met may be rare, but so too are the circumstances in which it will be appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions.” Messerschmidt, 132 S.Ct. at 1250.12 As noted, review by a neutral magistrate is the clearest indication that officers acted in an objectively reasonable manner, or in “objective good faith.” Messerschmidt, 132 S.Ct. at 1245. In other words, in an ordinary case, an officer cannot be expected to question the magistrate judge’s probable cause determination, because it is the magistrate judge’s responsibility to determine whether the allegations in an affidavit establish probable cause , and if so, to issue the warrant. Id.
12 The Supreme Court’s example of an instance where this extreme was present was Groh v. Ramirez, 540 U.S. 551 (2004). In Groh, the officers who carried out a warrant-approved search were not entitled qualified immunity because the warrant completely failed to describe the items to be seized. Messerschmidt, 132 S.Ct. at 1250. REPORT AND RECOMMENDATION - 40

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Assuming the District Court reaches this level in the analysis, I would recommend that Agent Mace be found to have qualified immunity for his actions and that his motion for summary judgment be granted and al-Kidd’s motion be denied.
CONCLUSION The Court cannot consider the affidavit, and the statements made therein, in a vacuum. Under the totality of the circumstances, which included Agent Gneckow’s investigation and the facts he knew, coupled with the lack of any reasonable inquiry to confirm his assumption al-Kidd was fleeing from authorities, the Court concludes based on the undisputed material facts that Al-Kidd is entitled to judgment as a matter of law on his Franks claim against Agent Gneckow. However, with respect to Agent Mace, the duty officer in charge on March 14, 2003, absent any independent knowledge, or any reason to doubt the veracity of Agent Gneckow’s recitation of the facts as they related to the indictment, the Court concludes that the undisputed material facts establish Agent Mace cannot be liable under Franks. The District Court has been requested to conduct a de novo review to determine if the application and affidavit on their face established probable cause to arrest al-Kidd. If the District Court concludes that there was probable cause, then Agent Mace’s motion for summary judgment should be granted and al-Kidd’s motion denied. If the District Court concludes that the application and affidavit do not even support an indicia of probable cause, then al-Kidd’s motion for summary judgment should be granted and Agent Mace’s motion denied.
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where there is more than an indicia of probable cause but less than legal probable cause, this Court would recommend that Agent Mace be found to have qualified immunity from al-Kidd’s claims. Under those circumstances, Agent Mace’s motion for summary judgment should be granted and al-Kidd’s motion denied.
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RECOMMENDATION NOW THEREFORE IT IS HEREBY RECOMMENDED:
1) That Plaintiff’s Cross-Motion for Summary Judgment (Dkt. 310) as to Agent Gneckow be GRANTED.
2) That Defendants’ Motion for Summary Judgment (Dkt. 306) as to Agent Gneckow be DENIED.
3) That as to Agent Mace, Defendants’ Motion for Summary Judgment (Dkt. 306) and Plaintiff’s Cross-Motion for Summary Judgement (Dkt. 310) be decided by the District Court following DE NOVO REVIEW.
Written objections to this Report and Recommendation must be filed within fourteen (14) days pursuant to 28 U.S.C. § 636(b)(1) and Dist. Idaho L. Rule 72.1(b), or as a result of failing to do so, that party may waive the right to raise factual and/or legal objections to the United States Court of Appeals for the Ninth Circuit.
June 18, 2012
REPORT AND RECOMMENDATION - 43

 
 CaseC1a:0se5:-c1v2--0305099537-,E0J1L/-0C6W/2D015D, oIDcu: m93e7n2t530634, DFkitlEednt0ry1:/0560/,1P5agPea1geof11of 1
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

ABDULLAH AL-KIDD, Plaintiff - Appellee,
v. UNITED STATES OF AMERICA,
Defendant, and MICHAEL GNECKOW,
Defendant - Appellant.

No. 12-35957
D.C. No. 1:05-cv-00093-EJLMHW District of Idaho, Boise
ORDER

Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.
The Joint Motion to Dismiss Appeal, filed January 5, 2015, is GRANTED. Each side shall bear its own costs on appeal. A copy of this order shall serve as the mandate of this court.

 
 Case 1:05-cv-00093-EJL-CWD Document 365 Filed 01/13/15 Page 1 of 3

LEE GELERNT (NY Bar 8511) lgelernt@aclu.org American Civil Liberties Union Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2616 Fax: (212) 549-2654 Attorney for Plaintiff

BRANT S. LEVINE brant.levine@usdoj.gov U.S. Department of Justice, Civil Division P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-4373 Fax: (202) 616-4314 Attorney for Defendants

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

)

ABDULLAH AL-KIDD,

) Case No. 1:05-cv-093-EJL-MHW

)

Plaintiff,

)

) JOINT MOTION STIPULATING

v.

) TO DISMISSAL OF REMAINING

) CLAIMS AND RETENTION OF

UNITED STATES, et al.,

) JURISDICTION

)

Defendants.

)

)

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the parties submit this joint motion in order to stipulate to the dismissal with prejudice of all claims in the above captioned case, based on the Stipulation for Compromise Settlement and Release between Plaintiff Abdullah al-Kidd and Defendants United States of America and Michael Gneckow dated December 30, 2014. The parties also jointly stipulate that the court shall retain jurisdiction to enforce the terms of the Stipulation for

1

Case 1:05-cv-00093-EJL-CWD Document 365 Filed 01/13/15 Page 2 of 3

Compromise Settlement and Release. See generally Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375 (1994).

Counsel for Plaintiff certifies that the content of this document is acceptable to

counsel for Defendants and said counsel has provided authority to affix his

electronic signature.

Dated: January 13, 2015

Respectfully submitted,

/s/ Lee Gelernt Lee Gelernt Counsel for Plaintiff

/s/ Brant Levine Brant Levine Attorney for Defendants

2

Case 1:05-cv-00093-EJL-CWD Document 365 Filed 01/13/15 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on the 13th day of January, 2015 I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Lee Gelernt, Attorney for Plaintiff Email: lgelernt@aclu.org Katherine K. Desormeau, Attorney for Plaintiff Email: kdesormeau@aclu.org R. Keith Roark, Attorney for Plaintiff Email: keith@roarklaw.com Cynthia Jane Woolley, Attorney for Plaintiff Email: cynthia@ketchumidaholaw.com Richard A. Eppink, Attorney for Plaintiff Email: reppink@acluidaho.org Michael J. Wishnie, Attorney for Plaintiff Email: michael.wishnie@yale.edu Brant Levine, Attorney for Defendant Email: Brant.Levine@usdoj.gov
___/s/____________________ Lee Gelernt Attorney for Plaintiff

 
 Case 1:05-cv-00093-EJL-CWD Document 366 Filed 01/13/15 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

)

ABDULLAH AL-KIDD,

) Case No. 1:05-cv-093-EJL-MHW

)

Pl

aintiff,

)

) ORDER DISMISSING

v.

) REMAINING CLAIMS AND

) RETAINING JURISDICTION

ALBERTO GONZALES, Attorney General )

of the United States; et al.,

)

)

Defendants.

)

)

)

Upon consideration of the Parties’ Joint Motion Stipulating to Dismissal of Remaining Claims and Retention of Jurisdiction, and for good cause appearing therefore, IT IS HEREBY ORDERED that the Motion (Dkt. 365) is GRANTED. All remaining claims are hereby DISMISSED WITH PREJUDICE. The Court shall retain jurisdiction to enforce the terms of the Stipulation for Compromise Settlement and Release.
IT IS SO ORDERED.

DATED: January 13, 2015
_________________________ Edward J. Lodge United States District Judge

 
 (Slip Opinion)

OCTOBER TERM, 2010

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
ASHCROFT v. AL-KIDD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 10–98. Argued March 2, 2011—Decided May 31, 2011
Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness statute, 18 U. S. C. §3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information “crucial” to Sami Omar alHussayen’s prosecution would be lost if al-Kidd boarded his flight. Prosecutors never called al-Kidd as a witness, and (as he alleges) never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft’s alleged policy. The District Court denied Ashcroft’s motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.
Held: 1. The objectively reasonable arrest and detention of a material
witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Pp. 3–9.
(a) Qualified immunity shields a government official from money damages unless (1) the official violated a statutory or constitutional right, and (2) that right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818. Where, as here, a court considers both prongs of this inquiry, this

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Syllabus
Court has the discretion to correct the lower court’s errors at each step. P. 3.
(b) Whether a detention is reasonable under the Fourth Amendment “is predominantly an objective inquiry.” Indianapolis v. Edmond, 531 U. S. 32, 47. Courts ask whether “the circumstances, viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138. Except for cases that involve specialneeds, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653, or administrative searches, e.g., Michigan v. Clifford, 464 U. S. 287, 294, this Court has almost uniformly rejected invitations to probe subjective intent. The Court of Appeals was mistaken in believing that Edmond established that “ ‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d 949, 968. It was not the absence of probable cause that triggered Edmond’s invalidating-purpose inquiry, but the checkpoints’ failure to be based on “individualized suspicion.” 531 U. S., at 47. Here a neutral Magistrate Judge issued a warrant authorizing al-Kidd’s arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear. A warrant based on individualized suspicion grants more protection than existed in most of this Court’s cases eschewing inquiries into intent, e.g., Whren v. United States, 517 U. S. 806, 813, and Terry v. Ohio, 392 U. S. 1, 21– 22. Al-Kidd’s contrary, narrow reading of those cases is rejected. Because he concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretext; there is no Fourth Amendment violation here. Pp. 3–9.
2. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity. A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U. S. 635, 640. Here, the asserted constitutional right falls far short of that threshold. At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. The Ninth Circuit’s reliance on a District Court’s footnoted dictum, irrelevant cases from this Court, and the Fourth Amendment’s broad purposes and history is rejected. Because Ashcroft did not violate clearly established law, the question whether he enjoys absolute immunity need not be addressed. Pp. 9–12.
580 F. 3d 949, reversed and remanded.

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3

Syllabus
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part I. GINSBURG, J., filed an opinion concurring in the judgment, in which BREYER and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined. KAGAN, J., took no part in the consideration or decision of the case.

Cite as: 563 U. S. ____ (2011)

1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE SCALIA delivered the opinion of the Court.
We decide whether a former Attorney General enjoys immunity from suit for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest.
I
The federal material-witness statute authorizes judges to “order the arrest of [a] person” whose testimony “is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.” 18 U. S. C. §3144. Material witnesses enjoy the same constitutional right to pretrial release as other federal detainees, and federal law requires release if their testimony “can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.” Ibid.
Because this case arises from a motion to dismiss, we accept as true the factual allegations in Abdullah al-Kidd’s complaint. The complaint alleges that, in the aftermath of the September 11th terrorist attacks, then-Attorney Gen-

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Opinion of the Court
eral John Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, because federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.
It is alleged that this pretextual detention policy led to the material-witness arrest of al-Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. App. 64. Al-Kidd remained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later. Prosecutors never called him as a witness.
In March 2005, al-Kidd filed this Bivens action, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) to challenge the constitutionality of Ashcroft’s alleged policy; he also asserted several other claims not relevant here against Ashcroft and others. Ashcroft filed a motion to dismiss based on absolute and qualified immunity, which the District Court denied. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity. See 580 F. 3d 949 (2009).
Judge Bea dissented, 580 F. 3d, at 981, and eight judges dissented from the denial of rehearing en banc, see 598 F. 3d 1129, 1137, 1142 (CA9 2010). We granted certiorari, see 562 U. S. ___ (2010).

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3

Opinion of the Court
II
Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (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. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). We recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first. See Pearson v. Callahan, 555 U. S. 223, 236 (2009).
Courts should think carefully before expending “scarce judicial resources” to resolve difficult and novel questions of constitutional or statutory interpretation that will “have no effect on the outcome of the case.” Id., at 236–237; see id., at 237–242. When, however, a Court of Appeals does address both prongs of qualified-immunity analysis, we have discretion to correct its errors at each step. Although not necessary to reverse an erroneous judgment, doing so ensures that courts do not insulate constitutional decisions at the frontiers of the law from our review or inadvertently undermine the values qualified immunity seeks to promote. The former occurs when the constitutionallaw question is wrongly decided; the latter when what is not clearly established is held to be so. In this case, the Court of Appeals’ analysis at both steps of the qualifiedimmunity inquiry needs correction.
A
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” An arrest, of course, qualifies as a “seizure” of a “person” under this provision, Dunaway v. New York, 442 U. S. 200, 207–208 (1979), and so must be reasonable under the circumstances. Al-Kidd does not assert that Government officials would have acted unreasonably if they had used a

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Opinion of the Court
material-witness warrant to arrest him for the purpose of securing his testimony for trial. See Brief for Respondent 16–17; Tr. of Oral Arg. 20–22. He contests, however (and the Court of Appeals here rejected), the reasonableness of using the warrant to detain him as a suspected criminal.
Fourth Amendment reasonableness “is predominantly an objective inquiry.” Edmond, supra, at 47. We ask whether “the circumstances, viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138 (1978). If so, that action was reasonable “whatever the subjective intent” motivating the relevant officials. Whren v. United States, 517 U. S. 806, 814 (1996). This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States, 529 U. S. 334, 338, n. 2 (2000); and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford, 543 U. S. 146, 153–154 (2004).
Two “limited exception[s]” to this rule are our specialneeds and administrative-search cases, where “actual motivations” do matter. United States v. Knights, 534 U. S. 112, 122 (2001) (internal quotation marks omitted). A judicial warrant and probable cause are not needed where the search or seizure is justified by “special needs, beyond the normal need for law enforcement,” such as the need to deter drug use in public schools, Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995) (internal quotation marks omitted), or the need to assure that railroad employees engaged in train operations are not under the influence of drugs or alcohol, Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989); and where the search or seizure is in execution of an administrative warrant authorizing, for example, an inspection of firedamaged premises to determine the cause, Michigan v. Clifford, 464 U. S. 287, 294 (1984) (plurality opinion), or an inspection of residential premises to assure compliance with a housing code, Camara v. Municipal Court of City

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5

Opinion of the Court
and County of San Francisco, 387 U. S. 523, 535–538 (1967). But those exceptions do not apply where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified. See Whren, supra, at 811–812. The Government seeks to justify the present arrest on the basis of a properly issued judicial warrant—so that the special-needs and administrative-inspection cases cannot be the basis for a purpose inquiry here.
Apart from those cases, we have almost uniformly rejected invitations to probe subjective intent. See Brigham City v. Stuart, 547 U. S. 398, 404 (2006). There is one category of exception, upon which the Court of Appeals principally relied. In Edmond, 531 U. S. 32, we held that the Fourth Amendment could not condone suspicionless vehicle checkpoints set up for the purpose of detecting illegal narcotics. Although we had previously approved vehicle checkpoints set up for the purpose of keeping off the road unlicensed drivers, Delaware v. Prouse, 440 U. S. 648, 663 (1979), or alcohol-impaired drivers, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990); and for the purpose of interdicting those who illegally cross the border, United States v. Martinez-Fuerte, 428 U. S. 543 (1976); we found the drug-detection purpose in Edmond invalidating because it was “ultimately indistinguishable from the general interest in crime control,” 531 U. S., at 44. In the Court of Appeals’ view, Edmond established that “ ‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d, at 968.
That was mistaken. It was not the absence of probable cause that triggered the invalidating-purpose inquiry in Edmond. To the contrary, Edmond explicitly said that it would approve checkpoint stops for “general crime control purposes” that were based upon merely “some quantum of individualized suspicion.” 531 U. S., at 47. Purpose was

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Opinion of the Court
relevant in Edmond because “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion,” id., at 45–46 (emphasis added).1
Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear. The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not only our special-needs and administrative-search cases, but of Edmond as well.
A warrant based on individualized suspicion2 in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent. In Whren, 517 U. S., at 813, and Devenpeck, 543 U. S., at 153, we declined to probe the motives behind seizures supported by probable cause but lacking a warrant approved by a detached magistrate.

——————
1 The Court of Appeals also relied upon Ferguson v. Charleston, 532 U. S. 67 (2001), which held unconstitutional a program of mandatory drug testing of maternity patients. Like Edmond, that case involved a general scheme of searches without individualized suspicion. 532 U. S., at 77, n. 10.
2 JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

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Opinion of the Court
Terry v. Ohio, 392 U. S. 1, 21–22 (1968), and Knights, 534 U. S., at 121–122, applied an objective standard to warrantless searches justified by a lesser showing of reasonable suspicion. We review even some suspicionless searches for objective reasonableness. See Bond, 529 U. S., at 335–336, 338, n. 2. If concerns about improper motives and pretext do not justify subjective inquiries in those less protective contexts, we see no reason to adopt that inquiry here.
Al-Kidd would read our cases more narrowly. He asserts that Whren establishes that we ignore subjective intent only when there exists “probable cause to believe that a violation of law has occurred,” 517 U. S., at 811— which was not the case here. That is a distortion of Whren. Our unanimous opinion held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive. See id., at 810, 813. In the course of our analysis, we dismissed Whren’s reliance on our inventory-search and administrativeinspection cases by explaining that those cases do not “endors[e] the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred,” id., at 811 But to say that ulterior motives do not invalidate a search that is legitimate because of probable cause to believe a crime has occurred is not to say that it does invalidate all searches that are legitimate for other reasons.
“[O]nly an undiscerning reader,” ibid., would think otherwise. We referred to probable cause to believe that a violation of law had occurred because that was the legitimating factor in the case at hand. But the analysis of our opinion swept broadly to reject inquiries into motive generally. See id., at 812–815. We remarked that our special-needs and administrative-inspection cases are un-

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Opinion of the Court
usual in their concern for pretext, and do nothing more than “explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes,” id., at 811–812. And our opinion emphasized that we had at that time (prior to Edmond) rejected every request to examine subjective intent outside the narrow context of special needs and administrative inspections. See 517 U. S., at 812. Thus, al-Kidd’s approach adds an “only” to a sentence plucked from the Whren opinion, and then elevates that sentence (as so revised) over the remainder of the opinion, and over the consistent holdings of our other cases.
Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation.3 Efficient4 and evenhanded application of the law demands
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3 The concerns of JUSTICES GINSBURG and SOTOMAYOR about the validity of the warrant in this case are beside the point. See post, at 1–2 (GINSBURG, J., concurring in judgment); post, at 2 (SOTOMAYOR, J., concurring in judgment). The validity of the warrant is not our “opening assumption,” post, at 2 (GINSBURG, J., concurring in judgment); it is the premise of al-Kidd’s argument. Al-Kidd does not claim that Ashcroft is liable because the FBI agents failed to obtain a valid warrant. He takes the validity of the warrant as a given, and argues that his arrest nevertheless violated the Constitution because it was motivated by an illegitimate purpose. His separate Fourth Amendment and statutory claims against the FBI agents who sought the materialwitness warrant, which are the focus of both concurrences, are not before us.
4 We may note in passing that al-Kidd alleges that the Attorney General authorized the use of material-witness warrants for detention of suspected terrorists, but not that he forbade the use of those warrants to detain material witnesses. Which means that if al-Kidd’s inquiry into actual motive is accepted, mere determination that the Attorney

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Opinion of the Court
that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.
B
A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U. S. 635, 640 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. See ibid.; Malley v. Briggs, 475 U. S. 335, 341 (1986). The constitutional question in this case falls far short of that threshold.
At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. A district-court opinion had suggested, in a footnoted dictum devoid of supporting citation, that using such a warrant for preventive detention of suspects “is an illegitimate use of the statute”—implying (we accept for the sake of argument) that the detention would therefore be unconstitutional. United States v. Awadallah, 202 F. Supp. 2d 55, 77, n. 28 (SDNY 2002). The Court of Appeals thought nothing could “have given John Ashcroft fair[er] warning” that his conduct violated the Fourth Amendment, because the footnoted dictum “call[ed] out Ashcroft by name”! 580 F. 3d, at 972–973 (internal quotation marks omitted; emphasis added). We will indulge the assumption (though it does not seem to us realistic) that Justice Department lawyers bring to the Attorney Gen-
——————
General promulgated the alleged policy would not alone decide the case. Al-Kidd would also have to prove that the officials who sought his material-arrest warrant were motivated by Ashcroft’s policy, not by a desire to call al-Kidd as a witness.

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Opinion of the Court
eral’s personal attention all district judges’ footnoted speculations that boldly “call him out by name.” On that assumption, would it prove that for him (and for him only?) it became clearly established that pretextual use of the material-witness statute rendered the arrest unconstitutional? An extraordinary proposition. Even a district judge’s ipse dixit of a holding is not “controlling authority” in any jurisdiction, much less in the entire United States; and his ipse dixit of a footnoted dictum falls far short of what is necessary absent controlling authority: a robust “consensus of cases of persuasive authority.” Wilson v. Layne, 526 U. S. 603, 617 (1999).
The Court of Appeals’ other cases “clearly establishing” the constitutional violation are, of course, those we rejected as irrelevant in our discussion of whether there was any constitutional violation at all. And the Court of Appeals’ reference to those cases here makes the same error of assuming that purpose is only disregarded when there is probable cause to suspect a violation of law.
The Court of Appeals also found clearly established law lurking in the broad “history and purposes of the Fourth Amendment.” 580 F. 3d, at 971. We have repeatedly told courts—and the Ninth Circuit in particular, see Brosseau v. Haugen, 543 U. S. 194, 198–199 (2004) (per curiam)— not to define clearly established law at a high level of generality. See also, e.g., Wilson, supra, at 615; Anderson, supra, at 639–640; cf. Sawyer v. Smith, 497 U. S. 227, 236 (1990). The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established. See Saucier v. Katz, 533 U. S. 194, 201–202 (2001); Wilson, supra, at 615.
The same is true of the Court of Appeals’ broad historical assertions. The Fourth Amendment was a response to the English Crown’s use of general warrants, which often

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Opinion of the Court
allowed royal officials to search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown. See Stanford v. Texas, 379 U. S. 476, 481–485 (1965). According to the Court of Appeals, Ashcroft should have seen that a pretextual warrant similarly “gut[s] the substantive protections of the Fourth Amendmen[t]” and allows the State “to arrest upon the executive’s mere suspicion.” 580 F. 3d, at 972.
Ashcroft must be forgiven for missing the parallel, which escapes us as well. The principal evil of the general warrant was addressed by the Fourth Amendment’s particularity requirement, Stanford, supra, at 485, which Ashcroft’s alleged policy made no effort to evade. The warrant authorizing al-Kidd’s arrest named al-Kidd and only al-Kidd. It might be argued, perhaps, that when, in response to the English abuses, the Fourth Amendment said that warrants could only issue “on probable cause” it meant only probable cause to suspect a violation of law, and not probable cause to believe that the individual named in the warrant was a material witness. But that would make all arrests pursuant to material-witness warrants unconstitutional, whether pretextual or not— and that is not the position taken by al-Kidd in this case.
While featuring a District Court’s footnoted dictum, the Court of Appeals made no mention of this Court’s affirmation in Edmond of the “predominan[t]” rule that reasonableness is an objective inquiry, 531 U. S., at 47. Nor did it mention Whren’s and Knights’ statements that subjective intent mattered in a very limited subset of our Fourth Amendment cases; or Terry’s objective evaluation of investigatory searches premised on reasonable suspicion rather than probable cause; or Bond’s objective evaluation of a suspicionless investigatory search. The Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established.

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Opinion of the Court
Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U. S., at 341. Ashcroft deserves neither label, not least because eight Court of Appeals judges agreed with his judgment in a case of first impression. See Wilson, supra, at 618. He deserves qualified immunity even assuming—contrafactually—that his alleged detention policy violated the Fourth Amendment.
* * *
We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

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1

KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE KENNEDY, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join as to Part I, concurring.
I join the opinion of the Court in full. In holding that the Attorney General could be liable for damages based on an unprecedented constitutional rule, the Court of Appeals for the Ninth Circuit disregarded the purposes of the doctrine of qualified immunity. This concurring opinion makes two additional observations.
I
The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. See ante, at 8 (noting that al-Kidd “does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant”). Under the statute, a Magistrate Judge may issue a warrant to arrest someone as a material witness upon a showing by affidavit that “the testimony of a person is material in a criminal proceeding” and “that it may become impracticable to secure the presence of the person by subpoena.” 18 U. S. C. §3144. The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks

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KENNEDY, J., concurring
before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become impracticable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2.
In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness arrests might be consistent with statutory and constitutional requirements.
II
The fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case. Mitchell v. Forsyth, 472 U. S. 511, 525 (1985). Some federal officers perform

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KENNEDY, J., concurring
their functions in a single jurisdiction, say within the confines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. Davis v. Scherer, 468 U. S. 183, 195 (1984); see also Anderson v. Creighton, 483 U. S. 635, 639–640 (1987). In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many jurisdictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue.
When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken. As we have explained, qualified immunity is lost when plaintiffs point either to “cases of controlling authority in their jurisdiction at the time of the incident” or to “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U. S. 603, 617 (1999); see also ante, at 9–10. These standards ensure the officer has “fair and clear warning” of what the Constitution requires. United States v. Lanier, 520 U. S. 259, 271 (1997).
A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. If national officeholders were subject to personal liability whenever they confronted disagreement among

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KENNEDY, J., concurring
appellate courts, those officers would be deterred from full use of their legal authority. The consequences of that deterrence must counsel caution by the Judicial Branch, particularly in the area of national security. See Ashcroft v. Iqbal, 556 U. S. ___, ___ (2009) (slip op., at 21). Furthermore, too expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review.
The proceedings in this case illustrate these concerns. The Court of Appeals for the Ninth Circuit appears to have reasoned that a Federal District Court sitting in New York had authority to establish a legal rule binding on the Attorney General and, therefore, on federal lawenforcement operations conducted nationwide. See 580 F. 3d 949, 972–973 (2009). Indeed, this case involves a material witness warrant issued in Boise, Idaho, and an arrest near Washington, D. C. Of course, district court decisions are not precedential to this extent. Ante, at 9– 10. But nationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities.

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1

GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, concurring in the judgment.
Is a former U. S. Attorney General subject to a suit for damages on a claim that he instructed subordinates to use the Material Witness Statute, 18 U. S. C. §3144, as a pretext to detain terrorist suspects preventively? Given Whren v. United States, 517 U. S. 806 (1996), I agree with the Court that no “clearly established law” renders Ashcroft answerable in damages for the abuse of authority al-Kidd charged. Ante, at 12. But I join JUSTICE SOTOMAYOR in objecting to the Court’s disposition of alKidd’s Fourth Amendment claim on the merits; as she observes, post, at 1 (opinion concurring in judgment), that claim involves novel and trying questions that will “have no effect on the outcome of th[is] case.” Pearson v. Callahan, 555 U. S. 223, 236–237 (2009).
In addressing al-Kidd’s Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant. Ante, at 1, 12. That characterization is puzzling. See post, at 2 (opinion of SOTOMAYOR, J.).1 Is a warrant “validly

——————
1 Nowhere in al-Kidd’s complaint is there any concession that the warrant gained by the FBI agents was validly obtained. But cf. ante, at 8, n. 3 (majority opinion).

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ASHCROFT v. AL-KIDD

GINSBURG, J., concurring in judgment
obtained” when the affidavit on which it is based fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” post, at 1, and does not disclose that alKidd had cooperated with FBI agents each of the several times they had asked to interview him, App. 26?
Casting further doubt on the assumption that the warrant was validly obtained, the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.2 Given these omissions and misrepresentations, there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination was neither necessary nor proper.3
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2 Judicial officers asked to issue material witness warrants must determine whether the affidavit supporting the application shows that “the testimony of a person is material in a criminal proceeding” and that “it may become impracticable to secure the presence of the person by subpoena.” 18 U. S. C. §3144. Even if these conditions are met, issuance of the warrant is discretionary. Ibid. (“judicial officer may order the arrest of the person” (emphasis added)). Al-Kidd’s experience illustrates the importance of vigilant exercise of this checking role by the judicial officer to whom the warrant application is presented.
The affidavit used to secure al-Kidd’s detention was spare; it did not state with particularity the information al-Kidd purportedly possessed, nor did it specify how al-Kidd’s knowledge would be material to Sami Omar al-Hussayen’s prosecution. As to impracticability, the affidavit contained only this unelaborated statement: “It is believed that if AlKidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.” App. 64. Had the Magistrate Judge insisted on more concrete showings of materiality and impracticability, al-Kidd might have been spared the entire ordeal.
3 The Court thrice states that the material witness warrant for al-

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GINSBURG, J., concurring in judgment
——————
Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).
This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrongdoing.” See Indianapolis v. Edmond, 531 U. S. 32, 37 (2000) (emphasis added); Chandler v. Miller, 520 U. S. 305, 313 (1997) (same). See also, e.g., Brigham City v. Stuart, 547 U. S. 398, 405 (2006) (referring to “programmatic searches conducted without individualized suspicion— such as checkpoints to combat drunk driving or drug trafficking”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U. S. 822, 830 (2002) (“finding of individualized suspicion may not be necessary when a school conducts drug testing”); Whren v. United States, 517 U. S. 806, 817–818 (1996) (observed traffic violations give rise to individualized suspicion); Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 451 (1990) (“Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.”); Maryland v. Buie, 494 U. S. 325, 334–335, n. 2 (1990) (“Terry [v. Ohio, 392 U. S. 1 (1968)] requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”); Treasury Employees v. Von Raab, 489 U. S. 656, 668 (1989) (“[I]n certain limited circumstances, the Government’s need to discover . . . latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify [search that intrudes] on privacy . . . without any measure of individualized suspicion.”); O’Connor v. Ortega, 480 U. S. 709, 726 (1987) (“petitioners had an ‘individualized suspicion’ of misconduct by Dr. Ortega”); United States v. Montoya de Hernandez, 473 U. S. 531, 538 (1985) (“Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion . . .”); New Jersey v. T. L. O., 469 U. S. 325, 342, n. 8 (1985) (“the search of T. L. O.’s purse was based upon an individualized suspicion that she had violated school rules”); Michigan v. Summers, 452 U. S. 692, 699, n. 9 (1981) (“police executing a search warrant at a tavern could not . . . frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous”).
The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime”

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GINSBURG, J., concurring in judgment
I also agree with JUSTICE KENNEDY that al-Kidd’s treatment presents serious questions, unaddressed by the Court, concerning “the [legality of] the Government’s use of the Material Witness Statute in this case.” Ante, at 1 (concurring opinion). In addition to the questions JUSTICE KENNEDY poses, and even if the initial material witness classification had been proper, what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarceration, kept in high-security cells lit 24 hours a day, stripsearched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist. App. 29–36; cf. Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979) (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.”).
However circumscribed al-Kidd’s Bivens claim against Ashcroft may have been, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); ante, at 8 (majority opinion); ante, at 1 (KENNEDY, J., concurring), his remain-
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or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.” App. 41 (internal quotation marks omitted).

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ing claims against the FBI agents who apprehended him invite consideration of the issues JUSTICE KENNEDY identified.4 His challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.

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4 The District Court determined that al-Kidd’s factual allegations against FBI agents regarding their “misrepresentations and omissions in the warrant application, if true, would negate the possibility of qualified immunity [for those agents].” Memorandum Order in No. cv:05–093 (D Idaho, Sept. 27, 2006), p. 18. The agents took no appeal from this threshold denial of their qualified immunity plea.

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1

SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring in the judgment.
I concur in the Court’s judgment reversing the Court of Appeals because I agree with the majority’s conclusion that Ashcroft did not violate clearly established law. I cannot join the majority’s opinion, however, because it unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional . . . interpretation that will ‘have no effect on the outcome of the case.’ ” Ante, at 3 (quoting Pearson v. Callahan, 555 U. S. 223, 237 (2009)).
Whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer question than the majority’s opinion suggests. Although the majority is correct that a government official’s subjective intent is generally “irrelevant in determining whether that officer’s actions violate the Fourth Amendment,” Bond v. United States, 529 U. S. 334, 338, n. 2 (2000), none of our prior cases recognizing that principle involved prolonged deten­ tion of an individual without probable cause to believe he had committed any criminal offense. We have never considered whether an official’s subjective intent matters for purposes of the Fourth Amendment in that novel con­ text, and we need not and should not resolve that question

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SOTOMAYOR, J., concurring in judgment
in this case. All Members of the Court agree that, what­ ever the merits of the underlying Fourth Amendment question, Ashcroft did not violate clearly established law.
The majority’s constitutional ruling is a narrow one pre­ mised on the existence of a “valid material-witness war­ ran[t],” ante, at 1—a premise that, at the very least, is questionable in light of the allegations set forth in alKidd’s complaint. Based on those allegations, it is not at all clear that it would have been “impracticable to secure [al-Kidd’s] presence . . . by subpoena” or that his testimony could not “adequately be secured by deposition.” 18 U. S. C. §3144; see First Amended Complaint in No. 05– 093–EJL, ¶55, App. 26 (“Mr. al-Kidd would have complied with a subpoena had he been issued one or agreed to a deposition”). Nor is it clear that the affidavit supporting the warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a wit­ ness at trial may very well have rendered the affidavit deliberately false and misleading. Cf. Franks v. Delaware, 438 U. S. 154, 155–156 (1978). The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question.
I also join Part I of JUSTICE KENNEDY’s concurring opinion. As that opinion makes clear, this case does not present an occasion to address the proper scope of the material witness statute or its constitutionality as applied in this case. Indeed, nothing in the majority’s opinion today should be read as placing this Court’s imprimatur on the actions taken by the Government against al-Kidd. Ante, at 1 (KENNEDY, J., concurring) (“The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful”).

 
 Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ABDULLAH AL-KIDD,



Plaintiff-Appellee,

v.



JOHN ASHCROFT,
 Defendant-Appellant.

No. 06-36059
D.C. No. CV-05-00093-EJL
OPINION

Appeal from the United States District Court for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued April 8, 2008 Submitted May 18, 2009
Seattle, Washington

Filed September 4, 2009
Before: David R. Thompson, Carlos T. Bea, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr. Partial Concurrence and Partial Dissent by Judge Bea

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AL-KIDD v. A SHCROFT COUNSEL

Robert M. Loeb and Matthew M. Collette, Department of Justice, Civil Division, Washington, D.C., for the defendantappellant.

Lee Gelernt, Immigrants’ Rights Project, American Civil Liberties Union, New York, New York, for the plaintiff-appellee.

Alison M. Tucher, Morrison & Foerster, San Francisco, California, for amici curiae Former Federal Prosecutors.

Leo P. Cunningham and Lee-Anne Mulholland, Wilson Sonsini Goodrich & Rosati, Palo Alto, California, for amici curiae National Association of Criminal Defense Lawyers and Human Rights Watch.

OPINION
MILAN D. SMITH, JR., Circuit Judge:
According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home

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visits throughout the period of supervision. By the time alKidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.

FACTS AND PROCEDURAL BACKGROUND 1

A. Al-Kidd

Plaintiff-Appellee al-Kidd was born Lavoni T. Kidd in Wichita, Kansas. While attending college at the University of Idaho, where he was a highly regarded running back on the University’s football team, he converted to Islam and changed his name. In the spring and summer of 2002, he and his thenwife were the target of a Federal Bureau of Investigation (FBI) surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men. 2 No evidence of criminal activity by al-Kidd was ever discovered. Al-Kidd

1All facts are taken from al-Kidd’s first amended complaint, unless otherwise indicated.
2Al-Kidd is Muslim, but is African-American and not of Arab descent.

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planned to fly to Saudi Arabia in the spring of 2003 to study Arabic and Islamic law on a scholarship at a Saudi university.

On February 13, 2003, a federal grand jury in Idaho indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. officials. On March 14, the Idaho U.S. Attorney’s Office submitted an application to a magistrate judge of the District of Idaho, seeking al-Kidd’s arrest as a material witness in the Al-Hussayen trial. Appended to the application was an affidavit by Scott Mace, a Special Agent of the FBI in Boise (the Mace Affidavit). The Mace Affidavit described two contacts al-Kidd had with Al-Hussayen: alKidd had received “in excess of $20,000 ” from Al-Hussayen (though the Mace Affidavit does not indicate what this payment was for), and al-Kidd had “met with Al-Hussayen’s associates” after returning from a trip to Yemen. It also contained evidence of al-Kidd’s contacts with officials of the Islamic Assembly of North America (IANA, an organization with which Al-Hussayen was affiliated), 3 including one official “who was recently arrested in New York. ” It ended with the statement, “[d]ue to Al-Kidd’s demonstrated involvement

3The IANA is identified in the Al-Hussayen indictment as an organization with the “purpose of Da’wa (proselytizing), which included the website dissemination of radical Islamic ideology the purpose of which was indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.”

The IANA’s web site currently disseminates a list of goals which

include, inter alia, to “[u]nify and coordinate the efforts of the different

dawah oriented organizations in North America and guide or direct the

Muslims of this land to adhere to the proper Islamic methodology

”;

“[s]pread the correct knowledge of Islam ”; “[w]iden the horizons and

understanding . . . among Muslims concerning different Islamic contempo-

rary issues”; “[a]ssist the oppressed and tyrannized scholars, Islamic work-

ers and Muslim masses in any locality ”; and “[c]reate programs and

institutions that will serve the English-speaking Muslims of North Ameri-

ca.” Islamic Assembly of N. Am., About IANA, at http://www.iananet.org/

about.htm (accessed June 10, 2009). Al-Hussayen, then a computer sci-

ence graduate student at the University of Idaho, was accused of register-

ing and running the IANA’s web site.

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with the defendant . . . he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” The Mace Affidavit did not elaborate on what “information” al-Kidd might have had, nor how his testimony might be “germane”—let alone “crucial”—to the prosecution of Al-Hussayen.

The affidavit further stated:

Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia. . . . It is believed that if Al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.

In fact, al-Kidd had a round-trip, coach class ticket, costing approximately $1700. The Mace Affidavit omitted the facts that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him. The magistrate judge issued the warrant the same day.

Pursuant to the material witness warrant, al-Kidd was arrested two days later at the ticket counter at Dulles International Airport. He was handcuffed and taken to the airport’s police substation, where he was interrogated. Thereafter, he was detained for an aggregate of sixteen days at the Alexandria Detention Center in Virginia, the Oklahoma Federal Transfer Center, and the Ada County, Idaho, Jail. He was strip searched on multiple occasions and confined in the highsecurity unit of each facility. During transfer between facilities, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was allowed out of his cell only one to

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two hours each day, and his cell was kept lit twenty-four hours a day, unlike other cells in the high-security wing.

On March 31, after petitioning the court, al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws’ home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport. After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, Nevada, as al-Kidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen’s trial, more than fifteen months after being arrested. 4 In July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.

Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding.

B. Ashcroft

Defendant-Appellant Ashcroft was Attorney General of the United States during the relevant time period . According to al-Kidd’s complaint, following the September 11, 2001 terrorist attacks, Ashcroft developed and promulgated a policy by which the FBI and DOJ would use the federal material witness statute5 as a pretext “to arrest and detain terrorism sus-

4Al-Hussayen was not convicted of any of the charges brought against him. His trial ended in acquittal on the most serious charges, including conspiracy to provide material support to terrorists, 18 U.S.C. §§ 2339A, 2339B. After the jury failed to reach a verdict on the remaining lesser charges, the district court declared a mistrial. The government agreed not to retry Al-Hussayen and deported him to Saudi Arabia for visa violations.
5The federal material witness statute, 18 U.S.C. § 3144, provides:
If it appears from an affidavit filed by a party that the testimony

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pects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further. ” (Cited in, and emphasis added, in al-Kidd’s complaint.)

To support this allegation, the complaint first quotes Ashcroft’s own statement at a press briefing:

Today, I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.

John Ashcroft, Attorney General, Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force (Oct. 31, 2001), available at http://www.usdoj.gov/archive/ag/ speeches/2001/agcrisisremarks10_31.htm (emphasis added in complaint). The complaint also cites internal DOJ memoranda quoted in a report by the DOJ’s Office of the Inspector General (OIG Report), 6 which describe the use of “aggressive

of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
6See Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration

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arrest and detention tactics in the war on terror, ” OIG Report at 12, including the use of material witness warrants to confine aliens suspected of terrorist involvement, id. at 38-39, 75. The complaint also quotes the public statements of a number of DOJ and White House officials implying or stating outright that suspects were being held under material witness warrants as an alternative means of investigative arrest or preventative detention. In addition to this direct evidence, the complaint cites a number of press reports describing the detention of numerous Muslim individuals under material witness warrants. The complaint further alleges that the policies designed and promulgated by Ashcroft have caused individuals to be “impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been impracticable to secure their testimony voluntarily or by subpoena,” in violation of the terms of § 3144.

In his complaint, al-Kidd links his personal detention to these broader policies not only through inference, but also through the statements of Robert Mueller, the Director of the FBI. On March 27, while al-Kidd was jailed in Idaho, Mueller testified before Congress, listing five “major successes” in the FBI’s efforts toward “identifying and dismantling terrorist networks.” The first was the capture of Khalid Shaikh Mohammed, identified as “a key planner and the mastermind of the September 11th attack. ” The second was al-Kidd, iden-

Charges in Connection with the Investigation of the September 11 Attacks (2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf. The OIG Report’s focus is the post-9/11 detention on immigration charges of Arab and Muslim aliens , and touches only incidentally on those held as material witnesses. Because the report, an official government document, is cited extensively throughout the complaint, we deem it incorporated by reference, and take judicial notice of its entire contents. See In re Silicon Graphics Inc. Sec. Litig. , 183 F.3d 970, 986 (9th Cir. 1999) (permitting incorporation by reference of documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] pleading ”).

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tified as having been “arrested . . . en route to Saudi Arabia. ” The other three “successes” all involved individuals “indicted” or “charged” with some crime connected to terrorism. See FBI’s Fiscal Year (FY) 2004 Budget: Hearing Before the Subcommitee on the Departments of Commerce, Justice and State, House Appropriations Commitee , 108th Cong. (2003) (statement of Robert S. Mueller, III, Director, FBI), available at http://www.fbi.gov/congress/congress03/mueller032703 .htm (hereafter Mueller Testimony).

Finally, the complaint notes that “material witnesses have been routinely held in high security detention facilities. ” The OIG Report cites an Assistant U.S. Attorney who complained that the DOJ’s Bureau of Prisons “did not distinguish between detainees who, in his view, posed a security risk and those detained aliens who were uninvolved witnesses. ” OIG Report at 20. It alleges “a general policy” of extensive mistreatment of material witnesses at the New York City Metropolitan Correctional Center (MCC). It cites a case, United States v. Awadallah, 202 F. Supp. 2d 55, 59-61 (S.D.N.Y. 2002) (Awadallah I), rev’d on other grounds , 349 F.3d 42 (2d Cir. 2003) (Awadallah II), which discusses the conditions of confinement of another putative material witness, Osama Awadallah, held in New York City. The complaint avers that Ashcroft “knew or reasonably should have known of the unlawful, excessive, and punitive manner in which the federal material witness statute was being used, ” and that such manner “would also foreseeably subject ” detainees “to unreasonable and unlawful use of force, to unconstitutional conditions of confinement, and to punishment without due process. ”

C. Prior Proceedings

In March 2005, al-Kidd filed this lawsuit in Idaho federal district court. The first amended complaint was filed that November, naming as defendants, among others, Ashcroft, the United States, Mace and Gneckow (the two FBI agents named in the Mace Affidavit), and a number of government

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agencies and officers in their official capacities. 7 It sought damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), for violations of al-Kidd’s rights under the Fourth and Fifth Amendments to the Constitution (a “Bivens action”), and for a direct violation of § 3144.

Ashcroft moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over Ashcroft in Idaho. Specifically, al-Kidd had alleged that Ashcroft “spear-headed the post September 11, 2001 practice . . . to use the material witness statute to detain individuals whom they sought to investigate, ” and that “Ashcroft either knew or should have known the violations were occurring and did not act to correct the violations. ” Next, the district judge denied the 12(b)(6) motion, rejecting Ashcroft’s claims of absolute and qualified immunity. The district court held that “[t]he development and practice of using the material witness statute to detain individuals while investigating possible criminal activity qualifies as police type investigative activity, not prosecutorial advocacy” for which absolute immunity is reserved. Turning to the claims for qualified immunity, the district court held that “the allegations against Mr. Ashcroft involve more than vicarious liability but assert claims involving Mr. Ashcroft’s own knowledge and actions related to Mr. Kidd’s alleged constitutional deprivations.” The principal deprivation the district court mentioned was the allegation “that probable cause was not shown in the warrant application. ” The district court also rejected qualified immunity for the FBI agents.

Ashcroft filed a timely interlocutory appeal.

7Ashcroft is the only defendant in this case who filed an interlocutory appeal of the district court’s denial of the defendants’ Federal Rule of Civil Procedure 12(b)(2) and 12 (b)(6) motions. Accordingly, none of alKidd’s claims against the other defendants is before us.

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JURISDICTION AND STANDARD OF REVIEW

A. Failure to State a Claim

Section 1291 of U.S. Code Title 28 grants this court jurisdiction over “final decisions” of the district court. Ordinarily, the denial of a motion under Federal Rule of Civil Procedure 12(b)(6) would not constitute a “final decision.” The district court’s denial of absolute and qualified immunity, however, is a “final decision” for § 1291 purposes because these immunities are immunities from suit, not just from damages. See Mitchell v. Forsyth, 472 U.S. 511, 525, 527 (1985).

As we have recognized in the past, interlocutory review of a Rule 12(b)(6) motion to dismiss puts our court in the difficult position of deciding “far-reaching constitutional questions on a nonexistent factual record. ” Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004). However, because Ashcroft chose to exercise his right to appeal before a fuller record could be developed, we proceed as we must in a review of all Rule 12(b)(6) motions, accepting as true all facts alleged in the complaint, and drawing all reasonable inferences in favor of the plaintiff. See Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). To avoid dismissal under Rule 12(b)(6), a plaintiff must aver in his complaint “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

We review de novo the district court’s rulings on absolute and qualified immunity. KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004); Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1179 (9th Cir. 2007).

B. Personal Jurisdiction

Ashcroft also argues that the district court does not have personal jurisdiction over him. Because denials of motions to

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dismiss for lack of personal jurisdiction are not ordinarily reviewable on interlocutory appeal, Ashcroft requests that this court exercise its “pendent appellate jurisdiction” to reach the question of personal jurisdiction.

In Hendricks v. Bank of America, N.A. , we summarized the criteria for the exercise of pendent appellate jurisdiction:

Under 28 U.S.C. § 1292(a)(1), we may exercise . . . pendent jurisdiction over any otherwise nonappealable ruling that is “inextricably intertwined” with or “necessary to ensure meaningful review of ” the order properly before us on interlocutory appeal. District court rulings are “inextricably intertwined” with a preliminary injunction when the legal theories on which the issues advance are so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue. We also construe Swint’s “necessary to ensure meaningful review” language narrowly to require much more than a tangential relationship to the decision properly before us on interlocutory appeal.

408 F.3d 1127, 1134 (9th Cir. 2005) (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)) (internal quotation marks, citations, and alterations omitted). Thus, Ashcroft must demonstrate that the issue of personal jurisdiction is either (1) “inextricably intertwined” with or (2) “necessary to ensure meaningful review of ” the issues of absolute or qualified immunity, in order for us to exercise the pendent appellate jurisdiction he requests.

DISCUSSION

Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or

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practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was impracticable to secure the witness’s testimony—in other words, in violation of the express terms of § 3144 itself—and that al-Kidd was arrested as a result of this policy (the § 3144 Claim). Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ would arrest individuals who may have met the facial statutory requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).

Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims.

A. Absolute Immunity

[1] In Bivens actions and those taken under 42 U.S.C. §1983,8 “[m]ost public officials are entitled only to qualified immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). Prosecutors are entitled to absolute immunity, however, when they

8The qualified and absolute immunity defenses to each are the same. See Butz v. Economou , 438 U.S. 478, 504 (1978) ( “[W]e deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials. ”).

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engage in activities “intimately associated with the judicial phase of the criminal process, ” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and done “in the course of [their] role as an advocate for the State, ” Buckley, 509 U.S. at 273. They are entitled only to qualified immunity, however, when they perform investigatory or administrative functions, or are essentially functioning as police officers or detectives. Id. In addition, the United States Attorney General is not entitled to absolute immunity in the performance of his or her “national security functions.” Mitchell, 472 U.S. at 520. The burden to establish absolute immunity rests with the official seeking it:

The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been “quite sparing” in our recognition of absolute immunity, and have refused to extend it any “further than its justification would warrant. ”

Burns v. Reed , 500 U.S. 478, 486-87 (1991) (quoting Forrester v. White, 484 U.S. 219, 224 (1988) ; Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982)). “[I]f application of the principle is unclear, the defendant simply loses, ” and receives only the default of qualified immunity. Buckley, 509 U.S. at 281 (Scalia, J., concurring).

[2] To determine whether an action is “prosecutorial,” and so entitled to absolute immunity, the Supreme Court has adopted a “ ‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269 (quoting Burns, 500 U.S. at 486; Forrester, 484 U.S. at 229). “In Imbler, the Court concluded that the ‘reasons for absolute immunity appl[ied] with full force’ to the conduct at issue because it was ‘intimately associated with the judicial phase of the criminal process.’ ” Van de Kamp v. Goldstein , ___ U.S. ___, 129 S. Ct. 855, 861 (2009) (citing Imbler, 424 U.S. at 430). While the “duties of the prosecutor in his role as advocate for the State involve

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actions preliminary to the initiation of a prosecution and actions apart from the courtroom, ” Imbler, 424 U.S. at 431 n.33, absolute prosecutorial immunity will be given “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct, ” Burns, 500 U.S. at 494.

As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler, 424 U.S. at 431 n.33 ( “Drawing a proper line between these functions may present difficult questions . . . . ”). The Supreme Court has given us few bright lines,9 and its cases on prosecutorial immunity have proceeded on a function-by-function basis. Thus, the Court has held that prosecutors receive absolute immunity for initiating a prosecution, id., for presenting false or perjured testimony, id., for appearing in court to apply for a search warrant, Burns, 500 U.S. at 492, and for preparing and filing an information and a motion for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129 (1997). By contrast, prosecutors receive only qualified immunity for giving legal advice to the police, Burns, 500 U.S. at 496, for investigating and fabricating physical evidence at a crime scene, Buckley, 509 U.S. at 274-75 (involving a bootprint left at the scene of a crime), for holding a press conference, id. at 276-78, and for acting as a complaining witness in support of a warrant application, Kalina, 522 U.S. at 130-31. See also Van de Kamp , 129 S. Ct. at 861.

In determining the scope of the functions to which absolute immunity extends, the Supreme Court has “generally looked for a historical or common-law basis for the immunity in

9One bright line the Supreme Court has given is that a “prosecutor neither is, nor should he consider himself to be, an advocate before he has probable cause to have anyone arrested. ” Buckley, 509 U.S. at 274. The converse, however, is not true: the mere presence of probable cause to have someone arrested “does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. ” Id. at 274 n.5.

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question.” Mitchell, 472 U.S. at 521. The existence of a common-law immunity, however, is a necessary, but not sufficient, condition for the recognition of absolute immunity: “Even when we can identify a common-law tradition of absolute immunity for a given function, we have considered ‘whether §1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.’ ” Buckley, 509 U.S. at 269 (quoting Tower v. Glover, 467 U.S. 914, 920 (1984)).

Ashcroft contends that the decision to seek a material wit-

ness warrant is always a prosecutorial function. He has pre-

sented us with no historical evidence that a common-law tra-

dition of absolute immunity from suit for prosecutors in seek-

ing material witness arrests exists, and our own research has

uncovered none, even though the practice of detaining wit-

nesses who are not criminal suspects dates back to at least the

1840s. See generally Wesley MacNeil Oliver, The Rise and

Fall of Material Witness Detention in Nineteenth Century

New York, 1 N.Y.U. J.L. & L IBERTY 727 (2005). Other cir-

cuits, however, have held that the decision to seek a material

witness warrant to secure a witness’s testimony at trial is suf-

ficiently related to judicial proceedings to be protected by

absolute prosecutorial immunity. See Betts v. Richard , 726

F.2d 79, 81 (2d Cir. 1984); Daniels v. Kieser , 586 F.2d 64,

68-69 (7th Cir. 1978); see also White ex rel. Swafford v. Ger-

bitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (suggesting in

dicta that the decision to seek a material witness order is pro-

secutorial). But see Odd v. Malone , 538 F.3d 202, 217 (3d

Cir. 2008) (holding “that the policies underlying the recogni-

tion of prosecutorial immunity do not apply with the same

force” to detained material witnesses because “the aggrieved

persons are unindicted third-party witnesses rather than crimi-

nal defendants”). In Betts and Daniels, the plaintiffs, who had

been previously subpoenaed as witnesses, failed to appear on

the day they were set to testify, and the prosecutor sought a

material witness warrant. Betts, 726 F.2d at 80; Daniels, 586

F.2d at 66. The Seventh Circuit in

Daniels held that

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“[b]ecause defendant was attempting to secure Daniels’ presence at the resumption of the trial, we must consider that he was functioning as an advocate rather than as an investigator or administrator,” and was therefore entitled to absolute immunity. 586 F.2d at 69; see also Betts, 726 F.2d at 81 (citing Daniels).

Al-Kidd does not contest that absolute immunity ordinarily attaches to the decision to seek a material witness warrant. He contends, rather, that in his case, the decision to arrest was an act in furtherance of an investigative or national security function, for which the Attorney General may claim only qualified immunity. That is, al-Kidd claims he was arrested not in order to secure his testimony at Al-Hussayen’s trial, but in order to detain, interrogate, and gather evidence against him, in particular. He notes that, in both Betts and Daniels, there was never any question that the material witness arrest was made for any reason other than to secure the witnesses’ testimony at trial.

Ashcroft responds that any investigation into the purpose or motive behind the decision to arrest al-Kidd is inconsistent with the “functional” approach the Supreme Court has outlined. However, the cases he cites in support of this proposition are distinguishable. Those cases universally involve allegations that the otherwise prosecutorial action was secretly motivated by malice, spite, bad faith, or self-interest. See, e.g., Bernard v. County of Suffolk, 356 F.3d 495, 504 (9th Cir. 2004) (alleging “racially invidious or partisan prosecutions”); Radcliffe v. Rainbow Constr. Co. , 254 F.3d 772, 779 (9th Cir. 2001) (involving prosecutor accused of initiating prosecution in order “to deny the plaintiffs access to public works construction job sites ”); Ashelman v. Pope , 793 F.2d 1072, 1078 (9th Cir. 1986) ( “To foreclose immunity upon allegations that judicial and prosecutorial decisions were conditioned upon a conspiracy or bribery serves to defeat these policies.”). None of these cases attempts to distinguish between a prosecutor’s investigative or national security func-

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tions and his prosecutorial functions, which is the question here.

[3] The cases distinguishing investigative and prosecutorial function take into account the goal of performing an action to determine function. In Buckley v. Fitzimmons , the Supreme Court held that the prosecutors lacked absolute immunity for their actions before they had probable cause to arrest a suspect because “[t]heir mission at that time was entirely investigative in character.” 509 U.S. at 274. Even after a grand jury had been empaneled, the prosecutor’s actions before it were not shielded by absolute immunity because “its immediate purpose was to conduct a more thorough investigation of the crime—not to return an indictment against a suspect whom there was already probable cause to arrest. ” Id. at 275. 10

This circuit has followed the Supreme Court’s instruction. In KRL v. Moore, a grand jury had indicted the plaintiff, based on evidence obtained from an initial search warrant, on twenty-one criminal counts, mostly concerning environmental infractions relating to the removal of an underground fuel storage tank. 384 F.3d at 1108. The following month, however, prosecutors obtained two additional warrants to search for evidence with little relevance to the charges in the indictment. Id. at 1109. We held that the prosecutors were engaged, at least in part, in investigative functions when they requested

10Justice Kennedy would have gone even further, extending the inquiry beyond “immediate” purpose:
Two actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions. It may be that a prosecutor and a police officer are examining the same evidence at the same time, but the prosecutor is examining the evidence to determine whether it will be persuasive at trial and of assistance to the trier of fact, while the police officer examines the evidence to decide whether it provides a basis for arresting a suspect. The conduct is the same but the functions distinct.
Id. at 289 (Kennedy, J., concurring in part, dissenting in part).

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the second and third warrants, even though they already had probable cause as to those suspects for other crimes. We cited the prosecutors’ investigatory purpose, which they had admitted both in depositions and on a talk radio program. Id. at 1114-15. “Thus, we conclude[d] that, because the warrant . . . was to further a ‘stand-alone investigation’ into environmental crimes, [defendants were] not entitled to absolute immunity from Plaintiffs’ claim of judicial deception. ” Id. at 1115. By contrast, “the second search warrant had two goals: it sought evidence to prosecute the pending indictment against Womack, and it sought to investigate and uncover new crimes.” Id. at 1111. We held that “to the extent the second search warrant sought evidence to prosecute the crimes charged in the indictment, [defendants’] review of the warrant prior to submission was intimately associated with the judicial process,” and therefore entitled them to absolute immunity. Id. at 1112. Our focus on ends, rather than the labels attached to means, was explicit and effectively determinative. 11

Likewise, in Genzler v. Longanbach , 410 F.3d 630, 638 (9th Cir. 2005), we noted that “[w]itness interviews may serve either an investigative or an advocacy-related function, ” and demonstrated how that function can be inferred from the circumstances of the interviews. In that case, the timing of the interviews, id. at 639, 642, as well as the “nature of the information obtained,” id. at 640, led us to hold that “evidence in the record supports the conclusion that [the defendants] were

11In KRL we limited our holding to search warrants, rather than arrest warrants. Id. at 1114. This distinction was based on the Supreme Court’s rule that “a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established. ” Id. (citing Buckley, 509 U.S. at 274). The Supreme Court has been clear that probable cause to arrest is necessary, but not sufficient, to the prosecutorial function, and “does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” Buckley, 509 U.S. at 274 n.5. At any rate, this distinction in dicta does nothing to detract from the teleological inquiry that was central to our holding.

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engaged in police-type investigative work during ” the witness interviews, id. at 642. 12

Indeed, Daniels and Betts, while granting absolute immunity for material witness arrests, are entirely compatible with an inquiry into immediate purpose similar to that in Genzler. Both emphasized the close temporal and circumstantial connection between trial and seeking the arrest. Betts, 726 F.2d at 81; Daniels, 586 F.2d at 68-69. The Daniels court noted that “[i]n seeking to guarantee Daniels’ presence at the trial through the material witness warrant, defendant was attempting to prove all elements charged in the indictment. ” Id. at 68. Other circuits have likewise used the language of purpose in determining function.13

12The dissent argues that an individual’s detention on a material witness warrant “is subject to continuing oversight, and errors may be corrected though the judicial process[,] ” and thus obviates “ ‘the need for damages actions to prevent unjust results.’ ” Dissent at 12352 (citations omitted). The Third Circuit has recently held the opposite, finding that the plaintiffs, who had been detained on material witness statutes, had demonstrated the need for damages actions because “by virtue of their status as third-party witnesses, Plaintiffs are not entitled to the protections available to criminal defendants, including the appellate process. ” Odd, 538 F.3d at 217.
13See, e.g., Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 30-31 (1st Cir. 1995); Parkinson v. Cozzolino, 238 F.3d 145, 151 (2d Cir. 2001) ( “There can be little doubt that conduct taken with the goal of affirming a conviction on appeal or obtaining a new conviction on re-trial falls within the traditional adversarial function of a prosecutor. ” (internal quotation marks omitted)); Hill v. City of New York , 45 F.3d 653, 662 (2d Cir. 1995) ( “To the extent that the creation of the videotapes fulfilled an investigatory purpose, Adago cannot claim absolute immunity. ”); Cousin v. Small , 325 F.3d 627, 635 (5th Cir. 2003) ( “The interview was intended to secure evidence that would be used in the presentation of the state’s case at the pending trial of an already identified suspect, not to identify a suspect or establish probable cause. ”); Lomaz v. Hennosy , 151 F.3d 493, 499 (6th Cir. 1998) ( “The purpose for which they sought the warrant, therefore, was not primarily investigative, but was to obtain and preserve the evidence. We think that under these circumstances, the prosecutors were clearly ‘preparing for the initiation of judicial proceedings.’ ” (quoting Buckley, 509 U.S. at 273)); Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983); Rivera v. Leal, 359 F.3d 1350, 1354 (11th Cir. 2004) (finding absolute immunity because, inter alia, “there is no indication that Leal was trying to establish probable cause to arrest Appellant. In fact, the purpose of the hearing was to establish whether [another individual] was innocent. ”).

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[4] They were justified in doing so. Even were we not constrained by our precedents in KRL and Genzler, the Supreme Court, in adopting a “functional” test, has necessarily required us to look beyond the labels a prosecutor attaches to his or her actions and examine their underlying ends. The very word function reflects, at least in part, a teleological perspective. See, e.g., Oxford English Dictionary, Function (2d ed. 1989) (defining “function” as “[t]he special kind of activity proper to anything; the mode of action by which it fulfils its purpose”). In Buckley, the Supreme Court found it proper to inquire into the prosecutor’s mission and purpose, the very inquiry that Ashcroft and the dissent in this case find distasteful. 509 U.S. at 274-75.

Ashcroft’s suggested approach, by contrast, would convert the Supreme Court’s functional approach into a formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish. Because the application for the arrest warrant had the words “Material Witness” in the caption, Ashcroft seems to contend, our inquiry must stop there. Our dissenting colleague agrees, and would hold that so long as a material witness warrant is sought pursuant to a criminal trial, the decision to seek the material witness warrant should always be shielded by absolute immunity, regardless of whether its purpose was purely investigative. Dissent at 12351.

We disagree. Many tools and tactics available to prosecutors can serve either an investigatory or advocacy-related function. A grand jury may be used to return an indictment against a particular suspect, or to conduct a wide-ranging investigation. Buckley, 509 U.S. at 274. A witness interview’s function may be to gather evidence, or to prepare the witness to testify at imminent trial. Genzler, 410 F.3d at 638. And the power to arrest, even as a material witness, can be investigatory. As cited in al-Kidd’s complaint, Michael Chertoff, then Assistant Attorney General for the DOJ’s Criminal Division, described the material witness statute as “an important investi-

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gative tool in the war on terrorism . . . . Bear in mind that you get not only testimony—you get fingerprints, you get hair samples—so there’s all kinds of evidence you can get from a witness.” Steve Fainaru & Margot Williams, Material Witness Law Has Many in Limbo: Nearly Half Held in War On Terror Haven’t Testified, Wash. Post, Nov. 24, 2002, at A1 (quoting Chertoff) (emphasis added).

Ashcroft argues that an inquiry into purpose cannot be cabined: a prosecutor filing charges against a foot soldier in an organized crime syndicate, for example, might hope that the prospect of a lengthy incarceration will encourage the defendant to turn state’s evidence, permitting investigation of those higher in the organization. A wide-ranging investigation into such motives would likely prove unworkable. It is for that reason that the Supreme Court has spoken only of “immediate purpose.” Buckley, 509 U.S. at 275 (emphasis added). As a common law court, we can rule only on the case before us. We believe, however, that while the prosecutor who files charges may hope, eventually, that the petty crook will implicate his boss, the immediate purpose of filing charges is to begin a prosecution—the better to pressure the defendant into providing information.

[5] We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity.14 We emphasize that our hold-

14The dissent believes that such an inquiry is undesirable because of the incentives it creates. Dissent at 12358. Judge Bea states that our inquiry may make a prosecutor go to trial against a defendant simply to ensure his actions will not be subject to attack in a future lawsuit. We disagree. First, prosecutors often make choices regarding prosecutorial strategy that may be in tension with personal liability, see Kalina, 522 U.S. at 130-31, since all actions taken by a prosecutor are not entitled to absolute immunity. Second, we note that creating an incentive for a prosecutor to utilize a material witness he/she has detained for the very purpose alleged in his/ her affidavit is not an undesirable incentive, and certainly not dispositive to the immediate purpose inquiry.

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ing here does not rest upon an unadorned assertion of secret, unprovable motive, as the dissent seems to imply. Even before the Supreme Court’s decision in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it was likely that conclusory allegations of motive, without more, would not have been enough to survive a motion to dismiss. See, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (facts pled must be accepted as true, but conclusory allegations need not be). Twombly’s general requirement that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” 550 U.S. 555, applies with equal force to allegations that a prosecutor’s actions served an investigatory function. In this case, however, al-Kidd has averred ample facts to render plausible the allegation of an investigatory function:

• Al-Kidd’s arrest was sought a month after AlHussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler, 410 F.3d at 639 ( “The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official’s core advocacy function . . . . ”). Cf. Betts, 726 F.2d at 81 (arrest warrant issued day of trial); Daniels, 586 F.2d at 68 (same).

• The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts, 726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels, 586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).

• The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters

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apparently unrelated to Al-Hussayen’s alleged visa violations. Cf. Genzler, 410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).

• Al-Kidd never actually testified for the prosecution in Al-Hussayen’s or any other case, despite his assurances that he would be willing to do so. Cf. Betts, 726 F.2d at 80 ( “On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness. ”); Daniels, 586 F.2d at 66 ( “Plaintiff subsequently testified as a government witness when Phoenix’s trial resumed.”).

All of these are objective indicia, similar to those we cited in Genzler, 410 F.3d at 641-43, that al-Kidd’s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness’s testimony for trial. Finally:

• Ashcroft’s immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd’s arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a “major success[ ]” in “identifying and dismantling terrorist networks.” Mueller Testimony, supra. Cf. KRL, 384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”).

We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfils an investigative function.

B. Qualified Immunity

The Attorney General may still be entitled to qualified immunity for acts taken in furtherance of an investigatory or

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national security function. Before addressing each of alKidd’s claims in turn, we address the general requirements of qualified immunity applicable to all his claims.

1. Qualified Immunity Generally

Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (2001). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer , 536 U.S. 730, 739 (2002) (internal quotation marks omitted). It is within our “sound discretion” to address these two prongs in any sequence we see fit. Pearson v. Callahan , ___ U.S. ___, 129 S. Ct. 808, 818 (2009). Here, we apply the two-step Saucier analysis in the traditional sequence, as this sequence “promotes the development of constitutional precedent,” which is especially valuable in addressing constitutional questions such as the one at hand, “that do not frequently arise in cases in which a qualified immunity defense is unavailable. ” Id. at 818.

2. Qualified Immunity for Supervisors

Because qualified immunity is “an immunity from suit rather than a mere defense to liability, ” Mitchell, 472 U.S. at 526, courts have also evaluated the sufficiency of the allegations of the defendant’s personal involvement in the deprivation of the right at the second stage of the qualified immunity analysis. Neither a 42 U.S.C. § 1983 nor a Bivens action will hold a supervisor strictly vicariously liable for the actions of his subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Although this question is a part of the sub-

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stance of § 1983 and Bivens liability, it is also a proper component of the qualified immunity inquiry:

In conducting qualified immunity analysis . . . , courts do not merely ask whether, taking the plaintiff’s allegations as true, the plaintiff’s clearly established rights were violated. Rather, courts must consider as well whether each defendant’s alleged conduct violated the plaintiff’s clearly established rights. For instance, an allegation that Defendant A violated a plaintiff’s clearly established rights does nothing to overcome Defendant B’s assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A’s conduct.

Hope, 536 U.S. at 751 n.9 (Thomas, J., dissenting). In Kwai Fun Wong v. United States, we, on interlocutory appeal, dismissed part of a Bivens action for failure to state a claim where the complaint “fail[ed] to identify what role, if any, each individual defendant had in placing [the plaintiff] in detention.” 373 F.3d at 966.

Al-Kidd’s complaint does not allege that Ashcroft was directly involved in the decision to detain al-Kidd. But “direct, personal participation is not necessary to establish liability for a constitutional violation. ” Id. Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a “reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal quotation marks omitted).

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Any one of these bases will suffice to establish the personal involvement of the defendant in the constitutional violation.

3. The Fourth Amendment Claim

Al-Kidd’s complaint principally alleges that Ashcroft “developed, implemented and set into motion a policy and/or practice under which the FBI and DOJ would use the material witness statute to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventively or to investigate further.” Al-Kidd argues that using § 3144 to detain suspects to investigate them violates the Fourth Amendment’s guarantee against unreasonable seizure.

a. Al-Kidd’s Fourth Amendment Rights Were Violated.

[6] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We have previously held that material witness arrests are “seizures” within the meaning of the Fourth Amendment and are therefore subject to its reasonableness requirement. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971).

The Supreme Court has never held that detention of inno-
cent persons as material witnesses is permissible under the Fourth Amendment,15 and this circuit, in one of the few

15Two decisions have held that it does not violate other provisions of the Constitution. See Hurtado v. United States , 410 U.S. 578, 589-90

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circuit-level cases to examine the validity of material witness detentions under the Fourth Amendment, declined to reach the facial constitutionality of the predecessor of § 3144. Id. at 941. Al-Kidd does not contend that § 3144 is facially unconstitutional. Rather, he contends that it is intended to be a “limited exception” to the ordinary rule that arrests may only be made upon probable cause of criminal wrongdoing. He further claims that its use for any purpose other than obtaining testimony, and specifically to investigate or preemptively detain terrorism suspects, without probable cause, is unconstitutional. Ashcroft contends that this position is inconsistent with Whren v. United States ’s rule that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 517 U.S. 806, 813 (1996). But arrests of material witnesses are neither “ordinary,”16 nor involve “probable cause” as that term has historically been understood.

(1973) (Fifth and Thirteenth Amendments); New York v. O’Neill, 359 U.S. 1, 6-7 (1959) (Privileges or Immunities Clause of the Fourteenth Amendment). Dicta in two other cases suggest that the practice is ordinarily permissible. See Stein v. New York , 346 U.S. 156, 184 (1953), overruled by Jackson v. Denno, 378 U.S. 368 (1964) ( “The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness. ”); Barry v. United States ex rel. Cunningham , 279 U.S. 597, 616-17 (1929) ( “[A] court has power in the exercise of a sound discretion to issue a warrant of arrest without a previous subpoena when there is good reason to believe that otherwise the witness will not be forthcoming. . . . The constitutionality of this statute apparently has never been doubted. ”).
16In 2003, the year of al-Kidd’s arrest, material witness arrests made up only 3.6% of all arrests by federal law enforcement agents. Of those, 92.3% were made by the former Immigration and Naturalization Service, typically to detain illegally smuggled aliens for testimony against their smugglers before removal. See, e.g., Aguilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir. 1992). Less than 0.3% of arrests by non-immigration federal law enforcement agents were material witness arrests. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Compendium of Federal Justice Statistics, 2003, NCJ No. 210299 (2005), available at http://www.ojp.usdoj.gov/bjs/ pub/pdf/cfjs0301.pdf, at 18.

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[7] Whren rejected only the proposition that “ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.” Id. at 811 (emphasis added). Indeed, probable cause, since before the founding, has always been a term of art of criminal procedure. As Chief Justice Marshall wrote:

[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress.

Locke v. United States , 11 U.S. (7 Cranch) 339, 348 (1813). Its most famous modern formulation comes from Justice Stewart’s opinion in Beck v. Ohio :

Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

379 U.S. 89, 91 (1964). This definition has been reiterated in Supreme Court cases over the decades:

This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circum-

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stances shown, that the suspect has committed, is committing, or is about to commit an offense.

Michigan v. DeFillippo , 443 U.S. 31, 37 (1979); see also Atwater v. City of Lago Vista , 532 U.S. 318, 354 (2001) ( “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Probable cause has both a burden-of-proof component (facts sufficient to make a reasonable person believe . . . ) and a substantive component ( . . . that the suspect is involved in crime). “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. ” Brinegar v. United States, 338 U.S. 160, 175 (1949) (citations and quotation marks omitted). An arrest of a material witness is not justified by probable cause because the two requirements of § 3144 (materiality and impracticability) do not constitute the elements of a crime. 17

The dissent disputes this traditional definition of probable cause, contending that no substantive component exists and that Zurcher v. Stanford Daily, 436 U.S. 547 (1978), prevents an inquiry into whether wrongdoing has occurred. Dissent at 12338. The dissent misreads Zurcher and confuses the different requirements for probable cause in situations for the seizure of a person and the probable cause required for a search warrant. As Zurcher explains, “while probable cause for arrest requires information justifying a reasonable belief that a crime has been committed and that a particular person committed it, a search warrant may be issued on a complaint which does not identify any particular person as the likely offender. ” Id. at 556 n.6. Thus, the dissent’s analogy to Zurcher is inapplicable, and nothing in our holding here contravenes Zurcher.

17One may commit a crime by ignoring or disobeying a subpoena. 18 U.S.C. § 401(3) (authorizing criminal contempt for “[d]isobedience or resistance to [a court’s] lawful writ, process, order, rule, decree, or command”). This was not the case here, where al-Kidd does not ever seem to have been subpoenaed.

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Further, our decision in Bacon v. United States is not to the contrary. In Bacon, we held that the two criteria for arrest in the predecessor of § 3144, materiality of the witness’s testimony and impracticability of securing the witness’s testimony by subpoena, must be met by “probable cause” to arrest the material witness. 449 F.2d at 943. 18 We stated that “[t]hese requirements are reasonable, and if they are met, an arrest warrant may issue.” Id. Bacon cannot be read for the proposition that this alone satisfies the “probable cause” requirement of the Fourth Amendment, however, and even if it could, such a reading has been superseded by the dozens of subsequent Supreme Court reaffirmations of the traditional definition of probable cause. Rather, Bacon simply borrowed, by analogy, some of the procedural protections traditionally afforded to criminal suspects, including the burden-of-proof component of probable cause. We therefore required that the elements of the material witness statute be shown by “probable cause,” not because that, in itself, satisfies the Fourth Amendment’s “probable cause” requirement, but because permitting arrests only upon establishing the elements by that burden of proof was “reasonable” under the Fourth Amendment. Id.

18The petitioner in Bacon was detained as a material witness in a grand jury proceeding. We stated that “a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy” the materiality criterion in the case of a witness for a grand jury, which maintains broad powers of investigation and whose proceedings are secret. 449 F.2d at 943. Bacon reserved the question of what showing is necessary “in the case of a witness who is to testify at a trial. ” Id. We currently see no reason that the showing of materiality as to the witness in a trial, where proceedings are public and bound by the charges in the indictment, should be any different from the showing required for impracticability.
Because Al-Hussayen had already been indicted by the time of alKidd’s arrest, we do not address whether Bacon’s statement that grand juries are “criminal proceedings” within the meaning of the material witness statute was a holding or obiter dicta. Compare Awadallah I, 202 F. Supp. 2d at 71 (holding the Bacon language to be dicta because it was unnecessary to the conclusion that the affidavit was insufficient to show impracticability), with In re Application for a Material Witness Warrant , 213 F. Supp. 2d 287, 291 (S.D.N.Y. 2002) (finding the same language to be a holding).

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[8] Because material witness arrests are seizures without suspicion of wrongdoing, the Whren rule, that subjective motivation is irrelevant in the presence of probable cause, does not apply to our Fourth Amendment analysis in this case. In City of Indianapolis v. Edmond , the Supreme Court struck down motor vehicle checkpoints set up “to interdict unlawful drugs” carried by those stopped. 531 U.S. 32, 35 (2000). The Court explained that “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts. ” Id. at 45-46. The Court went on to clarify:

our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.

. . . [W]e examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.

Id. at 46-47 (citation omitted).

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[9] Edmond, therefore, establishes that “programmatic purpose” is relevant to Fourth Amendment analysis of programs of seizures without probable cause.19 It further establishes that if that programmatic purpose is criminal investigation, it is fatal to the program’s constitutionality: “the constitutional defect of the program is that its primary purpose is to advance the general interest in crime control. ” Id. at 44. The following year’s Ferguson v. City of Charleston held unconstitutional a program of mandatory drug testing of maternity patients because “the immediate objective of the searches was to generate evidence for law enforcement purposes ” against the women tested. 532 U.S. 67, 83 (2001). By contrast, in Illinois v. Lidster, the Court upheld seizures at a motor vehicle checkpoint set up by the police a week after a hit-and-run accident, “at about the same time of night and at about the same place ” as the accident, where the checkpoint was “designed to obtain more information about the accident from the motoring public.” 540 U.S. 419, 422 (2004). The Court in Lidster distinguished the seizure in Edmond on the basis that, in Lidster:

the stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood commit-

19The dissent contends that United States v. Villamonte-Marquez , 462 U.S. 579 (1983), does not allow such a broad reading of Edmond. Dissent at 12340-41. Villamonte-Marquez, however, is factually limited to searches of sea vessels located in waters providing ready access to the open sea. 462 U.S. at 581 ( “[W]e are concerned only with the more narrow issue” of whether “the Fourth Amendment is offended when Customs officials . . . board for inspection of documents a vessel that is located in waters providing ready access to the open sea ”). The Supreme Court has expressly distinguished searches of such sea vessels from other types of searches—those of automobiles on land, for example. Id. at 584-92. Only under the most contorted reading of Villamonte-Marquez would that case also apply to the pretextual detention of a person under a material witness statute.

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ted by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.

Id. at 423. As Justice Stevens wrote in concurrence, “[t]here is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier. ” Id. at 428 (Stevens, J., concurring in part, dissenting in part). 20 That is precisely the distinction at work here, and the reason we hold that Ashcroft’s policy as alleged was unconstitutional.

[10] Al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation. Contrary to the dissent’s alarmist claims, we are not probing into the minds of individual officers at the scene; instead, we are inquiring into the programmatic purpose of a general policy as contemplated by Edmond, 531 U.S. at 457, and finding that the purpose of the policy alleged in al-Kidd’s first

20We are mindful of the difference between a traffic stop and a material witness arrest. The material witness is subject to a seizure an order of magnitude greater than that at issue in Lidster, where the stops were “brief,” and were of drivers in their cars. (As the Court noted, the “Fourth Amendment does not treat a motorist’s car as his castle.” 540 U.S. at 424.) An individual seized as a material witness is taken from her home and daily affairs and confined to a small space for a period of time measured not in minutes or even hours, but ranging from days to months. Al-Kidd disclaims any attack on material witness detention generally, and we are in any event bound by Bacon’s determination that the material witness statute, backed by a “probable cause” requirement to guarantee particularity, has struck a “reasonable” balance between the witness’s interest in liberty and the government’s need for testimony. But the severity of the deprivation of liberty in material witness arrests only militates for correspondingly more severe judicial scrutiny of its application.

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amended complaint impermissible under the Fourth Amendment.

[11] Further, the dissent’s assertion that we are suggesting “the only governmental interest of sufficient weight to justify an arrest is a reasonable belief that the arrestee has committed a crime” grossly mischaracterizes our holding. Dissent at 12336. To the contrary, we recognize that when the material witness statute is genuinely used to secure “testimony of a person . . . material in a criminal proceeding ” because “it is shown that it may become impracticable to secure the presence of the person by subpoena, ” 18 U.S.C. § 3144, a showing of probable cause is not required. Our holding does nothing to curb the use of the material witness statute for its stated purpose. What we do hold is that probable cause— including individualized suspicion of criminal wrongdoing— is required when 18 U.S.C. § 3144 is not being used for its stated purpose, but instead for the purpose of criminal investigation. We thus do not render the material witness statute “entirely superfluous,” dissent at 12339; it is only the misuse of the statute, resulting in the detention of a person without probable cause for purposes of criminal investigation, that is repugnant to the Fourth Amendment.

[12] All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment. Accord Awadallah II , 349 F.3d at 59 ( “[I]t would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.”).

b. Al-Kidd’s Right Was “Clearly Established.”

Ashcroft alternatively contends that if we conclude that the use of material witness orders for investigatory purposes vio-

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lates the Constitution, we should still grant him qualified immunity because that constitutional right was not “clearly established” in March 2003, when al-Kidd was arrested. We disagree.

In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution. Both the complaint and Amici Former Federal Prosecutors note the unprecedented nature of Ashcroft’s alleged material witness policy, and thus it is unsurprising that published cases directly on point are lacking. However, this alone is not enough to give Ashcroft immunity: “ ‘while there may be no published cases holding similar policies [un]constitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue.’ ” Moreno v. Baca , 431 F.3d 633, 641 (9th Cir. 2005) (quoting Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002)). Indeed, as the Supreme Court has stated:

For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent. ”

Hope, 536 U.S. at 739 (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)) (internal citations omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances. ” Id. at 741.

What was clearly established in March 2003? No federal appellate court had yet squarely held that the federal material witness statute satisfied the requirements of the Fourth Amendment. Even our decision in Bacon held only that it was unconstitutional as applied to the petitioner. 449 F.2d at 943.

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What obiter dicta existed on material witness detention, however, clearly linked its justification only to the state’s overriding need to compel testimony in criminal cases. 21 Even dicta, if sufficiently clear, can suffice to “clearly establish” a constitutional right. See Hope, 536 U.S. at 740-41. But there is more.

[13] The definition of probable cause, as set forth in Beck v. Ohio, was certainly clearly established. While the Supreme Court’s decision permitting suspicionless seizures in some circumstances in Lidster had not yet been decided, its decision in Edmond, stating that an investigatory programmatic purpose renders a program of seizures without probable cause unconstitutional, had been decided two and a half years earlier. 531 U.S. at 47. That holding was reaffirmed the following year in Ferguson, 532 U.S. at 81-83, which highlighted the close connection between the investigative “programmatic purpose” and the search scheme that was ruled unconstitutional. Those decisions, which emphasized that an investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause, should have been sufficient to put Ashcroft on notice that the material witness detentions—involving a far more severe seizure than a

21 See, e.g., Stein, 346 U.S. at 184 (1953) (“The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness. ”); Barry, 279 U.S. at 617 (stating that the material witness statute then in effect “provides that any federal judge . . . may have [material witnesses] brought before him by a warrant of arrest, to give recognizance, and that such person may be confined until removed for the purpose of giving his testimony”) (emphasis added); Bacon, 449 F.2d at 942 ( “The public interest [in detaining witnesses] will be protected if grand jury witnesses come forth to provide testimony concerning the possible commission of crimes.”); Awadallah I, 202 F. Supp. 2d at 77 (“The only legitimate reason to detain a grand jury witness is to aid in ‘an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.’ ” (quoting United States v. Calandra, 414 U.S. 338, 343-44 (1974))).

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mere traffic stop—would be similarly subject to an inquiry into programmatic purpose.

Moreover, the history and purposes of the Fourth Amendment were known well before 2003:

The central importance of the probable-cause

requirement to the protection of a citizen’s privacy

afforded by the Fourth Amendment’s guarantees

cannot be compromised in this fashion.

“The

requirement of probable cause has roots that are deep

in our history. ” Hostility to seizures based on mere

suspicion was a prime motivation for the adoption of

the Fourth Amendment, and decisions immediately

after its adoption affirmed that “common rumor or

report, suspicion, or even ‘strong reason to suspect’

was not adequate to support a warrant for arrest. ”

Dunaway v. New York , 442 U.S. 200, 213 (1979) (quoting Henry v. United States, 361 U.S. 98, 100-01 (1959)) (internal citation omitted). The Fourth Amendment “reflect[s] the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Stanford v. Texas, 379 U.S. 476, 481 (1965).

The facts alleged of al-Kidd’s arrest, that he was arrested because he was associated with the webmaster of an allegedly jihadist website, demonstrate the continued relevance of the Founders’ concerns. The Fourth Amendment was, in large measure, a direct response to the so-called “Wilkes cases.” As summarized by the Supreme Court:

The Wilkes case arose out of the Crown’s attempt to stifle a publication called The North Briton, anonymously published by John Wilkes, then a member of Parliament—particularly issue No. 45 of that journal.

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Lord Halifax, as Secretary of State, issued a warrant ordering four of the King’s messengers “to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled, The North Briton, No. 45, * * * and them, or any of them, having found, to apprehend and seize, together with their papers. ” “Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. ” Holding that this was “a ridiculous warrant against the whole English nation,” the Court of Common Pleas awarded Wilkes damages against the Secretary of State.

Id. at 483 (alteration in original) (footnotes omitted). Within three days of the issuance of Halifax’s general warrants, fortynine people had been arrested, none of whom was named in the warrant, but all of whom were alleged associates of the allegedly seditious pamphleteer. Nelson B. Lasson, The Fourth Amendment to the Constitution 43-44 (1937). The warrant authorizing al-Kidd named him in particular, and so was not a general warrant in that sense. But the result was the same: gutting the substantive protections of the Fourth Amendment’s “probable cause” requirement and giving the state the power to arrest upon the executive’s mere suspicion.

Finally, months before al-Kidd’s arrest, one district court in a high-profile case had already indicated, in the spring of 2002, that § 3144 itself should not be abused as an investigatory anti-terrorism tool, calling out Ashcroft by name:

Other reasons may motivate prosecutors and law enforcement officers to rely upon the material witness statute. Attorney General John Ashcroft has been reported as saying: “Aggressive detention of

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lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute. If there is probable cause to believe an individual has committed a crime or is conspiring to commit a crime, then the government may lawfully arrest that person, but only upon such a showing.

Awadallah I, 202 F. Supp. 2d at 77 n.28 (citation omitted, first emphasis added). The statement was dicta in a footnote of a district court opinion. But it was categorical, and it addressed exactly what al-Kidd alleges happened ten months after the opinion was first issued. It is difficult to imagine what, in early 2003, 22 might have given John Ashcroft “fair[er] warning” that he could be haled into court for his alleged material witness policies. Hope, 536 U.S. at 741.

[14] We therefore hold that al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003. Although Ashcroft has raised in this appeal neither a national security nor an exigency defense to al-Kidd’s action, we note that we are mindful of the pressures under which the Attorney General must operate. We do not intend to “dampen the ardor of all but the most resolute, or the most irresponsible, in the

22Mr. Awadallah was detained shortly after the September 11 attacks. Awadallah II, 349 F.3d at 45 (Sept. 20, 2001). He sought his release almost immediately. Id. at 47 (Sept. 25, 2001). By April of 2003, his case had finally reached the court of appeals. Given the speed of our appellate process, it would have been almost impossible for any authority higher than a district court to have opined on defendant’s material witness policies before March 2003. As noted above, the Second Circuit later indicated, in dicta of its own, its agreement with the district court’s statement on this question, even as it reversed the district court’s holding and remanded the case. Id. at 59.

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unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). But, as the Supreme Court has aptly noted, qualified immunity must

not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate . . . . ” This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.

Mitchell, 472 U.S. at 524 (quoting Harlow, 457 U.S. at 819) (internal citations omitted).

4. The § 3144 Claim

In addition to alleging that Ashcroft misused § 3144 for unconstitutional purposes the statute did not intend, al-Kidd alleges that his arrest violated the terms of § 3144 itself. Section 3144 authorizes the arrest of material witnesses only if (1) “the testimony of a person is material in a criminal proceeding,” and (2) “it may become impracticable to secure the presence of the person by subpoena. ” Bacon v. United States requires that these elements be shown by presenting the judicial officer with an affidavit showing “the underlying facts or circumstances from which the judicial officer could find probable cause.” 449 F.2d at 943. Al-Kidd claims that, in his case, the Mace Affidavit fails to demonstrate probable cause for either the materiality of his testimony or the reasons it would be impracticable to secure that testimony by subpoena. This

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allegation is the § 3144 claim: that, independent of the constitutionality of the use of § 3144 for investigatory purposes, alKidd’s arrest failed to meet the statutory requirements set forth by Congress, and was therefore unlawful.

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Although the arrest was conducted pursuant to a warrant issued by a magistrate judge, we allow challenges to the validity of searches and seizures conducted pursuant to a warrant if the affidavit in support of the warrant included false statements or material omissions that were made intentionally or recklessly. See Franks v. Delaware , 438 U.S. 154, 155-56 (1978); United States v. Stanert , 762 F.2d 775, 781 (9th Cir. 1985) (extending Franks to material omissions); see also Awadallah I, 349 F.3d at 64-65 & n.17 (assuming, without deciding, that Franks applies to a material witness warrants and conducting the Franks analysis). Ashcroft does not contest that such an inquiry would be appropriate, or that reckless or intentional misstatements or omissions could, if proven, constitute a valid claim of the violation of a clearly established right. Rather, he argues that al-Kidd has not pled sufficient acts or omissions to establish supervisory liability for the § 3144 Claim.23

Prior to Bell Atlantic Company v. Twombly , 550 U.S. 544 , we held that a plaintiff “does not need to show with great specificity how each defendant contributed to the violation of his constitutional rights. Rather, he must state the allegations generally so as to provide notice to the defendants and alert the court as to what conduct violated clearly established law. ” Preschooler II, 479 F.3d at 1182. Ashcroft argues that alKidd’s allegations as to Ashcroft’s personal involvement in the § 3144 Claim amount simply to “sheer speculation,” and are insufficient to state a claim under Twombly.

In Twombly, the Supreme Court held that an allegation of parallel conduct by competitors, without more, does not suffice to plead an antitrust violation under 15 U.S.C. § 1. 550 U.S. at 548. While the Court expressly disclaimed any inten-

23As discussed previously, “a plaintiff must plead that each Government-official defendant, though the official’s own individual actions” were involved in the constitutional deprivations. Iqbal, 129 S. Ct. at 1948.

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tion to require general “heightened fact pleading of specifics,” id. at 570, and reaffirmed the holding of Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (rejecting a fact pleading requirement for Title VII employment discrimination), it stated that, to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must aver “enough facts to state a claim to relief that is plausible on its face, ” id. at 570.

Since the argument and initial briefing in this case, the Supreme Court, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), has clarified Twombly’s reach to cases such as these. Iqbal concerned claims against a number of defendants, including FBI Director Mueller and Attorney General Ashcroft, made by Javaid Iqbal, a Muslim Pakistani who was part of the mass roundup of Muslim aliens on immigration charges following the September 11 attacks. Iqbal claimed that Mueller and Ashcroft were responsible for selectively placing detainees in their restrictive conditions on account of their race and religion. Id. at 1951. The Supreme Court found the allegations in the complaint insufficient to state a discrimination claim under the above-discussed Twombly “plausibility” standard. Id. at 1952. The Court held that a pleading “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ” is insufficient to state a claim under Rule 8 of the Federal Rules of Civil Procedure. Id. at 1949 (quoting Twombly, 550 U.S. at 555).

In reviewing the complaint in Iqbal, the Court noted that the complaint did not contain any factual allegations claiming that Mueller or Ashcroft may have intentionally discriminated on the basis of race or religion. Id. at 1952 ( “Accepting the truth of [the allegation of a adopting an impermissible policy], the complaint does not show, or even intimate, that petitioners purposefully housed detainees . . . due to their race, religion, or national origin.”). The Court concluded that bare assertions regarding an invidious policy were not entitled to the assumption of truth because they amounted to “nothing more than a ‘formulaic recitation of the elements’ of a constitutional dis-

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crimination claim.” Id. at 1951 (quoting Twombly, 550 U.S. at 555). The Court noted that the alleged facts, even if accepted as true, were more compatible on their face with lawful conduct. Id.

[15] Here, unlike Iqbal’s allegations, al-Kidd’s complaint

“plausibly suggest[s]” unlawful conduct, and does more than

contain bare allegations of an impermissible policy. Id. at

1950. While the complaint similarly alleges that Ashcroft is

the “principal architect” of the policy, the complaint in this

case contains specific statements that Ashcroft himself made

regarding the post-September 11th use of the material witness

statute. Ashcroft stated that enhanced tactics, such as the use

of the material witness statute, “form one part of the depart-

ment’s concentrated strategy to prevent terrorist attacks by

taking suspected terrorists off the street,

” and that

“[a]ggressive detention of lawbreakers and material witnesses

is vital to preventing, disrupting or delaying new attacks. ”

Other top DOJ officials candidly admitted that the material

witness statute was viewed as an important “investigative

tool” where they could obtain “evidence” about the witness.

The complaint also contains reference to congressional testi-

mony from FBI Director Mueller, stating that al-Kidd’s arrest

was one of the government’s anti-terrorism successes—

without any caveat that al-Kidd was arrested only as a wit-

ness. Comparatively, Iqbal’s complaint contained no factual

allegations detailing statements made by Muller and Ashcroft

regarding discrimination. The specific allegations in al-Kidd’s

complaint plausibly suggest something more than just bare

allegations of improper purpose; they demonstrate that the

Attorney General purposefully used the material witness stat-

ute to detain suspects whom he wished to investigate and

detain preventatively, and that al-Kidd was subjected to this

policy.

Further, unlike in Twombly and Iqbal, where the plaintiffs alleged a conspiracy or discriminatory practice in the most conclusory terms, al-Kidd does not rely solely on his assertion

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that Ashcroft ordered, encouraged, or permitted “policies and practices [whereby] individuals have also been impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been practicable to secure their testimony voluntarily or by subpoena. ”24 His complaint notes “one account” of material witness practices stating that “nearly fifty percent of those detained in connection with post-9/11 terrorism investigations were not called to testify.” In a declaration filed in another proceeding well before al-Kidd’s arrest, a DOJ official admitted that, of those detained as material witnesses, “it may turn out that these individuals have no information useful to the investigation. ” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice , 331 F.3d 918, 942 (D.C. Cir. 2003) (Tatel, J., dissenting) (quoting Declaration of James Reynolds, Chief of the Terrorism and Violent Crime Section, Criminal Division, Dep’t of Justice).

Al-Kidd need not show that Ashcroft “actually instruct[ed] his subordinates to bypass the plain text of the statute, ” as Ashcroft contends. The complaint clearly alleges facts which might support liability on the basis of Ashcroft’s knowing failure to act in the light of even unauthorized abuses, but also alleges facts which may support liability on the basis that Ashcroft purposely used the material witness statute to preventatively detain suspects and that al-Kidd was subjected to this policy.25 As discussed above, Ashcroft publically stated

24Ashcroft contends that al-Kidd does not even go so far as to make such an assertion, and that he never explicitly says in his complaint that Ashcroft designed such a policy. This argument requires a hypertechnical reading of the complaint. The paragraph alleging outright violations of § 3144 begins with “the post-9/11 policies and practices,” with the definite article. (Emphasis added). There is no reason from the text of the complaint to think that those “post-9/11 policies and practices ” are anything other than “The post-9/11 material witness policies and practices adopted and implemented by Defendant Ashcroft ” alleged fourteen paragraphs earlier in the complaint. (Emphasis added).
25The dissent contends that the “knowing failure to act” standard did not survive Iqbal. Dissent at 12345 n.13. The dissent points to the fact that the

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that the material witness statute was an important tool in “tak-

ing suspected terrorists off the street, ” and that “[a]ggressive

detention of . . . material witnesses is vital to preventing, dis-

rupting or delaying new attacks.” Again, unlike in Iqbal, these

are not bare allegations that the Attorney General “knew of”

the policy. Here, the complaint contains allegations that plau-

sibly suggest that Ashcroft purposely instructed his subordi-

nates to bypass the plain reading of the statute.

26 “The

plausibility standard is not akin to a ‘probability requirement’

but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Iqbal, 129 S. Ct. at 1949 (citing

Twombly, 550 U.S. at 556). Here, the allegations recounted

above clearly “nudge[ ]” al-Kidd’s claim of illegality “across

the line from conceivable to plausible. ” Id. at 1952 (citing

Twombly, 550 U.S. at 570).

Further, the complaint notes that the “abuses occurring under the material witness statute after September 11, 2001, were highly publicized in the media, congressional testimony and correspondence, and in various reports by governmental and non-governmental entities,” which could have given Ashcroft sufficient notice to require affirmative acts to supervise and correct the actions of his subordinates. The complaint also

Court held that Ashcroft could not be held liable for his “knowledge and acquiescence” of his subordinates’ unconstitutional discrimination against Muslim men. 129 S.Ct. at 1948. We need not address whether the two standards are distinct, or whether the Court’s comments relate solely to discrimination claims which have an intent element, because al-Kidd plausibly pleads “purpose” rather than just “knowledge” to impose liability on Ashcroft. Id. at 1949 ( “[P]urpose rather than knowledge is required to impose Bivens liability . . . for an official charged with violations arising from his or her superintendent responsibilities. ”).
26The dissent believes that al-Kidd’s complaint plausibly demonstrates only that Ashcroft directed his subordinates to use the statute “pretextually,” not “unlawfully.” Dissent at 12348. As discussed above, the pretextual use of the material witness statute that results in a person being detained for criminal investigation without adequate probable cause runs afoul of the Fourth Amendment, and is thus unlawful.

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avers that “the Justice Department has issued apologies to 1012 individuals who were improperly arrested as material witnesses.” Given that the government maintains that it does nothing wrong in the pretextual use of the material witness statute to investigate and preemptively detain, it is reasonable to infer that its apologies were for violations of the terms of the statute itself, of which the DOJ, and presumably its leader, were aware.27 The complaint also contains extensive citations to the OIG Report, which discussed at length abuses and improprieties that occurred in a related context, involving investigatory detention of aliens. While the OIG Report was not released to the public until April 2003, it is reasonable to believe that Ashcroft, as Attorney General, would have been aware of its contents at a date preceding al-Kidd’s arrest.

Our dissenting colleague contends that al-Kidd’s pleadings merely establish that “some material witnesses were detained who did not testify or did not prove to have material information,” perhaps because defendants took plea deals or prosecutors acted hastily in conducting investigations. Dissent at 12347. The dissent further contends that this does not amount to a Franks violation. Franks, 438 U.S. at 165. As discussed above, al-Kidd pleads facts that go much farther than merely showing that he was detained under the material witness statute and did not testify. The pleadings show that Ashcroft explicitly stated that enhanced techniques such as the use of the material witness statute “form one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street. ” Other top DOJ officials stated that the material witness statute was viewed as an important “investigative tool,” and that al-Kidd’s arrest was touted as one of the government’s anti-terrorism successes, without any mention that he was being held as a material wit-

27To be sure, this is not a necessary inference: the apologies could have been for wrongs that do not rise to the level of a constitutional violation. But neither is it an unreasonable inference, and on a Rule 12(b)(6) motion, we draw all reasonable inferences in favor of the plaintiff.

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ness. We disagree with the dissent, and hold that al-Kidd has plead that Ashcroft’s “concerted strategy” of misusing the material witness statute plausibly led to al-Kidd’s detention.

Post-Twombly, plaintiffs face a higher burden of pleading facts, and courts face greater uncertainty in evaluating complaints. As discussed in Iqbal, “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. This concern applied with great force in the civil rights context, where “[t]he basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’ ” Id. at 1953 (citing Siegert v. Gilley, 500 U.S. 226, 236 (1991)). Drawing on our “judicial experience and common sense,” as the Supreme Court urges us to do, we find that alKidd has met his burden of pleading a claim for relief that is plausible, and that his suit on the § 3144 claim should be allowed to proceed. Id. at 1950.

[16] Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden to show that the Attorney General himself was personally involved in a policy or practice of alleged violations of § 3144. But Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiff’s burden. “Asking for plausible grounds to infer ” the existence of a claim for relief “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence ” to prove that claim. Twombly, 550 U.S. at 556. In this case, we hold that al-Kidd has pled “enough facts to state a claim to relief that is plausible on its face. ” Id. at 570.

AL-KIDD v. A SHCROFT 5. Conditions of Confinement Claim

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Lastly, al-Kidd complains that he was mistreated while confined as a material witness. Confinement of criminals is a punishment, and, within the limits of the Fifth and Eighth Amendments, it is supposed to be unpleasant. However, when, as here, the government is empowered to detain those who are not charged with crimes, it is under an obligation not to treat them like criminals. See Youngsberg v. Romeo , 457 U.S. 307, 321-22 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. ”). Prior to 2003, at least two district courts had refused, on constitutional grounds, to house material witness detainees under the same conditions as those facing trial. See United States v. Nai , 949 F. Supp. 42, 46 (D. Mass. 1996) (expressing “concern[ ] that these five material witnesses are being treated as if they were charged with an offense ” and ordering them “transferred to a minimum security, residential facility ”); In re Cochrane , 434 F. Supp. 1207, 1215 (D. Neb. 1977) (holding that “a witness who has had, at most, the misfortune of seeing a crime committed” must be held in “the least restrictive alternative that is reasonably calculated to assure the witness’ presence for trial”).

On this appeal, Ashcroft contests neither the substance of the right al-Kidd claims was violated in the Conditions of Confinement Claim, nor whether that right was “clearly established.” Rather, as with the § 3144 Claim, he argues only that al-Kidd has failed to plead sufficient facts to tie Ashcroft, personally, to the alleged violation.

[17] The unconstitutional conditions claim in this case is substantially similar to the claims in the Supreme Court’s recent Iqbal decision. In Iqbal, the complaint alleged Ashcroft’s liability for the conditions of confinement at the Metropolitan Detention Center in New York, where aliens

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arrested after 9/11 were held. 129 S. Ct. at 1944. Iqbal’s complaint alleged that Ashcroft and FBI Director Robert Mueller approved of these highly restrictive detention policies in discussions that took place in the weeks after September 11, 2001. Id. at 1951. Similarly, al-Kidd claims here that Ashcroft promulgated and approved the unlawful policy which caused al-Kidd “to be subjected to prolonged, excessive, punitive, harsh, unreasonable detention or post-release conditions. ” Contrary to the § 3144 claim, however, the complaint does not allege any specific facts—such as statements from Ashcroft or from high ranking officials in the DOJ—establishing that Ashcroft had personal involvement in setting the conditions of confinement.

As al-Kidd’s complaint notes, media reports had observed the conditions detailed in the OIG Report to apply to Americans and legal aliens held as material witnesses. See, e.g., Naftali Bendavid, Material Witness Arrests Under Fire; Dozens Detained in War on Terror , Chi. Trib., Dec. 24, 2001, at N1; Fainaru & Williams, supra, at A1; John Riley, Held Without Charge: Material Witness Law Puts Detainees in Legal Limbo, N.Y. Newsday, Sept. 18, 2002, at A6. Their conditions of confinement had also been noted by the courts. The district court in Awadallah I, writing in the spring of 2002, decried at length the state in which Mr. Awadallah had been held:

Awadallah was treated as a high security federal prisoner. Having committed no crime—indeed, without any claim that there was probable cause to believe he had violated any law—Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.

. . . In many ways, . . . the conditions of his confinement were more restrictive than that experienced by the general prison population.

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202 F. Supp. 2d at 60; see id. at 60-61 & nn.5-10 (describing Awadallah’s allegations of mistreatment while in custody) . While it is possible that these reports were sufficient to put Ashcroft on notice by spring of 2003 that there was a systemic problem at the DOJ with respect to its treatment of material witnesses, the non-specific allegations in the complaint regarding Ashcroft’s involvement fail to nudge the possible to the plausible, as required by Twombly.

[18] Unlike the § 3144 Claim, which specifically avers facts which could sustain the inference that Ashcroft “set[ ] in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury” regarding the illegal use of the material witness statute, Kwai Fun Wong , 373 F.3d at 966 (internal quotation marks omitted), the complaint’s more conclusory allegations regarding Ashcroft’s involvement in setting the harsh conditions of confinement (which are very similar to the allegations in Iqbal), are deficient under Rule 8. Accordingly, we reverse the district court on al-Kidd’s Conditions of Confinement claim, and hold that al-Kidd has not alleged adequate facts to render plausible Ashcroft’s personal involvement in setting the harsh conditions of his confinement, and has therefore failed to state a claim for which relief can be granted.

C. Personal Jurisdiction

Finally, Ashcroft contends that the district court erred in denying Ashcroft’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. As this is an interlocutory appeal, we will address the issue only to the extent it falls within our pendent appellate jurisdiction.

1. “Necessary to Provide Meaningful Review ”

Ashcroft first alleges that the issue of personal jurisdiction is “necessary to provide meaningful review ” of the district

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court’s immunity rulings. It is true that personal jurisdiction was a necessary predicate to the district court’s Rule 12(b)(6) ruling denying Ashcroft absolute and qualified immunity. But that could be said about any ruling following a decision on personal jurisdiction, so that alone cannot make our review of personal jurisdiction “necessary to provide meaningful review.” See, e.g., Poulos v. Caesars World, Inc ., 379 F.3d 654, 671-72 (9th Cir. 2004) (holding that personal jurisdiction not “necessary to ensure meaningful review ” of class certification); see also Rux v. Republic of Sudan , 461 F.3d 461, 475-76 (4th Cir. 2006) (same with respect to review of subject matter jurisdiction under FISA); E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediaries, S.A.S. , 269 F.3d 187, 204-05 (3d Cir. 2001) (same with respect to review of motion to compel arbitration).

The only cases that Ashcroft cites to suggest that personal jurisdiction is necessary to ensure meaningful review are cases involving interlocutory appeals of temporary injunctions. Hendricks, 408 F.3d at 1134-35; In re Diet Drugs , 282 F.3d 220, 230 n.5 (3d Cir. 2002). In entering a preliminary injunction, however, a district court has already necessarily found “at least a reasonable probability of ultimate success upon the question of jurisdiction. ” Visual Scis., Inc. v. Integrated Comm., Inc., 660 F.2d 56, 59 (2d Cir. 1981) (citation and quotation marks omitted). To rule on the preliminary injunction is necessarily to make a judgment as to the question of jurisdiction. More importantly, the equitable remedy of injunction, granted before trial, is itself an imposition on the defendant that goes well beyond merely being haled into court, and often effectively decides the issue in question. See Dupont, 269 F.3d at 205 n.9 (distinguishing a precedent involving a permanent injunction because “[i]t is well-settled that when a court grants an injunction, the underlying personal jurisdiction decision is immediately reviewable on appeal”).

AL-KIDD v. A SHCROFT 2. “Inextricably Intertwined”

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Ashcroft next argues that the issue of personal jurisdiction is “inextricably intertwined” with the immunity issues. To be “inextricably intertwined,” we “require that the two issues: (a) be so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir. 2003) (internal quotation marks and alterations omitted). The first criterion fails: unlike, for example, the temporary injunction, where success on the merits, including on the issue of personal jurisdiction, is an element of the issue being appealed, personal jurisdiction is not a subset of qualified immunity and we need not necessarily address the former to resolve the latter. Cf. id. (“We can decide the anti-SLAPP issue entirely independently of the question of personal jurisdiction, and different legal standards apply to each issue. ”).

[19] The second criterion, however, is present—in part. To obtain specific personal jurisdiction over a defendant in a state, the defendant must either purposefully avail himself of the privilege of conducting activities in the state, or purposefully direct his activities toward the state. Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797, 802 (9th Cir. 2004). Purposeful direction, in turn, requires that the defendant have (1) committed an “intentional act,” (2) “expressly aimed” at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state. Id. at 805. The first element, an intentional act, is effectively decided by resolution of the “personal involvement” prong of the qualified immunity inquiry. Insofar as Ashcroft’s objection to personal jurisdiction rests on the absence of an intentional act, we affirm the decision of the district court to exercise personal jurisdiction.

[20] Insofar as Ashcroft’s objection to personal jurisdiction rests on the fact that his acts were not “expressly aimed” at

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Idaho, or that he did not know that his acts were likely to cause harm in Idaho, we decline to rule on the issue. Far from being “inextricably intertwined,” those issues are irrelevant to any element of absolute or qualified immunity. The federal courts of appeals are courts of limited jurisdiction, and Congress has not seen fit to give this court the general power to review district courts’ exercise of personal jurisdiction before a final judgment. We therefore will not do so here.

CONCLUSION

Almost two and a half centuries ago, William Blackstone, considered by many to be the preeminent pre-Revolutionary War authority on the common law, wrote:

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS oF ENGLAND 131-32 (1765). The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.

We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the

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Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

For the reasons indicated in this opinion, we AFFIRM in part and REVERSE in part the decision of the district court. Each party shall bear its own costs on appeal.

BEA, Circuit Judge, concurring in part and dissenting in part:

This case raises the question whether a person whom a prosecutor can rightly arrest under a statute becomes wrongly arrested if the prosecutor’s purpose in arresting him had nothing to do with the statute. Put another way, can a prosecutor, empowered by law to arrest an individual for one declared purpose, be immune from suit when he arrests that person with another, secret purpose in mind?
Our natural reaction is, “Of course not!” Such a prosecutor is abusing the vast discretionary powers we have entrusted to him. He is not playing fair; he is playing “Gotcha!”

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But under our law, that natural reaction would be wrong. For reasons of public policy, our law provides the prosecutor with official immunity—perhaps not immunity from being fired, impeached, or hounded from public life, but immunity nonetheless—from lawsuits for money damages based on the acts he undertakes on behalf of the public.

The Supreme Court has developed this law by repeatedly instructing us not to inquire into the personal, subjective intentions of a government official when determining whether the official is protected by official immunity. Reading the minds of government officials is notoriously expensive, uncertain, and fraught with error. The very purpose of official immunity is to shield the purses of government officials from the high costs of civil damages lawsuits. If official immunity were to depend upon proof of the officials’ good intentions, the value of that immunity would be lost.

Yet today, the majority permits plaintiff Abdullah al-Kidd to seek redress from the wallet of a federal cabinet-level official for injuries al-Kidd alleges he suffered when he was detained—pursuant to a warrant signed and issued by a neutral federal magistrate judge—as a material witness in the government’s prosecution of an indicted terrorist suspect.

The sole reason the majority provides for stripping former Attorney General John Ashcroft of his official immunity is that, although he and his subordinates had sufficient evidence to arrest al-Kidd as a material witness in the prosecution of a suspected terrorist under the applicable statute, they acted with a forbidden state of mind: they really arrested him not to testify against the indicted terror suspect, but to investigate al-Kidd himself.

Because I do not believe this holding comports with the Supreme Court’s instructions regarding official immunity and Fourth Amendment law, I must respectfully dissent.

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I also dissent from the majority’s resolution of al-Kidd’s claim that Ashcroft is personally liable for the inclusion of claimed material misrepresentations and omissions in the affidavit supporting the material witness warrant on which alKidd was detained. Al-Kidd’s complaint does not state facts sufficient plausibly to show Ashcroft was personally responsible for the claimed falsities. See Ashcroft v. Iqbal , 129 S. Ct. 1937 (2009).

I. Background

After 9/11, in connection with an investigation into terrorist activities in Idaho, federal agents interviewed al-Kidd on several occasions. In February 2003, a grand jury returned an indictment against Sami Omar Al-Hussayen, a suspect in that investigation. During the course of the investigation, FBI agents learned, and later affied, that al-Kidd had received “in excess” of $20,000 from Al-Hussayen, had met with AlHussayen’s associates after al-Kidd’s trip to Yemen, and had contacts with the Islamic Assembly of North America (“IANA”) (the suspected Jihadist organization for which AlHussayen worked).1 One month later, al-Kidd purchased a plane ticket to Saudi Arabia. Apprehensive, they said, that alKidd would abscond to Saudi Arabia with information critical to the prosecution of al Hussayen, never to return, the federal agents sought a warrant for his arrest. The agents appeared before a magistrate, swore they had good cause to believe alKidd both had information material to Al-Hussayen’s prosecution and was on the run, and then arrested al-Kidd at Dulles International Airport as he was about to board a plane to

1As the majority states, the Al-Hussayen indictment alleged that one of the IANA’s purposes was “indoctrination, recruitment of members, and the instigation of acts of violence and terrorism. ” The Al-Hussayen indictment also alleged Al-Hussayen himself was the sole registrant of another website, www.alasr.ws, which was affiliated with the IANA’s website through a third website belonging to the IANA. The www.alasr.ws website published an article in June 2001 entitled “Provision of Suicide Operations,” which advocated suicide bombings and “bringing down” aircraft.

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Saudi Arabia. The government held al-Kidd for fourteen days and released him only when al-Kidd surrendered his passport and agreed to certain conditions of release. In the event, alKidd was never called to testify at al-Hussayen’s trial.

Al-Kidd filed this action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in the United States District Court for the District of Idaho. Al-Kidd named as defendants not only the officers who prepared the material witness warrant, but former Attorney General Ashcroft, FBI Director Robert Mueller, and former Secretary of the Department of Homeland Security Michael Chertoff, as well as the wardens of the prisons in which he was detained. In his complaint, alKidd raises three very distinct claims. First, al-Kidd alleges that the conditions under which he was confined were unconstitutionally harsh. Second, al-Kidd alleges his detention on a material witness warrant was illegal because it was based on pure pretext; the government wanted to detain al-Kidd not to secure his testimony at the Al-Hussayen trial but really to keep al-Kidd himself off the streets and to investigate him. Al-Kidd contends that even if the warrant on which he was detained was objectively valid, the preparing officers’ subjective intention to use the warrant to accomplish an illicit goal rendered the officers’ actions unconstitutional. Third, al-Kidd contends the warrant was not only illegal because it was pretextual, it was also invalid because it was based on an affidavit containing material misrepresentations and omissions: AlKidd had no information useful to the investigation, he was not a flight risk, and the government knew it but concealed those facts from the magistrate.

Ashcroft contends each of these claims is barred, either because al-Kidd has not pleaded facts sufficient to establish Ashcroft’s personal involvement; because Ashcroft enjoys absolute or qualified immunity against al-Kidd’s claims; or, because the district court lacked personal jurisdiction over Ashcroft.

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The majority concludes that al-Kidd has not adequately pleaded Ashcroft’s personal involvement in the decision to subject him to unconstitutionally harsh conditions of confinement. I agree, and therefore I join in Part B.5 of the majority opinion (“The Conditions of Confinement Claim ”).

As to al-Kidd’s second and third claims, however, the majority affirms the district court’s order denying Ashcroft’s motion to dismiss.

I disagree. As to al-Kidd’s claim prosecutors used the material witness statute as a pretext to pursue other, investigatory or crime prevention agendas, the answer is simply that such pretext does not invalidate the arrest warrant; I would hold Ashcroft is shielded by qualified immunity. In light of the considerable authority recognizing that the pretextual use of an objectively justifiable search or seizure does not violate the Fourth Amendment, it follows the federal agents did not violate al-Kidd’s constitutional rights. But if I’m wrong, in any case al-Kidd’s right not to be arrested on an objectively valid, but pretextual arrest warrant was not “clearly established” in March 2003, when al-Kidd was detained, and qualified immunity therefore shields Ashcroft from al-Kidd’s claims. See Saucier v. Katz, 533 U.S. 194 (2001). I therefore dissent from part B.3 of the majority opinion ( “The Fourth Amendment Claim”).

As to al-Kidd’s claim that his detention violated the Fourth Amendment and the terms of the material witness statute because the supporting warrant application contained material misrepresentations and omissions, we cannot reach the merits of his claim, for—as with his claim that Ashcroft is liable for the claimed wretched conditions of al-Kidd’s confinement, as to which all of us agree his claim fails—al-Kidd has failed to allege facts sufficient to establish Ashcroft’s personal liability for such conduct. See Ashcroft v. Iqbal , 556 U.S. __, 129 S. Ct. 1937 (2009). Therefore I dissent from part B.4 of the majority opinion.

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Lastly, I disagree, in part, with the majority’s treatment of Ashcroft’s claim of absolute immunity. I agree that Ashcroft lacks absolute prosecutorial immunity for his acts or omissions in supervising the officers who acted as complaining witnesses in support of a material witness warrant application. When officials—whether prosecutors or police officers—act as mere witnesses in support of a warrant application, absolute immunity does not shield their actions. Equally, Ashcroft would lack absolute immunity for his acts or omissions in supervising officers who obtain a material witness warrant to secure the presence of a witness before an investigatory grand jury, rather than a criminal trial. However, I disagree that Ashcroft does not enjoy absolute immunity for his supervision of prosecutors who decide to seek a material witness warrant to secure the presence of a witness at a criminal trial, regardless of any claimed improper motive. 2

I address each of these issues in turn.

II. Qualified Immunity

I would hold that Ashcroft enjoys qualified immunity from al-Kidd’s claim that the material witness warrant on which he was detained was merely a pretext to accomplish other law enforcement objectives. To be clear, al-Kidd’s pretext claim
is not that the material witness warrant on which he was
detained was invalid on its face or because it was based on an affidavit containing material misrepresentations or omissions.3

2I express no opinion as to parts B.1 ( “Qualified Immunity Generally”) and B.2 (“Qualified Immunity for Supervisors”). I also express no opinion as to part C ( “Personal Jurisdiction”). Because I conclude al-Kidd cannot proceed on his claims against Ashcroft, I would not reach the difficult question whether this court has pendent appellate jurisdiction over Ashcroft’s appeal of the district court’s order denying his motion to dismiss al-Kidd’s claims against him for lack of personal jurisdiction. If it is not necessary to decide an issue, it is necessary for a common-law court not to decide it.
3Al-Kidd later makes this claim separate and distinct from his pretext claim. It is addressed infra, parts III and IV.

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Rather, in his pretext claim, al-Kidd contends that even if the material witness warrant on which he was detained was objectively valid and supported by probable cause, the prosecutor’s subjective intention to use the material witness warrant to accomplish other, law-enforcement objectives renders the government’s conduct unconstitutional. Because al-Kidd had no constitutional right to be free from such conduct—and certainly had no clearly established constitutional right—I dissent from the majority’s conclusion that Ashcroft lacks qualified immunity.

Al-Kidd bases his claims of liberty from arrest on the Fourth Amendment. The Supreme Court has repeatedly stated that under the Fourth Amendment, an officer’s subjective intentions are irrelevant so long as the officer’s conduct is objectively justified. See, e.g., Maryland v. Macon , 472 U.S. 463, 470-71 (1985) (“Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken. ” (internal citations and quotation marks omitted)); 4 Scott v. United States , 436 U.S. 128, 136-37 (1978) (“Subjective intent alone, the Government contends, does not make otherwise lawful conduct illegal or unconstitutional. We think the Government’s position, which also served as the basis for decision in the Court of Appeals,

4In Macon, an undercover police officer purchased pornographic materials from a bookstore. The officer left the bookstore, consulted with fellow officers, and, upon concluding the book was pornographic, returned to the bookstore and arrested the storekeeper and seized the marked bill the officer used to purchase the book. The Supreme Court held that the purchase, in a voluntary transaction, of wares by an undercover officer is not a search within the meaning of the Fourth Amendment. Id. at 469. The storekeeper contended the officer’s subjective intention to retrieve the marked $50 bill transformed the sale into a search. Id. at 469-70. The Supreme Court disagreed and held that because the transaction, objectively viewed, was a sale in the ordinary course of business, the sale did not constitute a search. Id.

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embodies the proper approach for evaluating compliance with the minimization requirement [relating to wiretaps]. ”);5 United States v. Robinson, 414 U.S. 218, 236 (1973) (holding that an officer’s objectively lawful search incident to arrest was lawful though officer lacked the subjective intention— fear that the arrestee was armed—that normally attaches to such searches).

Whren v. United States , 517 U.S. 806 (1996), cited by the majority, is but one example of the general rule that pretextual searches and seizures do not violate the Fourth Amendment. In Whren, the Supreme Court held the stop of a vehicle for a minor traffic violation did not violate the Fourth Amendment even though the officer was using the stop “as pretext[ ] for pursuing other investigatory agendas. ” Id. at 811. The Court stated:

We [have] flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal

5In Scott, officers obtained a warrant to intercept the phone calls of a suspected drug dealer. Id. at 131. The warrant required the officers to minimize their interception of non-narcotics-related phone calls. Id. The wiretap resulted in the arrest and indictment of more than twenty individuals. Id. Scott moved to suppress the intercepted phone calls on the ground officers had failed to comply with the minimization requirement. Id. at 132. The district court granted the motion to suppress, concluding that even if every intercepted phone call had been narcotics-related, the officers’ failure to make any good faith efforts to comply with the minimization requirement rendered the wiretap illegal. Id. at 132-34. The court of appeals reversed because the court could not conclude that reasonable efforts at minimization would have prevented the interception of any of the phone calls. Id. at 134. After a jury trial on remand, Scott was convicted. The court of appeals affirmed, id. at 135, and the Supreme Court affirmed the court of appeals. Id. at 137-38. The Supreme Court rejected Scott’s contention that the officers’ “failure to make good-faith efforts to comply with the minimization requirement is itself a violation of [the wiretap statute].” Id. at 135. The Court explained that the “existence vel non of such a violation turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” not on the officers’s subjective intentions. Id. at 136.

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justification. . . . [S]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional. We described Robinson [414 U.S. at 236] as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. ”

Id. at 812-13 (internal citations omitted). It is really quite simple. If you are engaged in conduct that justifies your detention, you must put up with that detention, even if the officer who detained you did so out of some secret—and constitutionally insufficient—motive.

There is good reason to eschew inquiry into the subjective motivations of individual officers. First, such an approach provides “arbitrarily variable” protection to individual rights. Devenpeck v. Alford, 543 U.S. 146, 154 (2004). If the subjective intentions of the arresting officers are the touchstone of constitutional analysis, courts may reach divergent results about searches and seizures that are utterly indistinguishable in the eyes of the person whose rights are at stake. See id. at 154.6 Second, the inquiry into subjective intentions is impossibly difficult, expensive, and prone to error. As the Supreme Court explained in Harlow v. Fitzgerald,

6For example, imagine two drug smugglers speeding, illegally, down the highway who are stopped by police. Each smuggler is identical in every respect, save one: one is stopped by an officer totally ignorant of the fact that the car is carrying drugs, the other by an officer who suspects the driver’s involvement in a drug ring. Seen from the perspective of the two drivers, each should face an identical penalty. Each broke the law and made himself subject to being stopped. But if the suspicious officer’s subjective intentions invalidate his stop, then one driver escapes punishment while the other does not. As Devenpeck explained, an individual’s right to be free of arrest should not depend upon such chance factors as which police officer arrested him. Id. at 155-56.

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[t]here are special costs to subjective inquiries of this kind. . . . Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.

457 U.S. 800, 816-817 (1982) (footnotes and internal quotation marks omitted). Whren, along with Harlow, Robinson, Scott, and Macon, makes clear that al-Kidd’s arrest on an objectively valid warrant supported by probable cause violated none of al-Kidd’s constitutional rights. At a minimum, these cases would have given a reasonable officer good reason to believe that al-Kidd’s arrest was constitutionally permissible.

The majority’s efforts to distinguish Whren are unpersuasive. The majority contends that Whren and like cases are inapplicable whenever the government acts without probable cause to believe that the subject of the arrest is guilty of some criminal wrongdoing. Maj. Op. at 12296-97. To reach this result, the majority imports the “programmatic purpose” test ordinarily reserved for administrative or “special needs” search cases. The programmatic purpose test, of course, tests the constitutional validity of warrantless searches and seizures, such as drunk driving roadblocks, by requiring the government to prove its program serves governmental interests other than the routine collection of evidence for criminal prosecution. See, e.g., Ferguson v. City of Charleston , 532 U.S. 67, 78 (2001); City of Indianapolis v. Edmond , 531 U.S. 32, 45 (2000). The special needs cases are the sole exception to the general principle that, in testing compliance with the Fourth Amendment, courts are limited to an examination of the objective circumstances which justify the search or seizure, and may not inquire into official purpose. Whren, 517 U.S. at 812 ( “Not only have we never held, outside the context of inventory search or administrative inspection[,] . . . that an officer’s motive invalidates objectively justifiable

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behavior[,] . . . we have repeatedly held and asserted the contrary.”). The programmatic purpose test applies here, the majority says, because in Edmonds, the Supreme Court said that Whren did not apply whenever the government conducted a search or seizure without “probable cause,” and because “probable cause” means only probable cause to believe the subject of the arrest committed some wrongdoing. The cases the majority cites offer no support whatsoever for the majority’s approach.

First, the special needs cases have no bearing on the inquiry into al-Kidd’s arrest for the simple reason that al-Kidd was arrested pursuant to a warrant issued by a neutral magistrate. The “programmatic purpose” inquiry is necessary to test the validity of a special needs search precisely because such searches occur without the procedural protections of the warrant requirement and the magisterial supervision it entails. As the Supreme Court explained in New York v. Burger, a statute authorizing a warrantless administrative or special needs search must provide

a constitutionally adequate substitute for a warrant . In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

482 U.S. 691, 710-11 (1987) (emphasis added) (quotations omitted). Material witness warrants, though not based on individualized suspicion of wrongdoing are, of course, warrants: they are based on an individualized determination that the subject of the warrant is in possession of information material in a criminal proceeding and is likely to flee; they are approved by a neutral magistrate; they are subject to continuing oversight; and they issue only upon a showing of probable cause. Bacon v. United States , 449 F.2d 933, 942 (9th Cir.

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1971); 18 U.S.C. §§ 3144; Fed. R. Civ. P. 46. The “special needs” cases bear little resemblance to the highly supervised process of obtaining a material witness warrant. Given the protections in § 3144, there is simply no need to inquire into the government’s “programmatic purpose,” and no case has ever so required.

Second, the majority’s “traditional” definition of “probable cause,” which limits probable cause to mean only probable cause to believe that the arrestee is guilty of wrongdoing, Maj. Op. at 12297-98, reflects a fundamental misunderstanding of the Fourth Amendment. The validity of a police action under the Fourth Amendment turns not on the guilt or innocence of the arrestee, but on whether the government’s reasons for arresting the individual are weighty enough, and probably factually likely enough, to justify the intrusion into some individual’s rights.7 See United States v. Knights , 534 U.S. 112, 118-19 (2001) (“The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”) (internal quotation marks omitted). The “probable cause” requirement assures that there is sufficient evidence to believe that the facts that justify the issuance of the warrant exist—that there is a sufficient “probability” the government will find what it is looking for when it intrudes. Id. at 121.

Until today, no case has suggested that the only governmental interest of sufficient weight to justify an arrest is a rea-

7This is not to deny the existence of what the majority terms the “substantive component” of the Fourth Amendment. Maj. Op. at 12298. Instead, this merely demonstrates that this “substantive component” of the Fourth Amendment can be satisfied by any governmental interest— whether to detain a wrongdoer or to provide for the production of evidence against a wrongdoer—weighty enough to justify an intrusion into individual rights.

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sonable belief that the arrestee has committed a crime. Most importantly, the Supreme Court has stated that the government’s interest in the integrity of the justice system is important enough to justify the arrest of a wholly innocent person to secure that witness’s appearance at trial. See Stein v. New York, 346 U.S. 156, 184 (1953) ( “The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”), rev’d on other grounds by Jackson v. Denno, 378 U.S. 368 (1964); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-17 (1929) ( “The constitutionality of [the material witness statute] apparently has never been doubted.”).8 Our own jurisprudence, too, has recognized that “probable cause” for an arrest may exist even in the absence of a reasonable belief that the arrestee has committed wrongdoing. For example, police officers may arrest individuals innocent of any crime if the officer has reason to believe that the individual is a danger to himself. Maag v. Wessler , 960 F.2d 773, 776 (9th Cir. 1992). To be sure, in the great run of arrest cases, the relevant inquiry will be whether officers had probable cause to believe the subject committed wrongdoing. But none of the cases the majority claims defines probable cause had occasion to consider whether such belief was the only belief that could justify an arrest.

8The majority needlessly casts doubt upon the validity of § 3144. Even if the Supreme Court’s statements on the issue are dicta, they have considerable weight here. In part because we cannot “lightly” disregard any Supreme Court precedent, Siskiyou Regional Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 549 n.1 (9th Cir. 2009), and in part because this court has already positively commented on these statements, see Bacon, 449 F.2d at 941. In any event, Al-Kidd does not contend that a showing of probable cause to believe (1) that a witness has information that is material in any criminal proceeding and (2) the witness’s appearance cannot be secured by subpoena is insufficient to provide objective justification for an arrest. See Appellee’s Brief at 43. Notably, in neither Barry nor Stein was there any suggestion that the validity of a material witness warrant would either turn on the subjective intentions of the officers or depend upon a demonstration that there was probable cause to believe the subject of the arrest was guilty of wrongdoing.

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In the closely analogous context of searches, it is clear that, consistent with the Fourth Amendment, government agents, with a warrant supported by probable cause, may intrude to search upon the premises even of individuals who are suspected of no wrongdoing whatsoever. In Zurcher v. Stanford Daily, 436 U.S. 547 (1978), government agents obtained a warrant to search the offices of the Stanford Daily for photographs that might reveal the identity of protesters who had assaulted policemen during a campus disturbance. Id. at 548. There was no claim that Stanford Daily photographers or employees were themselves the assailants. See id. The Supreme Court held the warrant was valid, despite the fact that members of the Stanford Daily were not suspected of having done anything wrong: “[V]alid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. ” Id. at 554 (emphasis added); see also Steagald v. United States, 451 U.S. 204 (1981) (holding that an arrest warrant does not authorize officers to enter the homes of third parties to execute the warrant, absent exigent circumstances, without first obtaining a warrant to enter the premises). 9

Though Zurcher involved a search, rather than a seizure, its rationale is applicable here and squarely rejects the majority’s contention that the probable cause requirement of the Fourth Amendment may be satisfied only by suspicion of wrongdoing by the subject of the intrusion. As the Supreme Court

9Steagald also demonstrates that the majority’s invocation of the Wilkes cases is inapposite. The evil associated with the general writs and writs of assistance used in the colonial period was that these warrants “provided no judicial check on the determination of the executing officials that the evidence available justified an intrusion into a particular home.” Id. at 220. § 3144 provides precisely the check on official discretion that was absent during the colonial period: supervision by a neutral magistrate. It was not Lord Halifax or even Attorney General Ashcroft who signed the material witness warrant that authorized Al-Kidd’s arrest. It was a federal magistrate judge.

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explained, the property owner’s guilt or innocence is simply irrelevant to the constitutional analysis: “it is apparent that whether the third-party occupant is suspect or not, the State’s interest in enforcing the criminal law and recovering the evidence remains the same . . . . ” Zurcher, 436 U.S. at 560. And one who knows he has evidence relevant to a criminal prosecution but refuses to hand such evidence over to prosecutors “is sufficiently culpable to justify the issuance of a search warrant.” Id. The same holds true for a material witness. The government’s interest in recovery of evidence from a material witness is the same whether the witness is guilty or innocent of wrongdoing. The need to obtain evidence from that witness and secure his appearance at trial is of sufficient weight to justify an arrest. See Stein, 346 U.S. at 184; Barry, 279 U.S. at 616-17.

In short, our cases, and those of the Supreme Court, have routinely recognized that “probable cause,” within the meaning of the Fourth Amendment, may be satisfied by proof of something other than wrongdoing by the subject of the search or seizure.

Of course, taken to its logical conclusion, the majority opinion renders the material witness statute entirely superfluous. To arrest and confine an individual pursuant to the material witness statute, the government must establish “probable cause.” Bacon, 449 F.2d at 941-43. If “probable cause” exists only when the subject of an arrest is suspected of a crime, then a material witness can be arrested as a suspect, and the material witness statute adds nothing. 10 This result is risible. 11

10The majority contends it does not render the material witness statute superfluous by arguing that if the statute is “genuinely” used to secure the testimony of a witness at trial, a showing of probable cause that the arrestee has engaged in wrongdoing is not required, and that only when the statute is being used as a pretext for criminal investigation is a showing of probable cause “including individualized suspicion of criminal wrongdoing” required. Maj. Op. at 12303. (emphasis in original). This

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Once the government demonstrated to a neutral magistrate that it had probable cause to believe al-Kidd had information material to a criminal proceeding and was likely to run off to Saudi Arabia, the Whren rule applied with full force, and nothing in Edmond or any case the majority cites suggests otherwise.

Third, the Supreme Court’s decision in United States v. Villamonte-Marquez, 462 U.S. 579 (1983), which the majority inadequately addresses, casts even greater doubt on the correctness of the majority’s decision. In that case, the Supreme Court authorized precisely what the majority says can never be permissible: a pretextual seizure in the absence of reasonable suspicion or probable cause. In that case, customs agents, acting on a tip about marijuana smuggling, detained a sailboat pursuant to 19 U.S.C. § 1581(a). That statute authorized customs agents to “board any vessel at any

argument suggests that the probable cause standard for issuing a warrant can vary depending on the subjective intention of the officer seeking the warrant. Not only is there no support in the case law for such a position, it is directly contradicted by the holding in Whren. 517 U.S. at 811. Furthermore, the majority seems implicitly to recognize that probable cause can encompass more than the likelihood that the arrestee has engaged in criminal wrongdoing. Otherwise the majority’s argument reads the necessity of showing probable cause right out of the issuance of a material witness warrant when the prosecutor “really” wants to obtain evidence for trial, and thus runs directly against the express language of the Fourth Amendment. If the prosecutor wants a material witness warrant because he “really” wants to secure that person’s testimony at trial, according to the majority, he need not show probable cause that the potential witness engaged in wrongdoing. However, unless the majority also recognizes that probable cause in this context means showing a likelihood that the arrestee has material testimony, and that it will become impracticable to secure his presence by subponea as required by 18 U.S.C. § 3144, then the majority would be sanctioning the issuance of an arrest warrant without any probable cause whatsoever.
11And we have been wasting much printer’s ink on material witness statutes which have existed at least since the late Eighteenth Century. See Bacon, 449 F.2d at 938-41.

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time and at any place in the United States to examine the vessel’s manifest and other documents.” Id. at 580. While executing the document inspection, officers smelled marijuana. They found 5800 pounds of the stuff on board the ship and arrested the crew. Id. at 583. The crew members were convicted for conspiracy to import marijuana. Id. On appeal, the Fifth Circuit reversed the convictions, holding the detention was invalid—the officers lacked constitutionally sufficient individualized suspicion of wrongdoing—and the fruits of the detention were barred from evidence. Id. at 583-84. The Supreme Court reversed the decision of the Fifth Circuit and upheld the convictions. Id. at 584. The Court held that the special difficulties associated with enforcement of maritime registration laws justified suspicionless stops and inspections on waterways. Id. at 591. The Court emphasized the long historical pedigree of § 1581(a) as proof that the Founders did not believe such intrusions violated the Fourth Amendment. Id. at 584-85. In a footnote, the Court rejected the crew members’ contention that the customs officers’ subjective intentions rendered the stop and inspection pretextual and thus unlawful:

Respondents, however, contend . . . that because the Customs officers were accompanied by a Louisiana State Policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marijuana, they may not rely on the statute authorizing boarding or inspection of the vessel’s documentation. This line of reasoning was rejected in a similar situation in Scott . . . and we again reject it.

Id. at 584 n.3.

Like the statute at issue in Villamonte-Marquez, some version of the material witness statute has been on the books since the late-1700s. See Bacon, 449 F.2d at 938-41. Since then, courts have approved the constitutionality of the power

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to detain material witnesses. See supra note 11. As the Supreme Court explained, the “ ‘duty to disclose knowledge of crime . . . is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.’ ” Bacon, 449 F.2d at 939 (quoting Stein, 346 U.S. at 184).

Finally, Villamonte-Marquez also underlines the point that, even assuming we must consider the “programmatic purpose” behind al-Kidd’s detention, the relevant inquiry is not into the motivations of individual officers who obtained and executed the particular warrant on which al-Kidd was detained, but into the “programmatic purpose” that provides the constitutional justification for the material witness statute. See Edmond, 531 U.S. at 457 ( “[W]e caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.”). The justification for the use of material witness warrants is the need to assure the proper functioning of the judicial system; this interest is divorced from the government’s general interest in crime control and is sufficient, al-Kidd concedes, to justify an arrest. Because this governmental interest justifies this intrusion into al-Kidd’s liberty, and because the intrusion is subject to a warrant requirement, inquiry into the minds of individual officers is neither necessary nor desirable. See Villamonte-Marquez, 462 U.S. at 584 n.3.

But even if al-Kidd’s arrest on a pretextual material witness warrant violated his Fourth Amendment constitutional right not to be subjected to an unreasonable seizure, any such right was certainly not “clearly established” in March 2003. As the majority notes, for a right to be clearly established there need not be a case on point, but the violation must be “apparent” to a reasonable official. Hope v. Pelzer , 536 U.S. 730, 739 (2002). In March 2003, when al-Kidd was arrested on a material witness warrant, it would hardly have been “apparent” to a reasonable official that using a valid material witness warrant as a pretext to accomplish other law-enforcement objec-

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tives was constitutionally impermissible, especially if the official had read Whren, Robinson, Scott, or Macon.

No court had ever questioned the constitutional validity of the material witness statute. No court had ever held that the “programmatic purpose” test applied to searches or seizures conducted pursuant to a warrant. No court had held that “probable cause” in the Fourth Amendment meant only probable cause to believe the subject of the search or seizure had committed criminal wrongdoing. Every pronouncement by the Supreme Court would have suggested that the pretextual use of a valid warrant was perfectly legal.

Eight months after al-Kidd’s arrest, for the very first time, and in dicta no less, a court of appeals stated that the pretextual use of material witness warrants was “improper.” United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003) (“The district court noted (and we agree) that it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established. ”).12 Prior to that, only one district court had said anything similar. See United States v. Awadallah, 202 F. Supp. 2d 55, 78 (S.D.N.Y. 2002), rev’d on other grounds by Awadallah , 349 F.3d 42. In light of the substantial contrary authority spelling out that an officer’s subjective intentions do not invalidate an objectively valid warrant, this solitary district court decision was hardly sufficient to make it “apparent” to a reasonable official that

12Obviously, we are not bound by the decision of another circuit, especially if that part of the decision was dicta. In any event, unlike in our circuit, dicta in the Second Circuit is not binding authority even in the Second Circuit. Jiminez v. Walker, 458 F.3d 130, 142-43 (2d Cir. 2006). It also remains to be said: what did Awadallah mean by the use of “improper”? It could mean anything from pecksniffian distaste to sanctionable conduct by an officer of the courts, and from harmless error to grounds for reversal. It seems not even a thin reed upon which to base an assertion it proclaimed to the nation’s constabulary a “clearly established” constitutional right.

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the pretextual use of material witness warrants was unconstitutional. See Sorrels v. McKee, 290 F.3d 965, 970-71 (9th Cir. 2002) (holding that two district court decisions were insufficient to make a right “clearly established”).

The Supreme Court has flatly stated that pretextual searches and seizures conducted pursuant to a warrant issued upon objectively reasonable probable cause do not violate the Fourth Amendment. Nothing in the majority opinion provides any justification for departing from this rule. Attorney General Ashcroft is entitled to qualified immunity.

III. Al-Kidd’s complaint fails to allege Ashcroft instructed or knowingly allowed FBI agents to present false affidavits to the magistrate judge who issued the material witness warrant.

Al-Kidd’s remaining claim is that Ashcroft is personally liable for al-Kidd’s detention on a material witness warrant obtained on the basis of intentional or reckless material misrepresentations or omissions. Of course, this claim raises totally different constitutional issues than that based on pretext.

It is not disputed that al-Kidd has a clearly established constitutional right not to be detained on a warrant based on an agent’s deliberate or reckless misrepresentations or omissions. See Franks v. Delaware , 438 U.S. 154, 164-72 (1978). But it was Ashcroft’s subordinates, not Ashcroft himself, who obtained the material witness warrant on which al-Kidd was detained. Al-Kidd makes only conclusory allegations Ashcroft ordered his subordinates to arrest individuals on invalid warrants. But such conclusory allegations do not suffice. Before we reach the merits of al-Kidd’s claims the affidavits were false, we must determine if he alleges facts sufficient to establish Ashcroft’s personal liability. I disagree with the majority’s conclusion that Ashcroft may be held liable for what his subordinates may have done here, because al-Kidd’s

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complaint simply does not state facts that plausibly establish Ashcroft, “through [his] own actions, ” violated al-Kidd’s rights under the material witness warrant statute or the Constitution. Iqbal, 129 S. Ct. at 1948.

The majority concludes Ashcroft may be held liable in alKidd’s Bivens action for his “knowing failure to act ” in the light of evidence of unauthorized abuses, and that al-Kidd’s pleadings are sufficient to establish plausibly that Ashcroft had knowledge of “abuses” occurring under § 3144 and failed to act to correct these abuses. 13 Maj. Op. at 12315-16.

What “abuses”? The abuses to which al-Kidd refers in his allegations are not lies or omissions included in supporting affidavits, but pretextual arrests. But, as shown above (in Part II, “Qualified Immunity”), such “abuses” violate neither the statute nor the Constitution. And to allege Ashcroft’s knowledge of these “abuses” does not allege facts that plausibly establish Ashcroft knew of or encouraged his subordinates recklessly to disregard the truth in the preparation of supporting affidavits. See Franks, 438 U.S. at 164-72.

In reviewing al-Kidd’s allegations regarding Ashcroft’s personal involvement, ask yourself after each one, “Did alKidd here allege facts that plausibly establish Ashcroft

13Ashcroft cannot be held liable for the acts of his subordinates on a theory of respondeat superior or vicarious liability. Id. at 1948. It is doubtful that the majority’s “knowing failure to act ” standard survived Iqbal. There, the Court held that Ashcroft could not be held liable for his “knowledge and acquiescence ” in his subordinates’ alleged unconstitutional discrimination against Muslim men after 9/11. Id. at 1949. The Court explained: “[P]urpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” Id. at 1949. Here, because al-Kidd has not alleged that Ashcroft knew his subordinates were making deliberate or reckless material misrepresentations or omissions in material witness applications, much less that it was Ashcroft’s purpose they do so, alKidd’s allegations clearly fail Iqbal’s requirements.

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ordered or knowingly tolerated agents swearing to false facts in their affidavits?”:

• Ashcroft stated publicly that “[a]ggressive detention of lawbreakers and material witness warrants is vital to preventing, disrupting, or delaying new attacks.”

• A Justice Department policy memo stated that federal law enforcement personnel were to use “every available law enforcement tool ” to arrest terror “suspects.” This included the use of “aggressive arrest and detention tactics. ”

• One Justice Department official admitted that the material witness policy amounted to “preventive detention.”

• Other Justice Department officials admitted that material witness warrants were an important “investigative tool” whereby they could obtain “evidence” about the witness. Similarly, FBI Director Mueller stated that several “suspects” had been detained on material witness warrants.

• One news report stated that 50% of those detained on material witness warrants were never called to testify. One Justice Department official admitted that this statistic proved that material witness warrants were a “ruse” to detain suspects.

• “Abuses” occurring under the statute were “highly publicized” in the media.

• The department apologized to several individuals arrested on material witness warrants.

In each case, the answer to the question put is a flat “no.” These allegations certainly do suggest Ashcroft encouraged

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prosecutors to use valid material witness warrants as a means to accomplish other law-enforcement objectives. But none of the allegations contain facts that plausibly establish Ashcroft’s knowledge that his subordinates were obtaining material witness warrants on the basis of deliberately or recklessly false evidence or on facially invalid warrants. Some of alKidd’s allegations suggest precisely the opposite—that Justice Department officials were careful to ensure they had probable cause to believe that the targeted witness had information material to a criminal proceeding and was likely to flee before seeking a material witness warrant:

• David Nahmias, Counsel to the Assistant Attorney General, stated that when they were unable to charge a particular suspect, they “got enough information at least to make him a material witness.” ER 32 (emphasis added).

• Attorney General Alberto Gonzales, Ashcroft’s successor, stated that when the agency became interested in a subject, the agency would “consider” its options. ER 31.

Al-Kidd’s pleadings do establish that some material witnesses were detained who did not testify or did not prove to have material information. But these facts do not plausibly suggest federal agents employed intentional or reckless mendacity in swearing out false affidavits. Some witnesses’ testimony may not have been required because defendants took plea deals or prosecutors found other sources of information. In some cases, agents may simply have been wrong or may have acted “hastily” or negligently in conducting investigations. That does not amount to a Franks violation. See Franks, 438 U.S. at 165. That the DOJ apologized to some detainees hardly suggests an admission of impropriety rather than simple error.

The majority also concludes al-Kidd has plausibly alleged that Ashcroft “purposely instructed his subordinates to bypass

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the plain reading of the statute.” Maj. Op. at 12316. All of the allegations the majority cites in support of this proposition demonstrate Ashcroft “purposely instructed” his subordinates to use the statute pretextually, but not unlawfully. The majority doesn’t get it; al-Kidd must plead not only that Ashcroft had a “concerted strategy” or that Ashcroft used “enhanced” techniques, Maj. Op. at 12318, but that such “concerted strategy” or “enhanced” techniques actually included the use of false affidavits or facially invalid warrants, not just the use of pretextual witness warrants. A “concerted strategy” or “enhanced” technique to “misuse” material witness warrants is not enough, unless such “misuse” includes the use of false affidavits, not just pretextual arrest warrants. And nothing in al-Kidd’s allegations plausibly suggests Ashcroft instructed, encouraged, or tolerated his subordinates to detain individuals as to whom there was no objective probable cause to arrest. It may be conceivable to al-Kidd that Ashcroft encouraged his subordinates to flout the requirements of § 3144, but alKidd’s allegations have not “nudged [his] claims across the line from conceivable to plausible. ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Because al-Kidd has not pleaded adequately that Ashcroft, by his own actions, violated al-Kidd’s constitutional rights, I dissent from part B.4 of the majority opinion.

IV. Absolute Immunity

The remaining question is whether and to what extent Ashcroft enjoys absolute immunity for his alleged actions—and inactions—related to the issuance of material witness warrants. As explained above, I conclude all of al-Kidd’s claims are precluded on other grounds. Accordingly, were it up to me, I would not reach this question. However, because the majority addresses the issue, and because I think the majority’s “immediate purpose” test is difficult to define and apply, and is unsupported by case law, I will explain my disagreement.

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In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court held that a prosecutor enjoyed absolute immunity from suit by a former inmate, whose conviction had been set aside in collateral proceedings. The former inmate’s suit alleged that the prosecution had been commenced wrongfully, that the prosecutor had elicited false testimony on the stand, and that the prosecutor concealed exculpatory evidence from the defense, actions even more heinous than those alleged against Ashcroft by al-Kidd. Id. at 415-16. The court articulated two justifications for imposing an absolute bar to recovery: first, absolute prosecutorial immunity reflects the common law immunity of judges and juries, id. at 424;14 second, absolute immunity is necessary to avoid the “intolerable burdens” that damages claims by disgruntled criminal defendants would place on prosecutors, id. at 425-26. Absolute prosecutorial immunity obviously leaves some wrongs—grievous wrongs —unremedied, but the “balance of evils ” nonetheless tilts in favor of absolute immunity; otherwise, prosecutors would live in constant fear that their actions on behalf of the public would subject them to personal liability and possible poverty. Van de Kamp v. Goldstein , 129 S. Ct. 855, 859 (2009).

However, despite the tremendous importance of absolute immunity, prosecutors do not enjoy absolute immunity for every act they undertake as prosecutors. To determine whether a prosecutor enjoys absolute immunity, rather than the lesser qualified immunity afforded all government agents,

14Justice Scalia has observed that the doctrine of absolute prosecutorial immunity has strayed far from its common law roots, but that the doctrine nonetheless retains its vitality. See Kalina v. Fletcher , 522 U.S. 118, 131-135 (1997) (Scalia, J., concurring) ( “[T]he ‘functional categories’ approach to immunity questions imposed by cases like Briscoe, make faithful adherence to the common law embodied in § 1983 very difficult. But both Imbler and the ‘functional’ approach are so deeply embedded . . . that, for reasons of stare decisis, I would not abandon them now. ”). Accordingly, Ashcroft’s failure to introduce evidence that, at common law, prosecutors had absolute immunity against claims related to material witness warrants is not significant.

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courts consider the “the nature of the function performed, not the identity of the actor who performed it. ” Kalina, 522 U.S. at 127. Under the “functional approach,” a prosecutor enjoys prosecutorial immunity only when he performs a function “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430. On the other hand, a prosecutor has no absolute immunity for “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate.” Id. at 430-31. The Imbler court acknowledged that “drawing a proper line between these functions may present difficult questions.” Id. at 431 n.33.

Deciding which witnesses to call at trial is part of the prosecutor’s role as an advocate, Imbler, 424 U.S. at 431 n.33, as is the “marshaling” of evidence for trial, Genzler v. Longanbach, 410 F.3d 630, 639 (9th Cir. 2005). Accordingly, several circuits, other than the Ninth, have squarely held that prosecutors have absolute immunity for seeking a material witness warrant.15 And no case has held that absolute immunity does not shield a prosecutor’s decision to seek such a warrant.

Ashcroft, of course, did not himself file the application or swear out the facts in support of the application. Ashcroft acted only as a supervisor. Though a supervisor’s acts are in

15See, e.g., Odd v. Malone , 538 F.3d 202, 213 (3rd Cir. 2009) (noting that a prosecutor has prosecutorial immunity for obtaining a material witness warrant shortly before the commencement of trial, but holding that the prosecutor lacks absolute immunity for failing to notify the court that trial was over and thus permit the witness’s release); Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984) ( “It is clear that the issuance of the capias was intimately associated with procuring attendance of a witness for imminent trial. Absolute immunity attaches to this act, and any claimed improper motive is irrelevant.”); Daniels v. Keiser, 586 F.2d 64, 69 (7th Cir. 1978) (“Because defendant was attempting to secure Daniels’ presence at the resumption of the trial[,] . . . he was functioning as an advocate rather than as an investigator.”); White ex rel. Swafford v. Gerbitz , 860 F.2d 661, 665 n.4 (6th Cir. 1988) (stating, in dicta, that prosecutor’s decision to procure a material witness warrant is protected by absolute immunity).

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one sense always administrative, a supervisor enjoys absolute immunity only for supervisory decisions that “require legal knowledge and the exercise of related discretion ” and relate to activities for which the supervised attorney enjoys absolute immunity. Van de Kamp , 129 S. Ct. at 861-62 (holding that a prosecutor enjoyed absolute immunity from Goldstein’s claims that supervisor’s failure to train prosecutors about the need to disclose exculpatory evidence resulted in his unlawful conviction). There is “no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecutions formulated as a policy for general application. ” Roe v. City & County of San Francisco, 109 F.3d 578, 583-84 (9th Cir. 1997).

Kalina v. Fletcher makes clear Ashcroft lacks absolute immunity for claims related to his supervision of the FBI agents, such as Mace, who acted as witnesses in support of a warrant application. See 522 U.S. at 129-30. When an individual, even an attorney, serves as a complaining witness in support of a warrant application, the individual enjoys only qualified immunity, id., and accordingly Ashcroft lacks absolute immunity for supervising such individuals. See Roe, 109 F.3d at 583-84. Whether Ashcroft enjoys absolute immunity for his supervision of the United States Attorneys who prepared the warrant application and made the decision to file it is a different question.

I would hold that so long as the “criminal proceeding” for which the material witness warrant is sought is a criminal trial, rather than an investigatory proceeding, 16 the decision to seek a material witness warrant should be shielded by absolute immunity. Such a decision is clearly one “intimately

16See Buckley v. Fitzsimmons , 509 U.S. 259, 274-75 (1993) (holding that a prosecutor lacked absolute immunity for acts taken in preparation for appearing before an investigatory grand jury); see also Bacon , 449 F.2d at 939 (noting that a material witness warrant may issue to secure the presence of a witness before an investigative grand jury proceeding).

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associated with the judicial phase of the criminal process. ” Imbler, 424 U.S. at 430; see also supra note 14. The critical factor in the decision to seek a material witness warrant is the prosecutor’s professional judgment about how much that witness knows, how important the witness’s testimony might be, and what effect his arrest may have on his testimony. See Kalina 522 U.S. at 130 (holding that absolute immunity protects decisions involving the “exercise of professional judgment”). And the ultimate decision whether to call the detained witness depends on the prosecutor’s final trial strategy, which may evolve over time as events unfold. See Roe, 109 F.3d at 583-84 (holding that a prosecutor’s decision not to call a witness at trial was protected by absolute immunity). Both of these decisions are decisions that only a prosecutor can make.

Moreover, like other quasi-judicial acts, an individual’s detention on a material witness warrant is subject to continuing oversight, and errors may be corrected through the judicial process. Cf. Mitchell, 472 U.S. at 522-23 (holding that a prosecutor did not enjoy absolute immunity for his decision to engage in illegal wiretapping and explaining that the judicial process, unlike wiretapping, is “largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results”).17 Here, Al-Kidd was not detained up until the start

17The Third Circuit’s decision in Odd did not, as the majority concludes, hold that the policy considerations underlying absolute immunity do not apply in the material witness context. 538 F.3d 202. In Odd, no one questioned that the decision to seek a material witness warrant was protected by absolute immunity. The issue in Odd was the prosecutor’s “fail[ure] to notify the court of the status of a detained witness. ” Id. at 216. As the court noted, compliance with Rule 46, once trial is complete or during a “clearly delimited” break in judicial proceedings, is a purely ministerial task. Id. at 212-14. Unlike the decision whether to call a witness to the stand, the decision to release a material witness once trial is over requires the exercise of no professional judgment at all, and the threat of civil damages liability cannot interfere with the prosecutor’s decision making. Id. at 216. It is unsurprising that the Third Circuit found that the detained

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of trial, but was released upon conditions, selected by a neutral magistrate, thought necessary to secure his appearance as a witness at trial.

Ultimately, the decision whether to seek a material witness warrant in conjunction with an upcoming trial is akin to both the decision to call a witness at trial and to seek a warrant to arrest a suspect. A prosecutor enjoys absolute immunity for both of these acts, regardless of any improper motive, and should enjoy a similar immunity here. See Imbler, 424 U.S. at 431 n.33; Kalina, 522 U.S. at 129.

Both the majority and al-Kidd concede that a prosecutor sometimes has absolute immunity for the decision to seek a material witness warrant. See Maj. Op. at 12284-85. The majority, returning to its trope the prosecutors’ pretextual motivations invalidate an otherwise properly obtained warrant, see Maj. Op. at 12290, contends, however, the cases holding a prosecutor has absolute immunity for the issuance of a material witness warrant— Odd, Betts, Daniels, and Swafford—are distinguishable because none involved allegations a prosecutor intended to use the warrant to investigate the detained subject rather than to secure the witness’s appearance at trial. See Maj. Op. at 12284-85. 18

material witnesses lacked access to continuing supervision; in Odd the plaintiffs’ very claim was that they had been wrongfully denied the procedural protections to which they were entitled. Id. at 217 (“Indeed, the failure of the ADAs to notify anyone of Plaintiffs’ status assured that not even the warrant-issuing judges would review the propriety of their continued detention, thus short-circuiting the crucible of the judicial process. ” (internal quotation marks omitted)). The ADAs had no more right to hold the material witness after the trial ended than they would have had to hold a defendant after an acquittal was entered.
18The odd result of the majority’s approach is that Ashcroft enjoys absolute immunity if he acts out of racial or partisan animus, but enjoys only qualified immunity if he acts in order to protect the public or investigate a suspected criminal. See Bernard v. County of Suffolk , 356 F.3d 495, 504 (9th Cir. 2004). Thus, the more licit Ashcroft’s subjective intentions, the more liability he faces.

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Rejecting what it calls a “formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish ” in favor of a “teleological perspective,” Maj. Op. at 12289 (emphasis added), the majority applies an “immediate purpose” test to determine whether a prosecutor is performing an investigative rather than a prosecutorial function—if the prosecutor’s “immediate purpose” was to investigate the subject of the warrant rather than to secure the witness’s appearance at trial, the prosecutor enjoys only qualified, rather than absolute, immunity. Id. at 12290. Again the majority invites inquiry into the subjective motivations of individual officers. One can tell that easily: watch for its use of the word “really.”

It is true that a few courts have made reference to “purpose” in applying the functional approach. 19 But the “purpose” considered in these cases has been the product for which the warrant was directed—what evidence was called for and where it was to be produced; none of these cases authorizes the majority’s wide-ranging inquiry into what a prosecutor was “really” up to. See id. at 22-24. Indeed, as in the Fourth Amendment context, courts have repeatedly admonished that a prosecutor’s subjective intentions are irrelevant to the absolute immunity inquiry, for much the same reason they are irrelevant to the qualified immunity analysis. See, e.g., Ashelman v. Pope , 793 F.2d 1072, 1078 (9th Cir.

19See, e.g., Buckley, 509 U.S. at 274-75 (holding that prosecutor lacked absolute immunity for actions before a grand jury because the grand jury’s “immediate purpose was to conduct a more thorough investigation of the crime—not to return an indictment against a suspect against whom there was already probable cause to arrest ”); KRL v. Moore , 384 F.3d 1105, 1115 (9th Cir. 2004) (denying absolute immunity where a search warrant was “to further a ‘stand-alone investigation’ into environmental crimes ”); Guzman-Rivera v. Rivera-Cruz , 55 F.3d 26, 30-31 (1st Cir. 1995) ( “The mixed purpose of the civil rights investigation reflects defendants’ own mixed functions.”); Hill v. City of New York , 45 F.3d 653, 662 (2d Cir. 1995) (“To the extent that the creation of the videotapes fulfilled an investigatory purpose, Adago cannot claim absolute immunity. ”).

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1986) (en banc) ( “Intent should play no role in the immunity analysis.”); see also Betts , 726 F.2d at 81 (2d Cir. 1984) (“Absolute immunity attaches to [seeking a material witness warrant], and any claimed improper motive is irrelevant. ”). The cases the majority cites are not to the contrary.

In Buckley, the Supreme Court held that a prosecutor lacked absolute immunity for fabricating evidence to present to a grand jury because the grand jury’s “immediate purpose was to conduct a more thorough investigation of the crime— not to return an indictment against a suspect against whom there was already probable cause to arrest. ” 509 U.S. at 274-75. Buckley simply reflects the general rule that a prosecutor should not “consider himself to be an advocate before he has probable cause to have anyone arrested. ” Id. at 274. In Buckley, no one had been arrested; the grand jury was still investigating. Here, Al-Hussayen had been indicted, arrested, arraigned, and was awaiting trial. Buckley merely holds that a prosecutor who, as yet, had arrested no one, was acting as an investigator, not an advocate. Buckley does not hold that what “really” motivated a prosecutor is relevant to determination of what “function” the prosecutor was accomplishing when he performed the action complained of.

Neither does KRL v. Moore . In that case, we held that whether a prosecutor had absolute immunity for the issuance of a search warrant depended on the purpose of the warrant, not of the prosecutor in seeking the warrant. 384 F.3d at 1115. After executing a search warrant on land held by KRL, a general partnership, prosecutors indicted Robert Womack, one of the partners, on counts relating to improper waste disposal on partnership land. Id. at 1108. The prosecutor then obtained a second search warrant for documents related to fraud and illegal diversion of funds. Id. at 1109, 1113. The partnership and the partners sued under § 1983, alleging that this second search warrant was overbroad, facially invalid, and based on fraudulent affidavits. Id. The district court denied the prosecutor’s absolute immunity claim. On appeal, this court noted

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that the second search warrant had “two goals: it sought evidence to prosecute the pending indictment against Womack, and it sought to investigate and uncover new crimes. ” Id. at 1111. We held that the prosecutor enjoyed absolute immunity for the search warrant to the extent it sought evidence to prove the pending charges. Id. at 1111-13. However, to the extent the prosecutor sought evidence of new crimes (fraud at KRL), the prosecutors lacked absolute immunity. Id. at 1113-14.

We did not inquire into the prosecutor’s motives in seeking the second search warrant. We inquired into the purpose of the warrant by looking to what evidence the search warrant recited it sought. That evidence was not possibly related to the prosecution of Womack, the one suspect who had been arrested, for illegally dumping toxic wastes; it was evidence of fraud and diversion of funds that had nothing to do with waste disposal. Id. at 1113. It does not take a mind-reader to determine that where the subject matter of the prosecution is illegal toxic waste disposal on partnership land, a search warrant to search for evidence of fraud and illegal diversion of business funds is designed to accomplish something other than proving the elements of the charged environmental crime. It merely requires reading the warrant.

Buckley and KRL are easy to apply here: if the material witness warrant on which Al-Kidd had been detained sought to force his appearance at an investigatory proceeding or a police interview, rather than a criminal trial, Ashcroft would not enjoy absolute prosecutorial immunity. The only relevant “purpose” is that derived from the product of the warrant, not what was “really” the prosecutor’s motive in seeking the warrant.

To the extent that KRL authorizes any inquiry into what was “really” the prosecutor’s motivation, such an inquiry should be strictly limited to cases where a prosecutor approves a search warrant application, because seeking the

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issuance of a search warrant can be an investigative function, while seeking an arrest warrant cannot. The KRL court itself carefully limited its holding to the search warrant context, and expressly distinguished the arrest warrant context. Id. at 1113 (“We must emphasize that our result would not necessarily be the same had the prosecutors reviewed an arrest warrant, rather than a search warrant, prior to submission. As noted supra, the Court has stated that a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established, Buckley . . ., but that the determination of whether probable cause exists to file charging documents is the function of an advocate . . . . ”). Preparing a search warrant is not a “core” advocacy function like the preparation of an arrest warrant, the filing of charges, or the preparation of a material witness warrant.20

But under the majority’s approach, what was “really” a prosecutor’s personal, subjective “immediate purpose” is always relevant to the determination whether absolute immunity protects any act by a prosecutor—in court or out of court. A prosecutor would lose his absolute immunity if he prosecutes a low-level mafia functionary for the sole purpose of inducing that functionary to testify against his capo. And, absolute immunity would not clothe any question asked by a prosecutor of a witness on the stand; the prosecutor could be sued for damages on the claim he “really” asked the question

20See generally Schrob v. Catterson 948 F.2d 1402, 1413-15 (3d Cir. 1991) (distinguishing “core” prosecutorial functions and describing search warrants as in the “gray area” between investigative and prosecutorial functions); see also Joseph v. Patterson , 795 F.2d 549, 556-57 (6th Cir. 1986) (recognizing that search warrants can serve both a prosecutorial function of preparing for trial and an investigative function of gathering evidence, and holding that further factual development was required to determine the role the search warrant played); Imbler, 424 U.S. at 431 n.1 (“Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluation of evidence. At some point, with respect to some decisions, the prosecutor no doubt functions as an administrator . . . . ” ) (emphasis added).

12358

AL-KIDD v. A SHCROFT

to assist in the investigation of the witness, or some other person, for other crimes. Of course, what the prosecutor “really” intended in asking the question would—as in all inquiries into intent—be a factual inquiry, entailing precisely the kind of expensive discovery and litigation immunity was designed to avoid. See Harlow, 457 U.S. at 816-817.

Not so, says the majority. To “cabin” this obviously problematic result, the majority states that when a prosecutor brings any prosecution, the prosecutor’s “immediate purpose” is, of course, to bring a prosecution, even if the prosecutor’s true intention is to obtain evidence for some other investigation. Maj. Op. at 12290. But there is no principled reason this is true, other than the majority’s say-so. And, if true, why isn’t the prosecutor’s “immediate purpose” in this case to secure a witness’s appearance at trial rather than to obtain evidence against al-Kidd? The majority provides no clues as to how we are to distinguish which purposes are “immediate” and which are “really” not.

Even were the “immediate purpose” test coherent, it would nonetheless be undesirable because of the incentives it creates. The prosecutors’ ultimate decision not to call al-Kidd to the stand features prominently in al-Kidd’s proof that their “immediate purpose” was not to obtain a conviction against Al-Hussayen. Subjecting prosecutors to liability for such a decision risks needless interference in the prosecutor’s conduct of his most public function: the presentation of evidence at trial and, indeed, deciding whether to have a trial at all. Worse, the majority’s test makes it prudent for a prosecutor to go to trial against a defendant simply to ensure that his actions in preparing for trial will not become subject to attack on the grounds they were “really” designed to accomplish some other goal.

AL-KIDD v. A SHCROFT V. Conclusion

12359

The majority opinion closes with a quote from Blackstone. What Blackstone describes and condemns therein—the indefinite and secret detention of individuals accused of no crime in harsh conditions—is simply not a description of this case. Even the majority agrees that the harsh conditions of alKidd’s confinement are not before us because al-Kidd has not adequately pleaded John Ashcroft’s personal responsibility for such conditions. Al-Kidd’s confinement was neither indefinite nor in secret. He was detained on a warrant issued by a neutral magistrate. The duration of that confinement was subject to continuing judicial supervision. There is no allegation that al-Kidd was held incommunicado. Nor is there any allegation al-Kidd was somehow denied the right to petition for a writ of habeas corpus, a right that has long secured individuals’ freedom from the horrors Blackstone envisioned. We are not called upon to judge the constitutionality of the material witness statute. And we are not called upon to judge whether al-Kidd should be released, only whether he is entitled to proceed in his suit to recover money damages from the pocket of a cabinet-level official. Were we presented with the Blackstonian case the majority envisions, I would surely agree. 21 But we are not, and for the reasons explained above, I dissent in part and concur in part.

21Although I would distance myself from a certain measure of bristling righteousness in its remarks that al-Kidd was a U.S. citizen, married and with children at the time of his arrest. Maj. Op. at 12270. For all of that, his rights under the Constitution against unlawful arrest were no greater than those of an illegally entered, Mexican, childless spinster.

PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West.

 
 ""%%%!# # "$ !&"'

No. 10-98 Title:

John D. Ashcroft, Petitioner

v.

Abdullah al-Kidd

Docketed:

July 19, 2010

Linked with 09A1186

Lower Ct:

United States Court of Appeals for the Ninth Circuit

Case Nos.: (06-36059)

Decision Date: September 4, 2009

Rehearing Denied:

March 18, 2010

Questions

Presented

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ Jun 4 2010 Application (09A1186) to extend the time to file a petition for a writ of
certiorari from June 16, 2010 to July 16, 2010, submitted to Justice Kennedy. Jun 7 2010 Application (09A1186) granted by Justice Kennedy extending the time to file until July 16, 2010. Jul 16 2010 Petition for a writ of certiorari filed. (Response due August 18, 2010) Jul 23 2010 Brief amicus curiae of Wesley MacNeil Oliver filed. Jul 28 2010 Order extending time to file response to petition to and including September 17, 2010. Aug 18 2010 Brief amici curiae of William P. Barr, et al. filed. Sep 17 2010 Brief of respondent Abdullah al-Kidd in opposition filed. Sep 29 2010 DISTRIBUTED for Conference of October 15, 2010. Sep 29 2010 Reply of petitioner John D. Ashcroft filed. (Distributed) Oct 18 2010 Petition GRANTED limited to Questions 1 and 2 presented by the petition. Justice Kagan took no part in the consideration or decision of this petition. Nov 3 2010 The time to file the joint appendix and petitioner's brief on the merits is extended to and including December 13, 2010. Nov 3 2010 The time to file respondent's brief on the merits is extended to and including January 21, 2011.

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""%%%!# # "$ !&"'
Dec 13 2010 Joint appendix filed. (Statement of costs filed.) Dec 13 2010 Brief of petitioner John D. Ashcroft filed. Dec 13 2010 Brief amicus curiae of Wesley MacNeil Oliver filed. Dec 20 2010 Brief amicus curiae of William P. Barr, et al. filed. Dec 23 2010 SET FOR ARGUMENT ON Wednesday, March 2, 2011. Jan 3 2011 CIRCULATED. Jan 21 2011 Brief of respondent Abdullah al-Kidd filed. Reprinted. (Distributed) Jan 24 2011 Record received from U.S. Court of Appeals for Ninth Circuit. (1 envelope) Jan 24 2011 Record from U.S.D.C. for the District of Idaho is electronic. Jan 28 2011 Brief amicus curiae of The Constitution Project filed. (Distributed) Jan 28 2011 Brief amici curiae of Legal History and Criminal Procedure Law Professors
filed. (Distributed) Jan 28 2011 Brief amici curiae of Legal Scholars filed. (Distributed) Jan 28 2011 Brief amicus curiae of Center for Justice and Accountability filed.
(Distributed) Jan 28 2011 Brief amicus curiae of Former Federal Prosecutors filed. (Distributed) Jan 28 2011 Brief amici curiae of Human Rights Watch, and National Association of
Criminal Defense Lawyers filed. (Distributed) Feb 22 2011 Reply of petitioner John D. Ashcroft filed. (Distributed) Mar 2 2011 Argued. For petitioner: Neal Kumar Katyal, Acting Solicitor General,
Department of Justice, Washington, D. C. For respondent: Lee Gelernt, New York, N. Y. May 31 2011 Judgment REVERSED and case REMANDED. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined as to Part I. Ginsburg, J., filed an opinion concurring in the judgment, in which Breyer and Sotomayor, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment, in which Ginsburg and Breyer, JJ., joined. Kagan, J., took no part in the cosideration or decision of the case. Jul 5 2011 JUDGMENT ISSUED.

~~Name~~~~~~~~~~~~~~~~~~~~~ Attorneys for Petitioner: Neal Kumar Katyal
Counsel of Record

~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~

Acting Solicitor General
United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 SupremeCtBriefs@USDOJ

(202) 514-2217

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Party name: John D. Ashcroft

Attorneys for Respondent:

Lee Gelernt

American

Civil

Liberties

Union

Foundation

(212) 549-2616

Counsel of Record

125 Broad Street, 18th Floor

New York, NY 10004

lgelernt@aclu.org

Party name: Abdullah al-Kidd

Other:

Stephanos Bibas

Director, Supreme Court Clinic

(215) 746-2297

University of Pennsylvania Law School

3400 Chestnut Street

Philadelphia, PA 19104

stephanos.bibas@gmail.com

Party name: Legal History and Criminal Procedure Law Professors

Jonathan C. Drimmer

Steptoe & Johnson LLP

1330 Connecticut Ave., N.W. Washington, DC 20036 jdrimmer@steptoe.com Party name: Center for Justice and Accountability

(202) 429-6477

Christopher T. Handman

Hogan Lovells US LLP

555 Thirteenth Street, N.W. Washington, DC 20004 chris.handman@hoganlovells.com Party name: The Constitution Project

(202) 637-5719

Aaron R. Marcu

Freshfields Bruckhaus Deringer US LLP

520 Madison Ave., 34th Fl. New York, NY 10022-0000 aaron.marcu@freshfields.com Party name: Former Federal Prosecutors

(212) 284-4954

Wesley MacNeil Oliver

Widener University School of Law

(617) 909-9849

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Party name: Wesley MacNeil Oliver

3800 Vartan Way Harrisburg, PA 17106 wmoliver@widener.edu

Kevin K. Russell Party name: Legal Scholars

Goldstein, Howe & Russell, P.C.
7272 Wisconsin Avenue, Suite 300 Bethesda, MD 20814 krussell@ghrfirm.com

(301) 941-1913

Richard A. Samp Party name: William P. Barr, et al.

Washington Legal Foundation
2009 Massachusetts Ave., NW Washington, DC 20036 rsamp@wlf.org

(202) 588-0302

Joseph F. Tringali

Simpson Thacher & Bartlett LLP

(212) 455-2000

425 Lexington Avenue

New York, NY 10017

jtringali@stblaw.com

Party name: Human Rights Watch and National Association of Criminal Defense Lawyers

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 No. 10-98
In the Supreme Court of the United States
JOHN ASHCROFT, PETITIONER v.
ABDULLAH AL-KIDD
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
NEAL KUMAR KATYAL Acting Solicitor General Counsel of Record
DAVID A. O’NEIL Assistant to the Solicitor General
ROBERT M. LOEB MATTHEW M. COLLETTE
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTIONS PRESENTED
Respondent was arrested on a material witness war­ rant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution. He later filed a Bivens action against petitioner, the former Attorney General of the United States, seeking damages for his arrest. Respondent alleged that his ar­ rest resulted from a policy implemented by the former Attorney General of using the material witness statute as a “pretext” to investigate and preventively detain ter­ rorism suspects. In addition, respondent alleged that the affidavit submitted in support of the warrant for his arrest contained false statements. The questions pre­ sented are:
1. Whether the court of appeals erred in denying pe­ titioner absolute immunity from the pretext claim.
2. Whether the court of appeals erred in denying pe­ titioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment pro­ hibits 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.
3. Whether the former Attorney General may be held liable for the alleged false statements in the affida­ vit supporting the material witness warrant, even though the complaint does not allege that he either par­ ticipated in the preparation of the affidavit or imple­ mented any policy encouraging such alleged misconduct.
(I)

TABLE OF CONTENTS

Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statutory and constitutional provisions involved . . . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 12
A. The Ninth Circuit’s denial of absolute immunity conflicts with decisions of this Court and under­ mines the purposes for which such immunity exists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. The qualified immunity analysis in the decision below warrants this Court’s review . . . . . . . . . . . . . . . 20 1. The Ninth Circuit’s Fourth Amendment ruling conflicts with decisions of this Court and invali­ dates an Act of Congress . . . . . . . . . . . . . . . . . . . . . . 21 2. The court of appeals committed serious error in holding that the Fourth Amendment viola­ tion was clearly established . . . . . . . . . . . . . . . . . . . 25 3. The denial of qualified immunity on the pretext claim would significantly limit the use of the material witness statute . . . . . . . . . . . . . . . . . . . . . . 28
C. The court of appeals adopted pleading standards that conflict with Iqbal . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Appendix A – Court of appeals opinion (Sept. 4, 2009) . . . 1a Appendix B – Order (Mar. 18, 2010) . . . . . . . . . . . . . . . . . 106a

Cases:

TABLE OF AUTHORITIES

Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . . . . . . . . 25
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 30, 31, 32, 33

(III)

IV

Cases—Continued:

Page

Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) . . . . . . . 16 Austin Mun. Sec., Inc. v. National Ass’n of Sec.
Dealers, 757 F.2d 676 (5th Cir. 1985) . . . . . . . . . . . . . . . 16 Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) . . . . 25 Barry v. United States ex rel. Cunningham, 279 U.S.
597 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Bell At. Corp. v. Twombly, 550 U.S. 544 (2007) . . . . . . . . . 30 Bernard v. County of Suffolk, 356 F.3d 495 (2d Cir.
2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Betts v. Richard, 726 F.2d 79 (2d Cir. 1984) . . . . . . . . . . . . 15 Bogan v. Scott-Harris, 523 U.S. 44 (1998) . . . . . . . . . . . . . 19 Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872) . . . . . . . . 16 Brosseau v. Haugen, 543 U.S. 194 (2004) . . . . . . . . . . . . . . 26 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) . . . . . . . 16, 17 City of Indianapolis v. Edmond, 531 U.S. 32
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 17, 22, 23, 24 Cleavinger v. Saxner, 474 U.S. 193 (1985) . . . . . . . . . . . . . 15 Crawford-El v. Britton, 523 U.S. 574 (1998) . . . . . . . . . . . 30 Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978),
cert. denied, 441 U.S. 931 (1979) . . . . . . . . . . . . . . . . . . . 15 Devenpeck v. Alford, 543 U.S. 146 (2004) . . . . . . . . . . . 13, 21 Doe v. McMillan, 412 U.S. 306 (1973) . . . . . . . . . . . . . . . . . 16 Franks v. Delaware, 438 U.S. 154 (1978) . . . . . . . . . . . . . . 32 Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . . . . . . . . . . 19 Hartman v. Moore, 547 U.S. 250 (2006) . . . . . . . . . . . . . . . 18 Hunter v. Bryant, 502 U.S. 224 (1991) . . . . . . . . . . . . . . . . 25 Hurtado v. United States, 410 U.S. 578 (1973) . . . . . . . . . 25

V

Cases—Continued:

Page

Illinois v. Lidster, 540 U.S. 419 (2004) . . . . . . . . . . . . . . . . . 8 Imbler v. Pachtman, 424 U.S. 409 (1976) . . . . . . . . . . . 14, 18 Kalina v. Fletcher, 522 U.S. 118 (1997) . . . . . . . . . . . . . . . . 14 Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . . . . . 25, 26 Material Witness Warrant, In re, 77 F.3d 1277
(10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Perez, 90 N.E. 2d 40 (N.Y. 1949) . . . . . . . . . . . . . 28 Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . 26 Tenney v. Brandhove, 341 U.S. 367 (1951) . . . . . . . . . . . . . 19 United States v. Awadallah, 202 F. Supp. 2d 55
(S.D.N.Y. 2002), rev’d on other grounds, 349 F.3d 42 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 26 United States v. McVeigh, 940 F. Supp. 1541 (D. Colo. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 United States v. Morrision, 529 U.S. 598 (2000) . . . . . . . . 25 United States v. Willaims, 128 S. Ct. 1830 (2008) . . . . . . . 25 United States ex rel. Glinton v. Denno, 339 F.2d 872 (2d Cir. 1964), cert. denied, 381 U.S. 929 (1965) . . . . . . 27 Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009) . . . . . . . 15 Walden v. Wishengrad, 745 F.2d 149 (2d Cir. 1984) . . . . . 15 Wilson v. Layne, 526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . 26 Whren v. United States, 517 U.S. 806 (1996) . . . 7, 13, 21, 22

Constitution and statute:

U.S. Const.: Amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

VI

Statute—Continued:

Page

18 U.S.C. 3144 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 22, 24, 29

In the Supreme Court of the United States
No. 10-98 JOHN ASHCROFT, PETITIONER
v. ABDULLAH AL-KIDD
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Acting Solicitor General, on behalf of former Attorney General John Ashcroft, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a­ 105a) is reported at 580 F.3d 949. The opinions concur­ ring in and dissenting from the denial of rehearing en banc (App., infra, 106a-132a) are reported at 598 F.3d 1129. The unpublished opinion of the district court is available at 2006 WL 5429570.
JURISDICTION
The judgment of the court of appeals was entered on September 4, 2009. A petition for rehearing was denied
(1)

2
on March 18, 2010. (App., infra, 106a). On June 7, 2010, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including July 16, 2010. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
The material witness statute, 18 U.S.C. 3144, pro­ vides in relevant part:
If it appears from an affidavit filed by a party that the testimony of a person is material in a crimi­ nal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title.
The Fourth Amendment to the United States Consti­ tution provides:
The right of the people to be secure in their per­ sons, houses, papers, and effects, against unreason­ able searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
STATEMENT
1. a. In the months after the terrorist attacks of September 11, 2001, the Federal Bureau of Investiga­ tion (FBI) conducted an anti-terrorism investigation in Idaho. As a result of that investigation, on February 13, 2003, a grand jury sitting in the District of Idaho re­ turned an indictment charging an individual named Sami

3
Omar Al-Hussayen with multiple false-statements and visa-fraud offenses.1 The charges against Al-Hussayen centered on allegations that he had falsely stated in his applications for a student visa in 2000 and 2002 that he was entering the United States solely for the purpose of pursuing a course of academic study, when in fact he was spending much of his time providing technical sup­ port to the Islamic Assembly of North America (IANA), an organization that disseminated radical Islamic ideol­ ogy and sought to recruit others to engage in acts of violence and terrorism. Indictment ¶¶ 15-17, 3:03-cr­ 00048-EJL Docket Entry No. 1 (D. Idaho Feb. 13, 2003). The indictment also alleged that Al-Hussayen moved significant sums through his bank account—approxi­ mately $300,000 in excess of his student fees—that were used “to pay operating expenses of the IANA, including salaries of IANA employees.” Id. at ¶¶ 23-24.
As part of the same investigation, the FBI conducted surveillance of respondent and learned that he had a number of ties to Al-Hussayen. One month after AlHussayen was indicted, the FBI also learned that re­ spondent had booked an airplane ticket to Saudi Arabia. At that point, on March 14, 2003, the United States At­ torney’s Office for the District of Idaho, which was pros­ ecuting Al-Hussayen, applied to the magistrate judge for a warrant for respondent’s arrest under the material witness statute, 18 U.S.C. 3144. App., infra, 3a-4a, 66a. In the warrant application, prosecutors asserted that respondent’s testimony was “material to both the prose­ cution and the defendant” in the Al-Hussayen case and that there was a risk that respondent would be un-
1 Superseding indictments later added three counts of conspiracy to provide material support to terrorist organizations.

4
available “unless the Court detains or imposes restric­ tions on the travel of said material witness.” Applica­ tion for Arrest Warrant of Material Witness at 2, 3:03-cr-00048-EJL Docket entry No. 34 (D. Idaho Mar. 17, 2003).
The application was supported by a sworn affidavit of FBI Special Agent Scott Mace. Aff. of Scott Mace in Supp. of Warrant Application, 3:03-cr-00048-EJL Docket entry No. 34 (D. Idaho Mar. 17, 2003). In the affidavit, Mace stated that respondent had been involved with Al-Hussayen in several respects: he had received “payments from [Al-Hussayen] and his associates in excess of $20,000.00” and had met with Al-Hussayen’s associates and IANA officials shortly after returning from a trip to Yemen. Id. at ¶ 6. Based on that informa­ tion, Mace stated that respondent “is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” Id. at ¶ 8. Mace fur­ ther stated that respondent “is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST.” Id. at ¶ 7. The affidavit con­ cluded by stating that “if [respondent] travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.” Id. at ¶ 8.
The magistrate judge granted the government’s ap­ plication, issued an arrest warrant, and ordered that respondent be brought before the court “for the purpose of setting the methods and conditions of release.” Or­ der, 3:03-cr-00048-EJL Docket entry No. 35 (D. Idaho March 17, 2003). Two days later, on March 16, 2003, FBI agents arrested respondent at Dulles International Airport as he prepared to board his scheduled flight to Saudi Arabia. First Amended Compl. ¶¶ 47, 65, 1:05-cv­

5
00093-EJL Docket Entry No. 40 (D. Idaho Nov. 18, 2005) (Compl.). Respondent was detained briefly at the Alexandria Detention Center in Virginia before he was sent to the Ada County Jail in Boise, Idaho, via a federal transfer facility in Oklahoma. Id. at ¶ 70.
b. On March 25, 2003, respondent appeared with counsel before the Idaho magistrate judge who had is­ sued the arrest warrant. At a second hearing on March 31, 2003, the government proposed that respondent be released from custody subject to certain conditions. Compl. ¶¶ 9, 102, 103. The court agreed, releasing re­ spondent that day to the custody of his wife in Nevada on condition that he continue to reside with her, surren­ der his passport, and agree to limit his travel to Nevada and three neighboring states. Ibid. In total, respondent spent 15 in detention. Id. at ¶ 6.
Al-Hussayen’s trial ended on June 10, 2004 when the jury acquitted him on some charges and failed to reach a verdict on others. Respondent was not called to tes­ tify. Compl. ¶ 10. After the trial concluded, the district court granted respondent’s motion to terminate the con­ ditions of his release. Id. at ¶ 107.
2. In March 2005, respondent sued the United States and a number of government officials, including petitioner, seeking damages for alleged violations of, inter alia, the material witness statute and the Fourth Amendment. Compl., 1:05-cv-00093-EJL Docket entry No. 1 (D. Idaho Mar. 15, 2005).
Respondent’s complaint rested on two factual asser­ tions. First, respondent claimed that, in response to the September 11, 2001, terrorist attacks, petitioner imple­ mented a policy of using the material witness statute as a pretextual tool to investigate and detain terrorism suspects whom the government lacked probable cause to

6
charge criminally. Respondent alleged that he was ar­ rested as a result of this alleged policy, which he con­ tended violated the Fourth Amendment. Compl. ¶ 108­ 141. Second, respondent alleged that the Mace affidavit submitted in support of the material witness warrant contained deliberately false statements. In particular, respondent averred that, contrary to the Mace affidavit, his airplane ticket to Saudi Arabia was not a one-way first-class ticket costing $5000, but instead a round-trip coach ticket costing $1700. Id. at ¶ 53. Respondent also alleged that the affidavit omitted material information, including that he was a United States citizen and that he had previously cooperated with the FBI investigation. Id. at ¶ 54.2
Petitioner and the other individual defendants moved to dismiss on grounds of personal jurisdiction, official immunity, and inadequate pleading. Mot. to Dismiss, 1:05-cv-00093-EJL Docket entry No. 47 (D. Idaho Jan. 23, 2006). The district court denied the motions, and petitioner filed an interlocutory appeal.
3. A divided panel of the court of appeals affirmed in relevant part. App., infra, 1a-64a.
a. The court first held that petitioner was not enti­ tled to absolute immunity on respondent’s claims that petitioner implemented a policy of using the material witness statute as a pretext to detain terrorism suspects for investigative or preventive purposes. The panel ac­ knowledged that “absolute immunity ordinarily attaches to the decision to seek a material witness warrant,” App., infra, 19a, but it reasoned that whether such im-
2 The complaint also sought damages based on the alleged conditions of respondent’s confinement during the 15 days he was in custody. See Compl. ¶¶ 154, 157, 160. The court of appeals ordered that claim dis­ missed, App., infra, 59a, and it is not at issue here.

7
munity attaches in any particular case depends on “the prosecutor's mission and purpose” in obtaining such a warrant. Id. at 23a; see id. at 20a (concluding that, un­ der a “functional approach” to absolute immunity, the court was required to “take into account the goal of per­ forming an action to determine function”).
Based on that reasoning, the court concluded that the act of seeking a material witness warrant is not pro­ tected by absolute immunity if the prosecutor’s “imme­ diate purpose” is investigation or preventive detention. App., infra, 20a. Concluding that respondent had al­ leged sufficient facts “to render plausible the allegation of an investigatory function,” the court held that abso­ lute immunity did not apply. Id . at 26a.
b. The court next rejected petitioner’s qualified im­ munity defense. The court reasoned that, even if all the requirements of the material witness statute are satis­ fied and a judge issues a valid arrest warrant, the Fourth Amendment prohibits a seizure based on that warrant when the prosecutor’s true motivation is to con­ duct further investigation or preventively detain a sus­ pect. See App., infra, 30a-40a. The court rejected peti­ tioner’s contention that Whren v. United States, 517 U.S. 806, 813 (1996), forecloses inquiry into subjective purpose or “pretext” in determining the validity of an arrest. In the court’s view, “Whren rejected only the proposition that ‘ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.’ ” App., infra, 32a (quoting Whren, 517 U.S. at 811). Because material witness arrests are not based on suspected wrongdoing, the court reasoned, the relevant precedent was instead City of Indianapolis v. Edmond, 531 U.S. 32 (2000), in which this Court held that the Fourth

8
Amendment prohibits motor vehicle checkpoints de­ signed to interdict drugs. App., infra, 36a-38a. The panel concluded that Edmond permits inquiry into “pro­ grammatic purpose” to assess “the validity of Fourth Amendment intrusions undertaken pursuant to a gen­ eral scheme without individualized suspicion.” Id. at 36a (quoting Edmond, 531 U.S. at 45-46). The court there­ fore held that respondent had stated a valid Fourth Amendment claim in alleging that his arrest resulted from petitioner’s policy of using the material witness pretextually.
The court also concluded that the illegality of that policy was clearly established at the time of respon­ dent’s arrest. App., infra, 46a. The majority acknowl­ edged that “[i]n March 2003, no case had squarely con­ fronted the question of whether misuse of the material witness statute to investigate suspects violates the Con­ stitution.” Id. at 41a. Nevertheless, the majority rea­ soned that Edmond and Illinois v. Lidster, 540 U.S. 419, 422 (2004) (upholding police checkpoints designed to obtain more information about a particular accident from the motoring public), “put [petitioner] on notice that the material witness detentions—involving a far more severe seizure than a mere traffic stop—would be similarly subject to an inquiry into programmatic pur­ pose.” App., infra, 43a. The majority also concluded that the impermissibility of the alleged “pretext” policy was further established by “the history and purposes of the Fourth Amendment,” ibid., “the definition of proba­ ble cause,” id. at 42a, and “dicta in a footnote of a dis­ trict court opinion” from a different circuit. Id. at 46a (citing United States v. Awadallah, 202 F. Supp. 2d 55, 77 n.28 (S.D.N.Y. 2002), rev’d on other grounds, 349

9
F.3d 42 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005)).
c. Finally, the court held that respondent had ade­ quately alleged petitioner’s responsibility for the false statements in the affidavit supporting the material wit­ ness warrant application. App., infra, 47a-56a. Reject­ ing petitioner’s contention that this aspect of the com­ plaint failed the pleading standards set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the court concluded that petitioner could be held liable for “setting in motion a series of acts by others * * * which [he] knew or rea­ sonably should have known would cause others to inflict constitutional injury” and for “acquiescence in the con­ stitutional deprivation by subordinates.” App., infra, 30a. Respondent’s allegations, the court reasoned, sup­ ported liability “on the basis of [petitioner’s] knowing failure to act in the light of even unauthorized abuses,” id. at 52a, and “plausibly suggest that [petitioner] pur­ posely instructed his subordinates to bypass the plain reading of the statute.” Id . at 53a.
4. Judge Bea dissented in relevant part. App., in­ fra, 64a-105a. He disagreed with the majority’s conclu­ sion that an arrest based on a valid material witness warrant violates the Fourth Amendment if the prosecu­ tor’s subjective intent is to conduct further investiga­ tion. Id. at 68a. Judge Bea noted that this Court and the Ninth Circuit had “repeatedly stated that under the Fourth Amendment, an officer’s subjective intentions are irrelevant so long as the officer’s conduct is objec­ tively justified.” Id . at 70a-71a. He noted the many “good reason[s] to eschew inquiry into the subjective motivations of individual officers,” including that such an inquiry is “impossibly difficult” and would undermine the purposes of the qualified immunity defense. Id . at

10
73a-74a. In his view, the majority erred by “import[ing] the ‘programmatic purpose’ test” from cases testing “the constitutional validity of warrantless searches and sei­ zures.” Id . at 74a-75a. Judge Bea regarded those cases as having “no bearing * * * for the simple reason” that respondent “was arrested pursuant to a warrant issued by a neutral magistrate.” Id . at 75a. Judge Bea also concluded that, even if the majority were correct in its Fourth Amendment analysis, it erred in concluding that such rights were clearly established. Id. at 84a-86a.
On the claims alleging false statements in the Mace affidavit, Judge Bea concluded that the “complaint sim­ ply does not state facts that plausibly establish that [pe­ titioner] through [his] own actions, violated [respon­ dent’s] rights.” App., infra, 87a (citation omitted). In particular, Judge Bea found nothing in respondent’s allegations plausibly establishing that petitioner “knew of or encouraged his subordinates recklessly to disre­ gard the truth in the preparation of supporting affida­ vits.” Id . at 88a. At most, Judge Bea reasoned, respon­ dent’s allegations established that petitioner “encour­ aged prosecutors to use material witness warrants as a means to accomplish other law enforcement objectives,” but that conclusion would support only respondent’s claim that petitioner implemented a policy of using ma­ terial witness warrants pretextually, not the distinct claim that petitioner bore responsibility for obtaining such warrants through false statements. Id . at 90a.
Finally, although Judge Bea deemed it unnecessary to reach the issue, he concluded that petitioner was enti­ tled to absolute immunity from the pretext claim insofar as it was based on petitioner’s supervision of the prose­ cutors who sought the material witness warrant. App., infra, 92a-104a. Judge Bea reasoned that the majority’s

11
inquiry into the prosecutor’s “immediate purpose” con­ flicted with Supreme Court and circuit precedent, lacked coherence as a doctrinal principle, and created per­ verse incentives for prosecutors to alter their decisions about trial strategy in order to avoid personal liability. See id . at 98a-104a.
5. The full court of appeals denied petitioner’s re­ quest for rehearing en banc over the dissent of eight judges. Joined by seven other judges, Judge O’Scann­ lain wrote a lengthy dissent focusing on “two distinct but equally troubling legal errors” in the panel decision that together produced the “startling conclusion” that “a former Attorney General of the United States may be personally liable for promulgating a policy under which his subordinates took actions expressly authorized by law.” App., infra, 122a, 125a.
First, Judge O’Scannlain concluded that, in denying petitioner qualified immunity on the pretext claim, the court had “distort[ed] the bedrock Fourth Amendment principle that an official’s subjective reasons for making an arrest are constitutionally irrelevant.” App., infra, 126a. He reasoned that Edmond’s “programmatic pur­ pose” inquiry applies only in evaluating warrantless sei­ zures and therefore is “totally inapplicable here.” Id. at 127a. Judge O’Scannlain also observed that by holding that the Fourth Amendment prohibits an arrest that the material witness statute permits, the court had “effec­ tively declar[ed] the material witness unconstitutional, at least as applied to [respondent].” Id. at 125a. In ad­ dition, Judge O’Scannlain argued that the court had “compound[ed] its error by holding that the right to be free from a detention under a pretextual material wit­ ness warrant was clearly established at the time of [re­ spondent’s] arrest.” Id. at 128a. In Judge O’Scannlain’s

12
view, “[t]he majority’s assertion that three sentences of dicta in a footnote to a subsequently reversed district court opinion clearly establish a right that the majority expended nearly three-thousand words describing is truly astonishing.” Id. at 129a.
Second, Judge O’Scannlain concluded that the court erred in holding “that [petitioner] may be held person­ ally liable to [respondent] if his subordinates provided false testimony in support of their application for a ma­ terial witness warrant.” App., infra, 130a. He noted that there was no allegation that petitioner himself ap­ proved of such false testimony and that, by permitting a claim on the basis of the alleged misconduct of those whom petitioner supervised, the court reached “a result indisputably at odds with Iqbal.” Ibid.
The court’s errors, Judge O’Scannlain reasoned, will inflict “gratuitous damage * * * upon orderly federal law enforcement,” App., infra, 123a, and “have farreaching implications for how government officials per­ form their duties.” Id. at 125a.
REASONS FOR GRANTING THE PETITION
The court of appeals committed a series of funda­ mental errors, the immediate effect of which is to expose the former Attorney General to burdensome litigation and potential damages for the conduct of his subordi­ nates. Those substantial harms are compounded by the decision’s long-term consequences, which will be to threaten the ability of prosecutors to discharge their duties without fear of personal liability, severely limit the usefulness of the material witness statute, and sub­ stantially chill officers in the exercise of important governmental functions. The court permitted the suit against petitioner to proceed even though the only activ­

13
ity in which he is alleged to have participated was autho­ rized by an Act of Congress and approved by a federal magistrate judge. The Ninth Circuit’s decision conflicts with decisions of this Court and, if permitted to stand, would severely damage law enforcement and proper governmental functioning. Accordingly, this Court’s re­ view is warranted on three discrete issues.
First, the court denied petitioner absolute immunity from claims that he instructed his subordinates to seek a material witness warrant—ordinarily deemed an inte­ gral part of a prosecutor’s advocacy function—because respondent alleged that the “immediate purpose” of the warrant was “investigative.” The Ninth Circuit’s newly minted “immediate purpose” test conflicts with the longstanding principle that absolute immunity applies re­ gardless of a prosecutor’s intent. It would also under­ mine the policy objectives of the absolute immunity doc­ trine and expose prosecutors to suit when they exercise other core advocacy functions.
Second, the court of appeals held that the Fourth Amendment prohibits the use of valid material witness warrants as a “pretext” for further investigation of a suspect. That holding is inconsistent with this Court’s precedent recognizing that an officer’s subjective intent does not render an arrest invalid under the Fourth Amendment. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Whren v. United States, 517 U.S. 806, 808-810 (1996). The court compounded that error by holding that its unprecedented decision (supported primarily by dicta in a footnote of a subsequently reversed district court decision from different circuit) was sufficiently “clearly established” to impose personal liability upon the former Attorney General. Together, these holdings would severely limit prosecutors’ ability and willingness

14
to use the material witness statute in commonly arising circumstances.
Third, the court of appeals ruled that the former At­ torney General may be held responsible for alleged mis­ statements or omissions in the affidavit of an FBI agent filed in support of the warrant for respondent’s arrest as a material witness. In reaching that conclusion, the Ninth Circuit adopted a theory of supervisory liability that is directly contrary to this Court’s decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
A. The Ninth Circuit’s Denial Of Absolute Immunity Con-
flicts With Decisions Of This Court And Undermines
The Purposes For Which Such Immunity Exists
The court of appeals held that petitioner was not en­ titled to dismissal of the pretext claim on absolute im­ munity grounds because, according to the complaint, respondent’s arrest was motivated by the “immediate purpose” of conducting further investigation. That anal­ ysis conflicts with decisions of this Court and other courts of appeals. If permitted to stand, it would frus­ trate the purposes of prosecutorial immunity and chill the exercise of important government functions. This Court’s review is warranted.
1. a. The court of appeals erred in denying peti­ tioner absolute immunity on the claim that he imple­ mented a policy of using the material witness statute to investigate or preventively detain terrorism suspects. Absolute immunity protects prosecutors from suit for acts that constitute “the traditional functions of an advo­ cate,” Kalina v. Fletcher, 522 U.S. 118, 131 (1997), and that are “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). As a number of courts have concluded, seek­

15
ing a material witness warrant in a pending prosecution is part of an advocate’s traditional function. See id. at 431 n.33 (stating that the prosecutor’s role as advocate includes “which witnesses to call”); Daniels v. Kieser, 586 F.2d 64, 68-69 (7th Cir. 1978) (decision to seek a ma­ terial witness warrant to secure the presence of a wit­ ness at trial is subject to absolute immunity), cert. de­ nied, 441 U.S. 931 (1979); Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984) (state prosecutor’s action in obtaining a capias to secure the presence of a witness at trial sub­ ject to absolute immunity); Walden v. Wishengrad, 745 F.2d 149, 151-153 (2d Cir. 1984) (attorney representing state Department of Social Services in parental termina­ tion proceedings has absolute immunity for seeking ar­ rest warrant to compel witness to appear).
Thus, even assuming the truth of respondent’s alle­ gations, petitioner’s act of instructing prosecutors under his supervision to obtain material witness warrants in certain circumstances is conduct protected by absolute immunity. See Van de Kamp v. Goldstein, 129 S. Ct. 855, 861-862 (2009) (holding that supervisors are entitled to absolute immunity for training, instructing, and su­ pervising line prosecutors on matters that are intimately associated with the judicial phase of the criminal pro­ cess).
b. The court acknowledged that absolute immunity generally applies to the decision to seek a material wit­ ness warrant, but it held that such immunity is unavail­ able when the prosecutor’s “immediate purpose” is “to investigate or preemptively detain a suspect.” App., infra, 25a. That conclusion conflicts with the principle, well established in this Court’s decisions, that the appli­ cability of official immunity does not turn on motive or intent. See, e.g., Cleavinger v. Saxner, 474 U.S. 193,

16
199-200 (1985) ( judicial immunity cannot “be affected by the motives with which their judicial acts are per­ formed” (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872)); Doe v. McMillan, 412 U.S. 306, 319 (1973) (“Judges, like executive officers with discretionary func­ tions, have been held absolutely immune regardless of their motive or good faith.”).
Consistent with that principle, no court of appeals has adopted the Ninth Circuit’s “immediate purpose” approach, and several courts of appeals have rejected the notion that the prosecutor’s intent informs the abso­ lute immunity analysis. See, e.g., Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (the “fact that improper motives may influence” a prosecutor’s exercise of discretion “cannot deprive him of absolute immu­ nity”); Austin Mun. Sec., Inc. v. National Ass’n of Sec. Dealers, 757 F.2d 676, 685 (5th Cir. 1985) (“[T]he intent with which * * * defendants operate is irrelevant to the absolute immunity issue.”); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (“Intent should play no role in the immunity analysis.”).
The court of appeals’ reasons for ignoring this body of contrary precedent do not withstand scrutiny. The court premised its “immediate purpose” test on lan­ guage in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), but read in context, that language provides no support for the Ninth Circuit’s approach. Fitzsimmons ex­ plained that the determination of the nature of the acts at issue turned on “[a] careful examination of the allega­ tions concerning the conduct of the prosecutors,” based on objective factors such as whether the prosecutors had probable cause to arrest and whether judicial proceed­ ings were pending at the time. Id. at 274. In the course of that discussion, the Court noted that the “immediate

17
purpose” of the special grand jury in which prosecutors were alleged to have submitted fabricated evidence was “to conduct a more thorough investigation of the crime—not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. at 275. That discussion is entirely consistent with a fo­ cus on the objective circumstances surrounding a prose­ cutor’s conduct to determine the applicability of absolute immunity. Contrary to the Ninth Circuit’s conclusion, it does not amount to “an invitation to probe the minds of individual” prosecutors to discern whether, although they engaged in conduct that is a core part of the advo­ cacy function, their true intent in doing so was “investi­ gative.” City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000).
The court also reasoned that cases eschewing inquiry into a prosecutor’s intent “universally involve allega­ tions that the otherwise prosecutorial action was se­ cretly motivated by malice, spite, bad faith, or self-inter­ est,” whereas this case involved an attempt to discern whether a prosecutor is exercising “investigative or na­ tional security functions.” App., infra, 19a. But there is no support for the court of appeals’ view that inquiry into the motives of the prosecutor is permissible for some purposes but not for others. The court of appeals’ decision would yield different immunity rulings for the same acts in the same circumstances depending upon the alleged motive of the prosecutor. Thus, under the decision below, a prosecutor who seeks a material wit­ ness warrant for retaliatory reasons, or simply out of racial animus, would receive absolute immunity because his conduct is not “investigative.” But a prosecutor who performs exactly the same function, in precisely the same circumstances, and at the same stage of the pro­

18
ceedings, would receive no such protection if he acted with the intent to further an ongoing criminal investiga­ tion. That anomalous result finds no support in law or logic.
2. The Ninth Circuit’s “immediate purpose” analysis not only conflicts with bedrock immunity principles but will also frustrate the purposes of absolute immunity and expose prosecutors to suit for decisions about trial strategy.
a. Absolute prosecutorial immunity rests on bedrock public-policy considerations, see Imbler, 424 U.S. at 422­ 423, including the “concern that harassment by un­ founded litigation would cause a deflection of the prose­ cutor’s energies from his public duties, and the possibil­ ity that he would shade his decisions instead of exercis­ ing the independence of judgment required by his public trust.” Id. at 423. Thus, “qualifying a prosecutor’s im­ munity would disserve the broader public interest” be­ cause it “would prevent the vigorous and fearless perfor­ mance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Id. at 427-428.
To achieve its purposes, absolute immunity protects prosecutors not just from liability but also from the bur­ dens of defending a lawsuit. As the dissent recognized, however, the court’s holding that the availability of im­ munity turns on the prosecutor’s intent would require “precisely the kind of expensive discovery and litigation [that] immunity was designed to avoid.” App., infra, 103a. Allegations of improper purpose are “easy to al­ lege and hard to disprove.” Hartman v. Moore, 547 U.S. 250, 257 (2006) (internal quotation marks omitted). The risks posed by such allegations are particularly acute in litigation against government officials. In the qualified

19
immunity context, this Court has explained that “ ‘subjec­ tive’ inquiries of th[e] kind” required by the decision be­ low incur not only “the general costs of subjecting offi­ cials to the risks of trial—distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public ser­ vice,” but also “special costs” involved in investigating subjective motivation that are “peculiarly disruptive of effective government.” Harlow v. Fitzgerald, 457 U.S. 800, 816-817 (1982). These observations apply with equal if not greater force to absolute immunity.
Thus, by holding that allegations of an “investiga­ tive” purpose suffice to defeat a motion to dismiss based on absolute immunity, the decision below seriously un­ dermines the purposes for which such immunity exists. Cf. Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998) (“The privilege of absolute immunity ‘would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclu­ sion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to mo­ tives.’ ”) (quoting Tenney v. Brandhove, 341 U.S. 367, 377 (1951)).
b. The rationale of the decision below, by stripping prosecutors of absolute immunity, would expose them to suit for other core advocacy functions.
It is settled, for example, that decisions about wheth­ er and what charges to bring against a defendant are among the most basic functions of an advocate. But prosecutors routinely bring charges against lower-level offenders in circumstances where defendants could al­ lege that their “immediate purpose” is both obtaining critical information about more valuable suspects and actively enlisting the defendant in investigative efforts,

20
not to proceed with a prosecution. Under the decision below, such motives would presumably expose the prose­ cutor to suit and entitle a defendant to discovery on claims seeking damages for vindictive or retaliatory prosecution.
The court of appeals acknowledged that defendants would likely invoke the “immediate purpose” exception to sue prosecutors for bringing criminal charges on the notion that the “real” purpose of charges was to pres­ sure the defendant to cooperate in an ongoing investiga­ tion. The court simply declared, however, that a “prose­ cutor who files charges may hope, eventually, that the petty crook will implicate his boss,” but “the immediate purpose of filing charges is to begin a prosecution—the better to pressure the defendant into providing informa­ tion.” App., infra, 25a. But that reasoning has no prin­ ciple behind it, as the dissent recognized. Id. at 103a (“[W]hy isn’t the prosecutor’s ‘immediate purpose’ in this case to secure a witness’s appearance at trial rather than to obtain evidence against [respondent]?”). The potential implications of the decision below for the scope of absolute immunity in a range of contexts thus war­ rants review by this Court.
B. The Qualified Immunity Analysis In The Decision Below
Warrants This Court’s Review
The court of appeals further held that petitioner is not entitled even to qualified immunity from suit on re­ spondent’s pretext claims. That decision was incorrect on multiple levels. The Ninth Circuit’s conclusion that the Fourth Amendment prohibits a “pretextual” arrest on a valid material witness warrant not only conflicts with fundamental tenets of this Court’s precedents but also effectively invalidates the material witness statute

21
as unconstitutional in the circumstances of this case. The court’s conclusion that such a Fourth Amendment rule was clearly established, moreover, represents a serious misapplication of qualified immunity doctrine. The Ninth Circuit’s rulings impinge on the exercise of important government functions and merit this Court’s review.
1. The Ninth Circuit’s Fourth Amendment ruling con-
flicts with decisions of this Court and invalidates an
Act Of Congress
a. Contrary to the court of appeals’ holding, an ar­ rest based on a material witness warrant validly issued by a magistrate judge does not violate the Fourth Amendment because prosecutors were motivated to seek it for “investigative” purposes. A long line of this Court’s cases holds that an officer’s motives are irrele­ vant to the lawfulness of his or her conduct under the Fourth Amendment. In Whren v. United States, 517 U.S. 806, 813 (1996), this Court expressly rejected the contention that the Constitution prohibits the use of traffic offenses “as pretexts for pursuing other investi­ gatory agendas,” id . at 811, and held that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id . at 813. The Court reemphasized that conclusion in Devenpeck v. Alford, 543 U.S. 146 (2004), holding that an officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id. at 153. Those decisions foreclose the court of appeals’ holding that the subjective intent of the pros­ ecutor renders unconstitutional an arrest based on a valid material witness warrant.

22
The court reasoned that the principle of Whren and Devenpeck does not apply here because those cases in­ volved arrests based on “probable cause to believe that a violation of law has occurred.” App., infra, 32a (quot­ ing Whren, 517 U.S. at 811) (emphasis by the court). The court noted that, in contrast, “[a]n arrest of a mate­ rial witness is not justified by probable cause because the two requirements of Section 3144 (materiality and impracticability) do not constitute the elements of a crime.” Id . at 34a. The court thus concluded that be­ cause a material witness arrest is not supported by “probable cause to arrest,” the applicable standard was supplied by cases involving warrantless searches at mo­ tor vehicle checkpoints, as to which “an inquiry into pur­ pose at the programmatic level” is appropriate under Edmond, 531 U.S. at 46.
That conclusion is fundamentally flawed for two prin­ cipal reasons. First, the “programmatic purpose” stan­ dard of Edmond, which was derived from generalized and warrantless searches of vehicles, does not apply in this context because a material witness arrest is con­ ducted pursuant to a warrant issued by a neutral magis­ trate. As the dissent explained, “[t]he ‘programmatic purpose’ inquiry is necessary to test the validity of a special needs search precisely because such searches occur without the procedural protections of the warrant requirement and the magisterial supervision it entails.” App., infra, 75a-76a. Second, the Edmond framework applies only to seizures that lack any individualized ba­ sis and may be justified, if at all, by the generalized in­ terest that motivates the program pursuant to which they are conducted. Arrests based on a material witness warrant are objectively justified by the individualized probable-cause determination that the subject possesses

23
information important to an ongoing criminal proceed­ ing. The court of appeals concluded that the concept of “probable cause” inherently relates only to suspected criminal wrongdoing, but for the reasons persuasively explained by the dissent, that conclusion “reflects a fun­ damental misunderstanding of the Fourth Amendment.” Id. at 76a; see id. at 76a-82a.
Not only was the court’s invocation of Edmond wrong, its application of the Edmond approach was wrong, too. The “program” at issue in Edmond was a police department practice of erecting random road­ blocks intended to catch drug offenders. While this Court evaluated the purpose of that policy, it specifically “caution[ed] that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.” 531 U.S. at 48. In other words, the Court approved of asking why the City had chosen to institute the program, but disapproved of asking why a particular officer on the scene conducted a seizure pur­ suant to it.
Here, the “program” at issue is the material witness statute, which Congress enacted to provide prosecutors with a means of ensuring that key witnesses would appear at trial. That “programmatic” purpose— Congress’s purpose—is consistent with the Fourth Amendment, and neither the court of appeals nor re­ spondent has argued otherwise. The court of appeals, however, went beyond such an inquiry into purpose “at the programmatic level” and concluded that respon­ dent’s arrest was invalid because the particular prosecu­ tors who sought it were motivated by reasons other than those for which the statute was intended. That is equiv­ alent to “prob[ing] the minds of individual officers acting

24
at the scene”—precisely what Edmond does not con­ done. Edmond, 531 U.S. at 48.
b. The effect of the court’s Fourth Amendment rul­ ing was to invalidate the material witness statute as ap­ plied to the circumstances of this case. Although the court never explicitly declared that result, the asapplied unconstitutionality of Section 3144 necessarily follows from the court’s holding that the Fourth Amend­ ment prohibits an arrest that the material witness stat­ ute permits. The panel did not hold that the material witness statute itself limits material witness arrests to those in which the prosecutor acts with a noninvestigative purpose. Rather, as the dissent pointed out, the court held that “even if the material witness warrant on which he was detained was objectively valid and supported by probable cause, the prosecutor’s sub­ jective intention to use the material witness warrant to accomplish other, law-enforcement objectives renders the government’s conduct unconstitutional.” App., in­ fra, 70a.3
3 In an opinion concurring in the denial of rehearing en banc, Judge Smith, writing only for himself, argued that “[t]he material witness statute [itself] does not authorize arrests like the one in this case” and therefore that the panel had not “address[ed] the validity” of the law. App., infra, 113a-114a (emphasis omitted). But Judge Smith did not explain why the statute prohibits such an arrest when a neutral magis­ trate issues a warrant concluding that all of the statutory criteria have been satisfied, and in any event, his arguments do not square with the court’s decision. Unlike Judge Smith, the court characterized respon­ dent’s claims under Section 3144 as resting on the false statements con­ tained in the supporting affidavit, not on the allegedly improper purpos­ es for which the warrant was sought. See id. at 47a-48a (panel opinion) (“[Respondent] claims that, in his case, the Mace Affidavit fails to dem­ onstrate probable cause for either the materiality of his testimony or the reasons it would be impracticable to secure that testimony by sub­

25
The material witness statute has been in existence since 1789. See Bacon v. United States, 449 F.2d 933, 938 (9th Cir. 1971). All 50 states have enacted an analo­ gous law. Until now, “[t]he constitutionality of this stat­ ute apparently has never been doubted.” Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617 (1929); see Hurtado v. United States, 410 U.S. 578, 588 (1973). The Ninth Circuit’s implicit invalidation of such a longstanding and important Act of Congress provides an additional reason for this Court to grant review. See, e.g., United States v. Williams, 128 S. Ct. 1830 (2008); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000).
2. The court of appeals committed serious error in holding that the Fourth Amendment violation was clearly established
The court of appeals “compound[ed] its error” in con­ cluding that respondent’s arrest violated the Fourth Amendment by also “holding that the right to be free from a detention under a pretextual material witness warrant was clearly established.” App., infra, 128a. The Ninth Circuit’s incorrect denial of qualified immu­ nity to a cabinet-level official warrants this Court’s re­ view.
a. The doctrine of qualified immunity “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quot­ ing Malley v. Briggs, 475 U.S. 335, 341 (1986)). If at the
poena. This allegation is the § 3144 claim: that, independent of the con­ stitutionality of the use of § 3144 for investigatory purposes, al-Kidd’s arrest failed to meet the statutory requirements set forth by Congress, and was therefore unlawful.”).

26
time in question “officers of reasonable competence” could disagree on whether the alleged action violated the plaintiff ’s constitutional or statutory rights, “immu­ nity should be recognized.” Malley, 475 U.S. at 341.
“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was un­ lawful in the situation he confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Ibid .; see Wilson v. Layne, 526 U.S. 603, 615 (1999) (“[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.”).
b. Under these standards, petitioner is plainly enti­ tled to qualified immunity from suit on respondent’s pretext claim. Even if the court of appeals were correct that the Fourth Amendment prohibited the execution of a material witness warrant when a prosecutor acted with investigative intent, that rule was not clearly established at the time of respondent’s arrest. The court of appeals acknowledged that, in March 2003, no case had “squarely confronted the question of whether misuse of the material witness statute to investigate suspects vio­ lates the Constitution.” App., infra, 41a. The only case the majority identified even remotely addressing the “specific context of [this] case,” Brosseau, 543 U.S. at 198, was a district court decision that, in dicta in a foot­ note, warned that “[r]elying on the material witness statute to detain people * * * in order to prevent po­ tential crimes is an illegitimate use of the statute.” United States v. Awadallah, 202 F. Supp. 2d 55, 77 n.28

27
(S.D.N.Y. 2002), rev’d on other grounds, 349 F.3d 42 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005). As the dissent to the denial of rehearing en banc stated, “[t]he majority’s assertion that three sentences of dicta in a footnote to a subsequently reversed district court opin­ ion clearly established a right that the majority ex­ pended nearly three-thousand words describing is truly astonishing.” App., infra, 129a.
The other sources on which the court of appeals re­ lied in deeming respondent’s purported Fourth Amend­ ment rights “clearly established” do not support that conclusion. As Judge O’Scannlain explained, the “his­ tory and purposes of the Fourth Amendment” and the “definition of probable cause” are far too general to clearly establish the illegality of respondent’s arrest in the particular circumstances. App., infra, 128a (“If [these sources are] sufficient clearly to establish how the Fourth Amendment applies in a particular setting, then how can any Fourth Amendment rule ever not be ‘clearly established?’”). The court of appeals also rea­ soned that Edmond “should have been sufficient to put [petitioner] on notice that the material witness deten­ tions,” like administrative or special-needs searches, “would be similarly subject to an inquiry into program­ matic purpose.” Id. at 43a. But while the “program­ matic purpose” test announced in cases such as Edmond may have been clearly established in the roadblock and administrative search contexts, it was not clearly estab­ lished whether, much less how, that framework applied to arrests based on material witness warrants.
Indeed, at the time of respondent’s arrest, at least one court of appeals had rejected the contention that an intent to investigate an individual as a suspect invali­ dates a material witness warrant. In United States ex

28
rel. Glinton v. Denno, 339 F.2d 872, 875 (2d Cir. 1964), cert. denied, 381 U.S. 929 (1965), a criminal defendant originally detained as a material witness argued that “it is irrelevant that the police complied with the technicali­ ties of the material witness statute, because as the ‘tar­ get’ of the grand jury proceeding he could not have been summoned to testify, * * * and therefore could not be held as a witness.” But as the court held, “[t]his argu­ ment has no merit.” Ibid. The court deemed persuasive the decision in People v. Perez, 90 N.E. 2d 40, 46 (Ct. App. N.Y. 1949), in which the court upheld a situation almost identical to the practice alleged here: “While the police may have suspected defendant of the murder, they did not have enough evidence to hold him as a de­ fendant until shortly before he confessed. His detention during that period was lawful because, in light of his admitted knowledge of many of the circumstances sur­ rounding the murder, his commitment as a material wit­ ness was valid.” Ibid.
3. The denial of qualified immunity on the pretext
claim would significantly limit the use of the mate-
rial witness statute
If permitted to stand, the decision below would seri­ ously limit the circumstances in which prosecutors could invoke the material witness statute without fear of per­ sonal liability.
Individuals who have information critical to a prose­ cution often happen to be suspects in the underlying criminal investigation. And because such individuals face potential criminal exposure, they may become the subject of a material witness warrant if there is reason to believe they will flee the jurisdiction or refuse to re­ spond to a subpoena. The decision below, however, sug­

29
gests that prosecutors will be subject to suit if they lack probable cause to charge such an individual but arrest him on a material witness warrant—even though that warrant is issued by a neutral judge based on an applica­ tion that satisfies the requirements of 18 U.S.C. 3144.
The decision below therefore creates legal uncer­ tainty in frequent applications of the material witness statute. To take one noteworthy example, federal agents initially detained Terry Nichols pursuant to a material witness warrant just days after the 1995 Oklahoma City bombing. See United States v. McVeigh, 940 F. Supp. 1541, 1548 (D. Colo. 1996). Although Nich­ ols was implicated as a possible participant in the bomb­ ing because of his association with Timothy McVeigh, agents acknowledged that they lacked probable cause to hold Nichols in custody unless they arrested him as a material witness. Ibid. After further investigation fol­ lowing his arrest pursuant to the material witness stat­ ute, the government developed sufficient evidence to obtain a new arrest warrant on a criminal complaint al­ leging Nichols’s direct involvement in the bombing. See In re Material Witness Warrant, 77 F.3d 1277, 1278­ 1279 (10th Cir. 1996). Under the reasoning of the deci­ sion below, Nichols would have had a cause of action for damages against (and presumably the right to seek dis­ covery from) the prosecutors who obtained the material witness warrant based on an allegation that those offi­ cials pursued an investigative purpose.
Indeed, because the Ninth Circuit considered this Fourth Amendment principle “clearly established,” prosecutors will likely avoid invoking the material wit­ ness statute in circumstances that could conceivably run afoul of the decision below. Thus, although the Ninth Circuit’s analysis did not specify how it applies when the

30
prosecutor acts with mixed motives in seeking a material witness warrant, the fear of personal liability might dis­ suade prosecutors from obtaining such a warrant when they harbor any suspicion that the subject might be in­ volved in criminal wrongdoing but do not yet have prob­ able cause to bring criminal charges. The court of ap­ peals’ ruling will thus discourage prosecutors from em­ ploying the material witness statute in situations for which it was designed and in which the public interest favors its use.
C. The Court of Appeals Adopted Pleading Standards That
Conflict With Iqbal
In addition to holding that petitioner lacked any type of immunity on the pretext claim, the court of appeals concluded that petitioner may be held responsible for alleged false statements and omissions in the affidavit submitted in support of the warrant to arrest respon­ dent. That holding is inconsistent with this Court’s deci­ sion in Iqbal and exposes a cabinet-level official to money damages for the conduct of his subordinates. This Court’s review of that ruling is warranted.
a. Iqbal set forth two principles that govern this case. First, the Court explained that the Federal Rules of Civil Procedure require a plaintiff to provide “suffi­ cient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” 129 S. Ct. at 1949 (quoting Bell At. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (District courts should “insist” that a respondent “ ‘put forward specific, nonconclusory factual allegations’ that establish * * * cognizable injury.”). Second, the Court held that government officials may not be held responsible for the misconduct of their subordinates under broad theories of “supervisory liability.” Iqbal,

31
129 S. Ct. at 1949. Instead, a supervisory official may be held liable under Bivens only if a respondent demon­ strates that the supervisor “through [his or her] own individual actions, has violated the Constitution.” Id . at 1948.
b. Contrary to the decision below, respondent’s alle­ gations do not satisfy the standards set forth in Iqbal. The complaint failed to plead any specific facts plausibly establishing that petitioner, the former Attorney Gen­ eral of the United States, through his own actions, par­ ticipated in the making of allegedly false statements in the Mace affidavit. Instead, the complaint cites public statements by petitioner and other government officials declaring that the material witness statute was an “im­ portant investigative tool” that could be used to gather evidence and “tak[e] suspected terrorists off the street.” App., infra, 7a, 24a (internal quotation marks omitted). But as the dissent recognized, those allegations at most “suggest [that petitioner] encouraged prosecutors to use valid material witness warrants as a means to accom­ plish other law-enforcement objectives.” Id. at 89a-90a. They do not render plausible the conclusion on which the claim at issue rests—that petitioner required or encour­ aged the use of false information to obtain material wit­ ness warrants. Because respondent failed to allege that petitioner was either personally involved in that conduct or instituted a policy encouraging it, his claim amounts to an attempt to hold the former Attorney General liable for the alleged violation of Section 3144 by subordinate officials. Iqbal makes clear that such a broad claim of supervisory liability lacks merit.
Respondent also seeks damages on the allegation that petitioner “knew or reasonably should have known of the unlawful, excessive, and punitive manner in which

32
the federal material witness statute was being used in the aftermath of September 11, 2001,” and that he was “legally responsible for taking any necessary corrective action in light of the mounting evidence of abuse.” Compl. ¶¶ 137, 138. As an initial matter, those allega­ tions are conclusory and therefore not entitled to the presumption of truth. Iqbal, 129 S. Ct. at 1949. But in any event, the mere assertion that petitioner knew of and acquiesced in false statements and omissions in ap­ plications filed by subordinates for material witness warrants would not by itself establish a constitutional violation. This Court has explained that the “factors necessary to establish a Bivens violation” by a supervi­ sory official “will vary with the constitutional provision at issue.” Id. at 1948. In Iqbal, for example, this Court held that the mere allegation that a supervisor knew about and acquiesced in purposeful discrimination by his subordinates failed to state a Fifth Amendment discrim­ ination claim against the supervisor because “purpose rather than knowledge is required to impose Bivens lia­ bility * * * for unconstitutional discrimination.” Id. at 1949. Similarly, here, the alleged constitutional viola­ tion requires proof that the officer acted deliberately or recklessly. See Franks v. Delaware, 438 U.S. 154, 164­ 172 (1978). An allegation that a supervisor knew of and acquiesced in such violations by subordinates does not meet this Court’s rather stringent standard for estab­ lishing a constitutional violation.
c. Despite these deficiencies in the complaint, the court of appeals held that respondent’s allegations were sufficient to state a supervisory liability claim against petitioner. That decision implicates the same concerns that animated the decision in Iqbal. There, this Court emphasized that supervisory officials “may not be held

33
accountable for the misdeeds of their agents” and that “each Government official, his or her title notwithstand­ ing, is only liable for his or her own misconduct.” 129 S. Ct. at 1949. The court of appeals nevertheless reasoned that petitioner could be held liable for “setting in motion a series of acts by others * * * which [he] knew or rea­ sonably should have known would cause others to inflict constitutional injury” and for “acquiescence in the con­ stitutional deprivation by subordinates.” App., infra, 30a. Iqbal makes clear, however, that the proper in­ quiry is not whether the supervisor was somehow in­ volved in a constitutional deprivation, but whether that supervisor, through his own individual actions, “violat­ [ed] the Constitution.” 129 S. Ct. at 1949. The court of appeals’ decision, which imposed supervisory liability on a cabinet-level official in contravention of Iqbal, war­ rants this Court’s review.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
NEAL KUMAR KATYAL Acting Solicitor General
DAVID A. O’NEIL Assistant to the Solicitor General
ROBERT M. LOEB MATTHEW M. COLLETTE
Attorneys
JULY 2010

APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 06-36059 ABDULLAH AL-KIDD, PLAINTIFF-APPELLEE
v. JOHN ASHCROFT, DEFENDANT-APPELLANT
Argued: Apr. 8, 2008 Filed: Sept. 4, 2009
Before: DAVID R. THOMPSON, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.
MILAN D. SMITH, JR., Circuit Judge: According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live
(1a)

2a
with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.
Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.
FACTS AND PROCEDURAL BACKGROUND1
A. al-Kidd
Plaintiff-Appellee al-Kidd was born Lavoni T. Kidd in Wichita, Kansas. While attending college at the University of Idaho, where he was a highly regarded run-
1 All facts are taken from al-Kidd’s first amended complaint, unless otherwise indicated.

3a
ning back on the University’s football team, he converted to Islam and changed his name. In the spring and summer of 2002, he and his then-wife were the target of a Federal Bureau of Investigation (FBI) surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men.2 No evidence of criminal activity by al-Kidd was ever discovered. Al-Kidd planned to fly to Saudi Arabia in the spring of 2003 to study Arabic and Islamic law on a scholarship at a Saudi university.
On February 13, 2003, a federal grand jury in Idaho indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. officials. On March 14, the Idaho U.S. Attorney’s Office submitted an application to a magistrate judge of the District of Idaho, seeking al-Kidd’s arrest as a material witness in the AlHussayen trial. Appended to the application was an affidavit by Scott Mace, a Special Agent of the FBI in Boise (the Mace Affidavit). The Mace Affidavit described two contacts al-Kidd had with Al-Hussayen: al-Kidd had received “in excess of $20,000” from Al-Hussayen (though the Mace Affidavit does not indicate what this payment was for), and al-Kidd had “met with Al-Hussayen’s associates” after returning from a trip to Yemen. It also contained evidence of al-Kidd’s contacts with officials of the Islamic Assembly of North America (IANA, an organization with which Al-Hussayen was affiliated),3 including one official “who was recently ar
2 Al-Kidd is Muslim, but is African-American and not of Arab descent.
3 The IANA is identified in the Al-Hussayen indictment as an organization with the “purpose of Da’wa (proselytizing), which included the website dissemination of radical Islamic ideology the purpose of which

4a
rested in New York.” It ended with the statement, “[d]ue to al-Kidd’s demonstrated involvement with the defendant . . . he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” The Mace Affidavit did not elaborate on what “information” al-Kidd might have had, nor how his testimony might be “germane”—let alone “crucial”—to the prosecution of Al-Hussayen.
The affidavit further stated:
Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia. . . . It is believed that if al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.
was indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.”
The IANA’s web site currently disseminates a list of goals which include, inter alia, to “[u]nify and coordinate the efforts of the different dawah oriented organizations in North America and guide or direct the Muslims of this land to adhere to the proper Islamic methodology”; “[s]pread the correct knowledge of Islam”; “[w]iden the horizons and understanding . . . among Muslims concerning different Islamic contemporary issues”; “[a]ssist the oppressed and tyrannized scholars, Islamic workers and Muslim masses in any locality”; and “[c]reate programs and institutions that will serve the English- speaking Muslims of North America.” Islamic Assembly of N. Am., About IANA, at http://www.iananet.org/ about.htm (accessed June 10, 2009). Al-Hussayen, then a computer science graduate student at the University of Idaho, was accused of registering and running the IANA’s web site.

5a
In fact, al-Kidd had a round-trip, coach class ticket, costing approximately $1700. The Mace Affidavit omitted the facts that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him. The magistrate judge issued the warrant the same day.
Pursuant to the material witness warrant, al-Kidd was arrested two days later at the ticket counter at Dulles International Airport. He was handcuffed and taken to the airport’s police substation, where he was interrogated. Thereafter, he was detained for an aggregate of sixteen days at the Alexandria Detention Center in Virginia, the Oklahoma Federal Transfer Center, and the Ada County, Idaho, Jail. He was strip searched on multiple occasions and confined in the high-security unit of each facility. During transfer between facilities, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was allowed out of his cell only one to two hours each day, and his cell was kept lit twenty-four hours a day, unlike other cells in the high-security wing.
On March 31, after petitioning the court, al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws’ home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport. After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, Nevada, as al-Kidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen’s trial,

6a
more than fifteen months after being arrested.4 In July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.
Al-Kidd was never called as a witness in the AlHussayen trial or in any other criminal proceeding.
B. Ashcroft
Defendant-Appellant Ashcroft was Attorney General of the United States during the relevant time period. According to al-Kidd’s complaint, following the September 11, 2001 terrorist attacks, Ashcroft developed and promulgated a policy by which the FBI and DOJ would use the federal material witness statute5 as a pretext “to
4 Al-Hussayen was not convicted of any of the charges brought against him. His trial ended in acquittal on the most serious charges, including conspiracy to provide material support to terrorists, 18 U.S.C. §§ 2339A, 2339B. After the jury failed to reach a verdict on the remaining lesser charges, the district court declared a mistrial. The government agreed not to retry Al-Hussayen and deported him to Saudi Arabia for visa violations.
5 The federal material witness statute, 18 U.S.C. § 3144, provides:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Re-

7a
arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further.” (Cited in, and emphasis added to, alKidd’s complaint.)
To support this allegation, the complaint first quotes Ashcroft’s own statement at a press briefing:
Today, I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.
John Ashcroft, Attorney General, Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force (Oct. 31, 2001), available at http://www.usdoj. gov/archive/ag/speeches/2001/agcrisisremarks10_31.htm (emphasis added in complaint). The complaint also cites internal DOJ memoranda quoted in a report by the DOJ’s Office of the Inspector General (OIG Report),6
lease of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. 6 See Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (2003), available at http://www.usdoj.gov/oig/ special/0306/full.pdf. The OIG Report’s focus is the post-9/11 detention on immigration charges of Arab and Muslim aliens, and touches only incidentally on those held as material witnesses. Because the report, an official government document, is cited extensively throughout the com-

8a
which describe the use of “aggressive arrest and detention tactics in the war on terror,” OIG Report at 12, including the use of material witness warrants to confine aliens suspected of terrorist involvement, id. at 38-39, 75. The complaint also quotes the public statements of a number of DOJ and White House officials implying or stating outright that suspects were being held under material witness warrants as an alternative means of investigative arrest or preventative detention. In addition to this direct evidence, the complaint cites a number of press reports describing the detention of numerous Muslim individuals under material witness warrants. The complaint further alleges that the policies designed and promulgated by Ashcroft have caused individuals to be “impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been impracticable to secure their testimony voluntarily or by subpoena,” in violation of the terms of § 3144.
In his complaint, al-Kidd links his personal detention to these broader policies not only through inference, but also through the statements of Robert Mueller, the Director of the FBI. On March 27, while al-Kidd was jailed in Idaho, Mueller testified before Congress, listing five “major successes” in the FBI’s efforts toward “identifying and dismantling terrorist networks.” The first was the capture of Khalid Shaikh Mohammed, iden-
plaint, we deem it incorporated by reference, and take judicial notice of its entire contents. See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999) (permitting incorporation by reference of documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff ’s] pleading”).

9a
tified as “a key planner and the mastermind of the September 11th attack.” The second was al-Kidd, identified as having been “arrested . . . en route to Saudi Arabia.” The other three “successes” all involved individuals “indicted” or “charged” with some crime connected to terrorism. See FBI’s Fiscal Year (FY) 2004 Budget: Hearing Before the Subcommittee on the Departments of Commerce, Justice and State, House Appropriations Committee, 108th Cong. (2003) (statement of Robert S. Mueller, III, Director, FBI), available at http://www.fbi. gov/congress/congress03/mueller 032703.htm (hereafter Mueller Testimony).
Finally, the complaint notes that “material witnesses have been routinely held in high security detention facilities.” The OIG Report cites an Assistant U.S. Attorney who complained that the DOJ’s Bureau of Prisons “did not distinguish between detainees who, in his view, posed a security risk and those detained aliens who were uninvolved witnesses.” OIG Report at 20. It alleges “a general policy” of extensive mistreatment of material witnesses at the New York City Metropolitan Correctional Center (MCC). It cites a case, United States v. Awadallah, 202 F. Supp. 2d 55, 59-61 (S.D. N.Y. 2002) (Awadallah I), rev’d on other grounds, 349 F.3d 42 (2d Cir. 2003) (Awadallah II), which discusses the conditions of confinement of another putative material witness, Osama Awadallah, held in New York City. The complaint avers that Ashcroft “knew or reasonably should have known of the unlawful, excessive, and punitive manner in which the federal material witness statute was being used,” and that such manner “would also foreseeably subject” detainees “to unreasonable and unlawful use of force, to unconstitutional conditions of confinement, and to punishment without due process.”

10a
C. Prior Proceedings
In March 2005, al-Kidd filed this lawsuit in Idaho federal district court. The first amended complaint was filed that November, naming as defendants, among others, Ashcroft, the United States, Mace and Gneckow (the two FBI agents named in the Mace Affidavit), and a number of government agencies and officers in their official capacities.7 It sought damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), for violations of al-Kidd’s rights under the Fourth and Fifth Amendments to the Constitution (a “Bivens action”), and for a direct violation of § 3144.
Ashcroft moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over Ashcroft in Idaho. Specifically, al-Kidd had alleged that Ashcroft “spear-headed the post September 11, 2001 practice . . . to use the material witness statute to detain individuals whom they sought to investigate,” and that “Ashcroft either knew or should have known the violations were occurring and did not act to correct the violations.” Next, the district judge denied the 12(b)(6) motion, rejecting Ashcroft’s claims of absolute and qualified immunity. The district court held that “[t]he development and practice of using the material witness statute to detain individuals while in-
7 Ashcroft is the only defendant in this case who filed an interlocutory appeal of the district court’s denial of the defendants’ Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6) motions. Accordingly, none of al-Kidd’s claims against the other defendants is before us.

11a
vestigating possible criminal activity qualifies as police type investigative activity, not prosecutorial advocacy” for which absolute immunity is reserved. Turning to the claims for qualified immunity, the district court held that “the allegations against Mr. Ashcroft involve more than vicarious liability but assert claims involving Mr. Ashcroft’s own knowledge and actions related to Mr. Kidd’s alleged constitutional deprivations.” The principal deprivation the district court mentioned was the allegation “that probable cause was not shown in the warrant application.” The district court also rejected qualified immunity for the FBI agents.
Ashcroft filed a timely interlocutory appeal.
JURISDICTION AND STANDARD OF REVIEW
A. Failure to State a Claim
Section 1291 of U.S. Code Title 28 grants this court jurisdiction over “final decisions” of the district court. Ordinarily, the denial of a motion under Federal Rule of Civil Procedure 12(b)(6) would not constitute a “final decision.” The district court’s denial of absolute and qualified immunity, however, is a “final decision” for § 1291 purposes because these immunities are immunities from suit, not just from damages. See Mitchell v. Forsyth, 472 U.S. 511, 525, 527, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).
As we have recognized in the past, interlocutory review of a Rule 12(b)(6) motion to dismiss puts our court in the difficult position of deciding “far-reaching constitutional questions on a nonexistent factual record.” Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004). However, because Ashcroft chose to exercise

12a
his right to appeal before a fuller record could be developed, we proceed as we must in a review of all Rule 12(b)(6) motions, accepting as true all facts alleged in the complaint, and drawing all reasonable inferences in favor of the plaintiff. See Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). To avoid dismissal under Rule 12(b)(6), a plaintiff must aver in his complaint “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, —U.S. —, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
We review de novo the district court’s rulings on absolute and qualified immunity. KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004); Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1179 (9th Cir. 2007).
B. Personal Jurisdiction
Ashcroft also argues that the district court does not have personal jurisdiction over him. Because denials of motions to dismiss for lack of personal jurisdiction are not ordinarily reviewable on interlocutory appeal, Ashcroft requests that this court exercise its “pendent appellate jurisdiction” to reach the question of personal jurisdiction.
In Hendricks v. Bank of America, N.A., we summarized the criteria for the exercise of pendent appellate jurisdiction:
Under 28 U.S.C. § 1292(a)(1), we may exercise . . . pendent jurisdiction over any otherwise nonappealable ruling that is “inextricably intertwined” with or “necessary to ensure meaningful review of” the or-

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der properly before us on interlocutory appeal. District court rulings are “inextricably intertwined” with a preliminary injunction when the legal theories on which the issues advance are so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue. We also construe Swint’s “necessary to ensure meaningful review” language narrowly to require much more than a tangential relationship to the decision properly before us on interlocutory appeal.
408 F.3d 1127, 1134 (9th Cir. 2005) (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995)) (internal quotation marks, citations, and alterations omitted). Thus, Ashcroft must demonstrate that the issue of personal jurisdiction is either (1) “inextricably intertwined” with or (2) “necessary to ensure meaningful review of” the issues of absolute or qualified immunity, in order for us to exercise the pendent appellate jurisdiction he requests.
DISCUSSION
Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was impracticable to secure the witness’s testimony-in other words, in violation of the express terms of § 3144 itself—and that al-Kidd was arrested as a result of this policy (the § 3144 Claim). Second, al-Kidd alleges that Ashcroft designed and im-

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plemented a policy under which the FBI and DOJ would arrest individuals who may have met the facial statutory requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).
Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims.
A. Absolute Immunity
In Bivens actions and those taken under 42 U.S.C. § 1983,8 “[m]ost public officials are entitled only to qualified immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). Prosecutors are entitled to absolute immunity, however, when they engage in activities “intimately associated with the judicial phase of the criminal process,” Imbler v. Pacht-
8 The qualified and absolute immunity defenses to each are the same. See Butz v. Economou, 438 U.S. 478, 504, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978) (“[W]e deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.”).

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man, 424 U.S. 409, 430, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), and done “in the course of [their] role as an advocate for the State,” Buckley, 509 U.S. at 273, 113 S. Ct. 2606. They are entitled only to qualified immunity, however, when they perform investigatory or administrative functions, or are essentially functioning as police officers or detectives. Id. In addition, the United States Attorney General is not entitled to absolute immunity in the performance of his or her “national security functions.” Mitchell, 472 U.S. at 520, 105 S. Ct. 2806. The burden to establish absolute immunity rests with the official seeking it:
The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been “quite sparing” in our recognition of absolute immunity, and have refused to extend it any “further than its justification would warrant.”
Burns v. Reed, 500 U.S. 478, 486-87, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991) (quoting Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). “[I]f application of the principle is unclear, the defendant simply loses,” and receives only the default of qualified immunity. Buckley, 509 U.S. at 281, 113 S. Ct. 2606 (Scalia, J., concurring).
To determine whether an action is “prosecutorial,” and so entitled to absolute immunity, the Supreme Court has adopted a “ ‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269, 113 S. Ct. 2606 (quoting Burns, 500 U.S. at 486, 111 S. Ct. 1934; Forrester, 484 U.S. at 229, 108 S. Ct. 538). “In Imbler,

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the Court concluded that the ‘reasons for absolute immunity appl[ied] with full force’ to the conduct at issue because it was ‘intimately associated with the judicial phase of the criminal process.’ ” Van de Kamp v. Goldstein, —U.S. —, 129 S. Ct. 855, 861, 172 L. Ed. 2d 706 (2009) (citing Imbler, 424 U.S. at 430, 96 S. Ct. 984). While the “duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom,” Imbler, 424 U.S. at 431 n.33, 96 S. Ct. 984, absolute prosecutorial immunity will be given “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct,” Burns, 500 U.S. at 494, 111 S. Ct. 1934.
As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler, 424 U.S. at 431 n.33, 96 S. Ct. 984 (“Drawing a proper line between these functions may present difficult questions. . . . ”). The Supreme Court has given us few bright lines,9 and its cases on prosecutorial immunity have proceeded on a function-by-function basis. Thus, the Court has held that prosecutors receive absolute immunity for initiating a prosecution, id., for presenting false or perjured testimony, id., for appearing in court to apply for a search warrant, Burns, 500 U.S. at 492, 111 S. Ct. 1934, and for preparing and filing an information and a motion for an
9 One bright line the Supreme Court has given is that a “prosecutor neither is, nor should he consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274, 113 S. Ct. 2606. The converse, however, is not true: the mere presence of probable cause to have someone arrested “does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” Id. at 274 n.5, 113 S. Ct. 2606.

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arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997). By contrast, prosecutors receive only qualified immunity for giving legal advice to the police, Burns, 500 U.S. at 496, 111 S. Ct. 1934, for investigating and fabricating physical evidence at a crime scene, Buckley, 509 U.S. at 274-75, 113 S. Ct. 2606 (involving a bootprint left at the scene of a crime), for holding a press conference, id. at 276-78, 113 S. Ct. 2606, and for acting as a complaining witness in support of a warrant application, Kalina, 522 U.S. at 130-31, 118 S. Ct. 502. See also Van de Kamp, 129 S. Ct. at 861.
In determining the scope of the functions to which absolute immunity extends, the Supreme Court has “generally looked for a historical or common-law basis for the immunity in question.” Mitchell, 472 U.S. at 521, 105 S. Ct. 2806. The existence of a common-law immunity, however, is a necessary, but not sufficient, condition for the recognition of absolute immunity: “Even when we can identify a common-law tradition of absolute immunity for a given function, we have considered ‘whether § 1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.’ ” Buckley, 509 U.S. at 269, 113 S. Ct. 2606 (quoting Tower v. Glover, 467 U.S. 914, 920, 104 S. Ct. 2820, 81 L. Ed. 2d 758 (1984)).
Ashcroft contends that the decision to seek a material witness warrant is always a prosecutorial function. He has presented us with no historical evidence that a common-law tradition of absolute immunity from suit for prosecutors in seeking material witness arrests exists, and our own research has uncovered none, even though the practice of detaining witnesses who are not criminal

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suspects dates back to at least the 1840s. See generally Wesley MacNeil Oliver, The Rise and Fall of Material Witness Detention in Nineteenth Century New York, 1 N.Y.U. J.L. & Liberty 727 (2005). Other circuits, however, have held that the decision to seek a material witness warrant to secure a witness’s testimony at trial is sufficiently related to judicial proceedings to be protected by absolute prosecutorial immunity. See Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984); Daniels v. Kieser, 586 F.2d 64, 68-69 (7th Cir. 1978); see also White ex rel. Swafford v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (suggesting in dicta that the decision to seek a material witness order is prosecutorial). But see Odd v. Malone, 538 F.3d 202, 217 (3d Cir. 2008) (holding “that the policies underlying the recognition of prosecutorial immunity do not apply with the same force” to detained material witnesses because “the aggrieved persons are unindicted third-party witnesses rather than criminal defendants”). In Betts and Daniels, the plaintiffs, who had been previously subpoenaed as witnesses, failed to appear on the day they were set to testify, and the prosecutor sought a material witness warrant. Betts, 726 F.2d at 80; Daniels, 586 F.2d at 66. The Seventh Circuit in Daniels held that “[b]ecause defendant was attempting to secure Daniels’ presence at the resumption of the trial, we must consider that he was functioning as an advocate rather than as an investigator or administrator,” and was therefore entitled to absolute immunity. 586 F.2d at 69; see also Betts, 726 F.2d at 81 (citing Daniels).
Al-Kidd does not contest that absolute immunity ordinarily attaches to the decision to seek a material witness warrant. He contends, rather, that in his case, the decision to arrest was an act in furtherance of an investi-

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gative or national security function, for which the Attorney General may claim only qualified immunity. That is, al-Kidd claims he was arrested not in order to secure his testimony at Al-Hussayen’s trial, but in order to detain, interrogate, and gather evidence against him, in particular. He notes that, in both Betts and Daniels, there was never any question that the material witness arrest was made for any reason other than to secure the witnesses’ testimony at trial.
Ashcroft responds that any investigation into the purpose or motive behind the decision to arrest al-Kidd is inconsistent with the “functional” approach the Supreme Court has outlined. However, the cases he cites in support of this proposition are distinguishable. Those cases universally involve allegations that the otherwise prosecutorial action was secretly motivated by malice, spite, bad faith, or self-interest. See, e.g., Bernard v. County of Suffolk, 356 F.3d 495, 504 (2nd Cir. 2004) (alleging “racially invidious or partisan prosecutions”); Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 779 (9th Cir. 2001) (involving prosecutor accused of initiating prosecution in order “to deny the plaintiffs access to public works construction job sites”); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (“To foreclose immunity upon allegations that judicial and prosecutorial decisions were conditioned upon a conspiracy or bribery serves to defeat these policies.”). None of these cases attempts to distinguish between a prosecutor’s investigative or national security functions and his prosecutorial functions, which is the question here.
The cases distinguishing investigative and prosecutorial function take into account the goal of performing an action to determine function. In Buckley v. Fitzsim-

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mons, the Supreme Court held that the prosecutors lacked absolute immunity for their actions before they had probable cause to arrest a suspect because “[t]heir mission at that time was entirely investigative in character.” 509 U.S. at 274, 113 S. Ct. 2606. Even after a grand jury had been empaneled, the prosecutor’s actions before it were not shielded by absolute immunity because “its immediate purpose was to conduct a more thorough investigation of the crime-not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. at 275, 113 S. Ct. 2606.10
This circuit has followed the Supreme Court’s instruction. In KRL v. Moore, a grand jury had indicted the plaintiff, based on evidence obtained from an initial search warrant, on twenty-one criminal counts, mostly concerning environmental infractions relating to the removal of an underground fuel storage tank. 384 F.3d at 1108. The following month, however, prosecutors obtained two additional warrants to search for evidence with little relevance to the charges in the indictment. Id. at 1109. We held that the prosecutors were engaged,
10 Justice Kennedy would have gone even further, extending the inquiry beyond “immediate” purpose:
Two actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions. It may be that a prosecutor and a police officer are examining the same evidence at the same time, but the prosecutor is examining the evidence to determine whether it will be persuasive at trial and of assistance to the trier of fact, while the police officer examines the evidence to decide whether it provides a basis for arresting a suspect. The conduct is the same but the functions distinct.
Id. at 289, 113 S. Ct. 2606 (Kennedy, J., concurring in part, dissenting in part).

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at least in part, in investigative functions when they requested the second and third warrants, even though they already had probable cause as to those suspects for other crimes. We cited the prosecutors’ investigatory purpose, which they had admitted both in depositions and on a talk radio program. Id. at 1114-15. “Thus, we conclude[d] that, because the warrant . . . was to further a ‘stand-alone investigation’ into environmental crimes, [defendants were] not entitled to absolute immunity from Plaintiffs’ claim of judicial deception.” Id. at 1115. By contrast, “the second search warrant had two goals: it sought evidence to prosecute the pending indictment against Womack, and it sought to investigate and uncover new crimes.” Id. at 1111. We held that “to the extent the second search warrant sought evidence to prosecute the crimes charged in the indictment, [defendants’] review of the warrant prior to submission was intimately associated with the judicial process,” and therefore entitled them to absolute immunity. Id. at 1112. Our focus on ends, rather than the labels attached to means, was explicit and effectively determinative.11
Likewise, in Genzler v. Longanbach, 410 F.3d 630, 638 (9th Cir. 2005), we noted that “[w]itness interviews
11 In KRL we limited our holding to search warrants, rather than arrest warrants. Id. at 1114. This distinction was based on the Supreme Court’s rule that “a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established.” Id. (citing Buckley, 509 U.S. at 274, 113 S. Ct. 2606). The Supreme Court has been clear that probable cause to arrest is necessary, but not sufficient, to the prosecutorial function, and “does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” Buckley, 509 U.S. at 274 n.5, 113 S. Ct. 2606. At any rate, this distinction in dicta does nothing to detract from the teleological inquiry that was central to our holding.

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may serve either an investigative or an advocacy-related function,” and demonstrated how that function can be inferred from the circumstances of the interviews. In that case, the timing of the interviews, id. at 639, 642, as well as the “nature of the information obtained,” id. at 640, led us to hold that “evidence in the record supports the conclusion that [the defendants] were engaged in police-type investigative work during” the witness interviews, id. at 642.12
Indeed, Daniels and Betts, while granting absolute immunity for material witness arrests, are entirely compatible with an inquiry into immediate purpose similar to that in Genzler. Both emphasized the close temporal and circumstantial connection between trial and seeking the arrest. Betts, 726 F.2d at 81; Daniels, 586 F.2d at 68-69. The Daniels court noted that “[i]n seeking to guarantee Daniels’ presence at the trial through the material witness warrant, defendant was attempting to prove all elements charged in the indictment.” Id. at 68. Other circuits have likewise used the language of purpose in determining function.13
12 The dissent argues that an individual’s detention on a material witness warrant “is subject to continuing oversight, and errors may be corrected though the judicial process[,]” and thus obviates “ ‘the need for damages actions to prevent unjust results.’ ” Dissent at 996 (citations omitted). The Third Circuit has recently held the opposite, finding that the plaintiffs, who had been detained on material witness statutes, had demonstrated the need for damages actions because “by virtue of their status as third-party witnesses, Plaintiffs are not entitled to the protections available to criminal defendants, including the appellate process.” Odd, 538 F.3d at 217.
13 See, e.g., Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 30-31 (1st Cir. 1995); Parkinson v. Cozzolino, 238 F.3d 145, 151 (2d Cir. 2001) (“There can be little doubt that conduct taken with the goal of affirming a conviction on appeal or obtaining a new conviction on re-trial falls within

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They were justified in doing so. Even were we not constrained by our precedents in KRL and Genzler, the Supreme Court, in adopting a “functional” test, has necessarily required us to look beyond the labels a prosecutor attaches to his or her actions and examine their underlying ends. The very word function reflects, at least in part, a teleological perspective. See, e.g., Oxford English Dictionary, Function (2d ed. 1989) (defining “function” as “[t]he special kind of activity proper to anything; the mode of action by which it fulfills its purpose”). In Buckley, the Supreme Court found it proper to inquire into the prosecutor’s mission and purpose, the very inquiry that Ashcroft and the dissent in this case find distasteful. 509 U.S. at 274-75, 113 S. Ct. 2606.
Ashcroft’s suggested approach, by contrast, would convert the Supreme Court’s functional approach into a formalistic taxonomy of acts that are inherently either
the traditional adversarial function of a prosecutor.” (internal quotation marks omitted)); Hill v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995) (“To the extent that the creation of the videotapes fulfilled an investigatory purpose, Adago cannot claim absolute immunity.”); Cousin v. Small, 325 F.3d 627, 635 (5th Cir. 2003) (“The interview was intended to secure evidence that would be used in the presentation of the state’s case at the pending trial of an already identified suspect, not to identify a suspect or establish probable cause.”); Lomaz v. Hennosy, 151 F.3d 493, 499 (6th Cir. 1998) (“The purpose for which they sought the warrant, therefore, was not primarily investigative, but was to obtain and preserve the evidence. We think that under these circumstances, the prosecutors were clearly ‘preparing for the initiation of judicial proceedings.’ ” (quoting Buckley, 509 U.S. at 273, 113 S. Ct. 2606)); Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983); Rivera v. Leal, 359 F.3d 1350, 1354 (11th Cir. 2004) (finding absolute immunity because, inter alia, “there is no indication that Leal was trying to establish probable cause to arrest Appellant. In fact, the purpose of the hearing was to establish whether [another individual] was innocent.”).

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prosecutorial or investigative, regardless of what each act is really serving to accomplish. Because the application for the arrest warrant had the words “Material Witness” in the caption, Ashcroft seems to contend, our inquiry must stop there. Our dissenting colleague agrees, and would hold that so long as a material witness warrant is sought pursuant to a criminal trial, the decision to seek the material witness warrant should always be shielded by absolute immunity, regardless of whether its purpose was purely investigative. Dissent at 12351.
We disagree. Many tools and tactics available to prosecutors can serve either an investigatory or advocacyrelated function. A grand jury may be used to return an indictment against a particular suspect, or to conduct a wide-ranging investigation. Buckley, 509 U.S. at 274, 113 S. Ct. 2606. A witness interview’s function may be to gather evidence, or to prepare the witness to testify at imminent trial. Genzler, 410 F.3d at 638. And the power to arrest, even as a material witness, can be investigatory. As cited in al-Kidd’s complaint, Michael Chertoff, then Assistant Attorney General for the DOJ’s Criminal Division, described the material witness statute as “an important investigative tool in the war on terrorism. . . . Bear in mind that you get not only testimony-you get fingerprints, you get hair samples-so there’s all kinds of evidence you can get from a witness.” Steve Fainaru & Margot Williams, Material Witness Law Has Many in Limbo: Nearly Half Held in War On Terror Haven’t Testified, Wash. Post, Nov. 24, 2002, at A1 (quoting Chertoff) (emphasis added).
Ashcroft argues that an inquiry into purpose cannot be cabined: a prosecutor filing charges against a foot soldier in an organized crime syndicate, for example,

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might hope that the prospect of a lengthy incarceration will encourage the defendant to turn state’s evidence, permitting investigation of those higher in the organization. A wide-ranging investigation into such motives would likely prove unworkable. It is for that reason that the Supreme Court has spoken only of “immediate purpose.” Buckley, 509 U.S. at 275, 113 S. Ct. 2606 (emphasis added). As a common law court, we can rule only on the case before us. We believe, however, that while the prosecutor who files charges may hope, eventually, that the petty crook will implicate his boss, the immediate purpose of filing charges is to begin a prosecution—the better to pressure the defendant into providing information.
We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity.14 We emphasize that our holding here does not rest upon an unadorned assertion of secret, unprovable motive, as the dissent seems to imply. Even before the Supreme
14 The dissent believes that such an inquiry is undesirable because of the incentives it creates. Dissent at 999-1000. Judge Bea states that our inquiry may make a prosecutor go to trial against a defendant simply to ensure his actions will not be subject to attack in a future lawsuit. We disagree. First, prosecutors often make choices regarding prosecutorial strategy that may be in tension with personal liability, see Kalina, 522 U.S. at 130-31, 118 S. Ct. 502, since all actions taken by a prosecutor are not entitled to absolute immunity. Second, we note that creating an incentive for a prosecutor to utilize a material witness he/she has detained for the very purpose alleged in his/ her affidavit is not an undesirable incentive, and certainly not dispositive to the immediate purpose inquiry.

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Court’s decision in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it was likely that conclusory allegations of motive, without more, would not have been enough to survive a motion to dismiss. See, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (facts pled must be accepted as true, but conclusory allegations need not be). Twombly’s general requirement that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” 550 U.S. at 555, 127 S. Ct. 1955, applies with equal force to allegations that a prosecutor’s actions served an investigatory function. In this case, however, al-Kidd has averred ample facts to render plausible the allegation of an investigatory function:
• Al-Kidd’s arrest was sought a month after AlHussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler, 410 F.3d at 639 (“The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official’s core advocacy function. . . . ”). Cf. Betts, 726 F.2d at 81 (arrest warrant issued day of trial); Daniels, 586 F.2d at 68 (same).
• The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts, 726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels, 586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).

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• The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen’s alleged visa violations. Cf. Genzler, 410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).
• Al-Kidd never actually testified for the prosecution in Al-Hussayen’s or any other case, despite his assurances that he would be willing to do so. Cf. Betts, 726 F.2d at 80 (“On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness.”); Daniels, 586 F.2d at 66 (“Plaintiff subsequently testified as a government witness when Phoenix’s trial resumed.”).
All of these are objective indicia, similar to those we cited in Genzler, 410 F.3d at 641-43, that al-Kidd’s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness’s testimony for trial. Finally:
• Ashcroft’s immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd’s arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a “major success[ ]” in “identifying and dismantling terrorist networks.” Mueller Testimony, supra. Cf. KRL, 384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”).
We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfills an investigative function.

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B. Qualified Immunity
The Attorney General may still be entitled to qualified immunity for acts taken in furtherance of an investigatory or national security function. Before addressing each of al-Kidd’s claims in turn, we address the general requirements of qualified immunity applicable to all his claims.
1. Qualified Immunity Generally
Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) (internal quotation marks omitted). It is within our “sound discretion” to address these two prongs in any sequence we see fit. Pearson v. Callahan, —U.S. —, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009). Here, we apply the two-step Saucier analysis in the traditional sequence, as this sequence “promotes the development of constitutional precedent,” which is especially valuable in addressing constitutional questions such as the one at hand, “that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id. at 818.

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2. Qualified Immunity for Supervisors
Because qualified immunity is “an immunity from suit rather than a mere defense to liability,” Mitchell, 472 U.S. at 526, 105 S. Ct. 2806, courts have also evaluated the sufficiency of the allegations of the defendant’s personal involvement in the deprivation of the right at the second stage of the qualified immunity analysis. Neither a 42 U.S.C. § 1983 nor a Bivens action will hold a supervisor strictly vicariously liable for the actions of his subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Although this question is a part of the substance of § 1983 and Bivens liability, it is also a proper component of the qualified immunity inquiry:
In conducting qualified immunity analysis . . . , courts do not merely ask whether, taking the plaintiff’s allegations as true, the plaintiff’s clearly established rights were violated. Rather, courts must consider as well whether each defendant’s alleged conduct violated the plaintiff’s clearly established rights. For instance, an allegation that Defendant A violated a plaintiff’s clearly established rights does nothing to overcome Defendant B’s assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A’s conduct.
Hope, 536 U.S. at 751 n.9, 122 S. Ct. 2508 (Thomas, J., dissenting). In Kwai Fun Wong v. United States, we, on interlocutory appeal, dismissed part of a Bivens action for failure to state a claim where the complaint “fail [ed] to identify what role, if any, each individual defendant had in placing [the plaintiff] in detention.” 373 F.3d at 966.

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Al-Kidd’s complaint does not allege that Ashcroft was directly involved in the decision to detain al-Kidd. But “direct, personal participation is not necessary to establish liability for a constitutional violation.” Id. Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a “reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal quotation marks omitted). Any one of these bases will suffice to establish the personal involvement of the defendant in the constitutional violation.
3. The Fourth Amendment Claim
Al-Kidd’s complaint principally alleges that Ashcroft “developed, implemented and set into motion a policy and/or practice under which the FBI and DOJ would use the material witness statute to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventively or to investigate further.” Al-Kidd argues that using § 3144 to detain suspects to investigate them violates the Fourth Amendment’s guarantee against unreasonable seizure.
a. Al-Kidd’s Fourth Amendment Rights Were Violated.
The Fourth Amendment to the United States Constitution provides:

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The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We have previously held that material witness arrests are “seizures” within the meaning of the Fourth Amendment and are therefore subject to its reasonableness requirement. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971).
The Supreme Court has never held that detention of innocent persons as material witnesses is permissible under the Fourth Amendment,15 and this circuit, in one of the few circuit-level cases to examine the validity of material witness detentions under the Fourth Amendment, declined to reach the facial constitutionality of the predecessor of § 3144. Cir. 2 at 941. Al-Kidd does not
15 Two decisions have held that it does not violate other provisions of the Constitution. See Hurtado v. United States, 410 U.S. 578, 589-90, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973) (Fifth and Thirteenth Amendments); New York v. O’Neill, 359 U.S. 1, 6-7, 79 S. Ct. 564, 3 L. Ed. 2d 585 (1959) (Privileges or Immunities Clause of the Fourteenth Amendment). Dicta in two other cases suggest that the practice is ordinarily permissible. See Stein v. New York, 346 U.S. 156, 184, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953), overruled by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (“The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-17, 49 S. Ct. 452, 73 L. Ed. 867 (1929) (“[A] court has power in the exercise of a sound discretion to issue a warrant of arrest without a previous subpoena when there is good reason to believe that otherwise the witness will not be forthcoming. . . . The constitutionality of this statute apparently has never been doubted.”).

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contend that § 3144 is facially unconstitutional. Rather, he contends that it is intended to be a “limited exception” to the ordinary rule that arrests may only be made upon probable cause of criminal wrongdoing. He further claims that its use for any purpose other than obtaining testimony, and specifically to investigate or preemptively detain terrorism suspects, without probable cause, is unconstitutional. Ashcroft contends that this position is inconsistent with Whren v. United States’s rule that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). But arrests of material witnesses are neither “ordinary,”16 nor involve “probable cause” as that term has historically been understood.
Whren rejected only the proposition that “ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.” Id. at 811, 116 S. Ct. 1769 (emphasis added). Indeed, probable cause, since before the founding, has always been a term of art of criminal procedure. As Chief Justice Marshall wrote:
[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would
16 In 2003, the year of al-Kidd’s arrest, material witness arrests made up only 3.6% of all arrests by federal law enforcement agents. Of those, 92.3% were made by the former Immigration and Naturalization Service, typically to detain illegally smuggled aliens for testimony against their smugglers before removal. See, e.g., Aguilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir. 1992). Less than 0.3% of arrests by non-immigration federal law enforcement agents were material witness arrests. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Compendium of Federal Justice Statistics, 2003, NCJ No. 210299 (2005), available at http:// www.ojp.usdoj.gov/bjs/pub/pdf/cfjs0301.pdf, at 18.

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justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress.
Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L. Ed. 364 (1813). Its most famous modern formulation comes from Justice Stewart’s opinion in Beck v. Ohio:
Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.
379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). This definition has been reiterated in Supreme Court cases over the decades:
This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.
Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (“If an officer has probable cause to believe

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that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Probable cause has both a burden-of-proof component (facts sufficient to make a reasonable person believe . . . ) and a substantive component ( . . . that the suspect is involved in crime). “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (citations and quotation marks omitted). An arrest of a material witness is not justified by probable cause because the two requirements of § 3144 (materiality and impracticability) do not constitute the elements of a crime.17
The dissent disputes this traditional definition of probable cause, contending that no substantive component exists and that Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978), prevents an inquiry into whether wrongdoing has occurred. Dissent at 12338. The dissent misreads Zurcher and confuses the different requirements for probable cause in situations for the seizure of a person and the probable cause required for a search warrant. As Zurcher explains, “while probable cause for arrest requires information justifying a reasonable belief that a crime has been committed and that a particular person committed it, a search warrant may be issued on a complaint which does not identify any particular person as the likely of-
17 One may commit a crime by ignoring or disobeying a subpoena. 18 U.S.C. § 401(3) (authorizing criminal contempt for “[d]isobedience or resistance to [a court’s] lawful writ, process, order, rule, decree, or command”). This was not the case here, where al-Kidd does not ever seem to have been subpoenaed.

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fender.” Id. at 556 n. 6, 98 S. Ct. 1970. Thus, the dissent’s analogy to Zurcher is inapplicable, and nothing in our holding here contravenes Zurcher.
Further, our decision in Bacon v. United States is not to the contrary. In Bacon, we held that the two criteria for arrest in the predecessor of § 3144, materiality of the witness’s testimony and impracticability of securing the witness’s testimony by subpoena, must be met by “probable cause” to arrest the material witness. 449 F.2d at 943.18 We stated that “[t]hese requirements are reasonable, and if they are met, an arrest warrant may issue.” Id. Bacon cannot be read for the proposition that this alone satisfies the “probable cause” requirement of the Fourth Amendment, however, and even if it could, such a reading has been superseded by the dozens of subsequent Supreme Court reaffirmations of the tra-
18 The petitioner in Bacon was detained as a material witness in a grand jury proceeding. We stated that “a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy” the materiality criterion in the case of a witness for a grand jury, which maintains broad powers of investigation and whose proceedings are secret. 449 F.2d at 943. Bacon reserved the question of what showing is necessary “in the case of a witness who is to testify at a trial.” Id. We currently see no reason that the showing of materiality as to the witness in a trial, where proceedings are public and bound by the charges in the indictment, should be any different from the showing required for impracticability.
Because Al-Hussayen had already been indicted by the time of alKidd’s arrest, we do not address whether Bacon’s statement that grand juries are “criminal proceedings” within the meaning of the material witness statute was a holding or obiter dicta. Compare Awadallah I, 202 F. Supp. 2d at 71 (holding the Bacon language to be dicta because it was unnecessary to the conclusion that the affidavit was insufficient to show impracticability), with In re Application for a Material Witness Warrant, 213 F. Supp. 2d 287, 291 (S.D. N.Y. 2002) (finding the same language to be a holding).

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ditional definition of probable cause. Rather, Bacon simply borrowed, by analogy, some of the procedural protections traditionally afforded to criminal suspects, including the burden-of-proof component of probable cause. We therefore required that the elements of the material witness statute be shown by “probable cause,” not because that, in itself, satisfies the Fourth Amendment’s “probable cause” requirement, but because permitting arrests only upon establishing the elements by that burden of proof was “reasonable” under the Fourth Amendment. Id.
Because material witness arrests are seizures without suspicion of wrongdoing, the Whren rule, that subjective motivation is irrelevant in the presence of probable cause, does not apply to our Fourth Amendment analysis in this case. In City of Indianapolis v. Edmond, the Supreme Court struck down motor vehicle checkpoints set up “to interdict unlawful drugs” carried by those stopped. 531 U.S. 32, 35, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). The Court explained that “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts.” Id. at 45-46, 121 S. Ct. 447. The Court went on to clarify:
our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.
. . . [W]e examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in

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a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.
Id. at 46-47, 121 S. Ct. 447 (citation omitted).
Edmond, therefore, establishes that “programmatic purpose” is relevant to Fourth Amendment analysis of programs of seizures without probable cause.19 It further establishes that if that programmatic purpose is criminal investigation, it is fatal to the program’s constitutionality: “the constitutional defect of the program is
19 The dissent contends that United States v. Villamonte-Marquez, 462 U.S. 579, 103 S. Ct. 2573, 77 L. Ed. 2d 22 (1983), does not allow such a broad reading of Edmond. Dissent at 989-90. Villamonte-Marquez, however, is factually limited to searches of sea vessels located in waters providing ready access to the open sea. 462 U.S. at 581, 103 S. Ct. 2573 (“[W]e are concerned only with the more narrow issue” of whether “the Fourth Amendment is offended when Customs officials . . . board for inspection of documents a vessel that is located in waters providing ready access to the open sea”). The Supreme Court has expressly distinguished searches of such sea vessels from other types of searchesthose of automobiles on land, for example. Id. at 584-92, 103 S. Ct. 2573. Only under the most contorted reading of Villamonte-Marquez would that case also apply to the pretextual detention of a person under a material witness statute.

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that its primary purpose is to advance the general interest in crime control.” Id. at 44, 121 S. Ct. 447. The following year’s Ferguson v. City of Charleston held unconstitutional a program of mandatory drug testing of maternity patients because “the immediate objective of the searches was to generate evidence for law enforcement purposes” against the women tested. 532 U.S. 67, 83, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001). By contrast, in Illinois v. Lidster, the Court upheld seizures at a motor vehicle checkpoint set up by the police a week after a hit-and-run accident, “at about the same time of night and at about the same place” as the accident, where the checkpoint was “designed to obtain more information about the accident from the motoring public.” 540 U.S. 419, 422, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004). The Court in Lidster distinguished the seizure in Edmond on the basis that, in Lidster:
the stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.
Id. at 423, 124 S. Ct. 885. As Justice Stevens wrote in concurrence, “[t]here is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier.” Id. at 428, 124 S. Ct.

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885 (Stevens, J., concurring in part, dissenting in part).20 That is precisely the distinction at work here, and the reason we hold that Ashcroft’s policy as alleged was unconstitutional.
Al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation. Contrary to the dissent’s alarmist claims, we are not probing into the minds of individual officers at the scene; instead, we are inquiring into the programmatic purpose of a general policy as contemplated by Edmond, 531 U.S. at 47, 121 S. Ct. 447, and finding that the purpose of the policy alleged in al-Kidd’s first amended complaint is impermissible under the Fourth Amendment.
Further, the dissent’s assertion that we are suggesting “the only governmental interest of sufficient weight
20 We are mindful of the difference between a traffic stop and a material witness arrest. The material witness is subject to a seizure an order of magnitude greater than that at issue in Lidster, where the stops were “brief,” and were of drivers in their cars. (As the Court noted, the “Fourth Amendment does not treat a motorist’s car as his castle.” 540 U.S. at 424, 124 S. Ct. 885.) An individual seized as a material witness is taken from her home and daily affairs and confined to a small space for a period of time measured not in minutes or even hours, but ranging from days to months. Al-Kidd disclaims any attack on material witness detention generally, and we are in any event bound by Bacon’s determination that the material witness statute, backed by a “probable cause” requirement to guarantee particularity, has struck a “reasonable” balance between the witness’s interest in liberty and the government’s need for testimony. But the severity of the deprivation of liberty in material witness arrests only militates for correspondingly more severe judicial scrutiny of its application.

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to justify an arrest is a reasonable belief that the arrestee has committed a crime” grossly mischaracterizes our holding. Dissent at 12336. To the contrary, we recognize that when the material witness statute is genuinely used to secure “testimony of a person . . . material in a criminal proceeding” because “it is shown that it may become impracticable to secure the presence of the person by subpoena,” 18 U.S.C. § 3144, a showing of probable cause is not required. Our holding does nothing to curb the use of the material witness statute for its stated purpose. What we do hold is that probable cause— including individualized suspicion of criminal wrongdoing—is required when 18 U.S.C. § 3144 is not being used for its stated purpose, but instead for the purpose of criminal investigation. We thus do not render the material witness statute “entirely superfluous,” dissent at 989; it is only the misuse of the statute, resulting in the detention of a person without probable cause for purposes of criminal investigation, that is repugnant to the Fourth Amendment.
All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment. Accord Awadallah II, 349 F.3d at 59 (“[I]t would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.”).
b. Al-Kidd’s Right Was “Clearly Established.”
Ashcroft alternatively contends that if we conclude that the use of material witness orders for investigatory purposes violates the Constitution, we should still grant

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him qualified immunity because that constitutional right was not “clearly established” in March 2003, when alKidd was arrested. We disagree.
In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution. Both the complaint and Amici Former Federal Prosecutors note the unprecedented nature of Ashcroft’s alleged material witness policy, and thus it is unsurprising that published cases directly on point are lacking. However, this alone is not enough to give Ashcroft immunity: “‘while there may be no published cases holding similar policies [un]constitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue.’ ” Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005) (quoting Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002)). Indeed, as the Supreme Court has stated:
For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.”
Hope, 536 U.S. at 739, 122 S. Ct. 2508 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)) (internal citations omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741, 122 S. Ct. 2508.

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What was clearly established in March 2003? No federal appellate court had yet squarely held that the federal material witness statute satisfied the requirements of the Fourth Amendment. Even our decision in Bacon held only that it was unconstitutional as applied to the petitioner. 449 F.2d at 943. What obiter dicta existed on material witness detention, however, clearly linked its justification only to the state’s overriding need to compel testimony in criminal cases.21 Even dicta, if sufficiently clear, can suffice to “clearly establish” a constitutional right. See Hope, 536 U.S. at 740-41, 122 S. Ct. 2508. But there is more.
The definition of probable cause, as set forth in Beck v. Ohio, was certainly clearly established. While the Supreme Court’s decision permitting suspicionless seizures in some circumstances in Lidster had not yet been decided, its decision in Edmond, stating that an investigatory programmatic purpose renders a program of sei-
21 See, e.g., Stein, 346 U.S. at 184, 73 S. Ct. 1077 (1953) (“The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”); Barry, 279 U.S. at 617, 49 S. Ct. 452 (stating that the material witness statute then in effect “provides that any federal judge . . . may have [material witnesses] brought before him by a warrant of arrest, to give recognizance, and that such person may be confined until removed for the purpose of giving his testimony ”) (emphasis added); Bacon, 449 F.2d at 942 (“The public interest [in detaining witnesses] will be protected if grand jury witnesses come forth to provide testimony concerning the possible commission of crimes.”); Awadallah I, 202 F. Supp. 2d at 77 (“The only legitimate reason to detain a grand jury witness is to aid in ‘an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.’ ” (quoting United States v. Calandra, 414 U.S. 338, 343-44, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974))).

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zures without probable cause unconstitutional, had been decided two and a half years earlier. 531 U.S. at 47, 121 S. Ct. 447. That holding was reaffirmed the following year in Ferguson, 532 U.S. at 81-83, 121 S. Ct. 1281, which highlighted the close connection between the investigative “programmatic purpose” and the search scheme that was ruled unconstitutional. Those decisions, which emphasized that an investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause, should have been sufficient to put Ashcroft on notice that the material witness detentions—involving a far more severe seizure than a mere traffic stop—would be similarly subject to an inquiry into programmatic purpose.
Moreover, the history and purposes of the Fourth Amendment were known well before 2003:
The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. “The requirement of probable cause has roots that are deep in our history.” Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that “common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.”
Dunaway v. New York, 442 U.S. 200, 213, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (quoting Henry v. United States, 361 U.S. 98, 100-01, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959)) (internal citation omitted). The Fourth Amendment

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“reflect [s] the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Stanford v. Texas, 379 U.S. 476, 481, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965).
The facts alleged of al-Kidd’s arrest, that he was arrested because he was associated with the webmaster of an allegedly jihadist website, demonstrate the continued relevance of the Founders’ concerns. The Fourth Amendment was, in large measure, a direct response to the so-called “Wilkes cases.” As summarized by the Supreme Court:
The Wilkes case arose out of the Crown’s attempt to stifle a publication called The North Briton, anonymously published by John Wilkes, then a member of Parliament—particularly issue No. 45 of that journal. Lord Halifax, as Secretary of State, issued a warrant ordering four of the King’s messengers “to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled, The North Briton, No. 45, * * * and them, or any of them, having found, to apprehend and seize, together with their papers.” “Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect.” Holding that this was “a ridiculous warrant against the whole English nation,” the Court of Common Pleas

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awarded Wilkes damages against the Secretary of State.
Id. at 483, 85 S. Ct. 506 (alteration in original) (footnotes omitted). Within three days of the issuance of Halifax’s general warrants, forty-nine people had been arrested, none of whom was named in the warrant, but all of whom were alleged associates of the allegedly seditious pamphleteer. Nelson B. Lasson, The Fourth Amendment to the Constitution 43-44 (1937). The warrant authorizing al-Kidd named him in particular, and so was not a general warrant in that sense. But the result was the same: gutting the substantive protections of the Fourth Amendment’s “probable cause” requirement and giving the state the power to arrest upon the executive’s mere suspicion.
Finally, months before al-Kidd’s arrest, one district court in a high-profile case had already indicated, in the spring of 2002, that § 3144 itself should not be abused as an investigatory anti-terrorism tool, calling out Ashcroft by name:
Other reasons may motivate prosecutors and law enforcement officers to rely upon the material witness statute. Attorney General John Ashcroft has been reported as saying: “Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute. If there is probable cause to believe an individual has committed a crime or is conspiring to commit a crime, then the government may

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lawfully arrest that person, but only upon such a showing.
Awadallah I, 202 F. Supp. 2d at 77 n.28 (citation omitted, first emphasis added). The statement was dicta in a footnote of a district court opinion. But it was categorical, and it addressed exactly what al-Kidd alleges happened ten months after the opinion was first issued. It is difficult to imagine what, in early 2003,22 might have given John Ashcroft “fair[er] warning” that he could be haled into court for his alleged material witness policies. Hope, 536 U.S. at 741, 122 S. Ct. 2508.
We therefore hold that al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003. Although Ashcroft has raised in this appeal neither a national security nor an exigency defense to alKidd’s action, we note that we are mindful of the pressures under which the Attorney General must operate. We do not intend to “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). But, as the Supreme Court has aptly noted, qualified immunity must
22 Mr. Awadallah was detained shortly after the September 11 attacks. Awadallah II, 349 F.3d at 45 (Sept. 20, 2001). He sought his release almost immediately. Id. at 47 (Sept. 25, 2001). By April of 2003, his case had finally reached the court of appeals. Given the speed of our appellate process, it would have been almost impossible for any authority higher than a district court to have opined on defendant’s material witness policies before March 2003. As noted above, the Second Circuit later indicated, in dicta of its own, its agreement with the district court’s statement on this question, even as it reversed the district court’s holding and remanded the case. Id. at 59.

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not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate. . . . ” This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.
Mitchell, 472 U.S. at 524, 105 S. Ct. 2806 (quoting Harlow, 457 U.S. at 819, 102 S. Ct. 2727) (internal citations omitted).
4. The § 3144 Claim
In addition to alleging that Ashcroft misused § 3144 for unconstitutional purposes the statute did not intend, al-Kidd alleges that his arrest violated the terms of § 3144 itself. Section 3144 authorizes the arrest of material witnesses only if (1) “the testimony of a person is material in a criminal proceeding,” and (2) “it may become impracticable to secure the presence of the person by subpoena.” Bacon v. United States requires that these elements be shown by presenting the judicial officer with an affidavit showing “the underlying facts or circumstances from which the judicial officer could find probable cause.” 449 F.2d at 943. Al-Kidd claims that, in his case, the Mace Affidavit fails to demonstrate probable cause for either the materiality of his testimony or

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the reasons it would be impracticable to secure that testimony by subpoena. This allegation is the § 3144 claim: that, independent of the constitutionality of the use of § 3144 for investigatory purposes, al-Kidd’s arrest failed to meet the statutory requirements set forth by Congress, and was therefore unlawful.
Although the arrest was conducted pursuant to a warrant issued by a magistrate judge, we allow challenges to the validity of searches and seizures conducted pursuant to a warrant if the affidavit in support of the warrant included false statements or material omissions that were made intentionally or recklessly. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985) (extending Franks to material omissions); see also Awadallah I, 349 F.3d at 64-65 & n.17 (assuming, without deciding, that Franks applies to a material witness warrants and conducting the Franks analysis). Ashcroft does not contest that such an inquiry would be appropriate, or that reckless or intentional misstatements or omissions could, if proven, constitute a valid claim of the violation of a clearly established right. Rather, he argues that al-Kidd has not pled sufficient acts or omissions to establish supervisory liability for the § 3144 Claim.23
Prior to Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, we held that a plaintiff “does not need to show with great specificity how each defendant contributed to the violation of his
23 As discussed previously, “a plaintiff must plead that each Government-official defendant, though the official’s own individual actions” were involved in the constitutional deprivations. Iqbal, 129 S. Ct. at 1948.

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constitutional rights. Rather, he must state the allegations generally so as to provide notice to the defendants and alert the court as to what conduct violated clearly established law.” Preschooler II, 479 F.3d at 1182. Ashcroft argues that al-Kidd’s allegations as to Ashcroft’s personal involvement in the § 3144 Claim amount simply to “sheer speculation,” and are insufficient to state a claim under Twombly.
In Twombly, the Supreme Court held that an allegation of parallel conduct by competitors, without more, does not suffice to plead an antitrust violation under 15 U.S.C. § 1. 550 U.S. at 548, 127 S. Ct. 1955. While the Court expressly disclaimed any intention to require general “heightened fact pleading of specifics,” id. at 570, 127 S. Ct. 1955, and reaffirmed the holding of Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (rejecting a fact pleading requirement for Title VII employment discrimination), it stated that, to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must aver “enough facts to state a claim to relief that is plausible on its face,” id. at 570, 122 S. Ct. 992.
Since the argument and initial briefing in this case, the Supreme Court, in Ashcroft v. Iqbal, — U.S. —, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), has clarified Twombly’s reach to cases such as these. Iqbal concerned claims against a number of defendants, including FBI Director Mueller and Attorney General Ashcroft, made by Javaid Iqbal, a Muslim Pakistani who was part of the mass roundup of Muslim aliens on immigration charges following the September 11 attacks. Iqbal claimed that Mueller and Ashcroft were responsible for selectively placing detainees in their restrictive condi-

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tions on account of their race and religion. Id. at 1951. The Supreme Court found the allegations in the complaint insufficient to state a discrimination claim under the above-discussed Twombly “plausibility” standard. Id. at 1952. The Court held that a pleading “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ” is insufficient to state a claim under Rule 8 of the Federal Rules of Civil Procedure. Id. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
In reviewing the complaint in Iqbal, the Court noted that the complaint did not contain any factual allegations claiming that Mueller or Ashcroft may have intentionally discriminated on the basis of race or religion. Id. at 1952 (“Accepting the truth of [the allegation of a adopting an impermissible policy], the complaint does not show, or even intimate, that petitioners purposefully housed detainees . . . due to their race, religion, or national origin.”). The Court concluded that bare assertions regarding an invidious policy were not entitled to the assumption of truth because they amounted to “nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. at 1951 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). The Court noted that the alleged facts, even if accepted as true, were more compatible on their face with lawful conduct. Id.
Here, unlike Iqbal’s allegations, al-Kidd’s complaint “plausibly suggest[s]” unlawful conduct, and does more than contain bare allegations of an impermissible policy. Id. at 1950. While the complaint similarly alleges that Ashcroft is the “principal architect” of the policy, the complaint in this case contains specific statements that

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Ashcroft himself made regarding the post-September 11th use of the material witness statute. Ashcroft stated that enhanced tactics, such as the use of the material witness statute, “form one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street,” and that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Other top DOJ officials candidly admitted that the material witness statute was viewed as an important “investigative tool” where they could obtain “evidence” about the witness. The complaint also contains reference to congressional testimony from FBI Director Mueller, stating that al-Kidd’s arrest was one of the government’s anti-terrorism successes—without any caveat that al-Kidd was arrested only as a witness. Comparatively, Iqbal’s complaint contained no factual allegations detailing statements made by Mueller and Ashcroft regarding discrimination. The specific allegations in alKidd’s complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.
Further, unlike in Twombly and Iqbal, where the plaintiffs alleged a conspiracy or discriminatory practice in the most conclusory terms, al-Kidd does not rely solely on his assertion that Ashcroft ordered, encouraged, or permitted “policies and practices [whereby] individuals have also been impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been practicable to se-

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cure their testimony voluntarily or by subpoena.”24 His complaint notes “one account” of material witness practices stating that “nearly fifty percent of those detained in connection with post-9/11 terrorism investigations were not called to testify.” In a declaration filed in another proceeding well before al-Kidd’s arrest, a DOJ official admitted that, of those detained as material witnesses, “it may turn out that these individuals have no information useful to the investigation.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 942 (D.C. Cir. 2003) (Tatel, J., dissenting) (quoting Declaration of James Reynolds, Chief of the Terrorism and Violent Crime Section, Criminal Division, Dep’t of Justice).
Al-Kidd need not show that Ashcroft “actually instruct[ed] his subordinates to bypass the plain text of the statute,” as Ashcroft contends. The complaint clearly alleges facts which might support liability on the basis of Ashcroft’s knowing failure to act in the light of even unauthorized abuses, but also alleges facts which may support liability on the basis that Ashcroft purposely used the material witness statute to preventatively detain suspects and that al-Kidd was subjected to this pol-
24 Ashcroft contends that al-Kidd does not even go so far as to make such an assertion, and that he never explicitly says in his complaint that Ashcroft designed such a policy. This argument requires a hypertechnical reading of the complaint. The paragraph alleging outright violations of § 3144 begins with “the post-9/11 policies and practices,” with the definite article. (Emphasis added). There is no reason from the text of the complaint to think that those “post-9/11 policies and practices” are anything other than “The post-9/11 material witness policies and practices adopted and implemented by Defendant Ashcroft “alleged fourteen paragraphs earlier in the complaint. (Emphasis added).

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icy.25 As discussed above, Ashcroft publically stated that the material witness statute was an important tool in “taking suspected terrorists off the street,” and that “[a]ggressive detention of . . . material witnesses is vital to preventing, disrupting or delaying new attacks.” Again, unlike in Iqbal, these are not bare allegations that the Attorney General “knew of ” the policy. Here, the complaint contains allegations that plausibly suggest that Ashcroft purposely instructed his subordinates to bypass the plain reading of the statute.26 “The plausibility standard is not akin to a ‘probability requirement’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). Here, the allegations recounted above clearly “nudge[ ]” al-Kidd’s claim of illegality “across the line from conceivable to plausible.” Id. at 1952 (citing Twombly, 550 U.S. at 570, 127 S. Ct. 1955).
25 The dissent contends that the “knowing failure to act” standard did not survive Iqbal. Dissent at 992 n.13. The dissent points to the fact that the Court held that Ashcroft could not be held liable for his “knowledge and acquiescence” of his subordinates’ unconstitutional discrimination against Muslim men. 129 S. Ct. at 1948. We need not address whether the two standards are distinct, or whether the Court’s comments relate solely to discrimination claims which have an intent element, because al-Kidd plausibly pleads “purpose” rather than just “knowledge” to impose liability on Ashcroft. Id. at 1949 (“[P]urpose rather than knowledge is required to impose Bivens liability . . . for an official charged with violations arising from his or her superintendent responsibilities.”).
26 The dissent believes that al-Kidd’s complaint plausibly demonstrates only that Ashcroft directed his subordinates to use the statute “pretextually,” not “unlawfully.” Dissent at 993. As discussed above, the pretextual use of the material witness statute that results in a person being detained for criminal investigation without adequate probable cause runs afoul of the Fourth Amendment, and is thus unlawful.

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Further, the complaint notes that the “abuses occurring under the material witness statute after September 11, 2001, were highly publicized in the media, congressional testimony and correspondence, and in various reports by governmental and non-governmental entities,” which could have given Ashcroft sufficient notice to require affirmative acts to supervise and correct the actions of his subordinates. The complaint also avers that “the Justice Department has issued apologies to 10-12 individuals who were improperly arrested as material witnesses.” Given that the government maintains that it does nothing wrong in the pretextual use of the material witness statute to investigate and preemptively detain, it is reasonable to infer that its apologies were for violations of the terms of the statute itself, of which the DOJ, and presumably its leader, were aware.27 The complaint also contains extensive citations to the OIG Report, which discussed at length abuses and improprieties that occurred in a related context, involving investigatory detention of aliens. While the OIG Report was not released to the public until April 2003, it is reasonable to believe that Ashcroft, as Attorney General, would have been aware of its contents at a date preceding al-Kidd’s arrest.
Our dissenting colleague contends that al-Kidd’s pleadings merely establish that “some material witnesses were detained who did not testify or did not prove to have material information,” perhaps because
27 To be sure, this is not a necessary inference: the apologies could have been for wrongs that do not rise to the level of a constitutional violation. But neither is it an unreasonable inference, and on a Rule 12(b)(6) motion, we draw all reasonable inferences in favor of the plaintiff.

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defendants took plea deals or prosecutors acted hastily in conducting investigations. Dissent at 993. The dissent further contends that this does not amount to a Franks violation. Franks, 438 U.S. at 165, 98 S. Ct. 2674. As discussed above, al-Kidd pleads facts that go much further than merely showing that he was detained under the material witness statute and did not testify. The pleadings show that Ashcroft explicitly stated that enhanced techniques such as the use of the material witness statute “form one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street.” Other top DOJ officials stated that the material witness statute was viewed as an important “investigative tool,” and that al-Kidd’s arrest was touted as one of the government’s anti-terrorism successes, without any mention that he was being held as a material witness. We disagree with the dissent, and hold that al-Kidd has plead that Ashcroft’s “concerted strategy” of misusing the material witness statute plausibly led to al-Kidd’s detention.
Post-Twombly, plaintiffs face a higher burden of pleading facts, and courts face greater uncertainty in evaluating complaints. As discussed in Iqbal, “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. This concern applied with great force in the civil rights context, where “[t]he basic thrust of the qualifiedimmunity doctrine is to free officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’ ” Id. at 1953 (citing Siegert v. Gilley, 500 U.S. 226, 236, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991)). Drawing on our “judicial experience and common sense,” as the

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Supreme Court urges us to do, we find that al-Kidd has met his burden of pleading a claim for relief that is plausible, and that his suit on the § 3144 claim should be allowed to proceed. Id. at 1950.
Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden to show that the Attorney General himself was personally involved in a policy or practice of alleged violations of § 3144. But Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiff’s burden. “Asking for plausible grounds to infer” the existence of a claim for relief “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” to prove that claim. Twombly, 550 U.S. at 556, 127 S. Ct. 1955. In this case, we hold that al-Kidd has pled “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S. Ct. 1955.
5. Conditions of Confinement Claim
Lastly, al-Kidd complains that he was mistreated while confined as a material witness. Confinement of criminals is a punishment, and, within the limits of the Fifth and Eighth Amendments, it is supposed to be unpleasant. However, when, as here, the government is empowered to detain those who are not charged with crimes, it is under an obligation not to treat them like criminals. See Youngberg v. Romeo, 457 U.S. 307, 321-22, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confine-

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ment than criminals whose conditions of confinement are designed to punish.”). Prior to 2003, at least two district courts had refused, on constitutional grounds, to house material witness detainees under the same conditions as those facing trial. See United States v. Nai, 949 F. Supp. 42, 46 (D. Mass. 1996) (expressing “concern[ ] that these five material witnesses are being treated as if they were charged with an offense” and ordering them “transferred to a minimum security, residential facility”); In re Cochran, 434 F. Supp. 1207, 1215 (D. Neb. 1977) (holding that “a witness who has had, at most, the misfortune of seeing a crime committed” must be held in “the least restrictive alternative that is reasonably calculated to assure the witness’ presence for trial”).
On this appeal, Ashcroft contests neither the substance of the right al-Kidd claims was violated in the Conditions of Confinement Claim, nor whether that right was “clearly established.” Rather, as with the § 3144 Claim, he argues only that al-Kidd has failed to plead sufficient facts to tie Ashcroft, personally, to the alleged violation.
The unconstitutional conditions claim in this case is substantially similar to the claims in the Supreme Court’s recent Iqbal decision. In Iqbal, the complaint alleged Ashcroft’s liability for the conditions of confinement at the Metropolitan Detention Center in New York, where aliens arrested after 9/11 were held. 129 S. Ct. at 1944. Iqbal’s complaint alleged that Ashcroft and FBI Director Robert Mueller approved of these highly restrictive detention policies in discussions that took place in the weeks after September 11, 2001. Id. at 1951. Similarly, al-Kidd claims here that Ashcroft promulgated and approved the unlawful policy which caused

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al-Kidd “to be subjected to prolonged, excessive, punitive, harsh, unreasonable detention or post-release conditions.” Contrary to the § 3144 claim, however, the complaint does not allege any specific facts—such as statements from Ashcroft or from high ranking officials in the DOJ—establishing that Ashcroft had personal involvement in setting the conditions of confinement.
As al-Kidd’s complaint notes, media reports had observed the conditions detailed in the OIG Report to apply to Americans and legal aliens held as material witnesses. See, e.g., Naftali Bendavid, Material Witness Arrests Under Fire; Dozens Detained in War on Terror, Chi. Trib., Dec. 24, 2001, at N1; Fainaru & Williams, supra, at A1; John Riley, Held Without Charge: Material Witness Law Puts Detainees in Legal Limbo, N.Y. Newsday, Sept. 18, 2002, at A6. Their conditions of confinement had also been noted by the courts. The district court in Awadallah I, writing in the spring of 2002, decried at length the state in which Mr. Awadallah had been held:
Awadallah was treated as a high security federal prisoner. Having committed no crime—indeed, without any claim that there was probable cause to believe he had violated any law—Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.
. . . In many ways, . . . the conditions of his confinement were more restrictive than that experienced by the general prison population.
202 F. Supp. 2d at 60; see id. at 60-61 & nn. 5-10 (describing Awadallah’s allegations of mistreatment while

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in custody). While it is possible that these reports were sufficient to put Ashcroft on notice by spring of 2003 that there was a systemic problem at the DOJ with respect to its treatment of material witnesses, the nonspecific allegations in the complaint regarding Ashcroft’s involvement fail to nudge the possible to the plausible, as required by Twombly.
Unlike the § 3144 Claim, which specifically avers facts which could sustain the inference that Ashcroft “set[ ] in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury” regarding the illegal use of the material witness statute, Kwai Fun Wong, 373 F.3d at 966 (internal quotation marks omitted), the complaint’s more conclusory allegations regarding Ashcroft’s involvement in setting the harsh conditions of confinement (which are very similar to the allegations in Iqbal), are deficient under Rule 8. Accordingly, we reverse the district court on al-Kidd’s Conditions of Confinement claim, and hold that al-Kidd has not alleged adequate facts to render plausible Ashcroft’s personal involvement in setting the harsh conditions of his confinement, and has therefore failed to state a claim for which relief can be granted.
C. Personal Jurisdiction
Finally, Ashcroft contends that the district court erred in denying Ashcroft’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. As this is an interlocutory appeal, we will address the issue only to the extent it falls within our pendent appellate jurisdiction.

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1. “Necessary to Provide Meaningful Review”
Ashcroft first alleges that the issue of personal jurisdiction is “necessary to provide meaningful review” of the district court’s immunity rulings. It is true that personal jurisdiction was a necessary predicate to the district court’s Rule 12(b)(6) ruling denying Ashcroft absolute and qualified immunity. But that could be said about any ruling following a decision on personal jurisdiction, so that alone cannot make our review of personal jurisdiction “necessary to provide meaningful review.” See, e.g., Poulos v. Caesars World, Inc., 379 F.3d 654, 671-72 (9th Cir. 2004) (holding that personal jurisdiction not “necessary to ensure meaningful review” of class certification); see also Rux v. Republic of Sudan, 461 F.3d 461, 475-76 (4th Cir. 2006) (same with respect to review of subject matter jurisdiction under FISA); E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 204-05 (3d Cir. 2001) (same with respect to review of motion to compel arbitration).
The only cases that Ashcroft cites to suggest that personal jurisdiction is necessary to ensure meaningful review are cases involving interlocutory appeals of temporary injunctions. Hendricks, 408 F.3d at 1134-35; In re Diet Drugs, 282 F.3d 220, 230 n.5 (3d Cir. 2002). In entering a preliminary injunction, however, a district court has already necessarily found “at least a reasonable probability of ultimate success upon the question of jurisdiction.” Visual Scis., Inc. v. Integrated Comm., Inc., 660 F.2d 56, 59 (2d Cir. 1981) (citation and quotation marks omitted). To rule on the preliminary injunction is necessarily to make a judgment as to the question of jurisdiction. More importantly, the equitable remedy

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of injunction, granted before trial, is itself an imposition on the defendant that goes well beyond merely being haled into court, and often effectively decides the issue in question. See DuPont, 269 F.3d at 205 n.9 (distinguishing a precedent involving a permanent injunction because “[i]t is well-settled that when a court grants an injunction, the underlying personal jurisdiction decision is immediately reviewable on appeal”).
2. “Inextricably Intertwined”
Ashcroft next argues that the issue of personal jurisdiction is “inextricably intertwined” with the immunity issues. To be “inextricably intertwined,” we “require that the two issues: (a) be so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir. 2003) (internal quotation marks and alterations omitted). The first criterion fails: unlike, for example, the temporary injunction, where success on the merits, including on the issue of personal jurisdiction, is an element of the issue being appealed, personal jurisdiction is not a subset of qualified immunity and we need not necessarily address the former to resolve the latter. Cf. id. (“We can decide the antiSLAPP issue entirely independently of the question of personal jurisdiction, and different legal standards apply to each issue.”).
The second criterion, however, is present—in part. To obtain specific personal jurisdiction over a defendant in a state, the defendant must either purposefully avail himself of the privilege of conducting activities in the state, or purposefully direct his activities toward the

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state. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). Purposeful direction, in turn, requires that the defendant have (1) committed an “intentional act,” (2) “expressly aimed” at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state. Id. at 805. The first element, an intentional act, is effectively decided by resolution of the “personal involvement” prong of the qualified immunity inquiry. Insofar as Ashcroft’s objection to personal jurisdiction rests on the absence of an intentional act, we affirm the decision of the district court to exercise personal jurisdiction.
Insofar as Ashcroft’s objection to personal jurisdiction rests on the fact that his acts were not “expressly aimed” at Idaho, or that he did not know that his acts were likely to cause harm in Idaho, we decline to rule on the issue. Far from being “inextricably intertwined,” those issues are irrelevant to any element of absolute or qualified immunity. The federal courts of appeals are courts of limited jurisdiction, and Congress has not seen fit to give this court the general power to review district courts’ exercise of personal jurisdiction before a final judgment. We therefore will not do so here.
CONCLUSION
Almost two and a half centuries ago, William Blackstone, considered by many to be the preeminent preRevolutionary War authority on the common law, wrote:
To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by

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secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 131-32 (1765). The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful

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reminder of some of the most ignominious chapters of our national history.
For the reasons indicated in this opinion, we AFFIRM in part and REVERSE in part the decision of the district court. Each party shall bear its own costs on appeal.
BEA, Circuit Judge, concurring in part and dissenting in part:
This case raises the question whether a person whom a prosecutor can rightly arrest under a statute becomes wrongly arrested if the prosecutor’s purpose in arresting him had nothing to do with the statute. Put another way, can a prosecutor, empowered by law to arrest an individual for one declared purpose, be immune from suit when he arrests that person with another, secret purpose in mind?
Our natural reaction is, “Of course not!” Such a prosecutor is abusing the vast discretionary powers we have entrusted to him. He is not playing fair; he is playing “Gotcha!”
But under our law, that natural reaction would be wrong. For reasons of public policy, our law provides the prosecutor with official immunity—perhaps not immunity from being fired, impeached, or hounded from public life, but immunity nonetheless—from lawsuits for money damages based on the acts he undertakes on behalf of the public.
The Supreme Court has developed this law by repeatedly instructing us not to inquire into the personal, subjective intentions of a government official when determining whether the official is protected by official immunity. Reading the minds of government officials is

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notoriously expensive, uncertain, and fraught with error. The very purpose of official immunity is to shield the purses of government officials from the high costs of civil damages lawsuits. If official immunity were to depend upon proof of the officials’ good intentions, the value of that immunity would be lost.
Yet today, the majority permits plaintiff Abdullah al-Kidd to seek redress from the wallet of a federal cabinet-level official for injuries al-Kidd alleges he suffered when he was detained—pursuant to a warrant signed and issued by a neutral federal magistrate judge—as a material witness in the government’s prosecution of an indicted terrorist suspect.
The sole reason the majority provides for stripping former Attorney General John Ashcroft of his official immunity is that, although he and his subordinates had sufficient evidence to arrest al-Kidd as a material witness in the prosecution of a suspected terrorist under the applicable statute, they acted with a forbidden state of mind: they really arrested him not to testify against the indicted terror suspect, but to investigate al-Kidd himself.
Because I do not believe this holding comports with the Supreme Court’s instructions regarding official immunity and Fourth Amendment law, I must respectfully dissent.
I also dissent from the majority’s resolution of alKidd’s claim that Ashcroft is personally liable for the inclusion of claimed material misrepresentations and omissions in the affidavit supporting the material witness warrant on which al-Kidd was detained. Al-Kidd’s complaint does not state facts sufficient plausibly to show Ashcroft was personally responsible for the

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claimed falsities. See Ashcroft v. Iqbal, — U.S. —, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
I. Background
After 9/11, in connection with an investigation into terrorist activities in Idaho, federal agents interviewed al-Kidd on several occasions. In February 2003, a grand jury returned an indictment against Sami Omar AlHussayen, a suspect in that investigation. During the course of the investigation, FBI agents learned, and later affied, that al-Kidd had received “in excess” of $20,000 from Al-Hussayen, had met with Al-Hussayen’s associates after al-Kidd’s trip to Yemen, and had contacts with the Islamic Assembly of North America (“IANA”) (the suspected Jihadist organization for which Al-Hussayen worked).1 One month later, al-Kidd purchased a plane ticket to Saudi Arabia. Apprehensive, they said, that al-Kidd would abscond to Saudi Arabia with information critical to the prosecution of al Hussayen, never to return, the federal agents sought a warrant for his arrest. The agents appeared before a magistrate, swore they had good cause to believe al-Kidd both had information material to Al-Hussayen’s prosecution and was on the run, and then arrested al-Kidd at Dulles International Airport as he was about to board a plane
1 As the majority states, the Al-Hussayen indictment alleged that one of the IANA’s purposes was “indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.” The AlHussayen indictment also alleged Al-Hussayen himself was the sole registrant of another website, www.alasr.ws, which was affiliated with the IANA’s website through a third website belonging to the IANA. The www.alasr.ws website published an article in June 2001 entitled “Provision of Suicide Operations,” which advocated suicide bombings and “bringing down” aircraft.

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to Saudi Arabia. The government held al-Kidd for fourteen days and released him only when al-Kidd surrendered his passport and agreed to certain conditions of release. In the event, al-Kidd was never called to testify at al-Hussayen’s trial.
Al-Kidd filed this action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), in the United States District Court for the District of Idaho. Al-Kidd named as defendants not only the officers who prepared the material witness warrant, but former Attorney General Ashcroft, FBI Director Robert Mueller, and former Secretary of the Department of Homeland Security Michael Chertoff, as well as the wardens of the prisons in which he was detained. In his complaint, al-Kidd raises three very distinct claims. First, al-Kidd alleges that the conditions under which he was confined were unconstitutionally harsh. Second, al-Kidd alleges his detention on a material witness warrant was illegal because it was based on pure pretext; the government wanted to detain al-Kidd not to secure his testimony at the Al-Hussayen trial but really to keep al-Kidd himself off the streets and to investigate him. Al-Kidd contends that even if the warrant on which he was detained was objectively valid, the preparing officers’ subjective intention to use the warrant to accomplish an illicit goal rendered the officers’ actions unconstitutional. Third, al-Kidd contends the warrant was not only illegal because it was pretextual, it was also invalid because it was based on an affidavit containing material misrepresentations and omissions: Al-Kidd had no information useful to the investigation, he was not a flight risk, and the government knew it but concealed those facts from the magistrate.

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Ashcroft contends each of these claims is barred, either because al-Kidd has not pleaded facts sufficient to establish Ashcroft’s personal involvement; because Ashcroft enjoys absolute or qualified immunity against alKidd’s claims; or, because the district court lacked personal jurisdiction over Ashcroft.
The majority concludes that al-Kidd has not adequately pleaded Ashcroft’s personal involvement in the decision to subject him to unconstitutionally harsh conditions of confinement. I agree, and therefore I join in Part B.5 of the majority opinion (“The Conditions of Confinement Claim”).
As to al-Kidd’s second and third claims, however, the majority affirms the district court’s order denying Ashcroft’s motion to dismiss.
I disagree. As to al-Kidd’s claim prosecutors used the material witness statute as a pretext to pursue other, investigatory or crime prevention agendas, the answer is simply that such pretext does not invalidate the arrest warrant; I would hold Ashcroft is shielded by qualified immunity. In light of the considerable authority recognizing that the pretextual use of an objectively justifiable search or seizure does not violate the Fourth Amendment, it follows the federal agents did not violate al-Kidd’s constitutional rights. But if I’m wrong, in any case al-Kidd’s right not to be arrested on an objectively valid, but pretextual arrest warrant was not “clearly established” in March 2003, when al-Kidd was detained, and qualified immunity therefore shields Ashcroft from al-Kidd’s claims. See Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). I therefore dissent from part B.3 of the majority opinion (“The Fourth Amendment Claim”).

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As to al-Kidd’s claim that his detention violated the Fourth Amendment and the terms of the material witness statute because the supporting warrant application contained material misrepresentations and omissions, we cannot reach the merits of his claim, for—as with his claim that Ashcroft is liable for the claimed wretched conditions of al-Kidd’s confinement, as to which all of us agree his claim fails— al-Kidd has failed to allege facts sufficient to establish Ashcroft’s personal liability for such conduct. See Ashcroft v. Iqbal, 556 U.S. —, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Therefore I dissent from part B.4 of the majority opinion.
Lastly, I disagree, in part, with the majority’s treatment of Ashcroft’s claim of absolute immunity. I agree that Ashcroft lacks absolute prosecutorial immunity for his acts or omissions in supervising the officers who acted as complaining witnesses in support of a material witness warrant application. When officials—whether prosecutors or police officers-act as mere witnesses in support of a warrant application, absolute immunity does not shield their actions. Equally, Ashcroft would lack absolute immunity for his acts or omissions in supervising officers who obtain a material witness warrant to secure the presence of a witness before an investigatory grand jury, rather than a criminal trial. However, I disagree that Ashcroft does not enjoy absolute immunity for his supervision of prosecutors who decide to seek a material witness warrant to secure the presence of a witness at a criminal trial, regardless of any claimed improper motive.2
2 I express no opinion as to parts B.1 (“Qualified Immunity Generally”) and B.2 (“Qualified Immunity for Supervisors”). I also express no opinion as to part C (“Personal Jurisdiction”). Because I conclude

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I address each of these issues in turn.
II. Qualified Immunity
I would hold that Ashcroft enjoys qualified immunity from al-Kidd’s claim that the material witness warrant on which he was detained was merely a pretext to accomplish other law enforcement objectives. To be clear, al-Kidd’s pretext claim is not that the material witness warrant on which he was detained was invalid on its face or because it was based on an affidavit containing material misrepresentations or omissions.3 Rather, in his pretext claim, al-Kidd contends that even if the material witness warrant on which he was detained was objectively valid and supported by probable cause, the prosecutor’s subjective intention to use the material witness warrant to accomplish other, law-enforcement objectives renders the government’s conduct unconstitutional. Because al-Kidd had no constitutional right to be free from such conduct-and certainly had no clearly established constitutional right-I dissent from the majority’s conclusion that Ashcroft lacks qualified immunity.
Al-Kidd bases his claims of liberty from arrest on the Fourth Amendment. The Supreme Court has repeatedly stated that under the Fourth Amendment, an officer’s subjective intentions are irrelevant so long as the
al-Kidd cannot proceed on his claims against Ashcroft, I would not reach the difficult question whether this court has pendent appellate jurisdiction over Ashcroft’s appeal of the district court’s order denying his motion to dismiss al-Kidd’s claims against him for lack of personal jurisdiction. If it is not necessary to decide an issue, it is necessary for a common-law court not to decide it.
3 Al-Kidd later makes this claim separate and distinct from his pretext claim. It is addressed infra, parts III and IV.

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officer’s conduct is objectively justified. See, e.g., Maryland v. Macon, 472 U.S. 463, 470-71, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985) (“Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken.” (internal citations and quotation marks omitted));4 Scott v. United States, 436 U.S. 128, 136-37, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (“Subjective intent alone, the Government contends, does not make otherwise lawful conduct illegal or unconstitutional. We think the Government’s position, which also served as the basis for decision in the Court of Appeals, embodies the proper approach for evaluating compliance with the minimization requirement [relating to wiretaps].”);5
4 In Macon, an undercover police officer purchased pornographic materials from a bookstore. The officer left the bookstore, consulted with fellow officers, and, upon concluding the book was pornographic, returned to the bookstore and arrested the storekeeper and seized the marked bill the officer used to purchase the book. The Supreme Court held that the purchase, in a voluntary transaction, of wares by an undercover officer is not a search within the meaning of the Fourth Amendment. Id. at 469, 105 S. Ct. 2778. The storekeeper contended the officer’s subjective intention to retrieve the marked $50 bill transformed the sale into a search. Id. at 469-70, 105 S. Ct. 2778. The Supreme Court disagreed and held that because the transaction, objectively viewed, was a sale in the ordinary course of business, the sale did not constitute a search. Id.
5 In Scott, officers obtained a warrant to intercept the phone calls of a suspected drug dealer. Id. at 131, 98 S. Ct. 1717. The warrant required the officers to minimize their interception of non-narcotics-related phone calls. Id. The wiretap resulted in the arrest and indictment of more than twenty individuals. Id. Scott moved to suppress the intercepted phone calls on the ground officers had failed to comply with the minimization requirement. Id. at 132, 98 S. Ct. 1717. The district court

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United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (holding that an officer’s objectively lawful search incident to arrest was lawful though officer lacked the subjective intention-fear that the arrestee was armed-that normally attaches to such searches).
Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), cited by the majority, is but one example of the general rule that pretextual searches and seizures do not violate the Fourth Amendment. In Whren, the Supreme Court held the stop of a vehicle for a minor traffic violation did not violate the Fourth Amendment even though the officer was using the stop “as pretext[ ] for pursuing other investigatory agendas.” Id. at 811, 116 S. Ct. 1769. The Court stated:
granted the motion to suppress, concluding that even if every intercepted phone call had been narcotics-related, the officers’ failure to make any good faith efforts to comply with the minimization requirement rendered the wiretap illegal. Id. at 132-34, 98 S. Ct. 1717. The court of appeals reversed because the court could not conclude that reasonable efforts at minimization would have prevented the interception of any of the phone calls. Id. at 134, 98 S. Ct. 1717. After a jury trial on remand, Scott was convicted. The court of appeals affirmed, id. at 135, 98 S. Ct. 1717, and the Supreme Court affirmed the court of appeals. Id. at 137-38, 98 S. Ct. 1717. The Supreme Court rejected Scott’s contention that the officers’ “ failure to make good-faith efforts to comply with the minimization requirement is itself a violation of [the wiretap statute].” Id. at 135, 98 S. Ct. 1717. The Court explained that the “existence vel non of such a violation turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” not on the officers’s subjective intentions. Id. at 136, 98 S. Ct. 1717.

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We [have] flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. . . . [S]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional. We described Robinson [414 U.S. at 236, 94 S. Ct. 467] as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”
Id. at 812-13, 116 S. Ct. 1769 (internal citations omitted). It is really quite simple. If you are engaged in conduct that justifies your detention, you must put up with that detention, even if the officer who detained you did so out of some secret-and constitutionally insufficient-motive.
There is good reason to eschew inquiry into the subjective motivations of individual officers. First, such an approach provides “arbitrarily variable” protection to individual rights. Devenpeck v. Alford, 543 U.S. 146, 154, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004). If the subjective intentions of the arresting officers are the touchstone of constitutional analysis, courts may reach divergent results about searches and seizures that are utterly indistinguishable in the eyes of the person whose rights are at stake. See id. at 154, 125 S. Ct. 588.6 Second, the
6 For example, imagine two drug smugglers speeding, illegally, down the highway who are stopped by police. Each smuggler is identical in every respect, save one: one is stopped by an officer totally ignorant of the fact that the car is carrying drugs, the other by an officer who suspects the driver’s involvement in a drug ring. Seen from the perspective of the two drivers, each should face an identical penalty. Each broke the law and made himself subject to being stopped. But if the

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inquiry into subjective intentions is impossibly difficult, expensive, and prone to error. As the Supreme Court explained in Harlow v. Fitzgerald,
[t]here are special costs to subjective inquiries of this kind. . . . Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.
457 U.S. 800, 816-817, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (footnotes and internal quotation marks omitted). Whren, along with Harlow, Robinson, Scott, and Macon, makes clear that al-Kidd’s arrest on an objectively valid warrant supported by probable cause violated none of al-Kidd’s constitutional rights. At a minimum, these cases would have given a reasonable officer good reason to believe that al-Kidd’s arrest was constitutionally permissible.
The majority’s efforts to distinguish Whren are unpersuasive. The majority contends that Whren and like cases are inapplicable whenever the government acts without probable cause to believe that the subject of the arrest is guilty of some criminal wrongdoing. Maj. Op. at 966-67. To reach this result, the majority imports the “programmatic purpose” test ordinarily reserved for administrative or “special needs” search cases. The pro-
suspicious officer’s subjective intentions invalidate his stop, then one driver escapes punishment while the other does not. As Devenpeck explained, an individual’s right to be free of arrest should not depend upon such chance factors as which police officer arrested him. Id. at 155-56, 125 S. Ct. 588.

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grammatic purpose test, of course, tests the constitutional validity of warrantless searches and seizures, such as drunk driving roadblocks, by requiring the government to prove its program serves governmental interests other than the routine collection of evidence for criminal prosecution. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 78, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 45, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). The special needs cases are the sole exception to the general principle that, in testing compliance with the Fourth Amendment, courts are limited to an examination of the objective circumstances which justify the search or seizure, and may not inquire into official purpose. Whren, 517 U.S. at 812, 116 S. Ct. 1769 (“Not only have we never held, outside the context of inventory search or administrative inspection[,] . . . that an officer’s motive invalidates objectively justifiable behavior[,] . . . we have repeatedly held and asserted the contrary.”). The programmatic purpose test applies here, the majority says, because in Edmonds, the Supreme Court said that Whren did not apply whenever the government conducted a search or seizure without “probable cause,” and because “probable cause” means only probable cause to believe the subject of the arrest committed some wrongdoing. The cases the majority cites offer no support whatsoever for the majority’s approach.
First, the special needs cases have no bearing on the inquiry into al-Kidd’s arrest for the simple reason that al-Kidd was arrested pursuant to a warrant issued by a neutral magistrate. The “programmatic purpose” inquiry is necessary to test the validity of a special needs search precisely because such searches occur without the procedural protections of the warrant requirement

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and the magisterial supervision it entails. As the Supreme Court explained in New York v. Burger, a statute authorizing a warrantless administrative or special needs search must provide
a constitutionally adequate substitute for a warrant. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.
482 U.S. 691, 710-11, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987) (emphasis added) (quotations omitted). Material witness warrants, though not based on individualized suspicion of wrongdoing are, of course, warrants: they are based on an individualized determination that the subject of the warrant is in possession of information material in a criminal proceeding and is likely to flee; they are approved by a neutral magistrate; they are subject to continuing oversight; and they issue only upon a showing of probable cause. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971); 18 U.S.C. §§ 3144; Fed. R. Civ. P. 46. The “special needs” cases bear little resemblance to the highly supervised process of obtaining a material witness warrant. Given the protections in § 3144, there is simply no need to inquire into the government’s “programmatic purpose,” and no case has ever so required.
Second, the majority’s “traditional” definition of “probable cause,” which limits probable cause to mean only probable cause to believe that the arrestee is guilty of wrongdoing, Maj. Op. at 966-67, reflects a fundamental misunderstanding of the Fourth Amendment. The

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validity of a police action under the Fourth Amendment turns not on the guilt or innocence of the arrestee, but on whether the government’s reasons for arresting the individual are weighty enough, and probably factually likely enough, to justify the intrusion into some individual’s rights.7 See United States v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001) (“The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”) (internal quotation marks omitted). The “probable cause” requirement assures that there is sufficient evidence to believe that the facts that justify the issuance of the warrant exist—that there is a sufficient “probability” the government will find what it is looking for when it intrudes. Cir. 2 at 121, 122 S. Ct. 587.
Until today, no case has suggested that the only governmental interest of sufficient weight to justify an arrest is a reasonable belief that the arrestee has committed a crime. Most importantly, the Supreme Court has stated that the government’s interest in the integrity of the justice system is important enough to justify the arrest of a wholly innocent person to secure that witness’s appearance at trial. See Stein v. New York, 346
7 This is not to deny the existence of what the majority terms the “substantive component” of the Fourth Amendment. Maj. Op. at 967. Instead, this merely demonstrates that this “substantive component” of the Fourth Amendment can be satisfied by any governmental interest—whether to detain a wrongdoer or to provide for the production of evidence against a wrongdoer—weighty enough to justify an intrusion into individual rights.

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U.S. 156, 184, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953) (“The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”), rev’d on other grounds by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-17, 49 S. Ct. 452, 73 L. Ed. 867 (1929) (“The constitutionality of [the material witness statute] apparently has never been doubted.”).8 Our own jurisprudence, too, has recognized that “probable cause” for an arrest may exist even in the absence of a reasonable belief that the arrestee has committed wrongdoing. For example, police officers may arrest individuals innocent of any crime if the officer has reason to believe that the individual is a danger to himself. Maag v. Wessler, 960 F.2d 773, 776 (9th Cir. 1992). To be sure, in the great run of arrest cases, the relevant inquiry will be whether officers had probable cause to believe the subject committed wrong-
8 The majority needlessly casts doubt upon the validity of § 3144. Even if the Supreme Court’s statements on the issue are dicta, they have considerable weight here. In part because we cannot “lightly” disregard any Supreme Court precedent, Siskiyou Regional Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 549 n.1 (9th Cir. 2009), and in part because this court has already positively commented on these statements, see Bacon, 449 F.2d at 941. In any event, al-Kidd does not contend that a showing of probable cause to believe (1) that a witness has information that is material in any criminal proceeding and (2) the witness’s appearance cannot be secured by subpoena is insufficient to provide objective justification for an arrest. See Appellee’s Brief at 43. Notably, in neither Barry nor Stein was there any suggestion that the validity of a material witness warrant would either turn on the subjective intentions of the officers or depend upon a demonstration that there was probable cause to believe the subject of the arrest was guilty of wrongdoing.

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doing. But none of the cases the majority claims defines probable cause had occasion to consider whether such belief was the only belief that could justify an arrest.
In the closely analogous context of searches, it is clear that, consistent with the Fourth Amendment, government agents, with a warrant supported by probable cause, may intrude to search upon the premises even of individuals who are suspected of no wrongdoing whatsoever. In Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978), government agents obtained a warrant to search the offices of the Stanford Daily for photographs that might reveal the identity of protesters who had assaulted policemen during a campus disturbance. Id. at 548, 98 S. Ct. 1970. There was no claim that Stanford Daily photographers or employees were themselves the assailants. See id. The Supreme Court held the warrant was valid, despite the fact that members of the Stanford Daily were not suspected of having done anything wrong: “[V]alid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” Id. at 554, 98 S. Ct. 1970 (emphasis added); see also Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981) (holding that an arrest warrant does not authorize officers to enter the homes of third parties to execute the warrant, absent exigent circumstances, without first obtaining a warrant to enter the premises).9
9 Steagald also demonstrates that the majority’s invocation of the Wilkes cases is inapposite. The evil associated with the general writs and writs of assistance used in the colonial period was that these warrants “provided no judicial check on the determination of the executing

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Though Zurcher involved a search, rather than a seizure, its rationale is applicable here and squarely rejects the majority’s contention that the probable cause requirement of the Fourth Amendment may be satisfied only by suspicion of wrongdoing by the subject of the intrusion. As the Supreme Court explained, the property owner’s guilt or innocence is simply irrelevant to the constitutional analysis: “it is apparent that whether the third-party occupant is suspect or not, the State’s interest in enforcing the criminal law and recovering the evidence remains the same. . . . ” Zurcher, 436 U.S. at 560, 98 S. Ct. 1970. And one who knows he has evidence relevant to a criminal prosecution but refuses to hand such evidence over to prosecutors “is sufficiently culpable to justify the issuance of a search warrant.” Id. The same holds true for a material witness. The government’s interest in recovery of evidence from a material witness is the same whether the witness is guilty or innocent of wrongdoing. The need to obtain evidence from that witness and secure his appearance at trial is of sufficient weight to justify an arrest. See Stein, 346 U.S. at 184, 73 S. Ct. 1077; Barry, 279 U.S. at 616-17, 49 S. Ct. 452.
officials that the evidence available justified an intrusion into a particular home.” Id. at 220, 101 S. Ct. 1642. § 3144 provides precisely the check on official discretion that was absent during the colonial period: supervision by a neutral magistrate. It was not Lord Halifax or even Attorney General Ashcroft who signed the material witness warrant that authorized al-Kidd’s arrest. It was a federal magistrate judge.

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In short, our cases, and those of the Supreme Court, have routinely recognized that “probable cause,” within the meaning of the Fourth Amendment, may be satisfied by proof of something other than wrongdoing by the subject of the search or seizure.
Of course, taken to its logical conclusion, the majority opinion renders the material witness statute entirely superfluous. To arrest and confine an individual pursuant to the material witness statute, the government must establish “probable cause.” Bacon, 449 F.2d at 941-43. If “probable cause” exists only when the subject of an arrest is suspected of a crime, then a material witness can be arrested as a suspect, and the material witness statute adds nothing.10 This result is risible.11
10 The majority contends it does not render the material witness statute superfluous by arguing that if the statute is “genuinely” used to secure the testimony of a witness at trial, a showing of probable cause that the arrestee has engaged in wrongdoing is not required, and that only when the statute is being used as a pretext for criminal investigation is a showing of probable cause “including individualized suspicion of criminal wrongdoing” required. Maj. Op. at 988-89. (emphasis in original). This argument suggests that the probable cause standard for issuing a warrant can vary depending on the subjective intention of the officer seeking the warrant. Not only is there no support in the case law for such a position, it is directly contradicted by the holding in Whren. 517 U.S. at 811, 116 S. Ct. 1769. Furthermore, the majority seems implicitly to recognize that probable cause can encompass more than the likelihood that the arrestee has engaged in criminal wrongdoing. Otherwise the majority’s argument reads the necessity of showing probable cause right out of the issuance of a material witness warrant when the prosecutor “really” wants to obtain evidence for trial, and thus runs directly against the express language of the Fourth Amendment. If the prosecutor wants a material witness warrant because he “really” wants to secure that person’s testimony at trial, according to the majority, he need not show probable cause that the potential witness engaged in wrongdoing. However, unless the majority also recog-

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Once the government demonstrated to a neutral magistrate that it had probable cause to believe al-Kidd had information material to a criminal proceeding and was likely to run off to Saudi Arabia, the Whren rule applied with full force, and nothing in Edmond or any case the majority cites suggests otherwise.
Third, the Supreme Court’s decision in United States v. Villamonte-Marquez, 462 U.S. 579, 103 S. Ct. 2573, 77 L. Ed. 2d 22 (1983), which the majority inadequately addresses, casts even greater doubt on the correctness of the majority’s decision. In that case, the Supreme Court authorized precisely what the majority says can never be permissible: a pretextual seizure in the absence of reasonable suspicion or probable cause. In that case, customs agents, acting on a tip about marijuana smuggling, detained a sailboat pursuant to 19 U.S.C. § 1581(a). That statute authorized customs agents to “board any vessel at any time and at any place in the United States to examine the vessel’s manifest and other documents.” Id. at 580, 103 S. Ct. 2573. While executing the document inspection, officers smelled marijuana. They found 5800 pounds of the stuff on board the ship and arrested the crew. Id. at 583, 103 S. Ct. 2573. The crew members were convicted for conspiracy to import marijuana. Id. On appeal, the Fifth Circuit reversed the convictions, holding the detention was invalid—the
nizes that probable cause in this context means showing a likelihood that the arrestee has material testimony, and that it will become impracticable to secure his presence by subpoena as required by 18 U.S.C. § 3144, then the majority would be sanctioning the issuance of an arrest warrant without any probable cause whatsoever.
11 And we have been wasting much printer’s ink on material witness statutes which have existed at least since the late Eighteenth Century. See Bacon, 449 F.2d at 938-41.

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officers lacked constitutionally sufficient individualized suspicion of wrongdoing—and the fruits of the detention were barred from evidence. Id. at 583-84, 103 S. Ct. 2573. The Supreme Court reversed the decision of the Fifth Circuit and upheld the convictions. Cir. 2 at 584, 103 S. Ct. 2573. The Court held that the special difficulties associated with enforcement of maritime registration laws justified suspicionless stops and inspections on waterways. Id. at 591, 103 S. Ct. 2573. The Court emphasized the long historical pedigree of § 1581(a) as proof that the Founders did not believe such intrusions violated the Fourth Amendment. Cir. 2 at 584-85, 103 S. Ct. 2573. In a footnote, the Court rejected the crew members’ contention that the customs officers’ subjective intentions rendered the stop and inspection pretextual and thus unlawful:
Respondents, however, contend . . . that because the Customs officers were accompanied by a Louisiana State Policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marijuana, they may not rely on the statute authorizing boarding or inspection of the vessel’s documentation. This line of reasoning was rejected in a similar situation in Scott . . . and we again reject it.
Id. at 584 n. 3, 103 S. Ct. 2573.
Like the statute at issue in Villamonte-Marquez, some version of the material witness statute has been on the books since the late-1700s. See Bacon, 449 F.2d at 938-41. Since then, courts have approved the constitutionality of the power to detain material witnesses. See supra note 11. As the Supreme Court explained, the “ ‘duty to disclose knowledge of crime . . . is so vital that

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one known to be innocent may be detained, in the absence of bail, as a material witness.’ ” Bacon, 449 F.2d at 939 (quoting Stein, 346 U.S. at 184, 73 S. Ct. 1077).
Finally, Villamonte-Marquez also underlines the point that, even assuming we must consider the “programmatic purpose” behind al-Kidd’s detention, the relevant inquiry is not into the motivations of individual officers who obtained and executed the particular warrant on which al-Kidd was detained, but into the “programmatic purpose” that provides the constitutional justification for the material witness statute. See Edmond, 531 U.S. at 47, 121 S. Ct. 447 (“[W]e caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.”). The justification for the use of material witness warrants is the need to assure the proper functioning of the judicial system; this interest is divorced from the government’s general interest in crime control and is sufficient, al-Kidd concedes, to justify an arrest. Because this governmental interest justifies this intrusion into al-Kidd’s liberty, and because the intrusion is subject to a warrant requirement, inquiry into the minds of individual officers is neither necessary nor desirable. See Villamonte-Marquez, 462 U.S. at 584 n.3, 103 S. Ct. 2573.
But even if al-Kidd’s arrest on a pretextual material witness warrant violated his Fourth Amendment constitutional right not to be subjected to an unreasonable seizure, any such right was certainly not “clearly established” in March 2003. As the majority notes, for a right to be clearly established there need not be a case on point, but the violation must be “apparent” to a reason-

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able official. Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). In March 2003, when al-Kidd was arrested on a material witness warrant, it would hardly have been “apparent” to a reasonable official that using a valid material witness warrant as a pretext to accomplish other law-enforcement objectives was constitutionally impermissible, especially if the official had read Whren, Robinson, Scott, or Macon.
No court had ever questioned the constitutional validity of the material witness statute. No court had ever held that the “programmatic purpose” test applied to searches or seizures conducted pursuant to a warrant. No court had held that “probable cause” in the Fourth Amendment meant only probable cause to believe the subject of the search or seizure had committed criminal wrongdoing. Every pronouncement by the Supreme Court would have suggested that the pretextual use of a valid warrant was perfectly legal.
Eight months after al-Kidd’s arrest, for the very first time, and in dicta no less, a court of appeals stated that the pretextual use of material witness warrants was “improper.” United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003) (“The district court noted (and we agree) that it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.”).12 Prior to that, only one
12 Obviously, we are not bound by the decision of another circuit, especially if that part of the decision was dicta. In any event, unlike in our circuit, dicta in the Second Circuit is not binding authority even in the Second Circuit. Jimenez v. Walker, 458 F.3d 130, 142-43 (2d Cir. 2006). It also remains to be said: what did Awadallah mean by the use of “improper”? It could mean anything from pecksniffian distaste to

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district court had said anything similar. See United States v. Awadallah, 202 F. Supp. 2d 55, 78 (S.D. N.Y. 2002), rev’d on other grounds by Awadallah, 349 F.3d 42. In light of the substantial contrary authority spelling out that an officer’s subjective intentions do not invalidate an objectively valid warrant, this solitary district court decision was hardly sufficient to make it “apparent” to a reasonable official that the pretextual use of material witness warrants was unconstitutional. See Sorrels v. McKee, 290 F.3d 965, 970-71 (9th Cir. 2002) (holding that two district court decisions were insufficient to make a right “clearly established”).
The Supreme Court has flatly stated that pretextual searches and seizures conducted pursuant to a warrant issued upon objectively reasonable probable cause do not violate the Fourth Amendment. Nothing in the majority opinion provides any justification for departing from this rule. Attorney General Ashcroft is entitled to qualified immunity.
III. Al-Kidd’s complaint fails to allege Ashcroft instructed or knowingly allowed FBI agents to present false affidavits to the magistrate judge who issued the material witness warrant.
Al-Kidd’s remaining claim is that Ashcroft is personally liable for al-Kidd’s detention on a material witness warrant obtained on the basis of intentional or reckless material misrepresentations or omissions. Of course,
sanctionable conduct by an officer of the courts, and from harmless error to grounds for reversal. It seems not even a thin reed upon which to base an assertion it proclaimed to the nation’s constabulary a “clearly established” constitutional right.

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this claim raises totally different constitutional issues than that based on pretext.
It is not disputed that al-Kidd has a clearly established constitutional right not to be detained on a warrant based on an agent’s deliberate or reckless misrepresentations or omissions. See Franks v. Delaware, 438 U.S. 154, 164-72, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). But it was Ashcroft’s subordinates, not Ashcroft himself, who obtained the material witness warrant on which al-Kidd was detained. Al-Kidd makes only conclusory allegations Ashcroft ordered his subordinates to arrest individuals on invalid warrants. But such conclusory allegations do not suffice. Before we reach the merits of al-Kidd’s claims the affidavits were false, we must determine if he alleges facts sufficient to establish Ashcroft’s personal liability. I disagree with the majority’s conclusion that Ashcroft may be held liable for what his subordinates may have done here, because al-Kidd’s complaint simply does not state facts that plausibly establish Ashcroft, “through [his] own actions,” violated al-Kidd’s rights under the material witness warrant statute or the Constitution. Iqbal, 129 S. Ct. at 1948.
The majority concludes Ashcroft may be held liable in al-Kidd’s Bivens action for his “knowing failure to act” in the light of evidence of unauthorized abuses, and that al-Kidd’s pleadings are sufficient to establish plausibly that Ashcroft had knowledge of “abuses” occurring

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under § 3144 and failed to act to correct these abuses.13 Maj. Op. at 975-76.
What “abuses”? The abuses to which al-Kidd refers in his allegations are not lies or omissions included in supporting affidavits, but pretextual arrests. But, as shown above (in Part II, “Qualified Immunity”), such “abuses” violate neither the statute nor the Constitution. And to allege Ashcroft’s knowledge of these “abuses” does not allege facts that plausibly establish Ashcroft knew of or encouraged his subordinates recklessly to disregard the truth in the preparation of supporting affidavits. See Franks, 438 U.S. at 164-72, 98 S. Ct. 2674.
In reviewing al-Kidd’s allegations regarding Ashcroft’s personal involvement, ask yourself after each one, “Did al-Kidd here allege facts that plausibly establish Ashcroft ordered or knowingly tolerated agents swearing to false facts in their affidavits?”:
13 Ashcroft cannot be held liable for the acts of his subordinates on a theory of respondeat superior or vicarious liability. Id. at 1948. It is doubtful that the majority’s “knowing failure to act” standard survived Iqbal. There, the Court held that Ashcroft could not be held liable for his “knowledge and acquiescence” in his subordinates’ alleged unconstitutional discrimination against Muslim men after 9/11. Id. at 1949. The Court explained: “[P]urpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” Id. at 1949. Here, because al-Kidd has not alleged that Ashcroft knew his subordinates were making deliberate or reckless material misrepresentations or omissions in material witness applications, much less that it was Ashcroft’s purpose they do so, al-Kidd’s allegations clearly fail Iqbal’s requirements.

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• Ashcroft stated publicly that “[a]ggressive detention of lawbreakers and material witness warrants is vital to preventing, disrupting, or delaying new attacks.”
• A Justice Department policy memo stated that federal law enforcement personnel were to use “every available law enforcement tool” to arrest terror “suspects.” This included the use of “aggressive arrest and detention tactics.”
• One Justice Department official admitted that the material witness policy amounted to “preventive detention.”
• Other Justice Department officials admitted that material witness warrants were an important “investigative tool” whereby they could obtain “evidence” about the witness. Similarly, FBI Director Mueller stated that several “suspects” had been detained on material witness warrants.
• One news report stated that 50% of those detained on material witness warrants were never called to testify. One Justice Department official admitted that this statistic proved that material witness warrants were a “ruse” to detain suspects.
• “Abuses” occurring under the statute were “highly publicized” in the media.
• The department apologized to several individuals arrested on material witness warrants.
In each case, the answer to the question put is a flat “no.” These allegations certainly do suggest Ashcroft

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encouraged prosecutors to use valid material witness warrants as a means to accomplish other law- enforcement objectives. But none of the allegations contain facts that plausibly establish Ashcroft’s knowledge that his subordinates were obtaining material witness warrants on the basis of deliberately or recklessly false evidence or on facially invalid warrants. Some of alKidd’s allegations suggest precisely the opposite—that Justice Department officials were careful to ensure they had probable cause to believe that the targeted witness had information material to a criminal proceeding and was likely to flee before seeking a material witness warrant:
• David Nahmias, Counsel to the Assistant Attorney General, stated that when they were unable to charge a particular suspect, they “got enough information at least to make him a material witness.” ER 32 (emphasis added).
• Attorney General Alberto Gonzales, Ashcroft’s successor, stated that when the agency became interested in a subject, the agency would “consider” its options. ER 31.
Al-Kidd’s pleadings do establish that some material witnesses were detained who did not testify or did not prove to have material information. But these facts do not plausibly suggest federal agents employed intentional or reckless mendacity in swearing out false affidavits. Some witnesses’ testimony may not have been required because defendants took plea deals or prosecutors found other sources of information. In some cases, agents may simply have been wrong or may have acted “hastily” or negligently in conducting investigations.

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That does not amount to a Franks violation. See Franks, 438 U.S. at 165, 98 S. Ct. 2674. That the DOJ apologized to some detainees hardly suggests an admission of impropriety rather than simple error.
The majority also concludes al-Kidd has plausibly alleged that Ashcroft “purposely instructed his subordinates to bypass the plain reading of the statute.” Maj. Op. at 976. All of the allegations the majority cites in support of this proposition demonstrate Ashcroft “purposely instructed” his subordinates to use the statute pretextually, but not unlawfully. The majority doesn’t get it; al-Kidd must plead not only that Ashcroft had a “concerted strategy” or that Ashcroft used “enhanced” techniques, Maj. Op. at 977, but that such “concerted strategy” or “enhanced” techniques actually included the use of false affidavits or facially invalid warrants, not just the use of pretextual witness warrants. A “concerted strategy” or “enhanced” technique to “misuse” material witness warrants is not enough, unless such “misuse” includes the use of false affidavits, not just pretextual arrest warrants. And nothing in al-Kidd’s allegations plausibly suggests Ashcroft instructed, encouraged, or tolerated his subordinates to detain individuals as to whom there was no objective probable cause to arrest. It may be conceivable to al-Kidd that Ashcroft encouraged his subordinates to flout the requirements of § 3144, but al-Kidd’s allegations have not “nudged [his] claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
Because al-Kidd has not pleaded adequately that Ashcroft, by his own actions, violated al-Kidd’s constitu-

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tional rights, I dissent from part B.4 of the majority opinion.
IV. Absolute Immunity
The remaining question is whether and to what extent Ashcroft enjoys absolute immunity for his alleged actions—and inactions-related to the issuance of material witness warrants. As explained above, I conclude all of al-Kidd’s claims are precluded on other grounds. Accordingly, were it up to me, I would not reach this question. However, because the majority addresses the issue, and because I think the majority’s “immediate purpose” test is difficult to define and apply, and is unsupported by case law, I will explain my disagreement.
In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), the Supreme Court held that a prosecutor enjoyed absolute immunity from suit by a former inmate, whose conviction had been set aside in collateral proceedings. The former inmate’s suit alleged that the prosecution had been commenced wrongfully, that the prosecutor had elicited false testimony on the stand, and that the prosecutor concealed exculpatory evidence from the defense, actions even more heinous than those alleged against Ashcroft by al-Kidd. Id. at 415-16, 96 S. Ct. 984. The court articulated two justifications for imposing an absolute bar to recovery: first, absolute prosecutorial immunity reflects the common law immunity of judges and juries, id. at 424, 96 S. Ct. 984;14 second, absolute immunity is necessary to avoid
14 Justice Scalia has observed that the doctrine of absolute prosecutorial immunity has strayed far from its common law roots, but that the doctrine nonetheless retains its vitality. See Kalina v. Fletcher, 522 U.S. 118, 131-135, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) (Scalia, J.,

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the “intolerable burdens” that damages claims by disgruntled criminal defendants would place on prosecutors, id. at 425-26, 96 S. Ct. 984. Absolute prosecutorial immunity obviously leaves some wrongs-grievous wrongs-unremedied, but the “balance of evils” nonetheless tilts in favor of absolute immunity; otherwise, prosecutors would live in constant fear that their actions on behalf of the public would subject them to personal liability and possible poverty. Van de Kamp v. Goldstein, — U.S. —, 129 S. Ct. 855, 859, 172 L. Ed. 2d 706 (2009).
However, despite the tremendous importance of absolute immunity, prosecutors do not enjoy absolute immunity for every act they undertake as prosecutors. To determine whether a prosecutor enjoys absolute immunity, rather than the lesser qualified immunity afforded all government agents, courts consider the “the nature of the function performed, not the identity of the actor who performed it.” Kalina, 522 U.S. at 127, 118 S. Ct. 502. Under the “functional approach,” a prosecutor enjoys prosecutorial immunity only when he performs a function “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S. Ct. 984. On the other hand, a prosecutor has no absolute immunity for “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate.”
concurring) (“[T]he ‘functional categories’ approach to immunity questions imposed by cases like Briscoe, make faithful adherence to the common law embodied in § 1983 very difficult. But both Imbler and the ‘functional’ approach are so deeply embedded . . . that, for reasons of stare decisis, I would not abandon them now.”). Accordingly, Ashcroft’s failure to introduce evidence that, at common law, prosecutors had absolute immunity against claims related to material witness warrants is not significant.

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Id. at 430-31, 96 S. Ct. 984. The Imbler court acknowledged that “drawing a proper line between these functions may present difficult questions.” Id. at 431 n. 33, 96 S. Ct. 984.
Deciding which witnesses to call at trial is part of the prosecutor’s role as an advocate, Imbler, 424 U.S. at 431 n. 33, 96 S. Ct. 984, as is the “marshaling” of evidence for trial, Genzler v. Longanbach, 410 F.3d 630, 639 (9th Cir. 2005). Accordingly, several circuits, other than the Ninth, have squarely held that prosecutors have absolute immunity for seeking a material witness warrant.15 And no case has held that absolute immunity does not shield a prosecutor’s decision to seek such a warrant.
Ashcroft, of course, did not himself file the application or swear out the facts in support of the application. Ashcroft acted only as a supervisor. Though a supervisor’s acts are in one sense always administrative, a supervisor enjoys absolute immunity only for supervisory decisions that “require legal knowledge and the exercise of related discretion” and relate to activities for which
15 See, e.g., Odd v. Malone, 538 F.3d 202, 213 (3rd Cir. 2008) (noting that a prosecutor has prosecutorial immunity for obtaining a material witness warrant shortly before the commencement of trial, but holding that the prosecutor lacks absolute immunity for failing to notify the court that trial was over and thus permit the witness’s release); Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984) (“It is clear that the issuance of the capias was intimately associated with procuring attendance of a witness for imminent trial. Absolute immunity attaches to this act, and any claimed improper motive is irrelevant.”); Daniels v. Kieser, 586 F.2d 64, 69 (7th Cir.1978) (“Because defendant was attempting to secure Daniels’ presence at the resumption of the trial[,] . . . he was functioning as an advocate rather than as an investigator.”); White ex rel. Swafford v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (stating, in dicta, that prosecutor’s decision to procure a material witness warrant is protected by absolute immunity).

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the supervised attorney enjoys absolute immunity. Van de Kamp, 129 S. Ct. at 861-62 (holding that a prosecutor enjoyed absolute immunity from Goldstein’s claims that supervisor’s failure to train prosecutors about the need to disclose exculpatory evidence resulted in his unlawful conviction). There is “no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecutions formulated as a policy for general application.” Roe v. City & County of San Francisco, 109 F.3d 578, 583-84 (9th Cir. 1997).
Kalina v. Fletcher makes clear Ashcroft lacks absolute immunity for claims related to his supervision of the FBI agents, such as Mace, who acted as witnesses in support of a warrant application. See 522 U.S. at 129-30, 118 S. Ct. 502. When an individual, even an attorney, serves as a complaining witness in support of a warrant application, the individual enjoys only qualified immunity, id., and accordingly Ashcroft lacks absolute immunity for supervising such individuals. See Roe, 109 F.3d at 583-84. Whether Ashcroft enjoys absolute immunity for his supervision of the United States Attorneys who prepared the warrant application and made the decision to file it is a different question.
I would hold that so long as the “criminal proceeding” for which the material witness warrant is sought is a criminal trial, rather than an investigatory proceeding,16 the decision to seek a material witness war-
16 See Buckley v. Fitzsimmons, 509 U.S. 259, 274-75, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993) (holding that a prosecutor lacked absolute immunity for acts taken in preparation for appearing before an investigatory grand jury); see also Bacon, 449 F.2d at 939 (noting that a material witness warrant may issue to secure the presence of a witness before an investigative grand jury proceeding).

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rant should be shielded by absolute immunity. Such a decision is clearly one “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S. Ct. 984; see also supra note 14. The critical factor in the decision to seek a material witness warrant is the prosecutor’s professional judgment about how much that witness knows, how important the witness’s testimony might be, and what effect his arrest may have on his testimony. See Kalina 522 U.S. at 130, 118 S. Ct. 502 (holding that absolute immunity protects decisions involving the “exercise of professional judgment”). And the ultimate decision whether to call the detained witness depends on the prosecutor’s final trial strategy, which may evolve over time as events unfold. See Roe, 109 F.3d at 583-84 (holding that a prosecutor’s decision not to call a witness at trial was protected by absolute immunity). Both of these decisions are decisions that only a prosecutor can make.
Moreover, like other quasi-judicial acts, an individual’s detention on a material witness warrant is subject to continuing oversight, and errors may be corrected through the judicial process. Cf. Mitchell, 472 U.S. at 522-23, 105 S. Ct. 2806 (holding that a prosecutor did not enjoy absolute immunity for his decision to engage in illegal wiretapping and explaining that the judicial process, unlike wiretapping, is “largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results”).17 Here, Al-Kidd was not detained
17 The Third Circuit’s decision in Odd did not, as the majority concludes, hold that the policy considerations underlying absolute immunity do not apply in the material witness context. 538 F.3d 202. In Odd, no one questioned that the decision to seek a material witness warrant

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up until the start of trial, but was released upon conditions, selected by a neutral magistrate, thought necessary to secure his appearance as a witness at trial.
Ultimately, the decision whether to seek a material witness warrant in conjunction with an upcoming trial is akin to both the decision to call a witness at trial and to seek a warrant to arrest a suspect. A prosecutor enjoys absolute immunity for both of these acts, regardless of any improper motive, and should enjoy a similar immunity here. See Imbler, 424 U.S. at 431 n.33, 96 S. Ct. 984; Kalina, 522 U.S. at 129, 118 S. Ct. 502.
Both the majority and al-Kidd concede that a prosecutor sometimes has absolute immunity for the decision to seek a material witness warrant. See Maj. Op. at 959-60. The majority, returning to its trope the prosecutors’ pretextual motivations invalidate an otherwise
was protected by absolute immunity. The issue in Odd was the prosecutor’s “fail[ure] to notify the court of the status of a detained witness.” Id. at 216. As the court noted, compliance with Rule 46, once trial is complete or during a “clearly delimited” break in judicial proceedings, is a purely ministerial task. Id. at 212-14. Unlike the decision whether to call a witness to the stand, the decision to release a material witness once trial is over requires the exercise of no professional judgment at all, and the threat of civil damages liability cannot interfere with the prosecutor’s decision making. Id. at 216. It is unsurprising that the Third Circuit found that the detained material witnesses lacked access to continuing supervision; in Odd the plaintiffs’ very claim was that they had been wrongfully denied the procedural protections to which they were entitled. Id. at 217 (“Indeed, the failure of the ADAs to notify anyone of Plaintiffs’ status assured that not even the warrant-issuing judges would review the propriety of their continued detention, thus short-circuiting the crucible of the judicial process.” (internal quotation marks omitted)). The ADAs had no more right to hold the material witness after the trial ended than they would have had to hold a defendant after an acquittal was entered.

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properly obtained warrant, see Maj. Op. at 962-63, contends, however, the cases holding a prosecutor has absolute immunity for the issuance of a material witness warrant—Odd, Betts, Daniels, and Swafford—are distinguishable because none involved allegations a prosecutor intended to use the warrant to investigate the detained subject rather than to secure the witness’s appearance at trial. See Maj. Op. at 959-60.18
Rejecting what it calls a “formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish” in favor of a “teleological perspective,” Maj. Op. at 962 (emphasis added), the majority applies an “immediate purpose” test to determine whether a prosecutor is performing an investigative rather than a prosecutorial function—if the prosecutor’s “immediate purpose” was to investigate the subject of the warrant rather than to secure the witness’s appearance at trial, the prosecutor enjoys only qualified, rather than absolute, immunity. Id. at 962-63. Again the majority invites inquiry into the subjective motivations of individual officers. One can tell that easily: watch for its use of the word “really.”
It is true that a few courts have made reference to “purpose” in applying the functional approach.19 But the
18 The odd result of the majority’s approach is that Ashcroft enjoys absolute immunity if he acts out of racial or partisan animus, but enjoys only qualified immunity if he acts in order to protect the public or investigate a suspected criminal. See Bernard v. County of Suffolk, 356 F.3d 495, 504 (2nd Cir. 2004). Thus, the more licit Ashcroft’s subjective intentions, the more liability he faces.
19 See, e.g., Buckley, 509 U.S. at 274-75, 113 S. Ct. 2606 (holding that prosecutor lacked absolute immunity for actions before a grand jury

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“purpose” considered in these cases has been the product for which the warrant was directed—what evidence was called for and where it was to be produced; none of these cases authorizes the majority’s wide-ranging inquiry into what a prosecutor was “really” up to. See id. at 962-63. Indeed, as in the Fourth Amendment context, courts have repeatedly admonished that a prosecutor’s subjective intentions are irrelevant to the absolute immunity inquiry, for much the same reason they are irrelevant to the qualified immunity analysis. See, e.g., Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (“Intent should play no role in the immunity analysis.”); see also Betts, 726 F.2d at 81 (2d Cir.1984) ( “Absolute immunity attaches to [seeking a material witness warrant], and any claimed improper motive is irrelevant.”). The cases the majority cites are not to the contrary.
In Buckley, the Supreme Court held that a prosecutor lacked absolute immunity for fabricating evidence to present to a grand jury because the grand jury’s “immediate purpose was to conduct a more thorough investigation of the crime-not to return an indictment against a suspect against whom there was already probable cause
because the grand jury’s “immediate purpose was to conduct a more thorough investigation of the crime—not to return an indictment against a suspect against whom there was already probable cause to arrest”); KRL v. Moore, 384 F.3d 1105, 1115 (9th Cir. 2004) (denying absolute immunity where a search warrant was “to further a ‘standalone investigation’ into environmental crimes”); Guzman- Rivera v. Rivera-Cruz, 55 F.3d 26, 30-31 (1st Cir. 1995) (“The mixed purpose of the civil rights investigation reflects defendants’ own mixed functions.”); Hill v. City of New York, 45 F.3d 653, 662 (2d Cir.1995) (“To the extent that the creation of the videotapes fulfilled an investigatory purpose, Adago cannot claim absolute immunity.”).

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to arrest.” 509 U.S. at 274-75, 113 S. Ct. 2606. Buckley simply reflects the general rule that a prosecutor should not “consider himself to be an advocate before he has probable cause to have anyone arrested.” Id. at 274, 113 S. Ct. 2606. In Buckley, no one had been arrested; the grand jury was still investigating. Here, Al-Hussayen had been indicted, arrested, arraigned, and was awaiting trial. Buckley merely holds that a prosecutor who, as yet, had arrested no one, was acting as an investigator, not an advocate. Buckley does not hold that what “really” motivated a prosecutor is relevant to determination of what “function” the prosecutor was accomplishing when he performed the action complained of.
Neither does KRL v. Moore. In that case, we held that whether a prosecutor had absolute immunity for the issuance of a search warrant depended on the purpose of the warrant, not of the prosecutor in seeking the warrant. 384 F.3d at 1115. After executing a search warrant on land held by KRL, a general partnership, prosecutors indicted Robert Womack, one of the partners, on counts relating to improper waste disposal on partnership land. Id. at 1108. The prosecutor then obtained a second search warrant for documents related to fraud and illegal diversion of funds. Id. at 1109, 1113. The partnership and the partners sued under § 1983, alleging that this second search warrant was overbroad, facially invalid, and based on fraudulent affidavits. Id. The district court denied the prosecutor’s absolute immunity claim. On appeal, this court noted that the second search warrant had “two goals: it sought evidence to prosecute the pending indictment against Womack, and it sought to investigate and uncover new crimes.” Id. at 1111. We held that the prosecutor enjoyed absolute immunity for the search warrant to the extent it

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sought evidence to prove the pending charges. Id. at 1111-13. However, to the extent the prosecutor sought evidence of new crimes (fraud at KRL), the prosecutors lacked absolute immunity. Id. at 1113-14.
We did not inquire into the prosecutor’s motives in seeking the second search warrant. We inquired into the purpose of the warrant by looking to what evidence the search warrant recited it sought. That evidence was not possibly related to the prosecution of Womack, the one suspect who had been arrested, for illegally dumping toxic wastes; it was evidence of fraud and diversion of funds that had nothing to do with waste disposal. Id. at 1113. It does not take a mind-reader to determine that where the subject matter of the prosecution is illegal toxic waste disposal on partnership land, a search warrant to search for evidence of fraud and illegal diversion of business funds is designed to accomplish something other than proving the elements of the charged environmental crime. It merely requires reading the warrant.
Buckley and KRL are easy to apply here: if the material witness warrant on which al-Kidd had been detained sought to force his appearance at an investigatory proceeding or a police interview, rather than a criminal trial, Ashcroft would not enjoy absolute prosecutorial immunity. The only relevant “purpose” is that derived from the product of the warrant, not what was “really” the prosecutor’s motive in seeking the warrant.
To the extent that KRL authorizes any inquiry into what was “really” the prosecutor’s motivation, such an inquiry should be strictly limited to cases where a prosecutor approves a search warrant application, because seeking the issuance of a search warrant can be an in-

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vestigative function, while seeking an arrest warrant cannot. The KRL court itself carefully limited its holding to the search warrant context, and expressly distinguished the arrest warrant context. Id. at 1113 (“We must emphasize that our result would not necessarily be the same had the prosecutors reviewed an arrest warrant, rather than a search warrant, prior to submission. As noted supra, the Court has stated that a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established, Buckley . . . , but that the determination of whether probable cause exists to file charging documents is the function of an advocate. . . . ”). Preparing a search warrant is not a “core” advocacy function like the preparation of an arrest warrant, the filing of charges, or the preparation of a material witness warrant.20
But under the majority’s approach, what was “really” a prosecutor’s personal, subjective “immediate purpose” is always relevant to the determination whether absolute immunity protects any act by a prosecutor—in court or out of court. A prosecutor would lose his absolute immunity if he prosecutes a low-level mafia func-
20 See generally Schrob v. Catterson, 948 F.2d 1402, 1413-15 (3d Cir. 1991) (distinguishing “core” prosecutorial functions and describing search warrants as in the “gray area” between investigative and prosecutorial functions); see also Joseph v. Patterson, 795 F.2d 549, 556-57 (6th Cir. 1986) (recognizing that search warrants can serve both a prosecutorial function of preparing for trial and an investigative function of gathering evidence, and holding that further factual development was required to determine the role the search warrant played); Imbler, 424 U.S. at 431 n.1, 96 S. Ct. 984 (“Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluation of evidence. At some point, with respect to some decisions, the prosecutor no doubt functions as an administrator. . . . ”) (emphasis added).

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tionary for the sole purpose of inducing that functionary to testify against his capo. And, absolute immunity would not clothe any question asked by a prosecutor of a witness on the stand; the prosecutor could be sued for damages on the claim he “really” asked the question to assist in the investigation of the witness, or some other person, for other crimes. Of course, what the prosecutor “really” intended in asking the question would—as in all inquiries into intent—be a factual inquiry, entailing precisely the kind of expensive discovery and litigation immunity was designed to avoid. See Harlow, 457 U.S. at 816-817, 102 S. Ct. 2727.
Not so, says the majority. To “cabin” this obviously problematic result, the majority states that when a prosecutor brings any prosecution, the prosecutor’s “immediate purpose” is, of course, to bring a prosecution, even if the prosecutor’s true intention is to obtain evidence for some other investigation. Maj. Op. at 962-63. But there is no principled reason this is true, other than the majority’s say-so. And, if true, why isn’t the prosecutor’s “immediate purpose” in this case to secure a witness’s appearance at trial rather than to obtain evidence against al-Kidd? The majority provides no clues as to how we are to distinguish which purposes are “immediate” and which are “really” not.
Even were the “immediate purpose” test coherent, it would nonetheless be undesirable because of the incentives it creates. The prosecutors’ ultimate decision not to call al-Kidd to the stand features prominently in alKidd’s proof that their “immediate purpose” was not to obtain a conviction against Al-Hussayen. Subjecting prosecutors to liability for such a decision risks needless interference in the prosecutor’s conduct of his most pub-

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lic function: the presentation of evidence at trial and, indeed, deciding whether to have a trial at all. Worse, the majority’s test makes it prudent for a prosecutor to go to trial against a defendant simply to ensure that his actions in preparing for trial will not become subject to attack on the grounds they were “really” designed to accomplish some other goal.
V. Conclusion
The majority opinion closes with a quote from Blackstone. What Blackstone describes and condemns therein—the indefinite and secret detention of individuals accused of no crime in harsh conditions-is simply not a description of this case. Even the majority agrees that the harsh conditions of al-Kidd’s confinement are not before us because al-Kidd has not adequately pleaded John Ashcroft’s personal responsibility for such conditions. Al-Kidd’s confinement was neither indefinite nor in secret. He was detained on a warrant issued by a neutral magistrate. The duration of that confinement was subject to continuing judicial supervision. There is no allegation that al-Kidd was held incommunicado. Nor is there any allegation al-Kidd was somehow denied the right to petition for a writ of habeas corpus, a right that has long secured individuals’ freedom from the horrors Blackstone envisioned. We are not called upon to judge the constitutionality of the material witness statute. And we are not called upon to judge whether al-Kidd should be released, only whether he is entitled to proceed in his suit to recover money damages from the pocket of a cabinet-level official. Were we presented with the Blackstonian case the majority envisions, I would surely

105a agree.21 But we are not, and for the reasons explained above, I dissent in part and concur in part.
21 Although I would distance myself from a certain measure of bristling righteousness in its remarks that al-Kidd was a U.S. citizen, married and with children at the time of his arrest. Maj. Op. at 951. For all of that, his rights under the Constitution against unlawful arrest were no greater than those of an illegally entered, Mexican, childless spinster.

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APPENDIX B
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 06-36059 ABDULLAH AL-KIDD, PLAINTIFF-APPELLEE
v. JOHN ASHCROFT, ATTORNEY GENERAL, BOISE,
DEFENDANT-APPELLANT
Mar. 18, 2010
ORDER
Before: DAVID R. THOMPSON, CARLOS T. BEA and MILAN D. SMITH, JR., Circuit Judges.
Judge M. Smith voted to deny the petition for rehearing en banc, and Judge Thompson so recommended. Judge Bea voted to grant the petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. Judge Bybee was recused in this matter.
The petition for rehearing en banc is DENIED.

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M. SMITH, Circuit Judge, concurring in the denial of rehearing en banc:
I concur in the court’s decision not to rehear this case en banc, and write to respond to the dissents from that decision.
In March 2005, al-Kidd brought suit in the District of Idaho against former United States Attorney General John Ashcroft, the United States, two FBI agents, and a number of other government agencies and officers in their official capacities. The suit sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), for violations of al-Kidd’s rights under the Fourth and Fifth Amendments to the Constitution, and for a direct violation of 18 U.S.C. § 3144. Each of the defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over the parties in Idaho. Next, the district court denied the 12(b)(6) motion, rejecting the defendants’ claims of absolute and qualified immunity. Only Ashcroft appealed the district court’s rulings on the motions. In ruling on Ashcroft’s interlocutory appeal of the district court’s 12(b)(6) ruling, we are required to accept all allegations of material fact contained in al-Kidd’s complaint as true and to construe those allegations in the light most favorable to al-Kidd. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). “Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden.

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. . . ” al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009).
All the parties to this action have approached it as a pure law enforcement matter. Ashcroft has not raised issues of national security or other exigencies at any point in this litigation. Id . at 973.
The facts alleged in al-Kidd’s complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government, as did many members of the Founding Generation. Al-Kidd, born Lavoni T. Kidd, is a United States citizen, born in Wichita, Kansas, and raised in Seattle, Washington. He graduated from the University of Idaho, where he was a highly regarded running back on the university’s football team. He was married and had two young children.
While at the university, al-Kidd converted to Islam and changed his name to Abdullah al-Kidd. In the spring and summer of 2002, al-Kidd became a target of FBI surveillance conducted as part of a broad anti-terrorism investigation, aimed at Arab and Muslim men.1 Al-Kidd cooperated with the FBI on several occasions when FBI agents asked to interview him.
Previous to this time, Ashcroft and others operating at his direction, or in concert with him, had decided to undertake a novel use of 18 U.S.C. § 3144, the material witness statute. Specifically,
1. At a press briefing, Ashcroft stated that the government was taking steps “to enhance [its] ability to protect the United States from the threat of
1 Al-Kidd is Muslim, but is African-American and not of Arab descent.

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terrorist aliens” and that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”
2. In DOJ memoranda, Ashcroft stressed the need “to use . . . aggressive arrest and detention tactics in the war on terror” and to use “every available law enforcement tool” to arrest persons who “participate in, or lend support to, terrorist activities.”
3. A DOJ document entitled “Maintaining Custody of Terrorism Suspects “ stated that “[i]f a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant.”
4. Michael Chertoff, who was head of the DOJ’s Criminal Division in the years immediately following the 9/11 attacks, stated of the material witness statute, “[i]t’s an important investigative tool in the war on terrorism. . . . Bear in mind that you get not only testimony—you get fingerprints, you get hair samples—so there’s all kinds of evidence you can get from a witness.
5. Then White House Counsel, Alberto Gonzales, stated that: “In any case where it appears that a U.S. citizen captured within the United States may be an al Qaeda operative and thus may qualify as an enemy combatant, information on the individual is developed and numerous options are considered by the various relative agencies (the Department of Defense, CIA and DOJ), including the potential for a criminal prosecution, detention

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as a material witness, and detention as an enemy combatant.”
(emphasis added).
What apparently interested the FBI in al-Kidd was his friendship with one Sami Omar Al-Hussayen, a Saudi national and a computer science student at the university, who was the webmaster of an Islamic proselyting website dedicated to, among other things, “[s]pread[ing] the correct knowledge of Islam; [and] [w]iden[ing] the horizons and understanding . . . among Muslims concerning different Islamic contemporary issues.”
In the spring of 2003, al-Kidd planned to fly to Saudi Arabia to study Arabic and Islamic law on a scholarship at a Saudi university. Knowing of his travel plans from their interviews with al-Kidd, and apparently implementing Ashcroft’s plan to aggressively use the material witness statute to detain “material witnesses,” two FBI agents swore out an affidavit that contained multiple falsehoods to secure a material witness warrant against al-Kidd, allegedly so he would be available to testify against Al-Hussayen (who had been indicted one month previously for visa fraud and making false statements to U.S. officials).
On March 16, 2003, al-Kidd, bearing a round-trip ticket to Saudi Arabia, arrived at Dulles International Airport in Virginia. While al-Kidd was at the ticket counter, FBI agents handcuffed him, perp-walked him through the airport, and drove him to a police station, where he was placed in a holding cell. After being detained and questioned there for hours, al-Kidd was transferred to a detention center in Alexandria, Virginia.

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For the next sixteen days, al-Kidd was detained in three different detention centers, one in Alexandria, one in Oklahoma, and one in Idaho. He was housed in highsecurity units within these facilities, which were the same units used to detain terrorists, and other persons charged with, or convicted of, other serious crimes. While at the Alexandria facility, al-Kidd was required to remain in a small cell where he ate his meals, except for one or two hours a day. He was strip-searched, denied visits by family, and denied requests to shower. Each time he was transferred to a new facility, he was shackled and accompanied by other prisoners who had been charged with, or convicted of, serious crimes. After sixteen days, “al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws’ home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport.” al-Kidd, 580 F.3d at 953.
Not too long after al-Kidd’s arrest and detention, in congressional testimony regarding the government’s efforts to fight terrorism, FBI Director Robert Mueller boasted that the government had charged over 200 “suspected terrorists” with crimes. Mueller then offered the names of five individuals as examples of the government’s recent successes. Four of those persons had been criminally charged with terrorism-related offenses; the other was al-Kidd.
“After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, as al-Kidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen’s trial,

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more than fifteen months after being arrested.2 In July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.” Id . at 953-54 (emphasis added).
Al-Kidd was arrested more than a year before the Al-Hussayen trial began. In their interviews with alKidd, the FBI never suggested, let alone demanded, that al-Kidd appear as a witness in the Al-Hussayen trial. While in custody, al-Kidd was repeatedly questioned about matters unrelated to Al-Hussayen’s alleged visa violations or false statements, but was never given a Miranda warning. “Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding” despite his assurances that he would be willing to be a witness. Id . at 953-54, 963 (emphasis added). Importantly, al-Kidd was never charged with the commission of any crime, even though Mueller had boasted to Congress that the government had at that point in time charged over 200 “suspected terrorists” with crimes, and named al-Kidd individually, as well as four other persons who had been criminally charged with terrorism-related offenses, as evidence of the government’s recent successes.
2 “Al-Hussayen was not convicted of any of the charges brought against him. His trial ended in acquittal on the most serious charges, including conspiracy to provide material support to terrorists. After the jury failed to reach a verdict on the remaining lesser charges, the district court declared a mistrial. The government agreed not to retry Al-Hussayen and deported him to Saudi Arabia for visa violations.” Id . at 953 n.4 (internal citation omitted).

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Accepting al-Kidd’s factual allegations as true and drawing all inferences in his favor, we held that al-Kidd alleged sufficient facts in his complaint to state a claim against Ashcroft for creating, authorizing, implementing, and supervising a policy that violated al-Kidd’s Fourth Amendment right against unreasonable searches and seizures. In doing so, we determined Ashcroft was not entitled to absolute or qualified immunity because he served an investigative function in connection with the challenged policy, which violated al-Kidd’s clearly established constitutional rights. We also held that al-Kidd alleged sufficient facts in his complaint to state a claim that Ashcroft directly violated the material witness statute by his own personal conduct. Accordingly, we affirmed the district court’s decision, allowing al-Kidd’s case to proceed against Ashcroft beyond the pleading stage.
I
Contrary to what our dissenting colleague suggests, we did not “effectively declar[e] the material witness statute unconstitutional.” O’Scannlain Dissent at 1139. Judge O’Scannlain accuses the majority of holding that the Constitution “invalidates arrests authorized by the statute,” and therefore, the statute is unconstitutional to the extent it authorizes arrests such as the one in this case. Id . at 1139 n.4 (emphasis added). The material witness statute, however, does not authorize arrests like the one in this case.
Here, the statute was not used to secure the testimony of a material witness, but rather to detain and interrogate a criminal suspect. Indeed, al-Kidd contends that the federal government enforced a policy sanctioning the use of the constitutionally-sound material wit-

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ness statute for an end entirely outside the scope of the statute-criminal investigation. Therefore, we did not address the validity of the material witness statute, and we unequivocally stated that the decision “does nothing to curb the use of the material witness statute for its stated purpose.” al-Kidd, 580 F.3d at 970 (emphasis added). We treated “only the misuse of the statute,” and concluded that when the statute “is not being used for its stated purpose, but instead for the purpose of criminal investigation,” the statute cannot be the basis for authorizing the government’s conduct. Id .
II
Judge O’Scannlain also accuses the majority of “distort[ing] the bedrock Fourth Amendment principle that an official’s subjective reasons for making an arrest are constitutionally irrelevant,” in contravention of Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). O’Scannlain Dissent at 1139. In Whren, the Supreme Court held that an individual officer’s subjective intentions are irrelevant to the validity of a traffic stop under the Fourth Amendment. Id . at 810-13. But al-Kidd’s case does not involve an ordinary traffic stop.
Whren stands for the proposition that “ ‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’” Id . at 813, 116 S. Ct. 1769 (emphasis added). But outside that context, “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions taken pursuant to a general scheme without individualized suspicion.” City of Indianapolis v. Edmond, 531 U.S. 32, 45-46, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) (emphasis added).

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Unlike the lawsuit in Whren, al-Kidd’s suit does not involve a typical application of Fourth Amendment principles. See Whren, 517 U.S. at 819, 116 S. Ct. 1769. AlKidd claims that Ashcroft implemented a policy or program sanctioning the arrest and detention of individuals suspected of terrorism under the guise of the material witness statute. Therefore, al-Kidd’s claims against Ashcroft do not hinge on one officer’s basis for probable cause that al-Kidd committed a crime, but rather on the government’s “intrusions undertaken pursuant to a general scheme without individualized suspicion.” Edmond, 531 U.S. at 45-46, 121 S. Ct. 447. For these reasons, Whren does not furnish the appropriate Fourth Amendment analytical framework for reviewing al-Kidd’s claims, and as a result, we properly looked to Edmond and related cases that have employed a programmatic purpose test to gauge the constitutionality of a program or policy.
Our colleague contends that the programmatic purpose test is applicable only in cases involving warrantless searches. But here, accepting al-Kidd’s allegations as true, this case does involve a warrantless search and seizure, as federal agents did not have a warrant to arrest al-Kidd for his commission of terrorism-related crimes.3 Therefore, the programmatic purpose test was
3 Judge O’Scannlain contends there was a warrant in this case, as federal agents possessed a warrant pursuant to the material witness statute. But a warrant is not a carte blanche for officers to do anything they desire under the auspices of the warrant. See Malley v. Briggs, 475 U.S. 335, 345-46, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986) (holding that an officer’s act of applying for a warrant per se does not entitle the officer to qualified immunity). A warrant cannot pass constitutional muster if the scope of the related search or seizure exceeds that permitted by the terms of the validly issued warrant. See Bivens, 403 U.S.

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appropriate in light of the allegations in this particular case. Certainly, there are “challenges inherent in a purpose inquiry,” but nonetheless, “courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive government from that which is lawful.” Id . at 46-47, 121 S. Ct. 447.
III
Judge O’Scannlain also challenges the majority’s holding that al-Kidd’s Fourth Amendment right at issue in this case was clearly established in 2003. The doctrine of qualified immunity seeks to ensure that governmental officials have “fair notice” that their specific actions violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). “It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of the defendants’ actions] was apparent in light of preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741, 122 S. Ct. 2508. In fact, the absence of cases evaluating whether certain policies are constitutional “may be due more to the obviousness of the illegality than the novelty of the legal issue.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). And where the courts do not have the benefit of factually analogous case law to assist with illuminating the parameters of the constitutional right, “general
at 394-95 n.7, 91 S. Ct. 1999. Here, al-Kidd’s complaint alleged that the issued material witness warrant was executed to arrest al-Kidd for being a terrorist suspect, not as a material witness. Therefore, the warrant upon which Judge O’Scannlain bases his argument cannot reach the arrest of al-Kidd for criminal law violations.

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statements of the law” and “general constitutional rule[s] already identified in the decisional law” can adequately furnish the required fair warning to government officials about the constitutionality of their conduct. United States v. Lanier, 520 U.S. 259, 271, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997).
Accepting the factual allegations in al-Kidd’s complaint as true, and drawing all inferences in his favor, we determined that in light of the well-established Fourth Amendment principles in place at the time of al-Kidd’s arrest, Ashcroft had a fair warning that the policy he authorized and encouraged was unconstitutional. Under Beck v. Ohio, Ashcroft knew that an arrest of a criminal suspect is constitutional only if at the time of the arrest, there is probable cause that the arrestee has committed or is committing the offense justifying the arrest. 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). Under Edmond, Ashcroft was on notice that “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion,” and that a program whose primary purpose is indistinguishable from “the general interest in crime control” violates the Fourth Amendment. 531 U.S. at 45-48, 121 S. Ct. 447. Because Ashcroft’s alleged conduct was “so patently violative” of such well-established Fourth Amendment principles, “closely analogous preexisting case law [was] not required to show that the law [was] clearly established.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (internal quotation marks omitted).
Only after we considered those well-established Fourth Amendment principles did we address a timely district court decision featuring a factual scenario

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closely analogous to that faced by al-Kidd. In United States v. Awadallah, Awadallah, like al-Kidd, was detained as a “material witness” for over two weeks in high-security prisons across the country, where he was kept in solitary confinement, shackled, strip-searched, and denied family contact. 202 F. Supp. 2d 55, 58 (S.D. N.Y. 2002). We recognized that the district court’s statements in Awadallah were merely dicta, and that ultimately Awadallah was charged with criminal offenses. Nevertheless, the facts at issue in Awadallah were so closely analogous to those in al-Kidd that we deemed them relevant to the discussion, especially in light of our court’s admonition to consider all relevant decisional law. Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003) (“[I]n the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established for qualified immunity purposes, including decisions of . . . district courts.” (internal quotation marks omitted)); see also Sorrels, 290 F.3d at 971 (“[U]npublished decisions of district courts may inform [a court’s] qualified immunity analysis.”). Further, if anyone in the United States is presumptively on notice of cases involving federal law enforcement officers and the DOJ, it is the nation’s top law enforcement officer.
We did not stake the existence of the clearly established right in this case on the district court’s statements in Awadallah. Rather, the district court’s comments in Awadallah were unsurprising and entirely consistent with the long-established Fourth Amendment principles upon which we principally relied for our holding. Thus, we properly included a reference to Awadallah in considering whether al-Kidd had a clearly established right in March 2003.

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IV
Lastly, Judge O’Scannlain misreads the majority’s decision as holding that a cabinet-level official may be personally liable for actions taken by his subordinate alone. To the contrary, the holding fully complies with the Court’s instruction in Ashcroft v. Iqbal, that “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” — U.S. —, —, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009). Al-Kidd was not required to allege that Ashcroft actually authorized the specific warrant for al-Kidd, or any alleged misrepresentations or omissions contained therein. Under Iqbal, al-Kidd had to “plead sufficient factual matter to show that [Ashcroft] adopted and implemented the detention policies at issue” not for some neutral, lawful reason but for an unlawful purpose. Id . at 1948-49.
The complaint claims Ashcroft created, adopted and implemented a policy of using the material witness statute for an unlawful end. The complaint contains numerous factual allegations supporting that theory, specifically referring to Ashcroft’s liability for his own personal involvement with creating, implementing, and enforcing the alleged policy at issue in this case. The complaint also contains statements made by Ashcroft himself in support of such a policy, including his statements that law enforcement was to use “every available law enforcement tool” to arrest persons “who participate in, or lend support to, terrorist activities,” that it was the government’s policy “to use . . . aggressive arrest and detention tactics in the war on terror,” and that “[a]ggressive detention of lawbreakers and material witnesses [was] vital to preventing, disrupting or delaying new

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attacks.” Thus, al-Kidd’s § 3144 claim is not based upon allegations that Ashcroft simply knew or should have known that federal agents were actually violating or had the potential to violate the material witness statute in connection with the alleged policy; rather the complaint is based upon allegations of Ashcroft’s own misconduct in sanctioning and promulgating a nationwide policy that systematically authorized the misuse of the material witness statute to arrest and detain suspected terrorists for whom the government had insufficient evidence of any wrongdoing.
Al-Kidd’s case came before us in a Rule 12(b)(6) posture, and as such, we have an obligation to assume the allegations in al-Kidd’s complaint are true, whether discovery would bear them out or not. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable[.]”). Accepting alKidd’s factual allegations as true, we concluded that Ashcroft created, authorized, supervised, and enforced a policy that used the material witness statute in contravention of the Fourth Amendment, and that Ashcroft directly violated the material witness statute by his own personal involvement with the challenged policy.
However well-motivated Ashcroft’s intentions may have been in creating, authorizing, supervising, and enforcing the misuse of the material witness statute in contravention of the Fourth Amendment, his motivation does not presumptively immunize the policy, or himself, the nation’s chief law enforcement officer, and others implementing and executing it, from complying with the rule of law. “No man in this country is so high that he is

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above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220, 1 S. Ct. 240, 27 L. Ed. 171 (1882).
V
Finally, my dissenting colleagues express concerns that the court’s decision in this case will dissuade qualified individuals from seeking the position of Attorney General and exercising the full range of their authority if chosen to fill that office. While I acknowledge their concerns, I note that cabinet officers are regularly sued in the courts of the United States, and that the government defends them both individually and in their official capacities, as necessary. I understand that 100% of Ashcroft’s attorney fees incurred to date in this case have been paid by the United States. See 28 C.F.R. § 50.15(a), (b). Moreover, in the event Ashcroft is ultimately held personally liable in this lawsuit for his actions against al-Kidd, he will almost certainly be eligible to claim indemnification from the United States. See 28 C.F.R. § 50.15(c).
The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as Attorney General of the United States. But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States. Mindful that some in high office can be guilty of excessive zeal, former Justice Brandeis, in his famous dissent in Olmstead v. United States, stated:

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Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
277 U.S. 438, 48 S. Ct. 564, 572-73, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting).
The majority stands by its decision in this case, firm in the belief that it complies fully with controlling Supreme Court case law and the Constitution of the United States.
O’SCANNLAIN, Circuit Judge, joined by KOZINSKI, Chief Judge, and KLEINFELD, GOULD, TALLMAN, CALLAHAN, BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:
The majority holds that a former Attorney General of the United States may be personally liable for promulgating a policy under which his subordinates took actions expressly authorized by law. Judge Bea’s dissent from the panel decision clearly and ably describes the several legal errors the panel makes in reaching this startling conclusion. See al-Kidd v. Ashcroft, 580 F.3d 949, 981-1000 (9th Cir. 2009) (Bea, J., dissenting). For my part, I write to express my concern at the scope of this decision. First, the majority holds that al-Kidd’s detention under a valid material witness warrant violated his clearly established constitutional rights-a conclusion that effectively declares the material witness statute unconstitutional as applied to al-Kidd. Second, the majority holds that a cabinet-level official may be

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personally liable for actions taken by his subordinates alone. Because of the gratuitous damage this decision inflicts upon orderly federal law enforcement, I must respectfully dissent from our refusal to rehear this case en banc.
I
On March 14, 2003, federal prosecutors sought a material witness warrant1 to arrest Abdullah al-Kidd in connection with their prosecution of Sami Omar AlHussayen, whom a federal grand jury had indicted for visa fraud and making false statements to U.S. officials. According to a supporting affidavit submitted by prosecutors, al-Kidd had contacts with Al-Hussayen’s suspected Jihadist organization, had received over $20,000 from Al-Hussayen, and, after returning from a trip to Yemen, had met with Al-Hussayen’s associates. The affidavit also stated that al-Kidd had a plane ticket to fly to Saudi Arabia two days later, and that if he left the country, the government would “be unable to secure his presence at trial via subpoena.” Based on this affidavit,
1 The federal material witness statute, 18 U.S.C. § 3144, provides:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

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a federal magistrate judge issued the warrant authorizing al-Kidd’s arrest.
On March 16, federal agents arrested al-Kidd at the ticket counter at Dulles International Airport, outside Washington, D.C. After his arrest, the government detained al-Kidd for a total of sixteen days at several different federal facilities before releasing him on conditions that he surrender his passport, live with his wife at his in-laws’ home in Nevada, limit his travel to Nevada and three other states, and regularly meet with a probation officer. The government did not ultimately call him to testify at Al-Hussayen’s trial, and after the trial concluded, a judge granted al-Kidd’s request that the restrictions on his travel be lifted.
Two years later, al-Kidd filed this lawsuit in the U.S. District Court for the District of Idaho. His first amended complaint alleges that Ashcroft violated the Fourth and Fifth Amendments and the federal material witness statute by promulgating a policy directing federal prosecutors to seek material witness warrants to detain individuals whom they believed, but could not prove, were involved in criminal activities. After the district court denied Ashcroft’s motion to dismiss al-Kidd’s complaint, Ashcroft appealed to this court.2 The panel majority then affirmed the pertinent part of the district court’s ruling in an extraordinarily broad and unprecedented decision.3
2 Al-Kidd’s complaint also names several other federal officers and agencies as defendants. None of the other defendants appealed the district court’s decision denying qualified immunity, and therefore alKidd’s claims against them were not before the panel.
3 In a portion of its opinion in which Judge Bea concurred, the majority reversed the district court’s determination that Ashcroft was not im-

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II
By permitting al-Kidd’s suit to proceed, the majority commits two distinct but equally troubling legal errors, each of which will have far-reaching implications for how government officials perform their duties. First, the majority strips Ashcroft of his official immunity, holding that it was clearly established at the time of al-Kidd’s arrest that prosecutors violate the Fourth Amendment when they obtain and execute a material witness warrant as a pretext for other law-enforcement objectives. Second, by holding that Ashcroft may be personally liable if his subordinates swore false affidavits to obtain the warrant authorizing al-Kidd’s arrest, the majority stretches beyond recognition the rule that a government official is liable only when he personally violates the constitution. See Ashcroft v. Iqbal, — U.S. —, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
A
1
The majority begins by effectively declaring the material witness statute unconstitutional, at least as applied to al-Kidd. But al-Kidd does not appear to contest that he met the statutory requirements for arrest as a material witness. See al-Kidd, 580 F.3d at 957. Nor does he contend that the material witness statute is facially unconstitutional. Id . at 966. The majority nevertheless holds that because prosecutors used a material witness warrant to arrest al-Kidd as a pretext to a criminal investigation, his detention violated the Fourth Amendment. This conclusion-that the material witness
mune from al-Kidd’s claim arising from the conditions of al-Kidd’s confinement. See al-Kidd, 580 F.3d at 977-79.

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statute authorized al-Kidd’s arrest while the Fourth Amendment forbade it-can only mean that the material witness statute itself is unconstitutional in this circumstance.4 With respect, such conclusion is preposterous.
The federal material witness statute has existed since 1789, Bacon v. United States, 449 F.2d 933, 938 (9th Cir. 1971), every state has adopted a version of the statute, id . at 939, and (at least until now), “[t]he constitutionality of th[e] statute apparently has never been doubted,” Barry v. United States ex rel Cunningham, 279 U.S. 597, 617, 49 S. Ct. 452, 73 L. Ed. 867 (1929). The majority’s decision to invalidate a statute passed by the First Congress and retained by every subsequent Congress should have by itself prompted us to rehear this case.
The majority does not stop at declaring a 200-yearold statute unconstitutional, however. It also distorts the bedrock Fourth Amendment principle that an official’s subjective reasons for making an arrest are constitutionally irrelevant. The majority holds that if prosecutors used the material witness warrant as a pretext to arrest al-Kidd “with the ulterior and . . . unconstitu-
4 I acknowledge that the majority does not say that it is declaring the material witness statute unconstitutional. Nevertheless, that is what it does. The majority acknowledges that individuals arrested under the allegedly unconstitutional policy “met the facial statutory requirements of [the material witness statute].” Al-Kidd, 580 F.3d at 957. Despite this, in a section of its opinion entitled “Al-Kidd’s Fourth Amendment Rights Were Violated,” id . at 965, it concludes that al-Kidd’s arrest was impermissible. By concluding that the Constitution invalidates arrests authorized by the statute, the majority must conclude that the statute is unconstitutional to the extent it authorizes arrests such as the one in this case-put another way, that the statute is unconstitutional as applied to al-Kidd.

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tional purpose of investigating or preemptively detaining” him, they violated his Fourth Amendment rights. Al-Kidd, 580 F.3d at 957 (emphasis added). This holding is impossible to square with Supreme Court precedent, which has “flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification.” Whren v. United States, 517 U.S. 806, 812, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (emphasis added). Given that al-Kidd has conceded that he met the facial requirements for arrest under the material witness statute, the prosecutor’s purpose for arresting him is immaterial to the Fourth Amendment analysis because “[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.” Scott v. United States, 436 U.S. 128, 136-37, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); see also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (“[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent[of the government official taking the action].” (internal quotation marks omitted)).
The majority, unfortunately, disagrees. Although it acknowledges that an officer’s subjective intentions are irrelevant to “ordinary, probable-cause Fourth Amendment analysis,” it holds that because al-Kidd’s arrest was not supported by probable cause that al-Kidd had committed a crime, his detention was constitutionally infirm. Al-Kidd, 580 F.3d at 966. To reach this novel result, the majority relies on the Supreme Court’s “programmatic purpose” test. Id . at 968-69. Contrary to the majority’s analysis, that test is totally inapplicable here. The Supreme Court uses the programmatic purpose test to evaluate the constitutionality of warrantless searches.

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See Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). Because al-Kidd was arrested under a valid warrant, however, the programmatic purpose test, and its concern for the purpose of an arrest, is entirely inapplicable here. Thus, the majority concludes that the material witness warrant authorizing al-Kidd’s arrest is unconstitutional only after examining the subjective reasons prosecutors sought the warrant, something the Supreme Court has repeatedly forbidden us to do. This error alone warranted en banc review.
2
The majority then compounds its error by holding that the right to be free from a detention under a pretextual material witness warrant was clearly established at the time of al-Kidd’s arrest. The majority claims this result is compelled by three sources: the clearly established definition of probable cause, al-Kidd, 580 F.3d at 971, “the history and purposes of the Fourth Amendment,” id ., and a footnote in a district court opinion, id . at 972 (quoting United States v. Awadallah, 202 F. Supp. 2d 55, 77 n. 28 (S.D. N.Y. 2002), rev’d on other grounds, 349 F.3d 42 (2d Cir. 2003)).
The majority’s reliance on the first two sources proves too much, of course. All government officials are presumed to be aware of the definition of probable cause and the history and purposes of the Fourth Amendment. If this is sufficient clearly to establish how the Fourth Amendment applies in a particular setting, then how can any Fourth Amendment rule ever not be “clearly established”? See Anderson v. Creighton, 483 U.S. 635, 63940, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).

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The majority’s reliance on Awadallah is possibly even more troubling. The majority’s assertion that three sentences of dicta in a footnote to a subsequently reversed district court opinion clearly establish a right that the majority expended nearly three-thousand words describing is truly astonishing.5 Under the majority’s reasoning, our government’s officials may find themselves subject to suits for decisions that they did notand, even if they spent their time doing nothing but reading reports of federal judicial decisions, could notknow contravened the Constitution. Indeed, the lack of support for the majority’s conclusion is so glaring that even the editorial board of a distinguished newspaper remarked that “officials should not have to fear personal lawsuits for performing their duties in good faith and in violation of no established legal precedent.” Editorial, Suing Mr. Ashcroft: Why a Court’s Decision to Allow a Personal Lawsuit Against the Former Attorney General Should Not Stand, Wash. Post, Sept. 12, 2009, at A16 (emphasis added).
Thus, the majority has held that a former Attorney General might suffer personal liability solely for acting within the bounds of federal law. One shudders at the thought that this decision might deter the incumbent and future Attorneys General from exercising the full range of their lawful authority to protect the security of the United States.
5 In addition, the Chief Judge of the Southern District of New York has expressly declined to follow Awadallah. See In re Application of U.S. for a Material Witness Warrant, 213 F. Supp. 2d 287, 288 (S.D. N.Y. 2002).

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B
The majority goes further still, however, by holding that Ashcroft may be held personally liable to al-Kidd if his subordinates provided false testimony in support of their application for a material witness warrant. AlKidd, 580 F.3d at 975-76. It cannot be contested that alKidd has a clearly established right to be free of an arrest based on fraudulent testimony. See Franks v. Delaware, 438 U.S. 154, 164-65, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Al-Kidd does not allege that Ashcroft personally swore any false testimony, however. Rather, it was Ashcroft’s subordinates who provided the testimony that al-Kidd alleges was false. In light of Iqbal‘s holding that “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct,” 129 S. Ct. at 1949, al-Kidd’s complaint fails to allege facts sufficient to establish a cause of action against Ashcroft.
As Judge Bea explains in detail, al-Kidd does not allege that Ashcroft encouraged federal prosecutors to lie in applications for material witness warrants. AlKidd, 580 F.3d at 992-93 (Bea, J., dissenting). Al-Kidd does not claim that Ashcroft even knew that his subordinates might be submitting false affidavits. At most, alKidd claims that Ashcroft’s policies encouraged his subordinates to use material witness warrants to detain individuals within the maximum extent authorized by law. Id . at 993. By permitting al-Kidd’s claim that Ashcroft has violated Franks to proceed, the majority permits alKidd to seek damages from Ashcroft for his subordinates’ alleged misconduct, a result indisputably at odds with Iqbal. See 129 S. Ct. at 1949.

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III
After this decision, a prosecutor who executes a perfectly valid material witness warrant must worry that he will find himself sued and liable in damages for violating the Fourth Amendment. Moreover, any cabinet-level official must worry that he might be personally liable if his subordinates take an action perfectly consistent with then-existing federal law.6
Because these results are contrary to both logic and law, I respectfully dissent from our unfortunate rejection of the opportunity to correct these errors by rehearing this case en banc.
GOULD, Circuit Judge, with whom KOZINSKI, Chief Judge, and O’SCANNLAIN, KLEINFELD, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I agree with Judge Bea’s persuasive dissent from the majority opinion and agree with Judge O’Scannlain’s
6 The possibility the federal government might reimburse Ashcroft for any judgment against him hardly removes the likelihood that this decision might deter the current or future Attorneys General from carrying out their duties. Anderson, 483 U.S. at 641 n.3, 107 S. Ct. 3034 (noting that 28 C.F.R. § 50.15(c) “permit[ s] reimbursement of Department of Justice employees when the Attorney General finds reimbursement appropriate”). Claims for reimbursement have been denied on occasion. See Falkowski v. EEOC, 719 F.2d 470, 472-76 (D.C. Cir. 1983) (arising after the government declined to represent a former employee in a lawsuit related to her employment), vacated sub nom. U.S. Dep’t of Justice v. Falkowski, 471 U.S. 1001, 105 S. Ct. 1860, 85 L. Ed. 2d 155 (1985); Turner v. Schultz, 187 F. Supp. 2d 1288, 1290 (D. Colo. 2002) (same). Moreover, the decision to provide or to deny such reimbursement is entirely within the discretion of the current Attorney General, and is not subject to judicial review. Falkowski v. EEOC, 764 F.2d 907, 911 (D.C. Cir. 1985).

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persuasive dissent from denial of rehearing en banc. I add this pragmatic concern: If an Attorney General of the United States can be held liable and subject to monetary damages primarily because of actions of law enforcement subordinates, who allegedly gained and executed a material witness warrant for contrived purposes, I fear that it will become more difficult to persuade a person of great talent and integrity to leave his or her current occupation in order to hold the nation’s highest law office. The panel majority’s decision in effect says “good bye” to many talented persons who would otherwise be willing to serve as Attorney General with great distinction and attendant benefit to our country.

 
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View U.S. Circuit Court Opinion View Original Source Image of This Document
ABDULLAH AL-KIDD, Plaintiff-Appellee, v. JOHN ASHCROFT, Defendant-Appellant, and ALBERTO GONZALES, ET AL, Defendants.
No. 06-36059 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2006 U.S. 9th Cir. Briefs 36059; 2009 U.S. 9th Cir. Briefs LEXIS 906 October 19, 2009
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO. Petition
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. Circuit Court: Brief(s) COUNSEL: [*1] ANNE RAVEL, Deputy Assistant Attorney General, ROBERT M. LOEB, MATTHEW M. COLLETTE, SARANG V. DAMLE, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C. TITLE: Petition For Rehearing En Banc TEXT: INTRODUCTION AND STATEMENT REQUIRED BY FED. R. APP. P. 35(b)
Pursuant to Fed. R. App. P. 40 and 35, defendants-appellant John Ashcroft respectfully petitions this Court for rehearing en banc. A divided panel of this Court held that former Attorney General John Ashcroft is not entitled to absolute or qualified immunity on plaintiff's claim that former Attorney General Ashcroft adopted and implemented a policy of using material witness warrants to detain terrorist suspects who the government wished to investigate but did not have probable cause to arrest. The panel majority decision (authored by Judge Milan Smith) reflects significant legal errors that conflict with established Supreme Court precedent.
First, in denying former Attorney General Ashcroft absolute immunity for an act that is undeniably prosecutorial, the panel majority held that courts may inquire into a prosecutor's "immediate purpose," and thereby convert a prosecutorial function into [*2] an investigative function. That holding is inconsistent with longstanding and uniform case law precluding examination of a prosecutor's motives in determining whether absolute immunity applies. See Buckley v. Fitzsimmons, 509 U.S. 259, 271-73 (1993); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). This newly-created "immediate purpose" exception to absolute immunity substantially undermines the purpose of the doctrine, allowing a party to subject a prosecutor to burdensome litigation and discovery simply by alleging an

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"immediate" investigatory purpose.
Second, the majority held that the use of material witness warrants for an allegedly investigatory purpose is a per se constitutional violation. That holding is inconsistent with Supreme Court precedent recognizing that purpose is irrelevant to the Fourth Amendment inquiry. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Whren v. United States, 517 U.S. 806, 808-10 (1996). The panel, after attempting to distinguish these cases in favor of inapposite cases involving the constitutionality of motor vehicle checkpoints, compounded its error by holding that [*3] its unprecedented decision (supported only by dicta in a footnote of a district court decision), was sufficiently "clearly established" to impose personal monetary liability upon former Attorney General Ashcroft. The majority's holding allowing wide-ranging discovery into a prosecutor's alleged investigatory motive even when the requirements of the material witness statute have been met - will significantly impede prosecutors' ability to obtain necessary material witness warrants and effectively preclude investigation of anyone detained as a material witness.
Third, the majority ruled that former Attorney General Ashcroft may be held responsible for alleged misstatements or omissions in the affidavit of an FBI agent filed in conjunction with the material witness warrant. This holding rests upon a theory of supervisory liability that is directly contrary to the Supreme Court's decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
STATEMENT
1. This case stems from the designation of plaintiff Abdullah Al-Kidd as a material witness in a criminal proceeding against Sami Omar Al-Hussayen for visa fraud and making false statements. Plaintiff was arrested on [*4] a material witness warrant as he was preparing to board a plane for Saudi Arabia, and was released about two weeks later after agreeing to surrender his passport and limit his travel. Plaintiff ultimately was not called as a witness in the trial of Al-Hussayen, and the conditions of release were removed.
2. Plaintiff thereafter brought this civil action against numerous officials of the FBI and the Department of Justice (including former Attorney General Ashcroft), and against the United States under the Federal Tort Claims Act, alleging that his arrest, detention, and conditions of confinement violated the Fourth and Fifth Amendments, the material witness statute, and the Bail Reform Act.
As against former Attorney General Ashcroft, plaintiff principally alleged that after the terrorist attacks on September 11, 2001, Ashcroft, as Attorney General, "developed, implemented and set into motion a policy and/or practice" of using the material witness statute as a pretext "to arrest and detain terrorism suspects about whom [the government] did not have sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further," and that this policy [*5] led to his arrest. ER 29. He also claimed that FBI agents preparing the material witness warrant affidavit included material misrepresentations and omissions, ER 15-16, and that former Attorney General Ashcroft could be held liable for those subordinates' actions, ER 39. Plaintiff also claimed that former Attorney General Ashcroft was liable under the Fifth Amendment for the conditions of confinement under which he was detained. ER 40.
3. The district court denied former Attorney General Ashcroft's motion to dismiss on grounds of lack of personal jurisdiction, absolute prosecutorial immunity, and qualified immunity. A divided panel of this Court affirmed in part and reversed in part.
The panel majority first held that absolute immunity did not shield former Attorney General Ashcroft from liability for the alleged policy of using material witness warrants to detain terrorism suspects for investigative purposes. Although the panel acknowledged that "absolute immunity ordinarily attaches to the decision to seek a material witness warrant," slip op. 12285, it nevertheless held that seeking a material witness warrant is not subject to absolute immunity if its "immediate purpose" is investigatory. [*6] Id. at 12990.
The panel majority next held that former Attorney General Ashcroft is not entitled to qualified immunity. The panel

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held that, even when the requirements of the material witness statute are met, arresting a witness for the purpose of investigation violates the Fourth Amendment. The majority distinguished longstanding case law foreclosing an inquiry into subjective purpose when determining an arrest's validity, holding instead that material witness arrests are governed by "Fourth Amendment analysis of programs of seizures without probable cause," such as motor vehicle checkpoints set up to interdict drugs. Slip op. 12297-12300. Because analysis of those programs involves an inquiry into their "programmatic purpose," the majority held that absent probable cause to believe that a material witness himself engaged in wrongdoing, resort to the material witness statute as a means of investigating him or placing him in preventative detention violates the Fourth Amendment. Id. at 12301.
The majority then concluded that, although no court had squarely addressed the issue, cases involving police checkpoints had "put Ashcroft on notice" that the material witness detentions [*7] would be judged by their "programmatic purpose." Slip op. 12305-06. Appealing to "the history and purposes of the Fourth Amendment," id. at 12306, and relying on "dicta in a footnote of a district court opinion," the majority held that the Attorney General should have known of the clear unlawfulness of his actions. Id. at 12308.
The majority then held that plaintiff's complaint was sufficient to state a claim against former Attorney General Ashcroft for supervisory liability with respect to the claim that subordinates lied and made material omissions when filing the warrant application in this case. Slip op. 12309-18. The majority held that former Attorney General Ashcroft could be held liable for "setting in motion a series of acts by others * * * which [he] knew or reasonably should have known would cause others to inflict constitutional injury" or for "acquiescence in the constitutional deprivation by subordinates." Id. at 12294.
4. Judge Bea dissented in relevant part. He disagreed that the "programmatic purpose" test applied because here the arrest was pursuant to a warrant. Slip op. 12334. As long as the arrest was objectively reasonable, the subjective purposes [*8] of the officials were immaterial. Id. at 12331. Nor, in any event, was it clearly established that a valid material witness warrant could not be used if the official had an investigative purpose, since no court had applied the programmatic purpose test to seizures pursuant to warrants. Id. at 12343. Former Attorney General Ashcroft was therefore entitled to qualified immunity. On the false affidavit claim, Judge Bea stressed that former Attorney General Ashcroft's alleged role was with respect to the alleged general policy of pretextual use of the material witness statute, not a policy to lie in material witness affidavits. Id. at 12345. Judge Bea would also have held that absolute immunity applied. See id. at 12358.
ARGUMENT
I. THE PANEL MAJORITY UNDERMINED THE PROTECTIONS OF ABSOLUTE IMMUNITY BY CRAFTING AN "IMMEDIATE PURPOSE" EXCEPTION.
In denying absolute immunity to former Attorney General Ashcroft, the majority did not question the proposition, supported by ample case law, that seeking a material witness warrant generally falls within the sphere of prosecutorial actions with an intimate connection to the judicial process. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976); [*9] Daniels v. Keiser, 586 F.2d 64, 68-69 (7th Cir. 1978). Instead, it carved out a novel (and sizeable) exception to the protections afforded by absolute immunity. It held that a prosecutor is not entitled to absolute immunity for seeking a material witness warrant when the "immediate purpose" of that warrant was not to secure a person's presence for a criminal proceeding, but "to investigate or preemptively detain a suspect." Slip op. 12290. And since the prosecutor did not have absolute immunity in such circumstances, neither did former Attorney General Ashcroft for setting a policy of using material witness warrants for investigative or detention purposes.
This "immediate purpose" exception is contrary to the Supreme Court's and this Court's precedents. It is well established that the scope of immunity does not turn on the motive or intent of the prosecutor. Fitzsimmons, 509 U.S. at 271-73; Ashelman, 793 F.2d at 1078. But the majority's reasoning effectively replaces the simple legal inquiry into the "nature of the function being performed" with a complicated factual inquiry into the subjective "purposes" of the

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prosecutor. No [*10] other court has adopted the majority's approach, and several courts of appeals have expressly rejected it. See, e.g., Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (the "fact that improper motives may influence" a prosecutor's exercise of discretion "cannot deprive him of immunity"); Austin Mun. Sec. Inc. v. National Ass'n of Securities Dealers, 757 F.2d 676, 685 (5th Cir.1985) ("the intent with which * * * defendants operate is irrelevant to the absolute immunity issue"). Indeed, it would be particularly anomalous for the application of absolute immunity to turn on an officer's motive, when the Supreme Court has expressly eliminated any inquiry into motive for purposes of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Davis v. Scherer, 468 U.S. 183, 191 (1984) (Harlow rejected the "inquiry into state of mind in favor of a wholly objective standard").
Permitting an inquiry into prosecutorial motives - whether to uncover discriminatory animus or a supposedly unlawful "investigatory purpose" - would largely undermine the purposes of the absolute immunity defense. Absolute [*11] prosecutorial immunity "is based upon the same considerations that underlie the common-law immunities of judges and grant jurors acting within the scope of their duties." Imbler, 424 U.S. at 422-23. These public policy considerations "include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Id. at 423. But as the dissent recognized, applying the majority's rule - i.e., determining the subjective intent of the prosecutor - would require "precisely the kind of expensive discovery and litigation [that] immunity was designed to avoid." Slip op. 12357-58.
The majority attempted to distinguish this large body of contrary precedent by asserting (op. 12285) that those cases involve "allegations that the otherwise prosecutorial action was secretly motivated by malice, spite, bad faith, or self-interest." Yet the majority offered no reasoned explanation as to why an allegedly racist prosecutor who seeks material witness warrants for discriminatory [*12] reasons would be protected by absolute immunity, but a prosecutor taking the same action for the purpose of investigating a crime would not. There simply is no support for the majority's view that inquiry into the motives of the prosecutor is permissible for some purposes but not others.
At bottom, the majority's ruling creates a huge loophole in the absolute immunity defense. Even the majority recognized that plaintiffs would likely use the "immediate purpose" exception to sue prosecutors for bringing criminal charges with the "real" immediate purpose of pressuring the defendant to provide information on other suspects. The majority, however, saw little danger of such actions succeeding because a "prosecutor who files charges may hope, eventually, that the petty crook will implicate his boss," but that "the immediate purpose of filing charges is to bring a prosecution-the better to pressure the defendant into providing information." Slip op. 12290 (emphasis in original). But that dictum will come as cold comfort to prosecutors, since the majority offered no principled basis for its asserted distinction. The majority does not explain why a plaintiff cannot simply allege that [*13] the prosecutor's "immediate purpose" for bringing a prosecution is the desire to investigate another defendant that the government lacks probable cause to arrest, thereby overcoming absolute immunity. And, as the dissent pointed out, if the majority's attempted distinction makes sense, "why isn't the prosecutor's 'immediate purpose' in this case to secure a witness's appearance at trial rather than to obtain evidence against al-Kidd?" Id. at 12358.
In sum, the panel majority's absolute immunity ruling creates a dangerous precedent that undermines the absolute immunity afforded to prosecutors. The ruling cannot be squared with Supreme Court and circuit precedent and should be reheard by this Court sitting en banc.
II. THE PANEL MAJORITY ERRED IN DENYING FORMER ATTORNEY GENERAL ASHCROFT QUALIFIED IMMUNITY.
The panel majority's decision denying former Attorney General Ashcroft qualified immunity also warrants en banc review. First, the majority's holding that the use of material witness warrants for an allegedly investigatory purpose amounts to a per se constitutional violation is wrong. Second, the majority, after distinguishing a string of Supreme Court precedent, [*14] engrafting a standard gleaned from an entirely different aspect of Fourth Amendment law, and relying on dicta in a district court footnote, erred in holding that the law was sufficiently clear to hold a Cabinet-level

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officer personally liable for a never-before-recognized constitutional violation.
1. Plaintiff did not challenge the facial constitutionality of the material witness statute. See Slip. op. 12296. Rather, as the dissent pointed out, plaintiff's claim is that "even if the material witness warrant on which he was detained was objectively valid and supported by probable cause, the prosecutor's subjective intention to use the material witness warrant to accomplish other, law-enforcement objectives renders the government's conduct unconstitutional." Id. at 12331 (emphasis in original).
Contrary to the majority's holding, a facially proper material witness warrant obtained for allegedly improper reasons - whether investigative or otherwise - does not violate the Fourth Amendment. A long line of Supreme Court precedent holds that, under the Fourth Amendment, an officer's motives are irrelevant in determining the lawfulness of his or her conduct. For example, [*15] in Whren v. United States, 517 U.S. 806, 813 (1996), the Supreme Court expressly rejected the contention that the Constitution prohibits the use of traffic offenses "as pretexts for pursuing other investigatory agendas," id. at 811, and held that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis," id. at 813. The Court reemphasized this point again in Devenpeck v. Alford, 543 U.S. 146, 153 (2004), holding that an officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause."
The majority held that Whren and Devenpeck do not apply here, because those cases involved arrests based on "probable cause to believe that a violation of law has occurred." Slip op. 12297 (quoting Whren, 517 U.S. at 811) (emphasis by the majority). The majority noted that, by contrast, "[a]n arrest of a material witness is not justified by probable cause because the two requirements of § 3144 (materiality and impracticability) do not constitute the elements of a crime." Id. at 12298. The majority [*16] thus concluded that because a material witness arrest is not supported by "probable cause to arrest," it was more appropriate to adopt the "programmatic purpose" standard from cases involving warrantless searches at motor vehicle checkpoints, which appears to allow some examination of subjective motivations of government officials, though only at a "programmatic" level. See Illinois v. Lidster, 540 U.S. 419 (2004); City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
The majority's approach is fundamentally flawed. First, the majority's attempted distinction between pretextual arrests for minor traffic violations and material witness arrest warrants is without foundation. An officer who arrests an individual for a minor traffic violation, while secretly wishing to detain the suspect for narcotics trafficking, lacks probable cause to detain the suspect for the latter crime, yet the officer's motive is irrelevant. The majority does not explain why motive suddenly becomes relevant when an otherwise lawful material witness arrest occurs. Both situations involve detentions that are lawful on their face, and both involve allegations that the officer lacked [*17] probable cause to arrest the suspect for the particular crime that allegedly motivated the arrest.
Moreover, the majority's adoption of the "programmatic purpose" standard from Lidster and Edmond is incorrect. That standard is a limited exception to the general rule that motive is irrelevant. Thus, in United States v. Knights, the Court concluded that, "[w]ith the limited exception of some special needs and administrative search cases, [the Court] ha[s] been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers." 534 U.S. 112, 122 (2001) (citing Edmond, 531 U.S. at 45, and Whren, 517 U.S. at 813).
In addition, the "programmatic purpose" standard used in Lidster and Edmond makes little sense here, where the arrest was made pursuant to a warrant issued by a neutral magistrate. As the dissent explained, "[t]he 'programmatic purpose' inquiry is necessary to test the validity of a special needs search precisely because such searches occur without the procedural protections of the warrant requirement and the magisterial supervision it entails." Slip op. 12335. [*18] Here, by contract, the majority has held that even a perfectly accurate affidavit that complies fully with the statute and that a judge correctly approved as supporting the issuance of a material witness warrant can be challenged as a Fourth Amendment violation if the subjective intent of the prosecutor who sought the warrant was to further some ancillary investigative objective. Because the majority's holding requires courts to look beyond the objective reasonableness of the warrant to the subjective purpose for which it was sought, rehearing en banc is warranted.

2006 U.S. 9th Cir. Briefs 36059; 2009 U.S. 9th Cir. Briefs LEXIS 906, *18

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2. However, even if one could conclude that the investigatory use of material witness warrants violates the Fourth Amendment, former Attorney General Ashcroft is entitled to qualified immunity because that norm had not been clearly established. At the time of plaintiff's arrest as a material witness, no reasonable official would have been on notice that, where the requirements of the material witness statute are satisfied, using a material witness warrant for the purpose of investigating a suspect violates the Fourth Amendment.
The majority acknowledged that no case had "squarely confronted the question of whether misuse [*19] of the material witness statute to investigate suspects violates the Constitution." Slip op. 12304. The only case the majority identified even remotely addressing the "specific context of [this] case," Brosseau v. Haugen, 543 U.S. 194, 199 (2004), was a district court decision that, in dictum in a footnote, warned that the material witness statute "should not be abused as an investigatory anti-terrorism tool." Slip op. 12307-08. Nothing in that footnote established reasonable contours for a prosecutor to conclude that having a subjective alternative motive, whatever that motive might be, for obtaining an otherwise-valid material witness was a Fourth Amendment violation.
In fact, the federal courts have rejected the contention that an intent to investigate an individual as a suspect invalidates a material witness warrant even where the statutory criteria have been met. In United States ex rel. Glinton v. Denno, 339 F.2d 872, 875 (2d Cir. 1964), a criminal defendant originally detained as a material witness argued that "it is irrelevant that the police complied with the technicalities of the material witness statute, because as the 'target' of the [*20] grand jury proceeding he could not have been summoned to testify, * * * and therefore could not be held as a witness." But as the court held, "[t]his argument has no merit." Ibid. The court found "dispositive" the decision in People v. Perez, 300 N.Y. 208, 219, 90 N.E. 40, 46 (Ct. App. N.Y. 1949), in which the court upheld a situation almost identical to the practice alleged here: "While the police may have suspected defendant of the murder, they did not have enough evidence to hold him as a defendant until shortly before he confessed. His detention during that period was lawful because, in light of his admitted knowledge of many of the circumstances surrounding the murder, his commitment as a material witness was valid." Ibid.
The majority further erred in concluding that, because the Supreme Court had long established the "programmatic purpose" inquiry for administrative or "special needs" warrantless searches, this "should have been sufficient to put Ashcroft on notice that the material witness detentions * * * would similarly be subject to an inquiry into programmatic purpose." Slip op. 12305-306. As explained above, cases involving warrantless searches [*21] and seizures have no clear relevance to the constitutionality of arrests of material witnesses pursuant to warrants issued by a neutral magistrate.
Indeed, the majority's attempted distinction of cases such as Whren and Devenpeck, and its unprecedented adoption of a "programmatic purpose" standard in this context, was insufficient even to convince its dissenting colleague. It is patently untenable to render the former Attorney General subject to burdensome litigation and potential liability on the basis of so thin a reed. See Wilson v. Layne, 526 U.S. 603, 618 (1999) (when "judges thus disagree on a constitutional question, it is unfair to subject [public employees] to money damages for picking the losing side of the controversy") .
III. THE PANEL MAJORITY ERRED IN HOLDING THAT FORMER ATTORNEY GENERAL ASHCROFT CAN BE HELD PERSONALLY LIABLE FOR THE ALLEGEDLY DEFICIENT AFFIDAVIT USED TO SEEK A MATERIAL WITNESS WARRANT.
The panel majority also held that former Attorney General Ashcroft may be held personally responsible not just for the alleged policy of obtaining material witness warrants for investigatory purposes, but also for specific alleged [*22] misstatements or omissions in the affidavit used to obtain the warrant to arrest plaintiff in this case - even though the complaint is devoid of allegations that former Attorney General Ashcroft had any involvement in, or even knowledge of, the warrant used in this case. That holding is flatly inconsistent with the Supreme Court's decision in Iqbal.
Iqbal set forth two principles important to this case. First, the Court explained that the Federal Rules of Civil Procedure require plaintiff to provide "sufficient factual matter, accepted as true, to 'state a claim to relief that is

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plausible on its face.'" 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Second, the Court held that government officials may not be held liable for the misconduct of their subordinates under broad theories of "supervisory liability." Iqbal, 129 S.Ct. at 1949. Instead, a supervisory official may be held liable under Bivens only if a plaintiff demonstrates that the supervisor "through [his or her] own individual actions, has violated the Constitution." Id. at 1948.
The majority's decision here [*23] is plainly inconsistent with Iqbal. First, the majority, without acknowledging Iqbal's extensive discussion of the issue, held that former Attorney General Ashcroft could be held liable merely for "setting in motion a series of acts by others * * * which [he] knew or reasonably should have known would cause others to inflict constitutional injury" or for "acquiescence in the constitutional deprivation by subordinates." Slip op. 12294. But Iqbal expressly rejected that approach. Just as in this case, the plaintiff in Iqbal alleged that the former Attorney General was the "principal architect" of a policy, and that he knew or should have known that constitutional violations were occurring and failed to correct them. The Iqbal Court held that the claim of "knowledge and acquiescence" is insufficient to impose supervisory liability. 129 S.Ct. at 1949.
The majority mistakenly characterized Iqbal as requiring only that the supervisor "was involved in the constitutional deprivation." Slip op. 12312 n.23 (emphasis added). But the proper inquiry is not whether the supervisor was somehow involved in constitutional deprivations, but whether that [*24] supervisor, through his own individual actions, "violated the Constitution." Iqbal, 129 S.Ct. at 1949 (emphasis added). The majority's supervisory liability holding is therefore incorrect.
CONCLUSION
For the foregoing reasons, this Court should vacate the panel's decision and rehear this case en banc.
Respectfully submitted,
ANNE RAVEL Deputy Assistant Attorney General n1
n1 Assistant Attorney General Tony West is recused in this matter.

ROBERT M. LOEB (202) 514-4332 MATTHEW M. COLLETTE (202) 514-4214 SARANG V. DAMLE (202) 514-5735 Attorneys, Appellate Staff Civil Division, Room 7212 Department of Justice Washington, D.C. 20530-0001
OCTOBER 2009
BRIEF FORMAT CERTIFICATION
I hereby certify that the Petition for Rehearing En Banc complies with the Type-Volume requirements of 9th Cir. R.

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40-1(a) in the following manner:
The Brief was prepared using Corel Wordperfect 12.0. It is proportionately spaced in 14-point type, and contains [*25] 4,077 words.
MATTHEW M. COLLETTE Counsel for Appellant
CERTIFICATE OF SERVICE
I hereby certify that on October 19, 2009, I electronically filed the foregoing Petition for Rehearing En Banc with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system, which will send Notice of Electronic Filing to the following persons:
Lee Gelernt American Civil Liberties Union 125 Broad St. 18th Floor New York, NY 10004
Cynthia Jane Wooley Law Offices of Cynthia J. Wooley P.O. Box 6999 Ketchum, ID 83340
Lee-Anne Mulholland Wilson, Sonsini, Goodrich & Rosati 650 Page Mill Road Palo Alto, CA 94304-1050
Robin L. Goldfaden ACLU Immigrants' Rights Project 39 Drumm St. San Francisco, CA 94111
I hereby certify that on October 19, 2009, I served the following counsel by causing two copies to be mailed to:
R. Keith Roark Roark Law Firm 409 North Main Street Haily, ID 83333
Alison M. Tucher Elizabeth O. Gill Morrison & Foerster, LLP 425 Market St. San Francisco, CA 94105
Erin J. Holland Wilson, Sonsini, Goodrich & Rosati 650 Page Mill Road

2006 U.S. 9th Cir. Briefs 36059; 2009 U.S. 9th Cir. Briefs LEXIS 906, *25
Palo Alto, CA 94304-1050 MATTHEW [*26] M. COLLETTE Counsel for Appellant
[SEE OPINION IN ORIGINAL]

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View U.S. Circuit Court Opinion View Original Source Image of This Document
ABDULLAH AL-KIDD, Plaintiff - Appellee, v. JOHN ASHCROFT, Defendant Appellant, and ALBERTO GONZALES, ET AL., Defendants. No. 06-36059
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 2006 U.S. 9th Cir. Briefs 36059; 2009 U.S. 9th Cir. Briefs LEXIS 907 November 10, 2009
On Appeal From a Judgment of the United States District Court for the District of Idaho. Petition
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. Circuit Court: Brief(s) COUNSEL: [*1] R. Keith Roark, ISB No. 2230, The Roark Law Firm, LLP, Hailey, ID, Michael J. Wishnie, Yale Law School, New Haven, CT, (Cooperating Counsel for the ACLU), Lee Gelernt, Farrin R. Anello, Tanaz Moghadam, American Civil Liberties Union Foundation, New York, NY, Lucas Guttentag, American Civil Liberties Union Foundation, San Francisco, CA, Cynthia J. Woolley, ISB No. 6018, The Law Offices of Cynthia J. Woolley, Ketchum, ID. TITLE: Opposition To Petition For Rehearing En Banc TEXT: INTRODUCTION
Defendant does not offer any new arguments in support of rehearing or claim that the Court failed to address his original arguments. Instead, he argues that the decision is wrong and that rehearing is thus warranted. In defendant's view, he is entitled to dismissal of all claims, even if he created and implemented a nationwide policy of deliberately using the material witness statute to preventively detain and investigate innocent individuals whom the government lacked probable cause to charge with a crime. That is an extraordinary position and was properly rejected by both this Court and Judge Lodge in the district court.
BACKGROUND The complaint alleges that defendant adopted a [*2] nationwide policy of using the material witness statute not to secure testimony, but to detain and investigate suspects. Among other things, defendant himself made clear that he would use the material witness statute for the purpose of preventive detention and investigation, stating that the "[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks .

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. . ." First Amended Complaint (FAC) 117 (emphasis added). See FAC 118-24 (statements of other high-level officials).
The complaint further alleges that the material witness statute was previously used "sparingly" and under "narrow circumstances," but that after 9-11 it was used "routinely" and in "new" ways that represented a drastic shift in policy. FAC 110, 111. In particular, the complaint states that: (a) material witnesses were routinely held in "high security" conditions throughout the country, more fit for terrorism suspects than supposedly innocent witnesses (PP 129-33); (b) a substantial percentage of post 9-11 material witnesses were ultimately not asked to provide testimony (P 128); (c) many post 9-11 witnesses were not offered immunity, a departure [*3] from standard pre-September 11 practice (P 128); DOJ routinely sought to seal material witness information (P 135); and many witnesses were detained for prolonged periods of time - by DOJ's own estimate, half were detained for more than 30 days (P 133).
The complaint also specifically alleges that Mr. al-Kidd's arrest and detention precisely fit this nationwide pattern of abuse. See, e.g., FAC 1-16, 39-69, 137-41. In 2002, FBI agents conducted surveillance of Mr. al-Kidd as part of a broad terrorism investigation in Idaho. The surveillance logs did not report any illegal activity and Mr. al-Kidd was not charged with a crime. FAC 44. In March 2003, however, plaintiff was humiliatingly arrested as a material witness and led away in handcuffs by FBI agents in front of scores of onlookers. After interrogating Mr. al-Kidd, the FBI had him jailed and, over the next fifteen days, shuffled him between three different detention facilities across the country. When transported between facilities, he was shackled. At each facility, he was held under high-security conditions. FAC 5, 6.
While Mr. al-Kidd remained in detention, FBI Director Mueller testified before Congress and offered examples [*4] of the government's recent "successes" in combating terrorism. The first example was the capture of Khalid Shaikh Mohammed, alleged to be the "mastermind" of the 9/11 attacks. The next was the arrest of Mr. al-Kidd. Director Mueller then listed three additional examples, all involving individuals who had been charged with terrorism-related offenses. The Director's testimony did not mention that Mr. al-Kidd had been arrested as a witness, and not on criminal charges. FAC 8.
Mr. al-Kidd was eventually released from detention under strict conditions. More than fourteen months later, the trial for which Mr. al-Kidd's testimony was supposedly needed ended without conviction on a single count. Mr. al-Kidd was never called as a witness (and was never subsequently charged with a crime). FAC 9.
The affidavit for Mr. al-Kidd's arrest was facially deficient and also contained significant false statements and omissions. Indeed, the government has since admitted that Mr. al-Kidd had a round-trip ticket, and not a one-way ticket as alleged in the affidavit (an admission made only after Mr. al-Kidd had spent more than two weeks in detention). Furthermore, Mr. al-Kidd did not have a first-class [*5] ticket costing approximately $ 5,000, as alleged, but rather a coach-class ticket costing less than $ 2,000. FAC 14.
In addition to the false statements, the affidavit was wholly misleading in what it failed to say, including:
- that Mr. al-Kidd was not a Saudi national returning to his home country, but a U.S. citizen born in 1972 in Kansas and a former football player at the University of Idaho;
- that Mr. al-Kidd had a wife, child, parents, and siblings who were native-born U.S. citizens living in this country;
- that Mr. al-Kidd had voluntarily talked with the FBI on several occasions prior to his arrest;
- that Mr. al-Kidd had never failed to show up to these pre-arranged meetings;
- that prior to his arrest, Mr. al-Kidd had not heard from the FBI for approximately six months;
- that the FBI had never told Mr. al-Kidd that he might be needed as a witness, that he could not travel abroad, or that he must inform the FBI if he did intend to travel abroad; and finally,

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- that Mr. al-Kidd was never asked if he would be willing to testify, to voluntarily relinquish his passport or to otherwise postpone his trip to Saudi Arabia (where he was scheduled to study on a scholarship [*6] at a well-known university). FAC 15.
In short, the FBI simply blindsided a cooperative U.S. citizen months after it had last contacted him, without ever affording him the opportunity to testify voluntarily - all under the pretense that his testimony was critically needed for a future trial (a trial in which he was never called to testify). FAC 16.
ARGUMENT
I. THE COURT PROPERLY REJECTED DEFENDANT'S CLAIM OF ABSOLUTE IMMUNITY.
The "actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Rather, the court must "examine 'the nature of the function performed, not the identity of the actor who performed it.'" Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (citation omitted) (emphasis added). n1

n1 Defendant implies that this Court created a whole new inquiry - the "immediate purpose" test. Reh'g Pet. 8. But the Court's opinion talks at length (and applies) the Supreme Court's "functional approach." Slip op. at 12282-92. Indeed, this Court's reference to "immediate purpose" was a quote from the Supreme Court. Slip op. at 12286 (quoting Buckley, 509 U.S. at 275). And, in Buckley, the Supreme Court was simply applying the functional test by necessarily looking at purpose. See infra (discussing relevance of purpose).
[*7]
Under the Supreme Court's functional approach, prosecutors have consistently been denied absolute immunity where they are engaging in police-type functions that are "investigative in character." Buckley, 509 U.S. at 274; see id. (a "prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested").
Here, plaintiff alleges that defendant misused the material witness statute to investigate plaintiff and other individuals for possible criminal activity. Defendant nonetheless maintains that he is entitled to absolute immunity, arguing that the Court may look only at a prosecutor's acts, and not his motivation, in determining whether he was engaged in an investigative or prosecutorial function.
But as this Court's opinion explains, the Supreme Court and lower courts have consistently looked at a prosecutor's purpose and goals in determining whether an act involves a prosecutorial function. Slip op. at 12282-92. See, e.g., Buckley, 509 U.S. at 274-75 (noting that the same act can have different functions and thus finding it necessary to conduct a "careful examination of the allegations" [*8] in the complaint to determine whether the prosecutors' "mission" and "immediate purpose" at the time they reviewed the evidence and witnesses was "investigative in character"); KRL v. Moore, 384 F.3d 1105, 1111, 1113-15 (9th Cir. 2004) (examining the "goals" underlying a post-indictment search warrant, looking beyond the face of the warrant to such evidence as deposition testimony, affidavits and the prosecutor's press statements); Genzler v. Longanbach, 410 F.3d 630, 638 (9th Cir. 2005) (noting that pre-trial "[w]itness interviews may serve either an investigative or an advocacy-related function"); Kulwicki v. Dawson, 969 F.2d 1454, 1466 (3d Cir. 1992) ("complaint on its face point[ed] more convincingly to 'investigation' than to 'prosecution'"). n2

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n2 Applying the functional approach, Justice Kennedy has stated that "[t]wo actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions. . . . The conduct is the same but the functions distinct." Buckley, 509 U.S. at 289 (concurring in part and dissenting in part).
[*9]
The government is thus incorrect that the same act cannot yield different immunity results depending on the prosecutor's objectives. Indeed, the government's position would leave the courts with no meaningful way of determining whether certain acts by prosecutors are entitled to absolute or qualified immunity.
Moreover, if defendant were entitled to absolute immunity, it would create a perverse result: he would get greater immunity than the two FBI agents who prepared and submitted the affidavit in this case - even if they were simply carrying out his investigative policy directives (issued in his capacity as the ultimate head of the FBI). See Burns v. Reed, 500 U.S. 478, 495 (1991) ("it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice"); Buckley, 509 U.S. at 276 ("When the functions of prosecutors and detectives are the same . . . the immunity that protects them is also the same.").
Defendant notes that some courts have granted prosecutors absolute immunity for material witness warrants. Reh'g Pet. 8 (citing [*10] Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978)). But in those cases there was no allegation that the prosecutor was seeking to use the material witness laws to investigate the witness for possible criminal wrongdoing, i.e., engaging in functions typically carried out by law enforcement. Slip op. at 12284-85 (discussing Daniels).
Defendant also claims that his position is supported by cases holding that courts generally may not look at the motives of a prosecutor, even if they are racist, political or otherwise egregious. Reh'g Pet. 10. But those cases also have no bearing here. A prosecutor is entitled to absolute immunity in carrying out his official prosecutorial functions - even if he acts for egregious reasons. Here, plaintiff is not asserting that the Court should look at the motive behind prosecutorial acts, but rather, whether those acts were prosecutorial in the first place. Slip op. at 12285 (discussing these cases).
In sum, to accept defendant's argument, this Court would have to hold that the Attorney General is entitled to complete immunity even where he issues a nationwide policy directing FBI agents to seek material witness warrants [*11] for the purpose of investigating and preventively detaining suspects whom the government otherwise could not detain because it lacked evidence to charge with a crime. The Court properly rejected that extreme position.
II. THE COURT PROPERLY REJECTED DEFENDANT'S CLAIM OF QUALIFIED IMMUNITY.
A. Defendant's Policy Violated the Fourth Amendment.
The material witness statute represents a dramatic and exceedingly narrow departure from the traditional rule that an individual may not be arrested and detained in the absence of probable cause of wrongdoing. Indeed, an arrest of an innocent witness is extraordinary and has only been assumed to be constitutional because of society's compelling need to ensure the testimony of witnesses. See, e.g., Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617 (1929); cf. In re Prestigiacomo, 234 A.D. 300, 302 (N.Y. App. Div. 1932) (per curiam) ("Whether constitutional or not . . . the [state material witness] statute is harsh, and carries interference with personal liberty to an extreme limit. . . . Its use for purposes plainly beyond its scope should not be permitted.") (citations omitted). [*12]
Defendant seeks to bootstrap on to this narrow exception to the Fourth Amendment, arguing that the government can intentionally use the material witness statute to arrest innocent individuals, not to obtain testimony, but to detain and investigate them for criminal wrongdoing. But that would allow the government to do a clear end-run around the limited

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Page 5

exception underlying the material witness statute.
Defendant contends that the Whren line of cases supports his position. Reh'g Pet. 13 (citing Whren v. United States, 517 U.S. 806 (1996)). But defendant has not cited a single decision in which a court has extended Whren to a context like the instant one and, in fact, Whren itself stated that it involved the "ordinary" Fourth Amendment situation. 517 U.S. at 813.
Whren is fundamentally different for at least two reasons. First, as this Court's opinion stresses (at 12300), Whren involved the subjective motives of individual police officers making decisions on the ground. Here, in contrast, the Attorney General is asking this Court to uphold his deliberate decision to promulgate a nationwide policy that systematically authorized [*13] the intentional misuse of the material witness statute to lock up individuals whom the government wished to detain and investigate but lacked evidence to charge with a crime.
The Supreme Court has consistently distinguished Whren where a policy was at issue, stating that courts must look at the "programmatic purpose" behind the policy. See City of Indianapolis v. Edmond, 531 U.S. 32, 45-47 (2000) (distinguishing Whren and examining "available evidence" in finding that checkpoint was used for impermissible general law enforcement purposes); Ferguson v. City of Charleston, 532 U.S. 67, 81-82 (2001). See also Slip op. at 12300-01 (discussing Edmond and Ferguson). n3

n3 Defendant suggests (at 15) that these cases can be ignored because a material witness warrant is issued by a magistrate. But it has long been settled that a warrant issued by a magistrate may still violate the Fourth Amendment. Malley v. Briggs, 475 U.S. 335 (1986). Moreover, a magistrate will rarely, if ever, be able to know if there is a hidden government motive. Cf. Franks v. Delaware, 438 U.S. 154 (1978).
[*14]
Second, as this Court also explained, Whren (unlike the arrest of an innocent witness) involved probable cause that the arrestee had violated the law. Slip op. at 12297. Indeed, defendant's sweeping arguments are flatly contradicted by the numerous Fourth Amendment decisions in which the Supreme Court has examined motive in contexts that did not involve probable cause of wrongdoing. See, e.g., Florida v. Wells, 495 U.S. 1, 4 (1990) (police "must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime") (citation and internal quotation marks omitted)); Colorado v. Bertine, 479 U.S. 367, 372 (1987) (holding that inventory search was permissible in part because "there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation"); Edmond, 531 U.S. at 44 (declining to "suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes").
In these cases, the Court explained [*15] that the Fourth Amendment does not require probable cause of wrongdoing (the traditional rule) where the purpose of the search is not to engage in general law enforcement, but rather to address some other governmental interest (such as an inventory search). Accordingly, because the traditional Fourth Amendment standard is relaxed precisely because of the government's purpose, it follows that the Fourth Amendment is violated where the government is seeking to pursue general law enforcement objectives under the guise of these other objectives.
Similarly, in the material witness context, arrests are not governed by the traditional Fourth Amendment standard (probable cause of wrongdoing), but under a relaxed standard (probable cause that an individual's testimony is material and cannot practically be secured by subpoena). And like the cases discussed above, the reason the traditional rule is relaxed is precisely because the purpose of the arrest is not to detain an individual engaged in wrongdoing, but for some other purpose - to secure testimony. Thus, as in these other cases, purpose is not only relevant, but must be examined so

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the government is not able to use the reduced [*16] Fourth Amendment standard for ulterior law enforcement purposes. n4

n4 Judge Bea (but not defendant) relies on United States v. Villamonte-Marquez, 462 U.S. 579 (1983). Slip op. at 12340-41. But the Court addressed subjective intent only in a short footnote in that case. 462 U.S. at 584 n.3. In any event, Villamonte-Marquez involved (1) the unique circumstances of applying the Fourth Amendment at sea; (2) a search and not the far more intrusive issue of a pretextual detention; and (3) the subjective mindset of individual officers on the ground (as in Whren), and not a policywide decision. Furthermore, unlike the allegations here, there was no finding that the customs agents in Villamonte-Marquez were not genuinely interested in inspecting documents (the ostensible purpose of the search). Slip op. at 12301 n.19 (discussing Villamonte-Marquez).
In short, a material witness arrest is unconstitutional where the government uses the statute to investigate and [*17] detain suspects, since the material witness statute's constitutionality is specifically premised on its use for a limited and single purpose - securing testimony. Accordingly, this Court properly looked at the complaint's allegations of pretext.
B. Defendant's Policy Violated Clearly Established Law.
Defendant contends that the law was not clearly established in March 2003 because only the Awadallah district court had ruled on this issue. Slip op. at 12307-08 (noting that Awadallah was a "high profile" case and that the district court there had stated in "categorical" fashion that the policy about which Mr. al-Kidd complains was unlawful). n5

n5 This Court correctly noted that circuit decisions would have been "almost impossible" given the speed of the appellate process. Slip op. at 12308 n.22. That is especially so where the government took steps to keep secret the nature of its material witness policy. See, e.g., FAC 135 (noting DOJ's request to seal the records of material witness proceedings and the stonewalling of congressional inquiries).
[*18]
Defendant's observation that no other court had ruled on this precise issue by that time does not reflect the unsettled nature of the question, but rather, the fact that there had never before been such an extraordinary policy. And, not surprisingly, the courts that have considered the issue since then have also taken it as a given that the government may not use the material witness statute as pretext for detaining and investigating criminal suspects. See United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003) ("it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established"); al-Kidd v. Gonzales, 2006 WL 2682346 (D. Idaho Sept. 18, 2006) (same). n6

n6 Defendant suggests that the Second Circuit in United States ex rel. Glinton v. Denno, 339 F.2d 872 (2d Cir. 1964), previously upheld the pretextual use of the material witness statute. Reh'g Pet. 16-17. But, in Glinton, the police were seeking the individual's testimony. 339 F.2d at 873 (material witness not held as a "ruse" to extract confession from him); id. at 875 (noting that individual "was certainly an important witness"). In any event, the Second Circuit itself clearly does not believe that it has ever sanctioned the government's position. As noted above, the Second Circuit in Awadallah pointedly stated that the government could not use the statute in a pretextual manner. 349 F.3d at 59.

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[*19]
Notably, defendant does not claim that there must necessarily be a circuit level case on point. In fact, there need not even be a precedent with "materially" or "fundamentally similar" facts; all that is required is that the defendant have "fair warning" that his conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 741 (2002). And where a practice is so obviously unconstitutional, there is likely not to be a case on point. See Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005) ("while there may be no published cases holding similar policies constitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue") (internal quotations and citation omitted). n7
n7 Defendant incorrectly implies (at 18) that the law is not settled given Judge Bea's dissent. See Groh v. Ramirez, 540 U.S. 551, 565 (2004) (finding law clearly established despite dissent by two Justices that there was no Fourth Amendment violation at all); Friedman v. Boucher, 580 F.3d 847, 858-60, 865 (9th Cir. 2009) (law clearly established despite dissent on existence of Fourth Amendment violation), issued on denial of rehearing en banc, superseding 568 F.3d 1119.
[*20]
As this Court concluded, defendant's policy is patently unconstitutional and that should have been clear to any reasonable official. Indeed, under defendant's argument, he presumably would have believed it reasonable in 2003 to instruct FBI agents and U.S. Attorneys to candidly and directly inform federal magistrates that the government (1) was not interested in the testimony of al-Kidd and others, and (2) simply wished to preventively detain and investigate these individuals but lacked probable cause to arrest them on criminal charges. No reasonable official - much less the Attorney General of the United States - could have believed that such a gross and systematic distortion of the material witness statute was lawful and that federal magistrates throughout the country would have signed off on such a policy.
III. THE COURT PROPERLY REJECTED DEFENDANT'S CLAIM THAT HE CANNOT BE HELD LIABLE FOR THE FAILURE TO SATISFY THE MATERIALITY AND IMPRACTICABILITY REQUIREMENTS.
The Fourth Amendment and the material witness statute, 18 U.S.C. § 3144, require probable cause that a witness' testimony is material and cannot practicably be secured without a subpoena. [*21] Defendant does not dispute that it would be unconstitutional under clearly established law for him to promulgate a policy authorizing the arrest of witnesses where there is no probable cause to believe the testimony is material or cannot be secured by subpoena. Defendant argues, however, that plaintiff has failed to allege that his policy authorized material witness arrests where these requirements were not satisfied. Specifically, defendant argues that the complaint insufficiently alleges that he was responsible for the specific material misrepresentations and omissions in the warrant for plaintiff's arrest. Reh'g Pet. 18-20; Slip op. at 12309-18 (rejecting defendant's argument on this issue).
Defendant's argument rests on a distorted reading of the complaint and plaintiff's legal theories. Plaintiff's allegation is that defendant's policy authorized the arrest of suspects as supposed witnesses and did so even in cases (such as Mr. al-Kidd's) where the materiality and impracticability requirements were not satisfied:
Under the post-9/11 policies and practices, individuals have also been impermissibly arrested and detained as material witnesses even though there was no reason [*22] to believe it would have been impracticable to secure their testimony voluntarily or by subpoena.
FAC 127. See, e.g., FAC 128, 136 (setting forth detailed allegations in support of this claim).
But plaintiff need not show that defendant actually authorized the specific misrepresentations and omissions in the

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Page 8

al-Kidd warrant. Rather, plaintiff need only show that defendant authorized arrests even where the materiality and impracticability requirements were not satisfied; how that was accomplished in individual cases is immaterial. Indeed, it will almost never be the case that a high-level official is involved in the minutiae of how to carry out an unconstitutional policy. n8

n8 Relying on Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), defendant appears to suggest that plaintiff must show that the Attorney General was involved in granular implementation decisions, including the content of each warrant. But the Court in Iqbal clearly was not suggesting that high-level officials had to be involved at that level; indeed, if the Court had intended to take that extraordinary step, there would have been no need for it to examine the allegations in that case, since no one there remotely suggested that defendants Mueller and Ashcroft were actually making ground-level decisions about individual detainees.
Defendant also cites Iqbal for the position that he may not be held liable based on an allegation that he set in motion an unconstitutional chain of events or acquiesced in such events. Reh'g Pet. 18-20. But the Court in Iqbal did not rule out such forms of liability. Iqbal involved a discrimination claim which requires specific intent. 129 S.Ct. at 1948-49. In any event, as this Court noted in response to defendant's contention (Slip op. at 12315-16 n.25), plaintiff has alleged that defendant acted intentionally in authorizing the constitutional violations.
[*23]
Furthermore, plaintiff's complaint also claims that the warrant was facially deficient and thus unlawful, regardless of whether there were also misrepresentations and omissions. See, e.g., FAC 50 ("The affidavit, on its face, wholly failed to establish probable cause that Mr. al-Kidd's testimony could not be secured voluntarily or by subpoena, without the need for arrest.").
In sum, the Court's ruling on this issue was correct and should not be reheard. That is especially so given that the issue turns on the proper reading of plaintiff's complaint in this case - the type of case-specific issue that does not warrant this Court's en banc attention.
CONCLUSION
The petition should be denied.
Respectfully Submitted,
R. Keith Roark, ISB No. 2230 The Roark Law Firm, LLP 409 N. Main St. Hailey, ID 83333 (208) 788-2427
Michael J. Wishnie Yale Law School P.O. Box 209090 (203) 436-4780 (Cooperating Counsel for the ACLU)
Cynthia J. Woolley The Law Offices of Cynthia J. Woolley

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Page 9

Suite 107 180 First St., West P.O. Box 6999 Ketchum, ID 83340 (208) 725-5356
/s/ Lee Gelernt Lee Gelernt Farrin R. Anello Tanaz Moghadam American Civil Liberties [*24] Union Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY (212) 549-2660
Lucas Guttentag American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0770
BRIEF FORMAT CERTIFICATION
I certify that pursuant to 9th Circuit Rule 40-1(a), the attached Opposition to Petition for Rehearing En Banc is:
Proportionately spaced, has a typeface of 14 points or more and contains 4, 175 words.
/s/ Lee Gelernt . Counsel for Plaintiff-Appellee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of November, 2009, I electronically filed the foregoing Opposition to Petition for Rehearing En Banc with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system which will send a Notice of Electronic Filing to the following persons:
Matthew M. Collette, Attorney U.S. Department of Justice Civil Division - Appellate Room 7212 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Attorney for Defendant - Appellant
Robert Loeb U.S. Department of Justice Civil Division - Appellate

2006 U.S. 9th Cir. Briefs 36059; 2009 U.S. 9th Cir. Briefs LEXIS 907, *24

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Room 7268 950 [*25] Pennsylvania Avenue, N.W. Washington, DC 20530 Attorney for Defendant - Appellant
Cynthia J. Woolley The Law Offices of Cynthia J. Woolley Suite 107 180 First St., West P.O. Box 6999 Ketchum, ID 83340 Attorney for Plaintiff - Appellee
Lee-Anne V. Mulholland WILSON, SONSINI, GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Attorney for Amicus Curiae
AND, I HEREBY CERTIFY that I have served the foregoing Opposition to Petition for Rehearing En Banc by First-Class Mail, postage prepaid, to the following non-CM/ECF Registered Participants:
Michael J. Wishnie Yale Law School Professor of Clinical Law P.O. Box 209090 New Haven, CT 06520-9090 Cooperating Counsel for the ACLU Attorney for Plaintiff - Appellee
Lucas Guttentag American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 Attorney for Plaintiff - Appellee
R. Keith Roark 409 North Main P.O. Box 2740 Hailey, ID 83333 Attorney for Plaintiff - Appellee
Erin J. Holland WILSON, SONSINI, GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Attorney for Amicus Curiae

2006 U.S. 9th Cir. Briefs 36059; 2009 U.S. 9th Cir. Briefs LEXIS 907, *25
Alison M. Tucher Morrison [*26] & Foerster LLP 425 Market Street San Francisco, CA 94105-2482 Attorney for Amicus Curiae
/s/ Lee Gelernt Lee Gelernt Counsel for Plaintiff-Appellee

Page 11

 
 Supreme Court, u.s:----
F I LED

IN THE
.....
JOHN ASHCROFT, -v.-
ABDULLAH AL-KIDD,

OFFICE OF THE CLERK
Petitioner, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

MICHAEL J. WISHNIE
P.O. Box 209090 New Haven, CT 06520-9090 (203) 436-4780
CYNTHIA J. WOOLLEY
The Law Offices of Cynthia J. Woolley
180 First St., West Suite 107
P.O. Box 6999 Ketchum, ID 83340 (208) 725-5356
R. KEITH ROARK The Roark Law Firm, LLP 409 North Main Street Hailey, ID 83333 (208) 788-2427

LEE GELERNT
Counsel of Record
STEVEN R. SHAPIRO
LUCAS GUTTENTAG
TANAZ MOGHADAM
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2500 lgelernt@aclu.org
LEA COOPER
American Civil Liberties Union Foundation of Idaho
P.O. Box 1897 Boise, ID 83701 (208) 344-9750

Blank Page

COUNTER-STATEMENT OF THE QUESTIONS PRESENTED
1. In Question 2(a), the petition states that the issue is whether there is liability for "executing a valid material witness warrant." Respondent takes issue with that statement in two respects.
First, this case concerns the procurement of a warrant in Idaho pursuant to petitioner's policy. Unlike the two FBI agents who sought the warrant, the agents who executed the warrant and arrested respondent in Virginia are not defendants.
Second, respondent does not concede that the warrant was "valid." Even assuming that the material witness statute's materiality and impracticability requirements were met (18 U.S.C. 3144), the position of respondent (and the Ninth Circuit) is that both the Fourth Amendment and the statute itself prohibit a material witness arrest for the purpose of investigating a suspect, rather than for securing testimony.
2. Respondent will not pursue the claims in Question 3 of the petition if certiorari is granted. Similarly, if the petition is denied, respondent will abandon the claims in Question 3 in any further proceedings in the district court or Ninth Circuit.
1

TABLE OF CONTENTS
COUNTER-STATEMENT OF THE QUESTIONS PRESENTED ......................................i TABLE OF AUTHORITIES ................................... iii OPINIONS BELOW ................................................. 1 JURISDICTION........................................................ l STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED ....................................... I INTRODUCTION ..................................................... 3 STATEMENT............................................................ 4 ARGUMENT ........................................................... 22
I. THERE IS NO PRESSING NEED FOR THIS COURT'S REVIEW................... 22
II. THE NINTH CIRCUIT'S DECISION WAS CORRECT........................................... 28 A. The Court of Appeals Correctly Held that Petitioner Is Not Entitled to Absolute Immunity......... 28 B. The Ninth Circuit Correctly Held that Petitioner Was Not Entitled to Qualified Immunity....................... 31
CONCLUSION........................................................ 37
ll

TABLE OF AUTHORITIES
Cases al-Kidd v. Ashcroft,
580 F.3d 949 (2009), reh'g en bane denied, 589 F.3d 1129 (2010) ......................passim Al-Kidd v. Gonzales, No. 1:05-cv-00093-EJL-MHW, 2006 WL 5429570 (D. Idaho Sept. 27, 2006) .............................. 20, 23 Al-Kidd v. Sugrue, No. CIV-06-1133-R, 2007 WL 2446750 (W.D. Okla. Aug. 23, 2007) ................................... 7 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .......................................... .4 Brinegar v. United States, 338 U.S. 160 (1949) ......................................... 3, 31 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ................................. 28, 29, 30 Burns v. Reed, 500 U.S. 478 (1991) ....................................... 28, 29 City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ......................................... 33, 34 Crawford-El v. Britton, 523 U.S. 574 (1998) ............................................. 25 Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978)................................. 30
Ill

Ferguson v. City of Charleston, 532 U.S. 67 (2001) ............................................... 33
Forrester v. White, 484 U.S. 219 (1988) .. ...... ..................................... 28
Franhs v. Delaware, 438 U.S. 154 (1978) ............................................. 33
Groh v. Ramirez, 540 U.S. 551 (2004) ............................................. 35
Hope v. Pelzer, 536 U.S. 730 (2002) ............................................. 35
Kalina v. Fletcher, 522 U.S. 118 (1997) ....................................... 28, 29
Malley v. Briggs, 475 U.S. 335 (1986) ............................................. 33
United States v. Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. 2002), rev'd on other grounds, 349 F.3d 42 (2d Cir. 2003) ................................................ 18, 22
United States v. Awadallah, 349 F.3d 42 (2d. Cir. 2003) ............... 18, 22, 23, 36
United States ex rel. Clinton v. Denno, 339 F.2d 872 (2d Cir. 1964) ................................ 23
Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009) ........................................... 28
lVhren v. United States, 517 U.S. 806 (1996) ....................................... 32, 33
IV

Statutory and Constitutional Provisions 18 U.S. C. 3144 (Material Witness Statute) ... passim Fourth Amendment ....................................... passim Other Authorities FBI's Fiscal Year (FY) 2004 Budget: Hearing Before the H. Subcomm. on the Dep 'ts of Commerce, Justice, and State, the Judiciary and Related Agencies, 108th Cong. (2003) .................................................. 13
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OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-105a) is reported at 580 F.3d 949. The opinions concurring in, and dissenting from, the denial of rehearing en bane (Pet. App. 106a-132a) are reported at 598 F.3d 1129. The unpublished opinion of the district court is available at 2006 WL 5429570.
JURISDICTION The petition invokes this Court's jurisdiction under 28 U.S.C. 1254(1).
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
The material witness statute, 18 U.S.C. 3144, provides in full:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the prov1swns of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by
1

deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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INTRODUCTION
The Fourth Amendment generally prohibits an arrest absent probable cause to believe there has been a violation of the law. See Brinegar u. United States, 338 U.S. 160, 175 (1949) ("probable cause is a reasonable ground for belief of guilt") (citations and quotation marks omitted). The federal material witness statute, however, authorizes the government to arrest a wholly innocent individual for the purpose of obtaining needed testimony that might otherwise be unavailable. The statute thus requires a showing before a magistrate that an individual has information "material" to a criminal proceeding and that it "may become impracticable" to secure the testimony by subpoena. 18 U.S.C. 3144. This case involves a gross abuse of the government's narrow power under the statute.
The complaint alleges that in the aftermath of September 11, 2001, dozens of individuals, including many United States citizens like respondent al-Kidd, were arrested as material witnesses pursuant to a policy adopted and implemented by petitioner Ashcroft. These individuals were often detained for weeks or even months, under harsh conditions. Moreover, as witnesses, they were not entitled to Miranda warnings under the government's reading of the law. Thus, they could, and were, routinely interrogated without counsel present.
The impetus for arresting these individuals was not to secure their testimony for a criminal proceeding. Rather, these were individuals whom
3

the government viewed as suspects and wished to detain and investigate. But because the government lacked probable cause to arrest these individuals on criminal charges, it had them arrested as material witnesses, thereby circumventing the Fourth Amendment's traditional probable cause standard and distorting the basic purpose of the material witness statute.
Indeed, the modern statute itself provides that the government should seek to depose a witness rather than unreasonably prolonging the period of confinement. See 18 U.S.C. 3144. The deposition requirement strongly reinforces that the statute's purpose is to provide the government with a means of securing needed testimony, and not to permit the government to detain and investigate suspects without regard to the traditional Fourth Amendment standard.
STATEMENT
On a motion to dismiss, all non-conclusory factual allegations are presumed true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). The allegations set forth below are taken virtually verbatim from the First Amended Complaint ("FAC").
A. Mr. al-Kidd's Arrest and Detention.
The respondent, Abdullah al-Kidd, is a 37year-old Mrican-American man born in 1972 in Kansas and raised near Seattle, Washington. His mother, father, siblings and two children are native-
4

born U.S. citizens who have always resided in the United States. Mr. al-Kidd graduated from the University of Idaho, where he was a well-known player on the football team. While he was attending college, he changed his name from Lavoni T. Kidd to Abdullah al-Kidd, and converted to Islam. FAC ~~ 39-40.

Following September 11, the government

began a broad terrorism investigation in Idaho. As

part of this investigation, the Federal Bureau of

Investigation (FBI) conducted surveillance of Mr. al-

Kidd and his then-wife (also a native-born U.S.

citizen).

The surveillance logs from that

investigation indicated no illegal activity, and

indeed, Mr. al-Kidd was never charged with a crime.

FAC ~~ 9, 44.

In addition, on several occasions, the FBI asked to meet with Mr. al-Kidd. Respondent met with the FBI and answered questions for hours. At no time did he fail to appear for one of these requested meetings. FAC ~~ 15, 54(c).

In March 2003, Mr. al-Kidd was preparing to travel to Saudi Arabia to further his language and religious studies on a scholarship at a well-known university. While at the ticket counter at Dulles Airport in Virginia, Mr. al-Kidd was arrested by agents of the FBI on a material witness warrant issued in Idaho in the case of Sami Al-Hussayen, who previously had been indicted by an Idaho grand jury

5

for visa fraud and making false statements to the government. FAC ~~ 15, 42, 45-47, 65.1
The FBI agents did not give Mr. al-Kidd a copy of the warrant indicating that he was supposedly being arrested as a witness, and instead handcuffed him and walked him through the airport in front of staring onlookers. At the time of his arrest, Mr. alKidd was wearing religious clothing, making it clear that he was a Muslim man whom the government was arresting in an airport after September 11, adding to the already extensive and unnecessary humiliation. FAC ~~ 66-67.
The agents also did not provide Mr. al-Kidd with Miranda warnings or counsel. Instead, they brought him to a police sub-station in the airport and interrogated him (without counsel) for 1-2 hours on a variety of topics, including Mr. al-Kidd's own religious beliefs, conversion to Islam and his past travels. They also informed him that by cooperating he might still be able to take his flight to Saudi Arabia - a statement seemingly at odds with the government's previous representation to an Idaho Magistrate that Mr. al-Kidd's arrest as a material witness was necessary because he had "crucial" information for the upcoming Idaho trial of Sami AlHussayen. FAC ~~ 46, 66, 68.
1 The jury was unable to reach a verdict on these two charges. Al·Hussayen was also ultimately charged with providing material support but was acquitted on those more serious charges. The government did not retry Al-Hussayen on any of the charges.
6

Mr. al-Kidd spent the next 15 nights in jails in Virginia, Oklahoma and Idaho, under severe conditions. At each facility, he was placed in a highsecurity wing of the jail and mingled with charged or convicted criminals. In two of the three facilities, he was humiliatingly strip-searched. FAC ~1 70-75, 8387, 92-93, 95; see, e.g., Al-Kidd v. Sugrue, No. CIV06-1133-R, 2007 WL 2446750, at *8 (W.D. Okla. Aug. 23, 2007) (holding that Mr. al-Kidd's clearly established Fourth Amendment rights were violated because the warden "could not have reasonably believed in 2003" that strip-searches and body cavity inspections of "a material witness detainee such as the Plaintiff ... did not violate the law").
When transferred between facilities, Mr. alKidd was treated as if he were a dangerous terrorist, and not a witness. Among other things, he was placed on a "Con Air" flight with hardened criminals and was routinely placed in full shackles like the other prisoners: his feet were chained together and his hands were cuffed to a belly chain that prevented
any movement of his arms. FAC 11 71, 83-85, 92.
Mr. al-Kidd was eventually released from detention under strict conditions. Among other things, he was limited to a four-state area, required to live with his in-laws, and to report regularly to the government. More than fourteen months later, the trial for which Mr. al-Kidd's testimony was supposedly needed ended without conviction on a single count. Mr. al-Kidd was never called as a witness. Even at that point the government did not
7

immediately move to vacate the conditions of supervision, forcing Mr. al-Kidd to file a motion with the court in Idaho. FAC ~~ 9, 103, 106-07.
B. The Material Witness Warrant.
The affidavit submitted in support of the material witness warrant consisted of only three sentences directly pertaining to whether Mr. al-Kidd's testimony could be secured voluntarily or by subpoena, without the need for arrest:
Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000.00) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia.
***
It is believed that if Al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena. See FAC ~ 49.2 These statements turned out to be false. In fact, the government has since admitted that Mr. al-Kidd had a round-trip ticket, and not a one-way ticket as alleged in the affidavit (an
2 The warrant application is an addendum to the First Amended Complaint. First Amended Compl. 1:05-cv-00093E,JL Docket Entry No. 40 (D. Idaho Nov. 18, 2005).
8

admission made only after Mr. al-Kidd had spent more than two weeks in detention). Furthermore, Mr. al-Kidd did not have a first-class ticket costing approximately $5,000, as alleged, but rather a coachclass ticket costing less than $2,000. FAC ~~ 14, 53.3
In addition to the false statements, the affidavit also failed to inform the magistrate of numerous material facts, including that:
- Mr. al-Kidd was not a Saudi national returning to his home country, but rather a nativeborn citizen with significant ties to the United States and Idaho (including that his family members were native-born U.S. citizens living in this country and that he had attended the University of Idaho);
3 One of the amicus briefs contends that the false statements are thin , suggesting that the affidavit's reference to a one·way ticket could just as easily have been understood as a reference to a roundtrip ticket with an open-ended return. Brief of William P. Barret al. as Amici Curiae in Support of Petitioner at 22 n. 7. But if that is truly what the government meant when it stated respondent had a "one-way" ticket, it chose an especially odd way to express it. Moreover, the harm done by that false statement is magnified when viewed in context. As the magistrate who received the affidavit surely knew, the 19 hijackers responsible for the September 11 attacks apparently had one-way, first-class tickets. Finally, and importantly, there can be no suggestion that the nature of the ticket was largely inconsequential, since the government's affidavit made that the central focus of the warrant application; in fact, as already noted, there was little else in the application pertaining to the impracticability of securing Mr. al-Kidd's testimony by subpoena.
9

- Mr. al-Kidd had voluntarily talked with the FBI on several occasions prior to his arrest and had never failed to show up to these pre-arranged meetings;
- prior to his arrest, Mr. al-Kidd had not heard from the FBI for approximately six months;
- the FBI had never told Mr. al-Kidd that he might be needed as a witness, that he could not travel abroad, or even that he should inform the FBI if he did intend to travel abroad; and finally,
- Mr. al-Kidd was never asked if he would be willing to testify, to voluntarily relinquish his passport or to otherwise postpone his trip to Saudi Arabia. FAC ~~15, 54.
Tellingly, the affidavit also did not state that the government had attempted to locate Mr. al-Kidd prior to seeking the arrest warrant. Indeed, the affidavit nowhere stated that the government had made any effort to determine whether some action short of an arrest might be practicable. In this regard, it is notable that another witness in the AlHussayen case was permitted simply to relinquish his passport and postpone his trip to Saudi Arabia. That witness, moreover, was not a U.S. citizen like Mr. al-Kidd, but a Saudi national returning home. FAC ~~ 54(£), 57.
In addition, although the affidavit stated that Mr. al-Kidd's testimony was "crucial" to the
10

government's case, it never precisely explained what information Mr. al-Kidd possessed that was germane to the charges against Al-Hussayen. Instead, the affidavit contained largely irrelevant information or statements attempting to cast Mr. al-Kidd in a suspicious light. FAC ~ 58. Among other things, the affidavit stated that Mr. al-Kidd and his wife had received payments from Al-Hussayen and AlHussayen's associates. In fact, the FBI agents requesting the warrant knew or reasonably should have known that Mr. al-Kidd worked for the same charitable Islamic organization as Mr. Al-Hussayen and received a salary for his work. FAC ~~58, 60.
The warrant application also perplexingly stated that Mr. al-Kidd had information critical for the defense. Yet the application was submitted ex parte by the government, without any suggestion that the government had consulted with defense counsel in making that unusual representation. FAC, Ex. A.
In short, the FBI simply blindsided a cooperative U.S. citizen months after it had last contacted him, without ever affording him the opportunity to testify voluntarily - all under the pretense that his testimony was critically needed for a future trial (a trial in which he was never called to testify).
C. Petitioner's Material Witness Policy.
According to the complaint, Mr. al-Kidd's arrest was not an isolated incident occurring in one trial in
11

Idaho, but was part of a pattern of material witness arrests that occurred after September 11 pursuant to a nationwide policy instituted by petitioner. That policy used the material witness statute as cover to detain and investigate suspects for whom the government lacked probable cause of wrongdoing.
That Mr. al-Kidd's arrest was not an isolated incident was evident from congressional testimony delivered by the FBI Director. Only days after Mr. al-Kidd's arrest, while respondent remained in detention, Director Mueller appeared before Congress and testified that the government had had a number of recent "successes" in combating terrorism and gave various examples. The first example was the capture of Khalid Shaikh Mohammed, alleged to be the "mastermind" of the September 11 attacks and now held at Guantanamo Bay. The next example was the arrest of Mr. alKidd. Director Mueller then listed three additional examples, all involving individuals who had been charged with terrorism-related offenses. Unbelievably, the Director's testimony did not mention that Mr. al-Kidd had been arrested only as a witness, and not on criminal charges. Instead, he stated:
We are thoroughly committed to identifying and dismantling terrorist networks, and I am pleased to report that our efforts have yielded major successes over the past 17 months. Over 212 suspected terrorists have been
12

charged with crimes, 108 of whom have been convicted to date. Some are wellknown -- including Zacarias Moussaoui, John Walker Lindh and Richard Reid. But, let me give you just a few recent examples:
In March, Khalid Shaikh Mohammed was located by Pakistani officials and is in custody of the US at an undisclosed location. Mr. Mohammed was a key planner and the mastermind of the September 11th attack. ...
On March 16, Abdullah al-Kidd, a US native and former University of Idaho football player, was arrested by the FBI at Dulles International Airport en route to Saudi Arabia. The FBI arrested three other men in the Idaho probe in recent weeks. And the FBI is examining links between the Idaho men and purported charities and individuals in six other jurisdictions across the country.
See FBI's Fiscal Year (FY) 2004 Budget: Hearing Before the H. Subcomm. on the Dep 'ts of Commerce, Justice, and State, the Judiciary and Related Agencies, 108th Cong. (2003) (Mueller statement), http://www.fbi.gov/congress/congress03/mueller03270 3.htm; see FAC ~ 100.
If Mr. al-Kidd had been viewed as a genuine witness, and not as a longstanding suspect, it is hard
13

to imagine that his arrest would have generated so much attention so quickly within the highest ranks of the Justice Department, to the point where it was mentioned in congressional testimony only a few days after his arrest - and mentioned directly after the capture of the man who allegedly orchestrated the September 11 attacks.
Indeed, had the Justice Department actually viewed Mr. al-Kidd as a genuine witness, and not a suspect, it is implausible that the FBI Director would even have mentioned respondent's arrest, much less cited it as one of the government's noteworthy "successes" in combating terrorism. And if Mr. alKidd was indeed a genuine witness, it is highly unlikely that that central fact would have been omitted from the Director's testimony.
Nor is Director Mueller's testimony the only evidence that Mr. al-Kidd's arrest was part of a nationwide policy of using the material witness statute to arrest suspects. Petitioner himself, as well as numerous other high-ranking Justice Department officials, routinely made statements about how the material witness statute would be used to detain and investigate suspects.
On October 31, 2001 , for example, petitioner commented on the government's new policies, stating at a press briefing that the "[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks" and that this policy would "form one part of the department's concentrated strategy to prevent
14

terrorist attacks by taking suspected terrorists off the street ...." FAC ,-r 117; see id. at ,-r 116 (alleging that petitioner developed a policy in which the "FBI and DOJ would use the material witness statute to arrest and detain terrorism suspects").
An internal DOJ document echoes this theme of using the material witness statute to arrest and hold suspects. The document, entitled "Maintaining Custody of Terrorism Suspects," includes the following statement: "If a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant." FAC ,-r 118.
Similarly, senior counsel in the Deputy Attorney General's Office remarked that the ''Criminal Division is examining each of the cases [of terrorist suspects in INS custody] to determine whether the person can be detained on criminal charges or on a material witness warrant if the person is ordered released from INS custody." FAC ,-r 119. Michael Chertoff, the head of the DOJ's Criminal Division in the years immediately following September 11, 2001, publicly highlighted the DOJ's use of the material witness statute, saying, "It's an important investigative tool in the war on terrorism. . . . Bear in mind that you get not only testimony you get fingerprints, you get hair samples - so there's all kinds of evidence you can get from a witness." FAC ,-r 121 (quoting media interview, emphasis added).
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FBI Director Mueller likewise touted the new material witness practice, stating in an April 2002 speech that "a number of suspects were detained on federal, state, or local charges; on immigration violations; or on material witness warrants." FAC ~ 122 (emphasis added). On February 24, 2004, in a statement to the ABA then-White House Counsel Alberto Gonzales candidly described standard DOJ procedure for handling a terrorism suspect:
In any case where it appears that a U.S. citizen captured within the United States may be an al Qaeda operative and thus may qualify as an enemy combatant, information on the individual is developed and numerous options are considered by the various relevant agencies (the Department of Defense, CIA and DOJ), including the potential for a criminal prosecution, detention as a material witness, and detention as an enemy combatant.
FAC ~ 123 (emphasis added in complaint).
On June 25, 2003, David Nahmias, Counsel to the Assistant Attorney General, Criminal Division, offered the Senate Judiciary Committee an example of how the DOJ tracked down an alleged terrorist: "[W]e developed . . . clear evidence that he had contact with an AI Qaida terrorist operative connected to 9/11. And so in December he was approached again ... and [when] we weren't able to clear things at that point, he was actually made a
16

material witness." Nahmias stated that "we got enough information to at least make him a material witness and then to charge him criminally." FAC ~ 124.
Public statements by other top officials who worked closely with the Justice Department in the development of post-9/11 policies confirmed the new material witness policies and practices. Mary Jo White, the U.S. Attorney for the Southern District of New York in the years immediately preceding and following September 11, 2001, summed up the policy: "Some of the criticism that has been leveled at [DOJ for its post-9/11 use of the material witness statute] is not wholly unjustified .... Does it really sort out to being in one sense preventative detention? Yes, it does, but with safeguards." FAC ~ 120 (quoting media interview).
As importantly, the circumstances surrounding the arrest and detention of these supposed witnesses reinforce the statements made by petitioner and others and confirms that those arrested were actually viewed as suspects, and not genuine witnesses. Numerous material witnesses who were detained to secure their supposedly important testimony were never in fact called to testify. By one account, nearly fifty percent of those detained in connection with post-9/11 terrorism investigations were not called to testify. Further confirming their actual status as suspects, the government refused to grant many post-9/11 material witnesses immunity for their testimony,
17

although this traditionally has been a standard procedure for eliciting testimony from a witness. FAC ~ 128.
Some individuals were designated as material witnesses only after already being arrested on another ground, strongly indicating that the government was using material witness warrants as a means of prolonging a suspect's detention. Many other individuals were arrested and detained as material witnesses even though there was no reason to believe it would have been impracticable to secure their testimony voluntarily or by subpoena. FAC ~ 127 (describing material witness arrested and detained for three days in solitary confinement after willingly and voluntarily allowing the FBI to search his business records and computers).
Once arrested, material witnesses were routinely held in high security detention conditions, highlighting their true status as terrorism suspects, rather than witnesses. FAC ~~ 129-30. See also United States u. Awadallah, 202 F. Supp. 2d 55, 61 (S.D.N.Y. 2002) ("It was also decided 'early on' that '[w]ith respect to all of the folks who were being brought in as material witnesses and under investigation for the World Trade Center attacks ... that [the MCC] would record their movements with a hand-held camera,' a policy that the prison had previously used with the 'Mrican Embassy bombers."'), rev'd on other grounds, 349 F.3d 42 (2d Cir. 2003).
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The Justice Department also unreasonably prolonged the period of detention for material witnesses - by DOJ's own estimates about half of the witnesses it arrested in terrorism investigations were detained for more than thirty days, an astounding length of time given that the statute itself directs the government to take depositions of witnesses so that innocent individuals are not detained for unreasonably long periods. See FAC ~ 133 (citing DOJ letter to Sensenbrenner and Conyers of the House Committee on the Judiciary, May 13, 2003). And even after being released from detention, many material witnesses were subjected to impermissibly restrictive release conditions - and yet were still never called to testify. FAC ~ 134.
Exacerbating all of these abuses was the Justice Department's attempt to shield from public view the circumstances surrounding the arrest of material witnesses. Among other things, the Justice Department routinely requested that the records of material witness proceedings be sealed. The Justice Department also refused to make public the most basic information about the material witnesses it detained, including names or other identifying information, or the exact number of witnesses, even in the face of direct congressional inquiry. FAC ~ 135.
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D. Procedural History.
In light of these allegations, the district court (per Lodge, J.) properly held that petitioner was not entitled to immunity if the material statute was used as a cover to arrest suspects (the pretext claim). AlKidd v. Gonzales, No. 1:05-cv-00093-EJL-MHW, 2006 WL 5429570, at *7, *9 (D. Idaho Sept. 27, 2006) (stating that "[t]he development and practice of using the material witness statute to detain individuals while investigating possible criminal activity qualifies as police type investigative activity, not prosecutorial advocacy" and is not shielded by absolute or qualified immunity).
The Ninth Circuit properly affirmed that ruling on respondent's pretext claim, holding that petitioner was not entitled to absolute immunity because his policy was investigative, not prosecutorial, under this Court's functional test. Pet. App. 14a-27a. The court of appeals also rejected petitioner's argument that he was entitled to qualified immunity even if he used the material witness statute as a pretext to hold suspects for whom the government lacked sufficient evidence to charge with a crime. Pet. App. 40a-47a. As the court of appeals stated, the government does not have the
power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate
20

them for possible wrongdoing, or to prevent them from having contact with others in the outside world.
Pet. App. 63a.
In addition to respondent's pretext claim, the court of appeals also addressed two additional issues. First, it held that petitioner could also be liable for the content of the affidavit submitted in support of Mr. al-Kidd's arrest (what the Ninth Circuit called the "Section 3144 Claim"). Pet. App. 47a-56a. As noted above, supra at i, that issue is no longer being pursued by respondent. The court of appeals also reversed the district court's ruling that petitioner could be held liable for the conditions of confinement under which Mr. al-Kidd was held. Pet. App. 56a59a. Respondent has not sought further review of that holding.
Judge Bea dissented in relevant part. He would have afforded petitioner absolute and qualified immunity, on the principal ground that the court should not look behind petitioner's actions to examine the purpose of the material witness policy. Pet. App. 64a-105a.
The Ninth Circuit denied petitioner's request for en bane review, with 8 judges dissenting. Pet. App. 106a. Judge Smith wrote an opinion concurring in the denial of rehearing. Pet. App. 107a-122a. Judges O'Scannlain and Gould wrote dissenting opinions from the denial of en bane review. Pet. App. 122a-131a; 131a-132a.
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ARGUMENT
This case is before the Court on a motion to dismiss, without any factual record. There is also no circuit conflict. Petitioner nonetheless argues that the Court's immediate review is warranted because he will otherwise be subjected to the burdens of discovery and because the Ninth Circuit's ruling creates uncertainty for prosecutors performing their everyday duties. Petitioner further contends that the Ninth Circuit's decision was incorrect and that review is warranted for that reason as well. None of these arguments support granting the petition.
I. THERE IS NO PRESSING NEED FOR THIS COURT'S REVIEW.
Petitioner does not contend that there is a circuit conflict on the issues presented by this case. Indeed, the courts that have addressed the issue have taken as a given that the government may not use its extraordinary power under the material witness statute as a cover to preventively detain and investigate suspects for whom it lacks probable cause of wrongdoing. See United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003) ("it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established"); United States v. Awadallah, 202 F. Supp. 2d 55, 77 (S.D.N.Y. 2002) ("Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order
22

to prevent potential crimes is an illegitimate use of the statute."), rev'd on other grounds, 349 F.3d 42; Pet. App. 40a (Ninth Circuit opinion) ("To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment."); Al-Kidd v. Gonzales, 2006 WL 5429570, at *6, 9 (holding that al-Kidd had alleged a constitutional violation if the material witness statute was used as a pretext to arrest and investigate suspects).4
Petitioner also obviously does not contend that this is the last opportunity the Court will have to review the case. If petitioner is found liable in the district court, and the Ninth Circuit affirmed that ruling, he would be able to seek review of that judgment in this Court. Thus, even if the petition is denied, petitioner would not face liability without this Court having had an opportunity to review the case if it chooses to do so.
4 Petitioner suggests that the Second Circuit in United States ex rel. Clinton v. Denno, 339 F.2d 872 (2d Cir. 1964), previously upheld the pretextual use of the material witness statute. Pet. 27-28. But, in Clinton, the police were seeking the individual's testimony. 339 F.2d at 873 (material witness not held as a "ruse" to extract confession from him); id. at 875 (noting that individual "was certainly an important witness"). In any event, the Second Circuit itself clearly does not believe that it has ever sanctioned the government's position. As noted above, the Second Circuit in Awadallah pointedly stated that the government could not use the statute as a cover to arrest suspects. 349 F.3d at 59.
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Moreover, if the Court concludes that review is warranted at a later stage of the proceedings, it would then have the benefit of a concrete factual record to sharpen (and potentially narrow) the issues. The government, for example, has argued that prosecutors seeking material witness warrants often have mixed motives and that the existence of mixed motives is not a violation of either the material witness statute or the Fourth Amendment. Pet. 28-30 (suggesting that a genuine witness may also be viewed as a potential suspect). But discovery about the nature of petitioner's policy may reveal that this is not a case involving mixed motives in the manner suggested by petitioner. Thus, insofar as this case requires the Court to draw difficult lines on the "mixed motive" issue - or any other issue - it is best resolved on a concrete factual record.
Petitioner argues, however, that the Court's immediate review is justified for two principal reasons. First, petitioner argues that immunity defenses are designed to shield government officials not only from liability, but also from the burdens of discovery, and that later review by this Court would come too late to shield him from discovery. Pet. 1819. Yet, while the Court has made clear that officials denied immunity at the outset of a case are entitled to one layer of interlocutory appellate review in the courts of appeals, it has never to respondent's knowledge held that such officials are entitled to this Court's interlocutory review; otherwise this Court would be functioning as an error-correcting tribunal in every case in which immunity is denied at the
24

outset (even where, as here, both the district court and the court of appeals agreed that immunity was not warranted on the complaint's extensive allegations).
The district court will also be in a position to structure discovery to avoid unnecessarily burdening petitioner. See Crawford-El v. Britton, 523 U.S. 574, 598-600 (1998) (describing the "many options for the district judge" in structuring discovery for this purpose). And because this case involves a top-down policy decision operating throughout many levels of the Justice Department, the district court will be in a particularly good position to structure discovery in a sequenced manner, focusing initially on lower level officials. 5
Petitioner's second argument 1s that immediate review is warranted because the Ninth Circuit's ruling creates uncertainty for prosecutors. According to petitioner, prosecutors operating within the Ninth Circuit will be deterred from zealously performing their duties and will invariably err on the side of caution rather than risk a civil suit. Pet. 2830. Petitioner's speculation is exaggerated. The court of appeals took pains to ensure that the scope of its decision was narrow and not misunderstood.
For example, in response to Judge Bea's dissenting opinion, the court specifically stated that
5 Petitioner is of course the former Attorney General. Consequently, any discovery permitted by the district court will not interfere with the duties of a current office holder.
25

its decision was not intended to provide criminal defendants with a ready means of suing prosecutors simply by claiming that the purpose of the prosecution was investigative. Pet. App. 25a (emphasizing that absolute immunity is not lost merely because a prosecutor "may hope, eventually, that the petty crook will implicate his boss" if he is charged and prosecuted).
And with respect to material witness warrants (which in any event are rarely sought by prosecutors), the court of appeals tethered its ruling closely to the allegations of the complaint. See Pet. App. 25a-26a ("We emphasize that our holding here does not rest upon an unadorned assertion of secret, unprovable motive."); Pet. App. 27a (emphasizing the "objective indicia" that the material witness statute was used as a pretext to arrest suspects); see generally Pet. App. 26a-27a. 6
6 Among other things, the court of appeals emphasized that "AlKidd's arrest was sought a month after Al-Hussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed"; that the "FBI had previously investigated and interviewed alKidd, but had never suggested, let alone demanded, that he appear as a witness"; that the "FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen's alleged visa violations"; and that "Al-Kidd never actually testified for the prosecution in Al-Hussayen's or any other case, despite his assurances that he would be willing to do so." Pet. App. 26a27a (emphasis in original).
26

As the court of appeals stressed, the complaint alleged that petitioner created a nationwide policy of deliberately misusing the material statute as a cover to detain and investigate suspects. Nothing in the Ninth Circuit's opinion remotely suggests that a line prosecutor is now vulnerable when seeking a material witness warrant to obtain genuinely needed testimony from a recalcitrant witness.
Petitioner suggests that many of the analytical lines drawn by the Ninth Circuit lack a principled basis. See, e.g., Pet. 20. But, for present purposes, the relevant point is that the court of appeals did draw those lines, thereby making clear that the type of lawsuits hypothesized by petitioner will not be permitted to go forward under the ruling in this case.
In short, there is no circuit conflict and the Court will have another opportunity to review this case should petitioner be found liable. There is no pressing need for this Court's review - especially without the benefit of a concrete factual record to narrow and sharpen the issues. And the fact-bound nature of the unique allegations in this case make this petition a poor vehicle to consider issues regarding the use of the material witness statute in routine criminal justice matters.
27

II. THE NINTH CIRCUIT'S DECISION WAS CORRECT.
A. The Court of Appeals Correctly Held that Petitioner Is Not Entitled to Absolute Immunity.
Absolute immunity is an extraordinary remedy because it shields even gross violations of clearly established constitutional rights. The Court has thus been "quite sparing" in affording prosecutors complete immunity from civil suit. Burns u. Reed, 500 U.S. 478, 487 (1991) (quoting Forrester u. White, 484 U.S. 219, 224 (1988)).
The "actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley u. Fitzsimmons, 509 U.S. 259, 273 (1993); see Van de Kamp u. Goldstein, 129 S. Ct. 855 (2009). Rather, courts must first look to common-law history to determine whether a tradition of immunity exists, and if so, whether affording complete immunity is nonetheless unwarranted in light of considerations of public policy. See Burns, 500 U.S. at 497 (Scalia, J., concurring in the judgment in part and dissenting in part) (stating that, under the Court's absolute immunity test, a tradition of immunity is a "necessary" but not a "sufficient condition") (emphasis in original). In doing so, the courts must "examine 'the nature of the function performed, not the identity of the actor who performed it."' Kalina u. Fletcher, 522 U.S. 118, 127 (1997) (citation omitted) (emphasis added).
28

Under this functional approach, prosecutors have consistently been denied absolute immunity where they are engaging in police-type functions that are "investigative in character." Buckley, 509 U.S. at 274; see Kalina, 522 U.S. at 129-31 (denying absolute immunity where prosecutor submitted an affidavit attesting to facts); Burns, 500 U.S. at 482, 496 (denying absolute immunity where prosecutor advised police that they had probable cause to engage in the search).
The Ninth Circuit carefully applied the Court's functional test. Under that test, it correctly held that "when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another's trial," the prosecutor is not entitled to absolute immunity. Pet. App. 25a.
Petitioner contends, however, that the court of appeals erred by looking at the reasons underlying the material witness policy. Pet. 15-18. But, because "[m]any tools and tactics available to prosecutors can serve either an investigatory or advocacy-related function," Pet. App. 24a, the approach followed by the court of appeals is fully consistent with this Court's decisions. See, e.g., Buckley, 509 U.S. at 27475 (conducting a "careful examination of the allegations" in the complaint to determine whether the prosecutors' "mission" and "immediate purpose" at the time they reviewed the evidence and witnesses were "investigative in character"); id. at 289 (Kennedy, J., concurring in part and dissenting in
29

part) (applying the functional approach and observing that "[t]wo actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions.
The conduct is the same but the functions distinct.").
The court of appeals thus explained that the "functional" test "has necessarily required us to look beyond the labels a prosecutor attaches to his or her actions and examine their underlying ends." Pet. App. 23a (discussing Buckley). Indeed, as the court of appeals further observed, petitioner's approach "would convert the Supreme Court's functional approach into a formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish." Pet. App. 23a-24a.
Although some courts have granted prosecutors absolute immunity for material witness warrants, see, e.g., Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978), in those cases there was no allegation that the prosecutor was seeking to use the material witness laws to investigate the witness for possible criminal wrongdoing, i.e., engaging in functions typically carried out by law enforcement. See Pet. App. 18a-19a, 22a (discussing cases).7
7 Petitioner also relies on cases in which courts have granted absolute immunity even where the prosecutor's motives may have been racist, political or otherwise egregious. See Pet. 1617. Here, however, the court of appeals did not hold that the Court may look at the motive behind prosecutorial acts, but
30

In sum, the court of appeals faithfully applied this Court's functional test and properly declined to shield petitioner's policy from all constitutional scrutiny. In doing so, the court of appeals did not restrict the use of the material witness statute to detain recalcitrant witnesses for the purpose of testifying at criminal trials, let alone the daily work of prosecutors outside of the material witness context.
B. The Ninth Circuit Correctly Held that Petitioner Was Not Entitled to Qualified Immunity.
The Ninth Circuit correctly held that petitioner's policy violated Mr. al-Kidd's clearly established Fourth Amendment rights. Moreover, the court's qualified immunity ruling, like its ruling on absolute immunity, was narrowly focused and does not limit the day-to-day conduct of prosecutors.
1. The arrest of a material witness is unquestionably a seizure within the Fourth Amendment and traditionally a seizure must be justified by probable cause. And as this Court has repeatedly explained, the standard definition of probable cause is a "reasonable ground for belief of guilt." Pet. App. 34a (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); id. at 32a-34a (citing additional cases).
rather, whether those acts were prosecutorial in the first place. Pet. App. 19a.
31

The material witness statute is an exception to that rule: it authorizes an arrest without reason to believe the individual has violated the law. Thus, insofar as the statute is constitutional, it is only because the objective of the arrest is not to investigate and/or prosecute the individual, but to secure testimony for someone else's criminal proceeding. The court of appeals was therefore correct in concluding that Mr. al-Kidd's arrest was unlawful to the extent its objective was to detain and investigate him - rather than to secure testimony for the Al- Hussayen trial.
Petitioner contends that the court of appeals erred by examining the purpose of the arrest, citing Whren v. United States, 517 U.S. 806 (1996), for the proposition that subjective motives are irrelevant under the Fourth Amendment. Pet. 21. But, as the Ninth Circuit explained, Whren (unlike the arrest of an innocent witness) involved probable cause that the arrestee had violated the law. Pet. App. 32a (" Whren rejected only the proposition that 'ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred."') (quoting Whren, 517 U.S. at 811; emphasis added by Ninth Circuit).
The court of appeals further stressed that this case involves a policy. As the court of appeals properly recognized, the Court has declined to apply Whren in such cases and has looked to the "programmatic purpose" behind a policy. Pet. App.
32

39a ("we are not probing into the minds of individual officers at the scene; instead, we are inquiring into the programmatic purpose of a general policy"); City of Indianapolis v. Edmond, 531 U.S. 32, 45-47 (2000) (distinguishing Whren and examining "available evidence" in finding that checkpoint was used for impermissible general law enforcement purposes); Ferguson u. City of Charleston, 532 U.S. 67, 81-82 (2001); see Whren, 517 U.S. at 813 (refusing to examine subjective motivations of individual police officers).
Petitioner nonetheless contends that Whren should still control this case because a material witness warrant is issued by a magistrate on an individualized showing that the witness has material information that would otherwise be impracticable to secure. Pet. 22-23. But, as the Ninth Circuit stressed, the individualized showing necessary to obtain a material witness warrant bears no relation to the traditional probable-cause showing necessary for an arrest of a suspect. Pet. App. 32a-39a. And it has long been settled that a warrant issued by a magistrate may still violate the Fourth Amendment, and thus subject those who sought the warrant to civil liability. See Malley v. Briggs, 475 U.S. 335, 345-46 (1986). Moreover, magistrates will rarely if ever be able to discover a hidden government motive, much less a nationwide policy reflecting a programmatic purpose, at the time they issue the warrant (especially given that it is an ex parte proceeding). Cf. Franks v. Delaware, 438 U.S. 154 (1978) .
33

Petitioner also contends that this case is different from Edmond because the "program" at issue here is the material witness statute, whereas in Edmond it was a "police department practice." Pet. 23. But the program at issue here is not the statute, but a policy that unconstitutionally perverts the intended use of the statute.
Indeed, the Ninth Circuit did not hold (contrary to petitioner's suggestion, Pet. 24-25) that the statute was unconstitutional, either on its face or as applied to Mr. al-Kidd. Rather, it held that both the Fourth Amendment and the statute itself prohibit the government from using its powers to arrest an innocent witness as a pretext for detaining and investigating suspects. Pet. App. 40a (stressing that the statute does not permit the arrest and detention of suspects "for the purpose of criminal investigation") (emphasis in Ninth Circuit opinion); id. ("Our holding does nothing to curb the use of the material witness statute for its stated purpose."); Pet. App. 113a (Smith, J., concurring in the denial of rehearing en bane) (emphasizing that the court did not hold that the statute is unconstitutional on its face or as applied to Mr. al-Kidd, but rather, that both the Fourth Amendment and the statute prohibit pretextual arrests of suspects, and are therefore coterminous in that regard).8
s Thus, contrary to petitioner's statements (see, e.g., Pet. (I), 7, 13, 20, 24, 29), the warrant in this case was not valid. Even assuming that the material witness statute's materiality and impracticability requirements were met, the position of
34

2. The court of appeals also properly concluded that "al-Kidd's right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003." Pet. App. 46a. As the court of appeals explained, although "no federal appellate court had yet squarely held that the federal material witness statute satisfied the requirements of the Fourth Amendment ... [w]hat obiter dicta existed [in 2003] on material witness detention . . . clearly linked its justification only to the state's overriding need to compel testimony in criminal cases." Pet. App. 42a.9
respondent and the Ninth Circuit is that both the Fourth Amendment and the statute prohibit a material witness arrest for the purpose of investigating a suspect, rather than for securing testimony. See also supra at i (counter-statement of questions presented).
9 The court of appeals also observed that circuit decisions directly addressing petitioner's post September 11 policy would have been "almost impossible" by 2003 given the lengthy appellate process. Pet. App. 46a n.22. That is especially so where the government took steps to keep secret the nature of the policy. FAC ~ 135. The court further noted that it was "unsurprising" that there were not more "published cases directly on point" given the extraordinary nature of petitioner's policy. Pet. App. 41a; cf. Hope v. Pelzer, 536 U.S. 730, 741 (2002) ("officials can still be on notice that their conduct violates established law even in novel factual circumstances"); Groh v. Ramirez, 540 U.S. 551, 565 & n.9 (2004) (finding law clearly established despite dissent by two Justices that there was no Fourth Amendment violation at all); see id. at 578 (Thomas, J., dissenting).
35

There was thus no basis for believing that the government could de-link its extraordinary power under the statute from the purpose of the statute- to secure testimony. And, as already noted, no court to address that question after September 11 has concluded that the pretextual use of the statute is permissible. See supra Section I; Awadallah, 349 F.3d at 59 ("it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established").
In short, petitioner's deliberate decision to authorize the pretextual arrest of witnesses was clearly unconstitutional at the time of Mr. al-Kidd's arrest. Thus, the district court and court of appeals properly denied petitioner immunity.
36

CONCLUSION The petition for a writ of certiorari should be denied.
Respectfully submitted,

MICHAEL J. WISHNIE P.O. Box 209090 New Haven, CT 06520-9090 (203) 436-4780 (Cooperating Counsel for the ACLU)
CYNTHIA J. WOOLLEY The Law Offices of
Cynthia J. Woolley 180 First St., West
Suite 107 P.O. Box 6999 Ketchum, ID 83340 (208) 725-5356

LEE GELERNT
Counsel of Record STEVEN R. SHAPIRO
LUCAS GUTTENTAG
TANAZ MOGHADAM
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2500 lgelernt@aclu. org

37

R. KEITH ROARK The Roark Law Firm,
LLP
409 North Main Street Hailey, ID 83333 (208) 788-2427

LEA COOPER
American Civil Liberties Union Foundation of Idaho
P.O. Box 1897 Boise, ID 83701 (208) 344-9750

September 2010

38

 
 l,.__s ! u-pr- em-e-Co-ur-t, - U.S-. ·~
L:£~~201G I
No. 10-98
]n tbt ~upreme cttourt of tbt mntteb ~tateg
JOHN D. ASHCROFT, PETITIONER v.
ABDULLAH AL-KIDD
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR PETITIONER
NEAL KUMAR KATYAL
Acting Solicitor General Counsel ofRecord
Deparbnent of Justice Washington, D.C. 20530-0001 SuprerneCtBriefs@usdoj.gov (202) 514-2217

Blank Page

TABLE OF CONTENTS

Page

A. The court of appeals erred in holding that petitioner is not entitled to absolute immunity ....... 3
B. The court of appeals erred in holding that petitioner is not entitled to qualified immunity ....... 6
C. The court of appeals adopted pleading standards that conflict with Iqbal ........................... 9

TABLE OF AUTHORITIES
Cases:
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .............. 3, 9 Austin Mun. Sec., Inc. v. NationalAss'n ofSec.
Dealers, 757 F.2d 676 (5th Cir. 1985) ............... 6 Bernard v. County ofSuffolk, 356 F.3d 495 (2d Cir.
2004) .......................................... 6 Betts v. Richard, 726 F.2d 79 (2d Cir. 1984) ......... . ... 3 Brosseau v. Haugen, 543 U.S. 194 (2004) ............... 9 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ......... 4, 5 City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ..... 7 Collins v. Brewer, No. 2:09-CV-02402, 2010 WL
2926131 (D. Ariz. July 23, 2010) ................... 10 Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978),
cert. denied, 441 U.S. 931 (1979) ................... 3 Hartman v. Moore, 547 U.S. 250 (2006) ................ 5 Imblerv. Pachtman, 424 U.S. 409 (1976) ............. 1, 3 Mitchell v. Forsyth, 472 U.S. 511 (1985) ................ 1 Saucier v. Katz, 533 U.S. 194 (2001) ................... 9 United States v. Awadallah, 349 F.3d 42 (2003),
cert. denied, 543 U.S. 1056 (2005) .................. 8

(I)

II

Cases-Continued:

Page

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) .................................... 3, 10, 11
United States ex rel. Glinton v. Denno, 339 F.2d 872 (1964), cert. denied, 381 U.S. 929 (1965) ............. 8
Vance v. Rum.~(eld, 694 F. Supp. 2d 957 (N.D. Ill. 2010) ......................................... 10
Whren v. United States, 517 U.S. 806 (1996) .......... 6, 7

Constitution and statutes:

U.S. Const. Amend. IV ........................ 2, 6, 7, 8
18 u.s.c. 3144 ...................................... 2

]n tbe ~upreme cteourt of tbe Wniteb ~tat~
No.l0-98 JOHN D. AsHCROFT, PETITIONER
v.
ABDULLAH AL-KIDD
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR PETITIONER
The court of appeals erred in holding that a former Attorney General of the United States could be subject to burdensome litigation based on the conduct of his subordinates in seeking and obtaining a warrant for respondent's arrest as a material witness. Its decision conflicts with decisions of this Court and other courts of appeals, effectively invalidates an Act of Congress, and, if permitted to stand, would severely damage important law-enforcement interests. This Court's review is therefore warranted.
Respondent contends (Br. in Opp. 23) that this Court's review is unnecessary because petitioner can seek review at a later time if he is ultimately found liable. That argument overlooks that one of the key purposes of immunity is to protect against the burdens of litigation, including discovery
and trial. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (noting that qualified immunity is an "immunity from suit"); Imblerv. Pachtman, 424 U.S. 409,423 (1976). More-
(1)

2
over, the consequences of at least three aspects of the decision below are sufficiently serious as to call for immediate correction by this Court.
First, the court of appeals denied petitioner absolute immunity from claims that he instructed his subordinates to seek a material witness warrant. In the court's view, petitioner's absolute immunity was defeated because respondent alleged that the "immediate purpose" of the warrant was "investigative." Respondent attempts to defend the court's reasoning on this issue, but his efforts are unsuccessful. The "immediate purpose" test has no support in precedent or logic; it conflicts with the decisions of other courts of appeals; and it threatens to undermine the policy objectives of the absolute-immunity doctrine by exposing prosecutors to suit when they exercise core advocacy functions.
Second, the court of appeals held that the Fourth Amendment prohibits the use of valid material witness warrants as a "pretext" for further investigation of a suspect. That holding is inconsistent with this Court's precedent recognizing that an officer's subjective intent is irrelevant to the validity of an arrest. It also leads to the conclusion that the material witness statute, 18 U.S.C. 3144, is unconstitutional as applied to this case. And it would severely limit prosecutors' ability and willingness to use the material witness statute in circumstances that frequently arise. Respondent argues that the court did not invalidate the statute but merely construed it not to apply here, but that interpretation finds no support in the court's opinion. Nor is there any basis for respondent's argument that the court's unprecedented decision was sufficiently "clearly established" to impose personal liability upon petitioner.
Third, the court of appeals ruled that the former Attorney General may be held responsible for alleged misstatements in an affidavit filed by subordinate officials. That

3
conclusion rests on a theory of vast supervisory liability that is directly contrary to this Court's decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and respondent no longer attempts to defend it. Instead, he promises (Br. in Opp. i) to abandon his claims based on that theory in any further proceedings. That erroneous aspect of the decision below is nevertheless significant and should not be allowed to stand. Respondent's abandonment of his claims has mooted that issue, and therefore, even if the Court does not grant plenary review, it should vacate that aspect of the court of appeals' decision. See United States v. Munsingwear, Inc.,
340 u.s. 36, 39 (1950).
A. The Court Of Appeals Erred In Holding That Petitioner Is Not Entitled To Absolute Immunity
AB explained in the petition (at 14-20), the court of appeals erred in denying petitioner absolute immunity for respondent's claim that he implemented a policy of using the material witness statute to investigate or preventatively detain terrorism suspects. If allowed to stand, that holding would frustrate the purposes of prosecutorial immunity and discourage the vigorous exercise of important governmental functions. Respondent's efforts to defend the court's reasoning are unavailing.
1. Respondent does not dispute that absolute immunity operates when an official, including the Attorney General, performs actions that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Nor does he dispute that seeking a material witness warrant is just such an action. Indeed, as respondent acknowledges (Br. in Opp. 30), courts have recognized that absolute immunity applies when a prosecutor seeks a material witness warrant. See, e.g., Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984); Daniels v. Kieser, 586

4
F.2d 64, 68-69 (7th Cir. 1978), cert. denied, 441 U.S. 931 (1979).
Instead, respondent attempts to defend the court of appeals' conclusion that while absolute immunity generally applies to the decision to seek a material witness warrant, such immunity is unavailable if a plaintiff alleges that the prosecutor's "immediate purpose" is "to investigate or preemptively detain a suspect." Pet. App. 25a. He asserts (Br. in Opp. 29) that the court of appeals merely applied "the Court's functional test" for determining when an activity is prosecutorial and therefore covered by absolute immunity. But that is not what the court of appeals actually did. Rather, it replaced the simple legal inquiry into the nature of the function being performed with a complicated factual inquiry into the subjective motives of the prosecutor. Under its rule, courts must examine the prosecutor's motive in order to determine whether the act in question is "prosecutorial." See Pet. App. 25a. Respondent's contention to the contrary is based upon an artificial distinction between the supposed "purpose" behind the act (which respondent believes can be considered) and the "motive" behind the act (which cannot). But neither respondent nor the court of appeals offered any basis for drawing that distinction.
Respondent repeats the error of the court of appeals (Pet. App. 19a-20a) in claiming (Br. in Opp. 29) to find support for the court's "immediate purpose" test in Buckley v. Fitzsimmons, 509 U.S. 259 (1993). The Court in Buckley did not endorse evaluation of the prosecutor's immediate purpose. Instead, that case involved the question whether a prosecutor's analysis of crime-scene evidence-normally an investigatory function-was nonetheless prosecutorial. This Court held that the subsequent convening of a grand jury did not make the prosecutor's alleged fabrication of evidence a prosecutorial act. The Court noted that the prose-

5
cutor's conduct occurred before the grand jury had convened, and that the "immediate purpose" ofthe grand jury was to investigate the crime and not to return an incitement against the suspect. I d. at 275. Nothing in Buckley suggests that an individual prosecutor's "immediate purpose" for performing an act that is unquestionably prosecutorial in nature can convert the act into an investigatory one.
2. As explained in the petition (at 19-20), the decision below would permit mere allegations of a prosecutor's improper purpose to defeat absolute immunity. Because bad motive is "easy to allege and hard to disprove," Hartman v. Moore, 547 U.S. 250, 257 (2006) (internal quotation marks omitted), the court of appeals' holding would undermine the protection of absolute immunity by subjecting prosecutors to burdensome discovery of their motives. Respondent asserts (Br. in Opp. 25) that the uncertainty for prosecutors created by the court's opinion is based upon "exaggerated" speculation, but in fact the court's immediate-purpose standard leaves prosecutors subject to potential claims of improper purpose for every act they take. For example, as noted in the petition (at 20), a prosecutor may face accusations that the real reason he charged a defendant with a crime was to induce his cooperation in an ongoing investigation, and not to actually secure a conviction. Respondent's brief echoes the court of appeals' response to such legitimate fears, suggesting that somehow the prosecutor's "immediate purpose" in that situation is not investigatory. Respondent all but concedes (Br. in Opp. 27) that this reasoning lacks any logical foundation, arguing that even if "many of the analytical lines drawn by the Ninth Circuit lack a principled basis," the "relevant point is that the court of appeals did draw those lines." But precisely because those lines are unsupported by any principle, they will provide no reassurance to officials who face the prospect of litigation

6
over the exercise of routine prosecutorial functions that they undertake each day.
Before this case, no court had adopted the approach of the court below. Indeed, contrary to respondent's suggestion that there is no circuit conflict (Br. in Opp. 22), at least two other courts of appeals have expressly rejected the proposition that a prosecutor's intent is relevant to absolute immunity analysis. See, e.g., Bernard v. County ofSuffolk, 356 F .3d 495, 504 (2d Cir. 2004) (The "fact that improper motives may influence" a prosecutor's exercise of discretion "cannot deprive him of absolute immunity."); Austin Mun. Sec., Inc. v. Nat'ional Ass'n of Sec. Dealers, 757 F.2d 676,
685 (5th Cir. 1985) ("[T]he intent with which * * * defen-
dants operate is irrelevant to the absolute immunity issue."). The conflict with those decisions warrants this Court's review.
B. The Court Of Appeals Erred In Holding That Petitioner Is
Not Entitled To Qualified Immunity
The court of appeals further erred in holding that petitioner is not entitled to qualified immunity, and its decision effectively invalidates the material witness statute. See William P. Barr, et al. Amicus Br. 18-21. Respondent attempts both to defend the decision and to minimize its significance, but his arguments are not persuasive.
1. Like the court of appeals, respondent asserts (Br. in Opp. 32) that the arrest of a material witness comports with the Fourth Amendment only if the arrest has a particular objective: "not to investigate and/or prosecute the individual, but to secure testimony for someone else's criminal proceeding." That assertion is directly contrary to this Court's decision in Whren v. United States, 517 U.S. 806 (1996), which made clear that the Fourth Amendment establishes an objective standard under which an officer's motives are

7
irrelevant. See id. at 813 ("[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.").
Respondent attempts (Br. in Opp. 32) to distinguish Whren on the ground that the case involved an arrest based on probable cause to believe that the arrestee had committed a criminal offense. That argument overlooks that respondent's detention was also based on an individualized determination of probable cause-that is, a finding by a neutral magistrate that there was probable cause that respondent had information important to an ongoing criminal proceeding.
Similarly flawed is respondent's argument (Br. in Opp. 32-33) that, under City ofIndianapolis v. Edmond, 531 U.S. 32 (2000)-a case involving vehicle checkpoints-a court must examine the "programmatic purpose" of the policy underlying his detention. As explained in the petition (at 2223), Edmond applies only to seizures that, unlike the one at issue in this case, lack any individualized basis. Moreover, the Court in Edmond cautioned that an inquiry into programmatic purpose "is not an invitation to probe the minds of individual officers acting at the scene," 531 U.S. at 48precisely what the court of appeals did here.
2. In holding that the Fourth Amendment prohibited an arrest that the material witness statute permitted, the court of appeals effectively invalidated the statute as applied to the circumstances of this case. Respondent attempts (Br. in Opp. 34) to resist that conclusion, arguing that the court of appeals actually construed the statute to prohibit detention
"as a pretext for * * * investigating suspects." Although
Judge Smith expressed that view in his concurrence in the denial of rehearing en bane, Pet. App. 113a-114a, the panel did not. Instead, it viewed the only statutory claim in the case as one based on false statements in the warrant affida-

8
vit. !d. at 47a-48a. The court's decision that respondent's detention was improper was expressly based on the Fourth Amendment. Id. at 40a ("To use a material witness statue pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.").
Respondent also contends (Br. in Opp. 22) that the Second Circuit has endorsed his interpretation of the material witness statute. He relies on United States v. Awadallah, 349 F.3d 42 (2003), cert. denied, 543 U.S. 1056 (2005), in which the court stated that it would be "improper" to use the statute for the purpose of "the detention of persons suspected of criminal activity for which probable cause has not yet been established." Id. at 59. That suggestion was dicta, and in any event the court did not state that such a purpose would invalidate an otherwise lawful use of the statute. To the contrary, the Second Circuit has previously rejected just such an argument. United States ex rel. Glinton v. Denno, 339 F.2d 872, 875 (1964), cert. denied, 381 U.S. 929 (1965). Nothing in Awadallah took issue with Glinton.
3. Even if the court of appeals were correct that the Fourth Amendment prohibited the execution of a material witness warrant when a prosecutor acted with investigative intent, the court erred in denying qualified immunity because that rule was not clearly established at the time of respondent's arrest. The court's error will increase the harmful effects of the decision below by discouraging prosecutors from using the material witness statute in any case where they suspect that the witness may also have committed a crime.
The court of appeals acknowledged-and respondent does not dispute (Br. in Opp. 35)-that as of the time of respondent's arrest, no case had "squarely confronted the question of whether misuse of the material witness statute

9
to investigate suspects violates the Constitution." Pet. App. 41a. Respondent argues (Br. in Opp. 36) that "[t]here was
* * * no basis for believing" that the use of the material
witness statute in this case was lawful. Even if that observation were accurate-which it is not-respondent's argument rests on an inversion of the appropriate qualified-immunity inquiry. As this Court has made clear, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)) (emphasis added). Like the court of appeals, respondent has not come close to demonstrating that this demanding standard was satisfied.
C. The Court Of Appeals Adopted Pleading Standards That Conflict With Iqbal
As demonstrated in the petition (at 30-33), the court of appeals also erred in concluding that petitioner, the former Attorney General, can be held responsible for alleged false statements and omissions in the affidavit submitted by subordinate officials in support of the warrant to arrest respondent. The court's decision was based on a theory of supervisory liability that is directly contrary to the holding of Aschcroft v. Iqbal, 129 S. Ct. 1937 (2009). Respondent makes no effort to defend the court of appeals' holding in this regard, nor does he dispute that the decision warrants review because it conflicts with Iqbal. Instead, he declares (Br. in Opp. i) that he "will not pursue the claims in Question 3" before this Court and ''will abandon the claim in Question 3 in any further proceedings in the district court or Ninth Circuit."

10
Respondent's abandonment of his claim provides no basis for denying review on the other questions presented. If the Court does not grant plenary review to consider those questions, however, then because respondent has mooted the supervisory-liability issue, the proper course would be to vacate that aspect of the court of appeals' decision. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). That course would be particularly appropriate here because courts both inside and outside the Ninth Circuit have relied upon the decision below to allow claims to proceed based upon allegations that high-ranking government officials merely acquiesced in alleged constitutional violations. See, e.g., Vance v. Rumsfeld, 694 F. Supp. 2d 957,964-965 (N.D. Ill. 2010) (relying upon the decision below to hold that allegations that former Secretary of Defense was aware of abuses and acquiesced in them were sufficient to state a claim), appeal pending, No. 10-1687 (7th Cir.); Collins v. Brewer, No. 2:09-CV-02402, 2010 WL 2926131, at *10 (D. Ariz. July 23, 2010) (citing the decision below for the proposition that "direct, personal participation is not necessary to establish liability for a constitutional violation"). The "happenstance" of respondent's abandonment of the issue should not deprive the government of the ability to seek correction of the court's judgment. Munsingwear, 340 U.S. at40.

11
* * * * *
For the foregoing reasons and those stated in the petition for a writ of certiorari, the petition should be granted. If the Court does not grant plenary review, it should vacate the portion of the decision below addressing the third question presented. See United States v. Munsingwear, Inc.,
340 u.s. 36, 39 (1950).
Respectfully submitted.
NEAL KUMAR KATYAL
Acting Solicitor General
SEPTEMBER 2010

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 598 F.3d 1129 (2010)
Abdullah AL-KIDD, Plaintiff-Appellee, v.
John ASHCROFT, Attorney General, Boise, Defendant-Appellant.
No. 06-36059.
United States Court of Appeals, Ninth Circuit.
March 18, 2010.
Lee P. Gelernt, American Civil Liberties Union Foundation, New York, NY, Robin Lisa Goldfaden, American Civil Liberties Union Foundation, San Francisco, CA, R. Keith Roark, Esquire, Hailey, ID, Cynthia J. Woolley, The Law Offices of Cynthia J. Woolley, PLLC, Ketchum, ID, for Plaintiff-Appellee.
Matthew M. Collette, Robert Loeb, U.S. Department of Justice, Washington, DC, for Defendant-Appellant.
1130 *1130 Before: DAVID R. THOMPSON, CARLOS T. BEA and MILAN D. SMITH, JR., Circuit Judges.
Concurrence by Judge MILAN D. SMITH, JR.; Dissent by Judge O'SCANNLAIN; Dissent by Judge GOULD.
ORDER
Judge M. Smith voted to deny the petition for rehearing en banc, and Judge Thompson so recommended. Judge Bea voted to grant the petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. Judge Bybee was recused in this matter.
The petition for rehearing en banc is DENIED.
M. SMITH, Circuit Judge, concurring in the denial of rehearing en banc:
I concur in the court's decision not to rehear this case en banc, and write to respond to the dissents from that decision.
In March 2005, al-Kidd brought suit in the District of Idaho against former United States Attorney General John Ashcroft, the United States, two FBI agents, and a number of other government agencies and officers in their official capacities. The suit sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of al-Kidd's rights under the Fourth and Fifth Amendments to the Constitution, and for a direct violation of 18 U.S.C. § 3144. Each of the defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over the parties in Idaho. Next, the district court denied the 12(b)(6) motion, rejecting the defendants' claims of absolute and qualified immunity. Only Ashcroft appealed the district court's rulings on the motions. In ruling on Ashcroft's interlocutory appeal of the district court's 12(b)(6) ruling, we are required to accept all allegations of material fact contained in al-Kidd's complaint as true and to construe those allegations in the light most favorable to al-Kidd. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). "Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden. . . ." al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir.2009).
All the parties to this action have approached it as a pure law enforcement matter. Ashcroft has not raised issues of national security or other exigencies at any point in this litigation. Id. at 973.

The facts alleged in al-Kidd's complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government, as did many members of the Founding Generation. Al-Kidd, born Lavoni T. Kidd, is a United States citizen, born in Wichita, Kansas, and raised in Seattle, Washington. He graduated from the University of Idaho, where he was a highly regarded running back on the university's football team. He was married and had two young children.
While at the university, al-Kidd converted to Islam and changed his name to Abdullah al-Kidd. In the spring and 1131 summer of 2002, al-Kidd became a target of FBI surveillance conducted as part of a broad *1131 anti-terrorism
investigation, aimed at Arab and Muslim men.[1] Al-Kidd cooperated with the FBI on several occasions when FBI agents asked to interview him.
Previous to this time, Ashcroft and others operating at his direction, or in concert with him, had decided to undertake a novel use of 18 U.S.C. § 3144, the material witness statute. Specifically,
1. At a press briefing, Ashcroft stated that the government was taking steps "to enhance [its] ability to protect the United States from the threat of terrorist aliens" and that "[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks."
2. In DOJ memoranda, Ashcroft stressed the need "to use . . . aggressive arrest and detention tactics in the war on terror" and to use "every available law enforcement tool" to arrest persons who "participate in, or lend support to, terrorist activities."
3. A DOJ document entitled "Maintaining Custody of Terrorism Suspects" stated that "[i]f a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant."
4. Michael Chertoff, who was head of the DOJ's Criminal Division in the years immediately following the 9/11 attacks, stated of the material witness statute, "[i]t's an important investigative tool in the war on terrorism.. . . Bear in mind that you get not only testimony 0907 you get fingerprints, you get hair samples 0907 so there's all kinds of evidence you can get from a witness."
5. Then White House Counsel, Alberto Gonzales, stated that: "In any case where it appears that a U.S. citizen captured within the United States may be an al Qaeda operative and thus may qualify as an enemy combatant, information on the individual is developed and numerous options are considered by the various relative agencies (the Department of Defense, CIA and DOJ), including the potential for a criminal prosecution, detention as a material witness, and detention as an enemy combatant."
(emphasis added).
What apparently interested the FBI in al-Kidd was his friendship with one Sami Omar Al-Hussayen, a Saudi national and a computer science student at the university, who was the webmaster of an Islamic proselyting website dedicated to, among other things, "[s]pread[ing] the correct knowledge of Islam; [and][w]iden[ing] the horizons and understanding . . . among Muslims concerning different Islamic contemporary issues."
In the spring of 2003, al-Kidd planned to fly to Saudi Arabia to study Arabic and Islamic law on a scholarship at a Saudi university. Knowing of his travel plans from their interviews with al-Kidd, and apparently implementing Ashcroft's plan to aggressively use the material witness statute to detain "material witnesses," two FBI agents swore out an affidavit that contained multiple falsehoods to secure a material witness warrant against al-Kidd, allegedly so he would be available to testify against Al-Hussayen (who had been indicted one month previously for visa fraud and making false statements to U.S. officials).
1132 *1132 On March 16, 2003, al-Kidd, bearing a round-trip ticket to Saudi Arabia, arrived at Dulles International Airport in Virginia. While al-Kidd was at the ticket counter, FBI agents handcuffed him, perp-walked him through the airport, and drove him to a police station, where he was placed in a holding cell. After being detained and questioned there for hours, al-Kidd was transferred to a detention center in Alexandria, Virginia.

For the next sixteen days, al-Kidd was detained in three different detention centers, one in Alexandria, one in Oklahoma, and one in Idaho. He was housed in high-security units within these facilities, which were the same units used to detain terrorists, and other persons charged with, or convicted of, other serious crimes. While at the Alexandria facility, al-Kidd was required to remain in a small cell where he ate his meals, except for one or two hours a day. He was strip-searched, denied visits by family, and denied requests to shower. Each time he was transferred to a new facility, he was shackled and accompanied by other prisoners who had been charged with, or convicted of, serious crimes. After sixteen days, "al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws' home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport." alKidd, 580 F.3d at 953.
Not too long after al-Kidd's arrest and detention, in congressional testimony regarding the government's efforts to fight terrorism, FBI Director Robert Mueller boasted that the government had charged over 200 "suspected terrorists" with crimes. Mueller then offered the names of five individuals as examples of the government's recent successes. Four of those persons had been criminally charged with terrorism-related offenses; the other was alKidd.
"After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, as al-Kidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen's trial, more than fifteen months after being arrested.[2] In July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship." Id. at 953-54 (emphasis added).
Al-Kidd was arrested more than a year before the Al-Hussayen trial began. In their interviews with al-Kidd, the FBI never suggested, let alone demanded, that al-Kidd appear as a witness in the Al-Hussayen trial. While in custody, al-Kidd was repeatedly questioned about matters unrelated to Al-Hussayen's alleged visa violations or false statements, but was never given a Miranda warning. "Al-Kidd was never called as a witness in the AlHussayen trial or in any other criminal proceeding" despite his assurances that he would be willing to be a witness. Id. at 953-54, 963 (emphasis added). Importantly, al-Kidd was never charged with the commission of any 1133 crime, even though *1133 Mueller had boasted to Congress that the government had at that point in time charged over 200 "suspected terrorists" with crimes, and named al-Kidd individually, as well as four other persons who had been criminally charged with terrorism-related offenses, as evidence of the government's recent successes.
Accepting al-Kidd's factual allegations as true and drawing all inferences in his favor, we held that al-Kidd alleged sufficient facts in his complaint to state a claim against Ashcroft for creating, authorizing, implementing, and supervising a policy that violated al-Kidd's Fourth Amendment right against unreasonable searches and seizures. In doing so, we determined Ashcroft was not entitled to absolute or qualified immunity because he served an investigative function in connection with the challenged policy, which violated al-Kidd's clearly established constitutional rights. We also held that al-Kidd alleged sufficient facts in his complaint to state a claim that Ashcroft directly violated the material witness statute by his own personal conduct. Accordingly, we affirmed the district court's decision, allowing al-Kidd's case to proceed against Ashcroft beyond the pleading stage.
I
Contrary to what our dissenting colleague suggests, we did not "effectively declar[e] the material witness statute unconstitutional." O'Scannlain Dissent at 1139. Judge O'Scannlain accuses the majority of holding that the Constitution "invalidates arrests authorized by the statute," and therefore, the statute is unconstitutional to the extent it authorizes arrests such as the one in this case. Id. at 1139 n. 4 (emphasis added). The material witness statute, however, does not authorize arrests like the one in this case.
Here, the statute was not used to secure the testimony of a material witness, but rather to detain and interrogate a criminal suspect. Indeed, al-Kidd contends that the federal government enforced a policy sanctioning the use of

the constitutionally-sound material witness statute for an end entirely outside the scope of the statute 0907 criminal investigation. Therefore, we did not address the validity of the material witness statute, and we unequivocally stated that the decision "does nothing to curb the use of the material witness statute for its stated purpose." alKidd, 580 F.3d at 970 (emphasis added). We treated "only the misuse of the statute," and concluded that when the statute "is not being used for its stated purpose, but instead for the purpose of criminal investigation," the statute cannot be the basis for authorizing the government's conduct. Id.
II
Judge O'Scannlain also accuses the majority of "distort[ing] the bedrock Fourth Amendment principle that an official's subjective reasons for making an arrest are constitutionally irrelevant," in contravention of Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). O'Scannlain Dissent at 1139. In Whren, the Supreme Court held that an individual officer's subjective intentions are irrelevant to the validity of a traffic stop under the Fourth Amendment. Id. at 810-13. But al-Kidd's case does not involve an ordinary traffic stop.
Whren stands for the proposition that "`[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.'" Id. at 813, 116 S.Ct. 1769 (emphasis added). But outside that context, "programmatic purposes may be relevant to the validity of Fourth Amendment intrusions taken pursuant to a general scheme 1134 without individualized suspicion." *1134 City of Indianapolis v. Edmond, 531 U.S. 32, 45-46, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (emphasis added).
Unlike the lawsuit in Whren, al-Kidd's suit does not involve a typical application of Fourth Amendment principles. See Whren, 517 U.S. at 819, 116 S.Ct. 1769. Al-Kidd claims that Ashcroft implemented a policy or program sanctioning the arrest and detention of individuals suspected of terrorism under the guise of the material witness statute. Therefore, al-Kidd's claims against Ashcroft do not hinge on one officer's basis for probable cause that alKidd committed a crime, but rather on the government's "intrusions undertaken pursuant to a general scheme without individualized suspicion." Edmond, 531 U.S. at 45-46, 121 S.Ct. 447. For these reasons, Whren does not furnish the appropriate Fourth Amendment analytical framework for reviewing al-Kidd's claims, and as a result, we properly looked to Edmond and related cases that have employed a programmatic purpose test to gauge the constitutionality of a program or policy.
Our colleague contends that the programmatic purpose test is applicable only in cases involving warrantless searches. But here, accepting al-Kidd's allegations as true, this case does involve a warrantless search and seizure, as federal agents did not have a warrant to arrest al-Kidd for his commission of terrorism-related crimes. [3] Therefore, the programmatic purpose test was appropriate in light of the allegations in this particular case. Certainly, there are "challenges inherent in a purpose inquiry," but nonetheless, "courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive government from that which is lawful." Id. at 46-47, 121 S.Ct. 447.
III
Judge O'Scannlain also challenges the majority's holding that al-Kidd's Fourth Amendment right at issue in this case was clearly established in 2003. The doctrine of qualified immunity seeks to ensure that governmental officials have "fair notice" that their specific actions violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). "It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of the defendants' actions] was apparent in light of preexisting law." Malik v. Brown, 71 F.3d 724, 727 (9th Cir.1995). "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope, 536 U.S. at 741, 122 S.Ct. 2508. In fact, the absence of cases evaluating whether certain policies are constitutional "may be due more to the obviousness of the illegality than the novelty of the legal issue." Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002). And where the courts do not have the benefit of factually analogous case law to assist with illuminating the parameters of the 1135 constitutional right, *1135 "general statements of the law" and "general constitutional rule[s] already identified in the decisional law" can adequately furnish the required fair warning to government officials about the

constitutionality of their conduct. United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).
Accepting the factual allegations in al-Kidd's complaint as true, and drawing all inferences in his favor, we determined that in light of the well-established Fourth Amendment principles in place at the time of al-Kidd's arrest, Ashcroft had a fair warning that the policy he authorized and encouraged was unconstitutional. Under Beck v. Ohio, Ashcroft knew that an arrest of a criminal suspect is constitutional only if at the time of the arrest, there is probable cause that the arrestee has committed or is committing the offense justifying the arrest. 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Under Edmond, Ashcroft was on notice that "programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion," and that a program whose primary purpose is indistinguishable from "the general interest in crime control" violates the Fourth Amendment. 531 U.S. at 45-48, 121 S.Ct. 447. Because Ashcroft's alleged conduct was "so patently violative" of such well-established Fourth Amendment principles, "closely analogous preexisting case law [was] not required to show that the law [was] clearly established." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.1994) (internal quotation marks omitted).
Only after we considered those well-established Fourth Amendment principles did we address a timely district court decision featuring a factual scenario closely analogous to that faced by al-Kidd. In United States v. Awadallah, Awadallah, like al-Kidd, was detained as a "material witness" for over two weeks in high-security prisons across the country, where he was kept in solitary confinement, shackled, strip-searched, and denied family contact. 202 F.Supp.2d 55, 58 (S.D.N.Y.2002). We recognized that the district court's statements in Awadallah were merely dicta, and that ultimately Awadallah was charged with criminal offenses. Nevertheless, the facts at issue in Awadallah were so closely analogous to those in al-Kidd that we deemed them relevant to the discussion, especially in light of our court's admonition to consider all relevant decisional law. Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir.2003) ("[I]n the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established for qualified immunity purposes, including decisions of . . . district courts." (internal quotation marks omitted)); see also Sorrels, 290 F.3d at 971 ("[U]npublished decisions of district courts may inform [a court's] qualified immunity analysis."). Further, if anyone in the United States is presumptively on notice of cases involving federal law enforcement officers and the DOJ, it is the nation's top law enforcement officer.
We did not stake the existence of the clearly established right in this case on the district court's statements in Awadallah. Rather, the district court's comments in Awadallah were unsurprising and entirely consistent with the long-established Fourth Amendment principles upon which we principally relied for our holding. Thus, we properly included a reference to Awadallah in considering whether al-Kidd had a clearly established right in March 2003.
IV
Lastly, Judge O'Scannlain misreads the majority's decision as holding that a cabinet-level official may be 1136 personally liable *1136 for actions taken by his subordinate alone. To the contrary, the holding fully complies with
the Court's instruction in Ashcroft v. Iqbal, that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." ___ U.S. ___, ___, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). Al-Kidd was not required to allege that Ashcroft actually authorized the specific warrant for al-Kidd, or any alleged misrepresentations or omissions contained therein. Under Iqbal, al-Kidd had to "plead sufficient factual matter to show that [Ashcroft] adopted and implemented the detention policies at issue" not for some neutral, lawful reason but for an unlawful purpose. Id. at 1948-49.
The complaint claims Ashcroft created, adopted and implemented a policy of using the material witness statute for an unlawful end. The complaint contains numerous factual allegations supporting that theory, specifically referring to Ashcroft's liability for his own personal involvement with creating, implementing, and enforcing the alleged policy at issue in this case. The complaint also contains statements made by Ashcroft himself in support of such a policy, including his statements that law enforcement was to use "every available law enforcement tool" to arrest persons "who participate in, or lend support to, terrorist activities," that it was the government's policy "to use . . . aggressive arrest and detention tactics in the war on terror," and that "[a]ggressive detention of

lawbreakers and material witnesses [was] vital to preventing, disrupting or delaying new attacks." Thus, al-Kidd's § 3144 claim is not based upon allegations that Ashcroft simply knew or should have known that federal agents were actually violating or had the potential to violate the material witness statute in connection with the alleged policy; rather the complaint is based upon allegations of Ashcroft's own misconduct in sanctioning and promulgating a nationwide policy that systematically authorized the misuse of the material witness statute to arrest and detain suspected terrorists for whom the government had insufficient evidence of any wrongdoing.
Al-Kidd's case came before us in a Rule 12(b)(6) posture, and as such, we have an obligation to assume the allegations in al-Kidd's complaint are true, whether discovery would bear them out or not. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable[.]"). Accepting al-Kidd's factual allegations as true, we concluded that Ashcroft created, authorized, supervised, and enforced a policy that used the material witness statute in contravention of the Fourth Amendment, and that Ashcroft directly violated the material witness statute by his own personal involvement with the challenged policy.
However well-motivated Ashcroft's intentions may have been in creating, authorizing, supervising, and enforcing the misuse of the material witness statute in contravention of the Fourth Amendment, his motivation does not presumptively immunize the policy, or himself, the nation's chief law enforcement officer, and others implementing and executing it, from complying with the rule of law. "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 27 L.Ed. 171 (1882).
V
1137 Finally, my dissenting colleagues express concerns that the court's decision in *1137 this case will dissuade qualified individuals from seeking the position of Attorney General and exercising the full range of their authority if chosen to fill that office. While I acknowledge their concerns, I note that cabinet officers are regularly sued in the courts of the United States, and that the government defends them both individually and in their official capacities, as necessary. I understand that 100% of Ashcroft's attorney fees incurred to date in this case have been paid by the United States. See 28 C.F.R. § 50.15(a), (b). Moreover, in the event Ashcroft is ultimately held personally liable in this lawsuit for his actions against al-Kidd, he will almost certainly be eligible to claim indemnification from the United States. See 28 C.F.R. § 50.15(c).
The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as Attorney General of the United States. But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States. Mindful that some in high office can be guilty of excessive zeal, former Justice Brandeis, in his famous dissent in Olmstead v. United States, stated:
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
277 U.S. 438, 48 S.Ct. 564, 572-73, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
The majority stands by its decision in this case, firm in the belief that it complies fully with controlling Supreme Court case law and the Constitution of the United States.
O'SCANNLAIN, Circuit Judge, joined by KOZINSKI, Chief Judge, and KLEINFELD, GOULD, TALLMAN, CALLAHAN, BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:
The majority holds that a former Attorney General of the United States may be personally liable for promulgating a policy under which his subordinates took actions expressly authorized by law. Judge Bea's dissent from the panel decision clearly and ably describes the several legal errors the panel makes in reaching this startling

conclusion. See al-Kidd v. Ashcroft, 580 F.3d 949, 981-1000 (9th Cir.2009) (Bea, J., dissenting). For my part, I write to express my concern at the scope of this decision. First, the majority holds that al-Kidd's detention under a valid material witness warrant violated his clearly established constitutional rights a 0907 conclusion that effectively declares the material witness statute unconstitutional as applied to al-Kidd. Second, the majority holds that a cabinet-level official may be personally liable for actions taken by his subordinates alone. Because of the gratuitous damage this decision inflicts upon orderly federal law enforcement, I must respectfully dissent from our refusal to rehear this case en banc.
I
1138 On March 14, 2003, federal prosecutors sought a material witness warrant[1] to arrest *1138 Abdullah al-Kidd in connection with their prosecution of Sami Omar Al-Hussayen, whom a federal grand jury had indicted for visa fraud and making false statements to U.S. officials. According to a supporting affidavit submitted by prosecutors, al-Kidd had contacts with Al-Hussayen's suspected Jihadist organization, had received over $20,000 from AlHussayen, and, after returning from a trip to Yemen, had met with Al-Hussayen's associates. The affidavit also stated that al-Kidd had a plane ticket to fly to Saudi Arabia two days later, and that if he left the country, the government would "be unable to secure his presence at trial via subpoena." Based on this affidavit, a federal magistrate judge issued the warrant authorizing al-Kidd's arrest.
On March 16, federal agents arrested al-Kidd at the ticket counter at Dulles International Airport, outside Washington, D.C. After his arrest, the government detained al-Kidd for a total of sixteen days at several different federal facilities before releasing him on conditions that he surrender his passport, live with his wife at his in-laws' home in Nevada, limit his travel to Nevada and three other states, and regularly meet with a probation officer. The government did not ultimately call him to testify at Al-Hussayen's trial, and after the trial concluded, a judge granted al-Kidd's request that the restrictions on his travel be lifted.
Two years later, al-Kidd filed this lawsuit in the U.S. District Court for the District of Idaho. His first amended complaint alleges that Ashcroft violated the Fourth and Fifth Amendments and the federal material witness statute by promulgating a policy directing federal prosecutors to seek material witness warrants to detain individuals whom they believed, but could not prove, were involved in criminal activities. After the district court denied Ashcroft's motion to dismiss al-Kidd's complaint, Ashcroft appealed to this court.[2] The panel majority then affirmed the pertinent part of the district court's ruling in an extraordinarily broad and unprecedented decision.[3]
II
By permitting al-Kidd's suit to proceed, the majority commits two distinct but equally troubling legal errors, each of which will have far-reaching implications for how government officials perform their duties. First, the majority strips Ashcroft of his official immunity, holding that it was clearly established at the time of al-Kidd's arrest that prosecutors violate the Fourth Amendment when they obtain and execute a material witness warrant as a pretext for other law-enforcement objectives. Second, by holding that Ashcroft may be personally liable if his subordinates swore false affidavits to obtain the warrant authorizing al-Kidd's arrest, the majority stretches 1139 beyond *1139 recognition the rule that a government official is liable only when he personally violates the constitution. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
A
1
The majority begins by effectively declaring the material witness statute unconstitutional, at least as applied to alKidd. But al-Kidd does not appear to contest that he met the statutory requirements for arrest as a material witness. See al-Kidd, 580 F.3d at 957. Nor does he contend that the material witness statute is facially unconstitutional. Id. at 966. The majority nevertheless holds that because prosecutors used a material witness

warrant to arrest al-Kidd as a pretext to a criminal investigation, his detention violated the Fourth Amendment. This conclusion0907 that the material witness statute authorized al-Kidd's arrest while the Fourth Amendment forbade it0907can only mean that the material witness statute itself is unconstitutional in this circumstance.[4] With respect, such conclusion is preposterous.
The federal material witness statute has existed since 1789, Bacon v. United States, 449 F.2d 933, 938 (9th Cir.1971), every state has adopted a version of the statute, id. at 939, and (at least until now), "[t]he constitutionality of th[e] statute apparently has never been doubted," Barry v. United States ex rel Cunningham, 279 U.S. 597, 617, 49 S.Ct. 452, 73 L.Ed. 867 (1929). The majority's decision to invalidate a statute passed by the First Congress and retained by every subsequent Congress should have by itself prompted us to rehear this case.
The majority does not stop at declaring a 200-year-old statute unconstitutional, however. It also distorts the bedrock Fourth Amendment principle that an official's subjective reasons for making an arrest are constitutionally irrelevant. The majority holds that if prosecutors used the material witness warrant as a pretext to arrest al-Kidd "with the ulterior and . . . unconstitutional purpose of investigating or preemptively detaining" him, they violated his Fourth Amendment rights. Al-Kidd, 580 F.3d at 957 (emphasis added). This holding is impossible to square with Supreme Court precedent, which has "flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification." Whren v. United States, 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (emphasis added). Given that al-Kidd has conceded that he met the facial requirements for arrest under the material witness statute, the prosecutor's purpose for arresting him is immaterial to the Fourth Amendment analysis because "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." Scott v. United States, 436 U.S. 128, 136-37, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); see also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ("[T]he Fourth Amendment's 1140 concern with `reasonableness' *1140 allows certain actions to be taken in certain circumstances, whatever the subjective intent[of the government official taking the action]." (internal quotation marks omitted)).
The majority, unfortunately, disagrees. Although it acknowledges that an officer's subjective intentions are irrelevant to "ordinary, probable-cause Fourth Amendment analysis," it holds that because al-Kidd's arrest was not supported by probable cause that al-Kidd had committed a crime, his detention was constitutionally infirm. AlKidd, 580 F.3d at 966. To reach this novel result, the majority relies on the Supreme Court's "programmatic purpose" test. Id. at 968-69. Contrary to the majority's analysis, that test is totally inapplicable here. The Supreme Court uses the programmatic purpose test to evaluate the constitutionality of warrantless searches. See Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Because al-Kidd was arrested under a valid warrant, however, the programmatic purpose test, and its concern for the purpose of an arrest, is entirely inapplicable here. Thus, the majority concludes that the material witness warrant authorizing al-Kidd's arrest is unconstitutional only after examining the subjective reasons prosecutors sought the warrant, something the Supreme Court has repeatedly forbidden us to do. This error alone warranted en banc review.
2
The majority then compounds its error by holding that the right to be free from a detention under a pretextual material witness warrant was clearly established at the time of al-Kidd's arrest. The majority claims this result is compelled by three sources: the clearly established definition of probable cause, al-Kidd, 580 F.3d at 971, "the history and purposes of the Fourth Amendment," id., and a footnote in a district court opinion, id. at 972 (quoting United States v. Awadallah, 202 F.Supp.2d 55, 77 n. 28 (S.D.N.Y.2002), rev'd on other grounds, 349 F.3d 42 (2d Cir.2003)).
The majority's reliance on the first two sources proves too much, of course. All government officials are presumed to be aware of the definition of probable cause and the history and purposes of the Fourth Amendment. If this is sufficient clearly to establish how the Fourth Amendment applies in a particular setting, then how can any Fourth Amendment rule ever not be "clearly established"? See Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

The majority's reliance on Awadallah is possibly even more troubling. The majority's assertion that three sentences of dicta in a footnote to a subsequently reversed district court opinion clearly establish a right that the majority expended nearly three-thousand words describing is truly astonishing.[5] Under the majority's reasoning, our government's officials may find themselves subject to suits for decisions that they did not 0907and, even if they spent their time doing nothing but reading reports of federal judicial decisions, could not 0907know contravened the Constitution. Indeed, the lack of support for the majority's conclusion is so glaring that even the editorial board of a distinguished newspaper remarked that "officials should not have to fear personal lawsuits for performing their duties in good faith and in violation of no established legal precedent." Editorial, Suing Mr. Ashcroft: Why a 1141 Court's Decision to Allow a Personal Lawsuit Against the Former Attorney General *1141 Should Not Stand, Wash. Post, Sept. 12, 2009, at A16 (emphasis added).
Thus, the majority has held that a former Attorney General might suffer personal liability solely for acting within the bounds of federal law. One shudders at the thought that this decision might deter the incumbent and future Attorneys General from exercising the full range of their lawful authority to protect the security of the United States.
B
The majority goes further still, however, by holding that Ashcroft may be held personally liable to al-Kidd if his subordinates provided false testimony in support of their application for a material witness warrant. Al-Kidd, 580 F.3d at 975-76. It cannot be contested that al-Kidd has a clearly established right to be free of an arrest based on fraudulent testimony. See Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). AlKidd does not allege that Ashcroft personally swore any false testimony, however. Rather, it was Ashcroft's subordinates who provided the testimony that al-Kidd alleges was false. In light of Iqbal's holding that "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct," 129 S.Ct. at 1949, al-Kidd's complaint fails to allege facts sufficient to establish a cause of action against Ashcroft.
As Judge Bea explains in detail, al-Kidd does not allege that Ashcroft encouraged federal prosecutors to lie in applications for material witness warrants. Al-Kidd, 580 F.3d at 992-93 (Bea, J., dissenting). Al-Kidd does not claim that Ashcroft even knew that his subordinates might be submitting false affidavits. At most, al-Kidd claims that Ashcroft's policies encouraged his subordinates to use material witness warrants to detain individuals within the maximum extent authorized by law. Id. at 993. By permitting al-Kidd's claim that Ashcroft has violated Franks to proceed, the majority permits al-Kidd to seek damages from Ashcroft for his subordinates' alleged misconduct, a result indisputably at odds with Iqbal. See 129 S.Ct. at 1949.
III
After this decision, a prosecutor who executes a perfectly valid material witness warrant must worry that he will find himself sued and liable in damages for violating the Fourth Amendment. Moreover, any cabinet-level official must worry that he might be personally liable if his subordinates take an action perfectly consistent with thenexisting federal law.[6]
Because these results are contrary to both logic and law, I respectfully dissent from our unfortunate rejection of 1142 the opportunity *1142 to correct these errors by rehearing this case en banc.
GOULD, Circuit Judge, with whom KOZINSKI, Chief Judge, and O'SCANNLAIN, KLEINFELD, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I agree with Judge Bea's persuasive dissent from the majority opinion and agree with Judge O'Scannlain's persuasive dissent from denial of rehearing en banc. I add this pragmatic concern: If an Attorney General of the United States can be held liable and subject to monetary damages primarily because of actions of law enforcement subordinates, who allegedly gained and executed a material witness warrant for contrived purposes, I fear that it will become more difficult to persuade a person of great talent and integrity to leave his or her current

occupation in order to hold the nation's highest law office. The panel majority's decision in effect says "good bye" to many talented persons who would otherwise be willing to serve as Attorney General with great distinction and attendant benefit to our country.
[1] Al-Kidd is Muslim, but is African-American and not of Arab descent.
[2] "Al-Hussayen was not convicted of any of the charges brought against him. His trial ended in acquittal on the most serious charges, including conspiracy to provide material support to terrorists. After the jury failed to reach a verdict on the remaining lesser charges, the district court declared a mistrial. The government agreed not to retry Al-Hussayen and deported him to Saudi Arabia for visa violations." Id. at 953 n. 4 (internal citation omitted).
[3] Judge O'Scannlain contends there was a warrant in this case, as federal agents possessed a warrant pursuant to the material witness statute. But a warrant is not a carte blanche for officers to do anything they desire under the auspices of the warrant. See Malley v. Briggs, 475 U.S. 335, 345-46, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (holding that an officer's act of applying for a warrant per se does not entitle the officer to qualified immunity). A warrant cannot pass constitutional muster if the scope of the related search or seizure exceeds that permitted by the terms of the validly issued warrant. See Bivens, 403 U.S. at 394-95 n. 7, 91 S.Ct. 1999. Here, alKidd's complaint alleged that the issued material witness warrant was executed to arrest al-Kidd for being a terrorist suspect, not as a material witness. Therefore, the warrant upon which Judge O'Scannlain bases his argument cannot reach the arrest of al-Kidd for criminal law violations.
[1] The federal material witness statute, 18 U.S.C. § 3144, provides:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
[2] Al-Kidd's complaint also names several other federal officers and agencies as defendants. None of the other defendants appealed the district court's decision denying qualified immunity, and therefore al-Kidd's claims against them were not before the panel.
[3] In a portion of its opinion in which Judge Bea concurred, the majority reversed the district court's determination that Ashcroft was not immune from al-Kidd's claim arising from the conditions of al-Kidd's confinement. See al-Kidd, 580 F.3d at 977-79.
[4] I acknowledge that the majority does not say that it is declaring the material witness statute unconstitutional. Nevertheless, that is what it does. The majority acknowledges that individuals arrested under the allegedly unconstitutional policy "met the facial statutory requirements of [the material witness statute]." Al-Kidd, 580 F.3d at 957. Despite this, in a section of its opinion entitled "Al-Kidd's Fourth Amendment Rights Were Violated," id. at 965, it concludes that al-Kidd's arrest was impermissible. By concluding that the Constitution invalidates arrests authorized by the statute, the majority must conclude that the statute is unconstitutional to the extent it authorizes arrests such as the one in this case0907put another way, that the statute is unconstitutional as applied to al-Kidd.
[5] In addition, the Chief Judge of the Southern District of New York has expressly declined to follow Awadallah. See In re Application of U.S. for a Material Witness Warrant, 213 F.Supp.2d 287, 288 (S.D.N.Y.2002).
[6] The possibility the federal government might reimburse Ashcroft for any judgment against him hardly removes the likelihood that this decision might deter the current or future Attorneys General from carrying out their duties. Anderson, 483 U.S. at 641 n. 3, 107 S.Ct. 3034 (noting that 28 C.F.R. § 50.15(c) "permit[s] reimbursement of Department of Justice employees when the Attorney General finds reimbursement appropriate"). Claims for reimbursement have been denied on occasion. See Falkowski v. EEOC, 719 F.2d 470, 472-76 (D.C.Cir.1983) (arising after the government declined to represent a former employee in a lawsuit related to her employment),

vacated sub nom. U.S. Dep't of Justice v. Falkowski, 471 U.S. 1001, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Turner v. Schultz, 187 F.Supp.2d 1288, 1290 (D.Colo.2002) (same). Moreover, the decision to provide or to deny such reimbursement is entirely within the discretion of the current Attorney General, and is not subject to judicial review. Falkowski v. EEOC, 764 F.2d 907, 911 (D.C.Cir.1985).
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 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 12-35957 Nature of Suit: 2440 Other Civil Rights Abdullah Al-Kidd v. Michael Gneckow, et al Appeal From: U.S. District Court for Idaho, Boise Fee Status: USA - No Fee Req

Docketed: 11/19/2012

Case Type Information: 1) civil 2) united states 3) null

Originating Court Information:

District: 0976-1 : 1:05-cv-00093-EJL-MHW

Trial Judge: Edward J. Lodge, District Judge

Date Filed: 03/15/2005

Date Order/Judgment:

Date Order/Judgment EOD:

09/27/2012

09/27/2012

Date NOA Filed: 11/19/2012

Date Rec'd COA: 11/19/2012

Prior Cases: 08-35692 Date Filed: 08/22/2008 Date Disposed: 08/24/2009 Disposition: FRAP 42b Dismissal

Current Cases: None

ABDULLAH AL-KIDD Plaintiff - Appellee,
v. UNITED STATES OF AMERICA
Defendant,

Katherine Desormeau Direct: 415-343-0778 [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Lee P. Gelernt Direct: 212-549-2616 [COR NTC Retained] ACLU - AMERICAN CIVIL LIBERTIES UNION FOUNDATION 18th Floor 125 Broad Street New York, NY 10004
Dror Ladin Direct: 212-284-7303 [COR NTC Retained] ACLU Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004
Michael Joel Wishnie Direct: 203-432-4800 [COR NTC Retained] Yale Law School
Professor of Clinical Law Firm: 203-436-4780 P.O. Box 209090 New Haven, CT 06520-9090

Defendant,
MICHAEL GNECKOW Defendant - Appellant,

Brant S. Levine, Trial Attorney Direct: 202-616-4373 [COR LD NTC Assist US Attorney] DOJ - U.S. DEPARTMENT OF JUSTICE Civil Division, Torts Branch P.O. Box 7146, Benjamin Franklin Station Washington, DC 20044-7146
Lowell Sturgill, Jr., Attorney Direct: 202-514-3427 [COR LD NTC Government] DOJ - U.S. Department of Justice Civil Division - Appellate Staff Room 7241 950 Pennsylvania Avenue, N.W. Washington, DC 20530

ABDULLAH AL-KIDD, Plaintiff - Appellee,
v. UNITED STATES OF AMERICA,
Defendant, and MICHAEL GNECKOW,
Defendant - Appellant.

11/19/2012

1

14 pg, 587.15 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 11/26/2012. Transcript ordered by 12/19/2012. Transcript due 01/18/2013. Appellant Michael Gneckow opening brief due 02/27/2013. Appellee Abdullah Al-Kidd answering brief due 03/29/2013. Appellant's optional reply brief is due 14 days after service of the answering brief. [8407550] (GR)

11/19/2012

2

2 pg, 32.36 KB

Filed representation notice. [8407561] (GR)

11/26/2012

3

Filed (ECF) Appellant Michael Gneckow Mediation Questionnaire. Date of service: 11/26/2012. [8413692]

4 pg, 399.48 KB (BSL)

11/26/2012

4

1 pg, 88.67 KB

Filed (ECF) notice of appearance of Esha Bhandari for Appellee Abdullah Al-Kidd. Date of service: 11/26/2012. [8413832] (EB)

11/26/2012

5

Added attorney Esha Bhandari for Abdullah Al-Kidd. [8413886] (RL)

11/26/2012

6

1 pg, 25.62 KB

11/27/2012

7

Filed (ECF) notice of appearance of Katherine Desormeau for Appellee Abdullah Al-Kidd. Date of service: 11/26/2012. [8414875] (KD)
Added attorney Katherine Desormeau for Abdullah Al-Kidd. [8415425] (JFF)

11/30/2012

8

1 pg, 253.91 KB

11/30/2012

9

Filed (ECF) notice of appearance of Dror Ladin for Appellee Abdullah Al-Kidd. Date of service: 11/30/2012. [8420748]--[COURT UPDATE: Attached corrected PDF version of notice which corrects viewing error (blank). Resent NDA. 11/30/2012 by RY] (DL)
Added attorney Dror Ladin for Abdullah Al-Kidd. [8421974] (JFF)

12/03/2012

10

5 pg, 50.71 KB

01/10/2013

11

3 pg, 28.72 KB

05/06/2013

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2 pg, 24.61 KB

06/18/2013

13

1 pg, 474.86 KB

06/18/2013

14

Filed order MEDIATION (EPM): The Mediation Program of the Ninth Circuit Court of Appeals facilitates settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. The court has scheduled a telephone settlement assessment conference, with counsel only, on January 7, 2013, at 11:00 a.m. PACIFIC (San Francisco) Time to discuss whether this case is appropriate for participation in the Mediation Program.... The briefing schedule previously set by the court remains in effect. [8422652] (WL)
Filed order MEDIATION (LJ): On January 7, 2013, a telephone conference was held with Circuit Mediator Lisa Jaye. The briefing schedule previously set by the court is vacated. An in-person mediation conference will be held on April 19, 2013, beginning at 10:00 a.m., at the Richard H. Chambers U.S. Court of Appeals Building, 125 South Grand Avenue, Mural Room, Pasadena, California [local contact: (626) 229-7250]... Mediation statements of no more than 10 pages shall be submitted to the Circuit Mediator [fax no. (415) 355-8566] on or before April 10, 2013. Mediation statements shall contain brief statements of the following... Mediation statements shall not be filed with the court. [8469498] (WL)
Filed order MEDIATION (LJ): On April 19, 2013, an in-person mediation conference was held with Circuit Mediator Lisa Jaye. The briefing schedule previously set by the court is reset as follows: appellant shall file an opening brief on or before July 1, 2013; appellee shall file an answering brief on or before August 15, 2013; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. This appeal is released from the Mediation Program.Counsel are requested to contact the undersigned should circumstances develop that warrant further settlement discussions while the appeal is pending. [8616628] (WL)
Filed (ECF) notice of appearance of Lowell V. Sturgill Jr. for Appellant Michael Gneckow. Date of service: 06/18/2013. [8671749] (LS)
Added attorney Lowell Sturgill Jr. for Michael Gneckow. [8671859] (JFF)

06/18/2013

15

7 pg, 132.68 KB

06/20/2013

16

1 pg, 27.52 KB

Filed (ECF) Appellant Michael Gneckow Joint Motion to extend time to file Opening brief until 08/01/2013 at 11:00 pm. Date of service: 06/18/2013. [8672256] (LS)
Filed clerk order (Deputy Clerk: LBS): The parties’ joint motion to revise the briefing schedule is granted. The opening brief is due August 1, 2013; the answering brief is due October 15, 2013; and the optional reply brief is due within 14 days after service of the answering brief. The parties are reminded that a motion for an extension of time should be accompanied by a declaration stating that the court reporter is not in default with regard to any designated transcripts. See 9th Cir. R. 31-2.2(b)(7). [8674967] (WL)

07/19/2013

17

2 pg, 75.63 KB

07/19/2013

18

Filed (ECF) Appellee Abdullah Al-Kidd Correspondence: Notice of withdrawal as counsel. Date of service: 07/19/2013. [8710328]--[COURT UPDATE: Edited docket text to reflect correct ECF event. Resent NDA. 07/19/2013 by RY] (EB)
Terminated Esha Bhandari for Abdullah Al-Kidd in 12-35957 [8710403] (JFF)

08/01/2013

19

Submitted (ECF) Opening Brief and excerpts of record for review. Submitted by Appellant Michael

738 pg, 25.35 MB Gneckow. Date of service: 08/01/2013. [8726008] (LS)

08/02/2013

20

2 pg, 85.71 KB

Filed clerk order: The opening brief [19] submitted by Michael Gneckow is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the excerpts of record [19] submitted by Michael Gneckow. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8728146] (LA)

08/07/2013

21

Received 7 paper copies of Opening brief [19] filed by Michael Gneckow. [8734601] (SD)

08/08/2013

22

Filed Appellant Michael Gneckow paper copies of excerpts of record [19] in 3 volume(s). [8736215] (LA)

09/12/2013

23

Filed (ECF) Appellee Abdullah Al-Kidd Unopposed Motion to extend time to file Answering brief until

6 pg, 204.22 KB 10/30/2013 at 11:59 pm. Date of service: 09/12/2013. [8779943] (LPG)

09/12/2013

24

1 pg, 86.36 KB

Filed clerk order (Deputy Clerk: LBS): The government’s unopposed motion for an extension of time to file the answering brief is granted. The answering brief is due October 30, 2013. The optional reply brief is due within 14 days after service of the answering brief. [8780341] (LBS)

09/18/2013

25

1 pg, 33.11 KB

Filed clerk order (Deputy Clerk: LBS): The September 12, 2013 Clerk order is amended as follows: Appellee’s unopposed motion for an extension of time to file the answering brief is granted. The answering brief is due October 30, 2013. The optional reply brief is due within 14 days after service of the answering brief. [8787078] (KKW)

10/30/2013

26

Submitted (ECF) Answering Brief and supplemental excerpts of record for review. Submitted by Appellee

102 pg, 485.13 KB Abdullah Al-Kidd. Date of service: 10/30/2013. [8844600] (LPG)

10/31/2013

27

2 pg, 85.73 KB

Filed clerk order: The answering brief [26] submitted by Abdullah Al-Kidd is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [26] submitted by Abdullah Al-Kidd. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8845561] (LA)

11/01/2013

28

Filed Appellee Abdullah Al-Kidd paper copies of supplemental excerpts of record [26] in 1 volume. [8846833] (CT)

11/05/2013

29

Received 7 paper copies of Answering brief [26] filed by Abdullah Al-Kidd. [8851194] (SD)

11/08/2013

30

4 pg, 16.21 KB

Filed (ECF) - USA and Appellant Michael Gneckow Unopposed Motion to extend time to file Reply brief until 12/13/2013 at 11:00 pm. Date of service: 11/08/2013. [8855993] (LS)

11/08/2013

31

1 pg, 86.27 KB

Filed clerk order (Deputy Clerk: LBS): Appellant’s unopposed motion for an extension of time to file the reply brief is granted. The reply brief is due December 13, 2013. [8857263] (LBS)

12/13/2013

32

Submitted (ECF) Reply Brief and further excerpts of record for review. Submitted by - USA and Appellant

47 pg, 557.89 KB Michael Gneckow. Date of service: 12/13/2013. [8900734] (LS)

12/16/2013

33

2 pg, 85.75 KB

12/19/2013

34

12/19/2013

35

Filed clerk order: The reply brief [32] submitted by USA and Michael Gneckow is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the further excerpts of record [32] submitted by USA and Michael Gneckow. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8902243] (CT)
Received 7 paper copies of Reply brief [32] filed by USA and Michael Gneckow. [8909007] (SD)
Filed - USA and Appellant Michael Gneckow paper copies of further excerpts of record [32] in 1 volume. [8909220] (CT)

11/19/2012

1

14 pg, 587.15 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 11/26/2012. Transcript ordered by 12/19/2012. Transcript due 01/18/2013. Appellant Michael Gneckow opening brief due 02/27/2013. Appellee Abdullah Al-Kidd answering brief due 03/29/2013. Appellant's optional reply brief is due 14 days after service of the ans wering brief. [8407550] (GR)

11/19/2012

2

2 pg, 32.36 KB

Filed representation notice. [8407561] (GR)

11/26/2012

3

Filed (ECF) Appellant Michael Gneckow Mediation Questionnaire. Date of service: 11/26/2012. [8413692]

4 pg, 399.48 KB (BSL)

11/26/2012

4

1 pg, 88.67 KB

Filed (ECF) notice of appearance of Esha Bhandari for Appellee Abdullah Al-Kidd. Date of service: 11/26/2012. [8413832] (EB)

11/26/2012

5

Added attorney Esha Bhandari for Abdullah Al-Kidd. [8413886] (RL)

11/26/2012

6

1 pg, 25.62 KB

11/27/2012

7

Filed (ECF) notice of appearance of Katherine Desormeau for Appellee Abdullah Al-Kidd. Date of service: 11/26/2012. [8414875] (KD)
Added attorney Katherine Desormeau for Abdullah Al-Kidd. [8415425] (JFF)

11/30/2012

8

1 pg, 253.91 KB

11/30/2012

9

Filed (ECF) notice of appearance of Dror Ladin for Appellee Abdullah Al-Kidd. Date of service: 11/30/2012. [8420748]--[COURT UPDATE: Attached corrected PDF version of notice which corrects viewing error (blank). Resent NDA. 11/30/2012 by RY] (DL)
Added attorney Dror Ladin for Abdullah Al-Kidd. [8421974] (JFF)

12/03/2012

10

5 pg, 50.71 KB

01/10/2013

11

3 pg, 28.72 KB

05/06/2013

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2 pg, 24.61 KB

06/18/2013

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1 pg, 474.86 KB

06/18/2013

14

Filed order MEDIATION (EPM): The Mediation Program of the Ninth Circuit Court of Appeals facilitates settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. The court has scheduled a telephone settlement assessment conference, with counsel only, on January 7, 2013, at 11:00 a.m. PACIFIC (San Francisco) Time to discuss whether this case is appropriate for participation in the Mediation Program.... The briefing schedule previously set by the court remains in effect. [8422652] (WL)
Filed order MEDIATION (LJ): On January 7, 2013, a telephone conference was held with Circuit Mediator Lisa Jaye. The briefing schedule previously set by the court is vacated. An in-person mediation conference will be held on April 19, 2013, beginning at 10:00 a.m., at the Richard H. Chambers U.S. Court of Appeals Building, 125 South Grand Avenue, Mural Room, Pasadena, California [local contact: (626) 229-7250]... Mediation statements of no more than 10 pages shall be submitted to the Circuit Mediator [fax no. (415) 355-8566] on or before April 10, 2013. Mediation statements shall contain brief statements of the following... Mediation statements shall not be filed with the court. [8469498] (WL)
Filed order MEDIATION (LJ): On April 19, 2013, an in-person mediation conference was held with Circuit Mediator Lisa Jaye. The briefing schedule previously set by the court is reset as follows: appellant shall file an opening brief on or before July 1, 2013; appellee shall file an answering brief on or before August 15, 2013; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. This appeal is released from the Mediation Program.Counsel are requested to contact the undersigned should circumstances develop that warrant further settlement discussions while the appeal is pending. [8616628] (WL)
Filed (ECF) notice of appearance of Lowell V. Sturgill Jr. for Appellant Michael Gneckow. Date of service: 06/18/2013. [8671749] (LS)
Added attorney Lowell Sturgill Jr. for Michael Gneckow. [8671859] (JFF)

06/18/2013

15

7 pg, 132.68 KB

06/20/2013

16

1 pg, 27.52 KB

Filed (ECF) Appellant Michael Gneckow Joint Motion to extend time to file Opening brief until 08/01/2013 at 11:00 pm. Date of service: 06/18/2013. [8672256] (LS)
Filed clerk order (Deputy Clerk: LBS): The parties’ joint motion to revise the briefing schedule is granted. The opening brief is due August 1, 2013; the answering brief is due October 15, 2013; and the optional reply brief is due within 14 days after service of the answering brief. The parties are reminded that a motion for an extension of time should be accompanied by a declaration stating that the court reporter is not in default with regard to any designated transcripts. See 9th Cir. R. 31-2.2(b)(7). [8674967] (WL)

07/19/2013

17

2 pg, 75.63 KB

07/19/2013

18

Filed (ECF) Appellee Abdullah Al-Kidd Correspondence: Notice of withdrawal as counsel. Date of service: 07/19/2013. [8710328]--[COURT UPDATE: Edited docket text to reflect correct ECF event. Resent NDA. 07/19/2013 by RY] (EB)
Terminated Esha Bhandari for Abdullah Al-Kidd in 12-35957 [8710403] (JFF)

08/01/2013

19

Submitted (ECF) Opening Brief and excerpts of record for review. Submitted by Appellant Michael

738 pg, 25.35 MB Gneckow. Date of service: 08/01/2013. [8726008] (LS)

08/02/2013

20

2 pg, 85.71 KB

Filed clerk order: The opening brief [19] submitted by Michael Gneckow is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the excerpts of record [19] submitted by Michael Gneckow. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8728146] (LA)

08/07/2013

21

Received 7 paper copies of Opening brief [19] filed by Michael Gneckow. [8734601] (SD)

08/08/2013

22

Filed Appellant Michael Gneckow paper copies of excerpts of record [19] in 3 volume(s). [8736215] (LA)

09/12/2013

23

Filed (ECF) Appellee Abdullah Al-Kidd Unopposed Motion to extend time to file Answering brief until

6 pg, 204.22 KB 10/30/2013 at 11:59 pm. Date of service: 09/12/2013. [8779943] (LPG)

09/12/2013

24

1 pg, 86.36 KB

Filed clerk order (Deputy Clerk: LBS): The government’s unopposed motion for an extension of time to file the answering brief is granted. The answering brief is due October 30, 2013. The optional reply brief is due within 14 days after service of the answering brief. [8780341] (LBS)

09/18/2013

25

1 pg, 33.11 KB

Filed clerk order (Deputy Clerk: LBS): The September 12, 2013 Clerk order is amended as follows: Appellee’s unopposed motion for an extension of time to file the answering brief is granted. The answering brief is due October 30, 2013. The optional reply brief is due within 14 days after service of the answering brief. [8787078] (KKW)

10/30/2013

26

Submitted (ECF) Answering Brief and supplemental excerpts of record for review. Submitted by Appellee

102 pg, 485.13 KB Abdullah Al-Kidd. Date of service: 10/30/2013. [8844600] (LPG)

10/31/2013

27

2 pg, 85.73 KB

Filed clerk order: The answering brief [26] submitted by Abdullah Al-Kidd is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [26] submitted by Abdullah Al-Kidd. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8845561] (LA)

11/01/2013

28

Filed Appellee Abdullah Al-Kidd paper copies of supplemental excerpts of record [26] in 1 volume. [8846833] (CT)

11/05/2013

29

Received 7 paper copies of Answering brief [26] filed by Abdullah Al-Kidd. [8851194] (SD)

11/08/2013

30

4 pg, 16.21 KB

Filed (ECF) - USA and Appellant Michael Gneckow Unopposed Motion to extend time to file Reply brief until 12/13/2013 at 11:00 pm. Date of service: 11/08/2013. [8855993] (LS)

11/08/2013

31

1 pg, 86.27 KB

Filed clerk order (Deputy Clerk: LBS): Appellant’s unopposed motion for an extension of time to file the reply brief is granted. The reply brief is due December 13, 2013. [8857263] (LBS)

12/13/2013

32

Submitted (ECF) Reply Brief and further excerpts of record for review. Submitted by - USA and Appellant

47 pg, 557.89 KB Michael Gneckow. Date of service: 12/13/2013. [8900734] (LS)

12/16/2013

33

2 pg, 85.75 KB

12/19/2013

34

12/19/2013

35

Filed clerk order: The reply brief [32] submitted by USA and Michael Gneckow is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the further excerpts of record [32] submitted by USA and Michael Gneckow. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8902243] (CT)
Received 7 paper copies of Reply brief [32] filed by USA and Michael Gneckow. [8909007] (SD)
Filed - USA and Appellant Michael Gneckow paper copies of further excerpts of record [32] in 1 volume. [8909220] (CT)

 
 Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 1 of 33
LC13,LCLT,RFPTRL,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:05−cv−00093−EJL−CWD

Al−Kidd v. United States, et al Assigned to: Judge Edward J. Lodge Referred to: Judge Candy W. Dale Case in other court: Ninth Circuit Court of Appeals, 08−35692
Ninth Circuit Court of Appeals, 12−35957 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/15/2005 Date Terminated: 01/13/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Abdullah Al−Kidd

represented by Cynthia Jane Woolley LAW OFFICES OF CYNTHIA J WOOLLEY PLLC PO Box 6999 Ketchum, ID 83340 (208) 725−5356 Fax: (208) 725−5569 Email: cynthia@ketchumidaholaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen J Elliott ELLIOTT LAW OFFICES PLLC PO Box 1352 Boise, ID 83701 (208) 384−5456 Fax: 1−208−384−5476 Email: kje@elliott−law−firm.com TERMINATED: 05/08/2009 LEAD ATTORNEY

Lee Gelernt American Civil Liberties Union Foundation 125 Broad St, 18th Floor New York, NY 10004 (212) 549−2616 Email: lgelernt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J Wishnie ACLU Cooperating Attorney 272 Edgehill Rd New Haven, CT 06511 203−432−4800 Email: michael.wishnie@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Keith Roark ROARK LAW FIRM 409 North Main Street Hailey, ID 83333 (208) 788−2427 Fax: (208) 788−3918 Email: keith@roarklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 2 of 33
Robin L. Goldfaden ACLU Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0770 ext 772 Email: rgoldfaden@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa A Hampton Federal Defender Services of Idaho Capital Habeas Unit 702 W. Idaho, Suite 900 Boise, ID 83702 208−331−5530 Fax: 208−331−5559 Email: Teresa_Hampton@fd.org TERMINATED: 05/08/2009 LEAD ATTORNEY
Esha Bhandari ACLU Immigrants' Rights Project 125 Broad St., 18th Floor New York, NY 11215 212−284−7359 Email: ebhandari@aclu.org TERMINATED: 07/22/2013 PRO HAC VICE
Katherine K Desormeau ACLU Immigrant's Rights Project 39 Drumm St. San Francisco, CA 94609 415−348−0778 Email: kdesormeau@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Lea Candy Cooper ACLU of Idaho P.O. Box 1897 Boise, ID 83701 (208) 344−9750 Fax: (208) 433−9271 Email: lcooper@acluidaho.org TERMINATED: 05/25/2012 ATTORNEY TO BE NOTICED
Michael K.T. Tan American Civil Liberties Union Foundation 125 Broad St. New York, NY 10004 212−284−7303 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Alan Eppink American Civil Liberties Union of Idaho Foundation P.O. Box 1897 Boise, ID 83701 208−344−9750 ext. 1202 Fax: 208−344−7201

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 3 of 33
Email: reppink@acluidaho.org ATTORNEY TO BE NOTICED

V. Defendant Alberto Gonzales Attorney General of the United States TERMINATED: 03/28/2012
Defendant John Ashcroft Former Attorney General of the United States TERMINATED: 03/29/2012
Defendant Robert Mueller Director of the Federal Bureau of Investigation TERMINATED: 03/28/2012
Defendant Michael Chertoff Secretary of the Dept of Homeland Security and Former Assistant Attorney General of the Dept of Justice TERMINATED: 03/28/2012
Defendant

represented by Forrest S Christian DEPT OF JUSTICE Trial Attorney, Torts Branch P O Box 7146, Ben Franklin Station Washington D.C. 20044 Email: Forrest.Christian@usdoj.gov TERMINATED: 09/06/2006 LEAD ATTORNEY
J Marcus Meeks Civil Division, Torts Branch POB 7146 Ben Franklin Station Washington, DC 20044 (202) 616−4176 Email: marcus.meeks@usdoj.gov (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY
J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY
J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY
J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 4 of 33

James Dunning Warden, Alexandria Detention Center TERMINATED: 07/19/2006

Merlyn W Clark HAWLEY TROXELL ENNIS &HAWLEY PO Box 1617 Boise, ID 83701 (208) 344−6000 Fax: 1−208−342−3829 Email: MWC@HTEH.COM TERMINATED: 11/08/2011 LEAD ATTORNEY

Defendant
Dennis M Callahan Warden, Oklahoma Federal Transfer Center TERMINATED: 09/27/2006

represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Vaughn Killeen former Warden, Ada County Jail TERMINATED: 07/17/2008

represented by Julie D. Reading Ada County Prosecutor's Office 200 W. Front Street, Rm 3191 Boise, ID 83702 (208) 287−7700 Fax: (208) 287−7719 Email: julie.reading@usda.gov TERMINATED: 09/25/2007 LEAD ATTORNEY

Sherry A Morgan ADA COUNTY PROSECUTOR'S OFFICE Civil Division 200 W Front Street, Rm 3191 Boise, ID 83702 (208) 287−7700 Fax: (208) 287−7719 Email: smorgan@adaweb.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lorna K Jorgensen ADA COUNTY PROSECUTOR'S OFFICE 200 W. Front Street, Rm 3191 Boise, ID 83702 (208) 287−7700 Email: ljorgensen@adaweb.net ATTORNEY TO BE NOTICED

Defendant
James Gneckow FBI Agent

represented by Brant S Levine United States Department of Justice P.O. Box 7146 Ben Franklin Station Washington, DC 20044 202−616−4373 Fax: 202−616−4314 Email: Brant.Levine@usdoj.gov

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 5 of 33

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) TERMINATED: 09/11/2012

Defendant
Scott Mace FBI Agent

represented by Brant S Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) TERMINATED: 09/11/2012

Defendant
U.S. Dept of Justice TERMINATED: 03/28/2012

represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) TERMINATED: 09/11/2012

Defendant
U.S. Dept of Homeland Security TERMINATED: 03/28/2012

represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) TERMINATED: 09/11/2012

Defendant
Federal Bureau of Investigation TERMINATED: 03/28/2012

represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Terorist Screening Center TERMINATED: 03/28/2012

represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 6 of 33

LEAD ATTORNEY

J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Donna Bucella Director of the Terorist Screening Center TERMINATED: 03/28/2012

represented by Forrest S Christian (See above for address) TERMINATED: 09/06/2006 LEAD ATTORNEY

J Marcus Meeks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Does 1−25

Defendant
John Sugrue Former Warden, Oklahoma Federal Transfer Center TERMINATED: 10/11/2006

Defendant United States

represented by Brant S Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Marcus Meeks (See above for address) TERMINATED: 09/11/2012

Defendant
Vaughn Killeen TERMINATED: 07/28/2008

represented by Sherry A Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lorna K Jorgensen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/15/2005 03/15/2005 06/09/2005

# Docket Text
1 COMPLAINT against all defs (Filing fee $ 250.) , filed by Abdullah Al−Kidd. (Attachments: # 1 Civil Cover Sheet)(dkh, )
2 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Abdullah Al−Kidd re 1 Complaint (dkh, )
3 LITIGATION ORDER Telephone Scheduling Conference set for 9/15/2003 09:30 AM before Honorable Edward J. Lodge.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 7 of 33

06/09/2005
07/06/2005 07/06/2005
07/07/2005 07/07/2005
09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005

4 AMENDED LITIGATION ORDER Telephone Scheduling Conference set for 9/15/2005 09:30 AM before Honorable Edward J. Lodge.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
5 MOTION for Extension of Time to File Serve Summons and Complaint by Abdullah Al−Kidd. Responses due by 8/1/2005 (Attachments: # 1 Affidavit)(Woolley, Cynthia)
CORRECTIVE ENTRY − The entry docket number 5 MOTION for Extension of Time to File Serve Summons and Complaint filed by Abdullah Al−Kidd, was filed correctly in this case, however, this appears to be a two part motion but only one part was request. The filing party shall re−submit their correct filing and choose extention for one and amend for the other. (dkh, ) (Entered: 07/07/2005)
6 MOTION for Extension of Time to Amend Corrective Entry, Motion For Extension of Dates Set in Amended Litigation Order by Abdullah Al−Kidd. Responses due by 8/1/2005 (Woolley, Cynthia)
7 ORDER granting 5 Motion for Extension of Time to serve summons and complaint, granting 6 Motion to Amend litigation order; Telephone scheduling conference of 9/15/05 vacated and reset for 12/15/05 9:30 a.m.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
8 SUMMONS Returned Executed by Abdullah Al−Kidd. John Ashcroft served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
9 SUMMONS Returned Executed by Abdullah Al−Kidd. John Ashcroft served on 9/12/2005, answer due 10/3/2005. (Woolley, Cynthia)
10 SUMMONS Returned Executed by Abdullah Al−Kidd. Donna Bucella served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
11 SUMMONS Returned Executed by Abdullah Al−Kidd. Dennis M Callahan served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
12 SUMMONS Returned Executed by Abdullah Al−Kidd. U.S. Dept of Homeland Security served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
13 SUMMONS Returned Executed by Abdullah Al−Kidd. U.S. Dept of Justice served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
14 SUMMONS Returned Executed by Abdullah Al−Kidd. James Gneckow served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
15 SUMMONS Returned Executed by Abdullah Al−Kidd. Vaughn Killeen served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
16 SUMMONS Returned Executed by Abdullah Al−Kidd. Scott Mace served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
17 SUMMONS Returned Executed by Abdullah Al−Kidd. James Dunning served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
18 SUMMONS Returned Executed by Abdullah Al−Kidd. Robert Mueller served on 9/8/2005, answer due 9/28/2005. (Woolley, Cynthia)
19 SUMMONS Returned Executed by Abdullah Al−Kidd. Terrorist Screening Center served on 9/8/2005, answer due 9/28/2005. (Woolley, Cynthia)
20 SUMMONS Returned Executed by Abdullah Al−Kidd. Alberto Gonzales served on 9/9/2005, answer due 9/29/2005. (Woolley, Cynthia)
21 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Dennis Callahan served on 9/13/2005 (Woolley, Cynthia)
22 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Vaughn Killeen served on 9/13/2005 (Woolley, Cynthia)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 8 of 33

09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/14/2005 09/14/2005 09/14/2005 09/14/2005 09/14/2005
09/26/2005 10/04/2005 10/05/2005
10/25/2005 10/31/2005 10/31/2005 10/31/2005
11/18/2005 12/01/2005 12/09/2005

23 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Scott Mace served on 9/13/2005 (Woolley, Cynthia)
24 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Michael James Gneckow served on 9/13/2005 (Woolley, Cynthia)
25 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. U.S. Dept. of Homeland Security served on 9/13/2005 (Woolley, Cynthia)
26 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Department of Justice served on 9/9/2005 (Woolley, Cynthia)
27 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Donna Bucella served on 9/8/2005 (Woolley, Cynthia)
28 NOTICE by Abdullah Al−Kidd SUMMONS Returned Executed. Representative for Ashcroft served on 9/9/05 (Woolley, Cynthia)
29 SUMMONS Returned Executed by Abdullah Al−Kidd. Federal Bureau of Investigation served on 9/8/2005, answer due 9/28/2005. (Woolley, Cynthia)
30 NOTICE of service on Vaughn Killeen at AUSA attorney office on 9/13/05 by Abdullah Al−Kidd (dkh, ) (Entered: 09/16/2005)
31 NOTICE of return of service on Dennis M. Callahan at the AUSA's office on 9/13/05 by Abdullah Al−Kidd (dkh, ) (Entered: 09/16/2005)
32 NOTICE of summonrs returned executed on James Dunning, Robert Mueller, John Ashcroft, Alberto Gonzales, Donna Bucella, Terrorist Screening Center, FBI, US Dept of Homeland Security, US Dept of Justice, Scott Mace, &Michael James Gneckow at the AUSA's office on 9/13/05 by Abdullah Al−Kidd (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(dkh, ) (Entered: 09/16/2005)
33 ANSWER to Complaint with Jury Demand by Vaughn Killeen.(Reading, Julie)
34 NOTICE of Appearance by Merlyn W Clark on behalf of James Dunning (Clark, Merlyn)
35 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Alberto Gonzales re 33 Answer to Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
36 CONSENT filed. (ja, )
37 ACKNOWLEDGEMENT OF SERVICE Executed on all Federal Defendants Acknowledgement filed by Abdullah Al−Kidd. (Woolley, Cynthia)
38 STIPULATION For Leave to Amend Complaint and Extension of Time to Answer or Otherwise Repond to Complaint by Abdullah Al−Kidd. (Woolley, Cynthia)
39 ORDER granting 38 Stipulation to file an amended complaint filed by Abdullah Al−Kidd, DDL 11/18/05; Dft's shall answer or otherwise respond to pla's first amended complaint by 1/23/06; Parties shall file a joint litigation plan by 2/6/06; The telephone scheduling conference set for 12/15/05 is vacated and will be rescheduled, if necessary, at the convenience of the Court. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, ) (Entered: 11/01/2005)
40 AMENDED COMPLAINT against all defendants, filed by Abdullah Al−Kidd.(Woolley, Cynthia)
41 NOTICE by Abdullah Al−Kidd Change of Law Firm Name (Woolley, Cynthia)
42 APPLICATION AND APPROVAL of Clerk for admission Pro Hac Vice− Attorney Lee Gelernt for Abdullah Al−Kidd added. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 9 of 33

12/13/2005 12/15/2005 01/19/2006 01/23/2006 01/23/2006 01/23/2006 01/23/2006 01/23/2006
01/23/2006
01/23/2006
01/24/2006 01/24/2006 01/24/2006 01/24/2006

43 ANSWER to Amended Complaint by Vaughn Killeen.(Reading, Julie)
44 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Vaughn Killeen re 43 Answer to Amended Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
45 APPLICATION and approval of Clerk for admission pro hac vice, Attorney Robin L Goldfaden for Abdullah Al−Kidd added. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
46 STIPULATION For 1) Leave to Exceed Page Limit 2) Extension of Filing Deadlines 3) Stay of Discovery by Abdullah Al−Kidd. (Woolley, Cynthia)
47 MOTION to Dismiss by Dennis M Callahan, James Gneckow, Scott Mace, John Ashcroft. Responses due by 2/16/2006 (Christian, Forrest)
48 MEMORANDUM in Support re 47 MOTION to Dismiss filed by Dennis M Callahan, James Gneckow, Scott Mace, John Ashcroft. (Attachments: # 1 Affidavit Exhibit 1 Lindquist Declaration# 2 Affidavit Exhibit 2 Callahan Declaration# 3 Exhibit Exhibit 3 Al−Hussayen Indictment)(Christian, Forrest)
49 MOTION to Dismiss or in alternative motion for summary judgment by Michael Chertoff, U.S. Dept of Justice, U.S. Dept of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Donna Bucella, Alberto Gonzales, Robert Mueller. Responses due by 2/16/2006 (Christian, Forrest)
50 MEMORANDUM in Support re 49 MOTION to Dismiss or in alternative motion for summary judgment filed by Michael Chertoff, U.S. Dept of Justice, U.S. Dept of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Donna Bucella, Alberto Gonzales, Robert Mueller. (Attachments: # 1 Exhibit Exhibit 1 Al−Hussayen Indictment# 2 Affidavit Exhibit 2 McKee Declaration# 3 Affidavit Exhibit 3 Harrington Declaration)(Christian, Forrest)
51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT by James Dunning. Responses due by 2/16/2006 (Attachments: # 1 Memorandum in Support DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT# 2 DECLARATION OF TONY C. DAVIS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT)(Clark, Merlyn)
52 SUPPLEMENT by Defendant James Dunning re 51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT EXHIBITS TO DECLARATION OF TONY C. DAVIS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT − EXHIBIT A PAGES 1−4. (Attachments: # 1 Exhibit A Pages 5 − 8# 2 Exhibits B − E# 3 Exhibits F − H# 4 Exhibits I − K# 5 Exhibit L# 6 Exhibit M)(Clark, Merlyn)
53 ORDER Granting in part 46 Stipulation filed by Abdullah Al−Kidd, . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
54 DECLARATION of Amended Declaration of Tony C. Davis In Support of Motion for Summary Judgment re 51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT filed by James Dunning. (Clark, Merlyn)
55 MOTION to Dismiss by Dennis M Callahan, James Gneckow, Scott Mace, John Ashcroft. Responses due by 2/17/2006 (Christian, Forrest)
56 MEMORANDUM in Support re 55 MOTION to Dismiss filed by Dennis M Callahan, James Gneckow, Scott Mace, John Ashcroft. (Attachments: # 1 Affidavit Exhibit 1 Lindquist Declaration# 2 Affidavit Exhibit 2 Callahan Declaration# 3 Exhibit Exhibit 3 Al−Hussayen Indictment)(Christian, Forrest)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 10 of 33

01/25/2006
02/27/2006
03/01/2006 03/14/2006 03/15/2006 03/15/2006 03/15/2006 03/15/2006 03/15/2006 03/20/2006
03/24/2006
03/27/2006 03/28/2006

57 DECLARATION of James Dunning in Support of Motion to Dismiss for Lack of Personal Jurisdiction and Alternatively a Motion for Summary Judgment re 51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT filed by James Dunning. (Clark, Merlyn)
58 MOTION to Substitute Party by Abdullah Al−Kidd. Responses due by 3/23/2006 (Attachments: # 1 Memorandum in Support Memorandum in Support# 2 Affidavit Affidavit of Lee Gelernt# 3 Exhibit Exhibit A of Affidavit of Lee Gelernt# 4 Exhibit Exhibit B of Affidavit of Lee Gelernt# 5 Exhibit Exhibit C of Affidavit of Lee Gelernt# 6 Exhibit Exhibit C of Affidavit of Lee Gelernt# 7 Exhibit Exhibit E of Affidavit of Lee Gelernt# 8 Exhibit Exhibit F of Affidavit of Lee Gelernt# 9 Exhibit Exhibit G of Affidavit of Lee Gelernt)(Gelernt, Lee)
59 RESPONSE to Motion re 58 MOTION to Substitute Party − DEFENDANT JAMES DUNNING'S NON−OPPOSITION TO MOTION TO SUBSTITUTE JOHN SUGRUE AS DEFENDANT FOR DEFENDANT DENNIS M. CALLAHAN filed by James Dunning. Replies due by 3/15/2006. (Miller, Brad)
60 MOTION to Stay Resolution of Defendant Dunning's Alternative Motion for Summary Judgment by Abdullah Al−Kidd. Responses due by 4/7/2006
Corrective entry−Please disregard the Doc #61 &62 which was a motion for summary judgment and order. These were read incorrectly by the docket clerk and entered erroneously. Docket Clerk will redocket the order and fix accordingly. Please accept my apoligies. Darlene Hand, Deputy Clerk (dkh, )
61 ORDER granting 60 Motion to Stay dft Dunning's alternative motion for summary judgment pending resolution of the motion to dismiss. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
62 MEMORANDUM in Opposition re 49 MOTION to Dismiss or in alternative motion for summary judgment filed by Abdullah Al−Kidd. Replies due by 4/14/2006. (Gelernt, Lee)
63 MEMORANDUM in Opposition re 55 MOTION to Dismiss filed by Abdullah Al−Kidd. Replies due by 4/14/2006. (Gelernt, Lee)
64 MEMORANDUM in Opposition re 51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT filed by Abdullah Al−Kidd. Replies due by 4/14/2006. (Gelernt, Lee)
65 RESPONSE to Motion re 58 MOTION to Substitute Party John Sugrue filed by Michael Chertoff, Dennis M Callahan, James Gneckow, Scott Mace, U.S. Dept of Justice, U.S. Dept of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Donna Bucella, Alberto Gonzales, John Ashcroft, Robert Mueller. Replies due by 4/3/2006. (Lammens, Philip)
66 MOTION for Extension of Time to File Response/Reply In Support of Motion to Dismiss by Michael Chertoff, Dennis M Callahan, James Gneckow, Scott Mace, U.S. Dept of Justice, U.S. Dept of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Donna Bucella, Alberto Gonzales, John Ashcroft, Robert Mueller. Responses due by 4/17/2006 (Christian, Forrest)
67 RESPONSE to Motion re 66 MOTION for Extension of Time to File Response/Reply In Support of Motion to Dismiss (Non−Opposition) filed by Abdullah Al−Kidd. (Gelernt, Lee)
68 ORDER granting 66 Motion for Extension of Time to File Reply re 51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT, 55 MOTION to Dismiss, 49 MOTION to Dismiss or in alternative motion for summary judgment, 47 MOTION to Dismiss Replies due by 5/15/2006.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 11 of 33

03/29/2006 04/14/2006 05/15/2006 05/15/2006 05/30/2006 07/19/2006
07/31/2006 09/06/2006 09/06/2006
09/18/2006
09/27/2006
09/27/2006
09/29/2006 09/29/2006

69 REPLY to Response to Motion re 58 MOTION to Substitute Party filed by Abdullah Al−Kidd. (Gelernt, Lee)
70 REPLY to Response to Motion re 51 MOTION to Dismiss DEFENDANT JAMES DUNNING'S MOTION TO DISMISS OR ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT − Defendant James Dunning's Reply Memorandum in Support of Motion to Dismiss filed by James Dunning. (Clark, Merlyn)
71 REPLY to Response to Motion re 55 MOTION to Dismiss filed by Dennis M Callahan, James Gneckow, Scott Mace, John Ashcroft. (Christian, Forrest)
72 REPLY to Response to Motion re 49 MOTION to Dismiss or in alternative motion for summary judgment filed by Michael Chertoff, U.S. Dept of Justice, U.S. Dept of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Donna Bucella, Alberto Gonzales, Robert Mueller. (Christian, Forrest)
73 NOTICE by Michael Chertoff, Dennis M Callahan, James Gneckow, Scott Mace, U.S. Dept of Justice, U.S. Dept of Homeland Security, Federal Bureau of Investigation, Terrorist Screening Center, Donna Bucella, Alberto Gonzales, John Ashcroft, Robert Mueller (Lammens, Philip)
74 ORDER denying as moot 51 Motion to Dismiss; Pla's request for transfer of venue is granted. The claims against Dft Dunning are severed and transferred to the United States District Court for the Eastern District of Virginia, Alexandria Division . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
75 Letter from Eastern District of Virginia (dks, ) (Entered: 08/01/2006)
76 NOTICE of Substitution − Attorney J Marcus Meeks and J Marcus Meeks for Michael Chertoff and Dennis M Callahan added. Attorney Forrest S Christian terminated. (Meeks, J)
77 ORDER approving 76 Notice of Substitution of attorney within the Dept of Justice filed by the Federal Dfts and the USA; J. Marcus Meeks is to be substituted for Forrest Christian as counsel of record for the Federal Dfts and the USA. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
78 ORDER granting in part and denying in part 49 Motion to Dismiss; The motion is denied except as to the Pla's claim of false imprisonment based upon the delay in his transfer . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
79 ORDER denying 47 Motion to Dismiss, denying 55 Motion to Dismiss, granting 58 Motion to Substitute Party. Dennis M Callahan terminated and substituted dft John Sugrue, Former Warden, Oklahoma Federal Transfer Center; The Government is granted leave to file a motion to dismiss as to dft Surgue on or before 10/30/06 . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
80 SCHEDULING ORDER REFERRING CASE to Magistrate Judge Mikel H. Williams for all non−dispositive pretrial matters; ADR Plan to be filed by 4/30/2007. Amended Pleadings due by 3/16/2007. Discovery due by 5/31/2007. Motions due by 6/7/2007. Jury Trial set for 12/4/2007 09:30 AM in Boise, ID before Honorable Edward J. Lodge.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
81 MOTION for Extension of Time to File Answer by the United States and by James Gneckow, Scott Mace, John Ashcroft. Responses due by 10/23/2006 (Meeks, J)
82 ORDER granting 81 Motion for Extension of Time to Answer. The USA shall answer Plaintiff's First Amended Complaint by 10/6/06. The individual federal defendants shall answer Plaintiff's First Amended Complaint or file a notice of

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 12 of 33

10/06/2006 10/10/2006
10/11/2006 10/11/2006
10/17/2006 11/27/2006 11/27/2006 11/28/2006 11/28/2006 01/03/2007 01/08/2007
02/05/2007 02/05/2007 02/14/2007 02/26/2007
03/07/2007 03/08/2007

appeal on or before 11/27/06. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
83 ANSWER to Amended Complaint by United States.(Meeks, J)
84 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Michael Chertoff, James Gneckow, Federal Bureau of Investigation, Donna Bucella, Alberto Gonzales, John Ashcroft re 83 Answer to Amended Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
85 STIPULATION for Leave to Transfer Claims Against Defendant Sugrue to the Western District of Oklahoma by John Sugrue, Abdullah Al−Kidd. (Meeks, J)
86 ORDER granting 85 Stipulation for leave to transfer the claims against dft John Surgrue to the Western District of Oklahoma filed by Abdullah Al−Kidd, John Sugrue. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
87 NOTICE of filing in Oaklahoma CV 5:06:1133−R of claims of John Surgue (dks, ) (Entered: 10/18/2006)
88 ANSWER to Amended Complaint by James Gneckow, Scott Mace.(Meeks, J)
89 NOTICE OF APPEAL as to 79 Order on Motion to Dismiss,, Order on Motion to Substitute Party,,, by John Ashcroft. (Notice sent by e−mail to Court Reporter) (Meeks, J)
90 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 89 Notice of Appeal (jlg, )
91 CERTIFICATE of Record on Appeal re 89 Notice of Appeal (jlg, )
92 STIPULATION Joint Stipulation regarding the Extension of Expert Discovery Deadlines by Vaughn Killeen. (Reading, Julie)
93 ORDER granting 92 Stipulation filed by Vaughn Killeen. Pla to disclose expert witnesses by 2/20/2007, dft to disclose expert witnesses by 3/20/2007, rebuttal witnesses due 4/5/2007. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
94 STIPULATION Joint Stipulation Regarding the Extension of Expert Discovery Deadlines by Abdullah Al−Kidd. (Gelernt, Lee)
95 ORDER of USCA as to 89 Notice of Appeal filed by John Ashcroft granting an extension of time to file the answering brief to 3/26/2007. (jlg, ) (Entered: 02/06/2007)
96 NOTICE of Appearance by Brant S Levine on behalf of James Gneckow, Scott Mace, United States (Levine, Brant)
97 ORDER granting 94 Stipulation filed by Abdullah Al−Kidd. Plaintiff to disclose expert witnesses by 3/6/2007. Defendants to disclose expert witnesses by 4/6/2007. Rebuttal witnesses due by 4/21/2007. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
98 Joint MOTION for Protective Order (Privacy Act) by James Gneckow, Scott Mace, United States, Abdullah Al−Kidd. Responses due by 4/2/2007 (Meeks, J)
99 PRIVACY ACT PROTECTIVE ORDER re 98 Joint MOTION for a Privacy Act Protective Order. Signed by Judge Edward J. Lodge. (Attachments: # 1 Acknowledgment of Privacy Act Protective Order)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 13 of 33

03/15/2007 03/15/2007 03/16/2007 03/21/2007 04/03/2007
04/03/2007
04/04/2007
04/04/2007 04/23/2007 04/24/2007 05/03/2007 05/03/2007 05/04/2007 05/07/2007

100 STIPULATION STIPULATED PROTECTIVE ORDER by Vaughn Killeen. (Reading, Julie)
101 MOTION for Extension of Time to Amend the Pleadings and for Mediation by Abdullah Al−Kidd. Responses due by 4/9/2007 (Gelernt, Lee)
102 PROTECTIVE ORDER approving 100 Stipulated Protective Order filed by Vaughn Killeen. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
103 ORDER of USCA granting second motion for extension of time as to 89 Notice of Appeal filed by John Ashcroft. Answering brief due 4/25/2007. (jlg, )
104 MOTION for Summary Judgment by Vaughn Killeen. Responses due by 4/27/2007 (Attachments: # 1 Statement of Undisputed Material Facts# 2 Memorandum in Support # 3 Affidavit Vaughn Killeen# 4 Affidavit Mike Laky# 5 Affidavit Rajeev Sahni# 6 Affidavit Derek Savage# 7 Exhibit Savage Affidavit Exhibit 3, pages 1 &2# 8 Exhibit Savage Affidavit Exhibit 3, pages 3,4,9 Affidavit H. Martin Stiewig# 10 Exhibit Stiewig Affidavit Exhibit 1# 11 Exhibit Stiewig Affidavit Exhibit 2# 12 Exhibit Stiewig Affidavit Exhibit 3# 13 Exhibit Stiewig Affidavit Exhibit 4, pages 1 &2# 14 Exhibit Stiewig Affidavit Exhibit 4, pages 3,4Julie)
105 Sealed Document Re: 104 MOTION for Summary Judgment. (Attachments: # 1 Affidavit Aaron Shepherd# 2 Exhibit Shepherd Affidavit Exhibit 1# 3 Exhibit Shepherd Affidavit Exhibit 2# 4 Exhibit Shepherd Affidavit Exhibit 3# 5 Exhibit Shepherd Affidavit Exhbit 4# 6 Affidavit Julie D. Reading# 7 Exhibit Reading Affidavit Exhibit 1# 8 Exhibit Reading Exhibit 2, pages 1 through 60# 9 Exhibit Reading Affidavit Exhibit 2, pages 61 through 120# 10 Exhibit Reading Affidavit Exhibit 2, pages 121 through 168# 11 Exhibit Reading Affidavit Exhibits 3 and 4# 12 Exhibit Reading Affidavit Exhibits 5 and 6# 13 Exhibit Reading Affidavit Exhibits 7 and 8)(Reading, Julie)
CORRECTIVE ENTRY − The entry docket number 105 Sealed Document, was filed incorrectly in this case. The motion should be filed separately from the sealed documents. The filing party shall re−submit their motion, in order to have the motion show up on the Judge's pending motions report. Please file the motion to seal under "seal" located under "motions". Please submit a proposed order to the Judge's proposed order e−mail box upon filing the motion. (jlg, )
106 MOTION to Seal Affidavits of Julie R. Reading and Aaron Shepherd by Vaughn Killeen. Responses due by 4/30/2007 (Reading, Julie) Modified on 4/5/2007 to link to 105 (jlg, ).
107 MOTION for Extension of Time to File Response/Reply as to 104 MOTION for Summary Judgment by Abdullah Al−Kidd. Responses due by 5/17/2007 (Gelernt, Lee)
108 ORDER granting 107 Motion for Extension of Time to File Response re 104 MOTION for Summary Judgment Responses due by 5/14/2007. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
109 Joint MOTION for Extension of Time to Complete Discovery , Mediation, File Pretrial Motions and For a New Trial Date by James Gneckow, Scott Mace, United States, Abdullah Al−Kidd. Responses due by 5/29/2007 (Meeks, J)
110 STIPULATION by Plaintiff &Federal Defendants Regarding Depositions by Abdullah Al−Kidd. (Gelernt, Lee)
111 Joint MOTION for Extension of Time to Complete Discovery &To Extend the The Mediation Deadline, &The Pre−Trial Motion Deadline by Abdullah Al−Kidd. Responses due by 5/29/2007 (Gelernt, Lee)
112 ORDER granting 101 MOTION for Extension of Time to Amend the Pleadings and for Mediation and 109 Joint MOTION for Extension of Time to Complete Discovery , Mediation, File Pretrial Motions and For a New Trial Date; approving

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 14 of 33

05/07/2007
05/08/2007 05/14/2007 05/14/2007 05/15/2007 05/15/2007
05/15/2007 05/21/2007 05/22/2007 05/23/2007
05/31/2007 05/31/2007 06/01/2007

110 Stipulation. Amended Pleadings due by 5/11/2007. Discovery due by 9/30/2007. Motions due by 10/30/2007. Parties to participate in mediation by 9/15/2007. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
113 ORDER granting 111 Joint MOTION for Extension of Time to Complete Discovery &To Extend the Mediation Deadline, &Pre−Trial Motion Deadline. Plaintiff and Defendant Killeen to complete discovery by 6/22/2007; parties to participate in mediation by 6/15/2007; file pre−trial motions by 6/29/2007. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
114 ORDER granting 106 Motion to Seal Affidavits of Julie D. Reading and Aaron Shepherd. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, ) (Entered: 05/09/2007)
115 RESPONSE to Motion re 104 MOTION for Summary Judgment filed by Abdullah Al−Kidd. Replies due by 5/29/2007. (Attachments: # 1 Supplement Statement of Facts# 2 Affidavit Declaration of Lee Gelernt with Exhibits# 3 Affidavit Affidavit of Abdullah al−Kidd# 4 Affidavit Affidavit of Walter Kautzky)(Gelernt, Lee)
116 Sealed Document Re: 115 Response to Motion,. (Attachments: # 1 Exhibit 1# 2 Exhibit 2 # 3 Exhibit 3 part 1# 4 Exhbit 3 pt 2)(Gelernt, Lee)
117 MOTION to Seal Document 116 Sealed Document by Abdullah Al−Kidd. Responses due by 6/8/2007 (Gelernt, Lee)
118 MOTION Denial or continuance of Def.'s Motion for Summary Judgment re 104 MOTION for Summary Judgment under Fed. R. Civ. P. 56(f) by Abdullah Al−Kidd. Responses due by 6/8/2007 (Attachments: # 1 Memorandum in Support # 2 Affidavit Affidavit of Lee Gelernt in Support of Plaintiff's Rule 56(f) Motion)(Gelernt, Lee)
119 ORDER granting 117 Motion to Seal Document. 116 Declaration of Lee Gelernt shall be filed under seal. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
120 MOTION for Extension of Time to File Response/Reply as to 115 Response to Motion, 104 MOTION for Summary Judgment by Vaughn Killeen. Responses due by 6/14/2007 (Reading, Julie)
121 ORDER granting 120 Motion for Extension of Time to File Reply re 104 MOTION for Summary Judgment Replies due by 6/1/2007. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
122 MEMORANDUM in Opposition re 118 MOTION Denial or continuance of Def.'s Motion for Summary Judgment re 104 MOTION for Summary Judgment under Fed. R. Civ. P. 56(f) MOTION Denial or continuance of Def.'s Motion for Summary Judgment re 104 MOTION for Summary Judgment under Fed. R. Civ. P. 56(f) filed by Vaughn Killeen. Replies due by 6/7/2007. (Reading, Julie)
123 MOTION FOR PRO HAC VICE APPEARANCE by Michael Wishnie for Abdullah Al−Kidd by Abdullah Al−Kidd Responses due by 6/25/2007 (jg, ) (Entered: 06/01/2007)
RECEIPT: Check Fee Received $ 200.00, receipt # 5601 (jg, ) (Entered: 06/01/2007)
124 DOCKET ENTRY ORDER granting 123 Motion for Pro Hac Vice Appearance of attorney Michael Wishnie for Abdullah Al−Kidd Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jg, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 15 of 33

06/01/2007 06/01/2007 06/01/2007 06/05/2007 06/07/2007
06/11/2007 06/21/2007 06/22/2007
06/22/2007 06/25/2007 06/28/2007
07/01/2007 07/02/2007 07/02/2007 07/06/2007
07/06/2007 07/09/2007

125 REPLY to Response to Motion re 104 MOTION for Summary Judgment filed by Vaughn Killeen. (Attachments: # 1 Affidavit of Julie D. Reading)(Reading, Julie)
126 Sealed Document Re: 125 Reply to Response to Motion, 115 Response to Motion, 104 MOTION for Summary Judgment Affidavit of Deputy Timothy Kinch. (Reading, Julie)
127 MOTION to Seal Affidavit of Deputy Timothy Kinch by Vaughn Killeen. Responses due by 6/28/2007 (Reading, Julie)
128 MOTION to Compel by Vaughn Killeen. Responses due by 7/2/2007 (Attachments: # 1 Certificate of Compliance With FRCP 37(a)(2) and D.Id.LR 37.1)(Reading, Julie)
129 REPLY to Response to Motion re 118 MOTION Denial or continuance of Def.'s Motion for Summary Judgment re 104 MOTION for Summary Judgment under Fed. R. Civ. P. 56(f) MOTION Denial or continuance of Def.'s Motion for Summary Judgment re 104 MOTION for Summary Judgment under Fed. R. Civ. P. 56(f) filed by Abdullah Al−Kidd. (Gelernt, Lee)
130 MOTION for Disclosure of Specific Grand Jury Materials by James Gneckow, Scott Mace, United States. Responses due by 7/9/2007 (Meeks, J)
131 Joint MOTION for Extension of Time to Complete Discovery and to Extend Mediation and Pre−Trial Motion Deadlines by Vaughn Killeen, Abdullah Al−Kidd. Responses due by 7/19/2007 (Gelernt, Lee)
132 ORDER granting 131 Joint MOTION for Extension of Time to Complete Discovery and to Extend Mediation and Pre−Trial Motion Deadlines filed by Vaughn Killeen, Abdullah Al−Kidd, Discovery due by 7/6/2007. Motions due by 7/20/2007.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
133 RESPONSE to Motion re 130 MOTION for Disclosure of Specific Grand Jury Materials filed by Abdullah Al−Kidd. Replies due by 7/12/2007. (Gelernt, Lee)
134 NOTICE by Sami Omar Al−Hussayen re 130 MOTION for Disclosure of Specific Grand Jury Materials (Nevin, David)
135 ORDER granting 127 Motion to Seal Affidavit of Timothy Kinch shall be filed under seal.. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jg, )
136 MEMORANDUM in Opposition re 130 MOTION for Disclosure of Specific Grand Jury Materials filed by Sami Omar Al−Hussayen. Replies due by 7/19/2007. (Nevin, David)
137 Joint MOTION for Extension of Time to File Response/Reply as to 128 MOTION to Compel by Abdullah Al−Kidd. Responses due by 7/30/2007 (Gelernt, Lee)
138 MOTION to Strike 104 MOTION for Summary Judgment or, in the Alternative, to File Surreply by Abdullah Al−Kidd. Responses due by 7/30/2007 (Attachments: # 1 Memorandum in Support)(Gelernt, Lee)
139 Expedited MOTION to Compel Certain Discovery from Def. Killeen by Abdullah Al−Kidd. Responses due by 8/2/2007 (Attachments: # 1 Memorandum in Support of Plaintiff's Motion to Compel# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C)(Gelernt, Lee)
140 MOTION to Withdraw 128 MOTION to Compel by Vaughn Killeen. Responses due by 8/2/2007 (Reading, Julie)
141 ORDER withdrawing 128 Motion to Compel; finding as moot 137 Motion for Extension of Time to File Response/Reply ; granting 140 Motion to Withdraw. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 16 of 33

07/13/2007 07/13/2007 07/17/2007 07/19/2007 07/20/2007 07/20/2007
07/20/2007 07/20/2007
07/20/2007 07/20/2007 07/23/2007 08/01/2007

142 AFFIDAVIT of Aaron Shepherd re 104 MOTION for Summary Judgment filed by Vaughn Killeen Supplemental. (Reading, Julie)
143 MOTION to Withdraw Affidavit of Rajeev Sahni by Vaughn Killeen. Responses due by 8/6/2007 (Attachments: # 1 Affidavit Julie Reading in Support of Motion to Withdraw Aff. of Rajeev Sahni# 2 Affidavit Rajeev Sahni in Support of Motion to Withdraw Affidavit)(Reading, Julie)
144 MEMORANDUM in Opposition re 138 MOTION to Strike 104 MOTION for Summary Judgment or, in the Alternative, to File Surreply filed by Vaughn Killeen. Replies due by 8/3/2007. (Reading, Julie)
145 REPLY to Response to Motion re 130 MOTION for Disclosure of Specific Grand Jury Materials filed by James Gneckow, Scott Mace, United States. (Meeks, J)
146 MOTION for Summary Judgment by Vaughn Killeen. Responses due by 8/13/2007 (Attachments: # 1 Memorandum in Support Post−Discovery Motion for Summary Judgment on the Merits# 2 Statement of Undisputed Material Facts# 3 Affidavit H. Martin Siewig)(Reading, Julie)
147 Sealed Document Re: 146 MOTION for Summary Judgment. (Attachments: # 1 Exhibit Exhibt 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3, pp 1−60# 4 Exhibit Exhibit 3, pp.61 −120# 5 Exhibit Exhibit 3 pp 121 − 180# 6 Exhibit Exhibit 3, pp 181 − 200 &Index# 7 Exhibit Exhibit 4# 8 Exhibit Exhibit 5# 9 Exhibit Exhibit 6# 10 Exhibit Exhibit 7# 11 Exhibit Exhibit 8, pp 1 − 160# 12 Exhibit Exhibit 8 pp 161 − 255 &Index# 13 Exhibit Exhibit 9# 14 Exhibit Exhbit 10 Part 1# 15 Exhibit Exhibit 10, Part 2# 16 Exhibit Exhibit 11# 17 Exhibit Exhibit 12# 18 Exhibit Exhibit 13# 19 Exhibit Exhibit 14# 20 Errata Exhibit 15# 21 Exhibit Exhibit 16 Part One# 22 Exhibit Exhibit 16 Part Two# 23 Exhibit Exhibit 16 Part Three# 24 Exhibit Exhibit 16 Part 4# 25 Exhibit Exhibit 17)(Reading, Julie)
148 MOTION to Seal Document Affidavit of Julie D. Reading by Vaughn Killeen. Responses due by 8/13/2007 (Reading, Julie)
149 MOTION for Summary Judgment by Abdullah Al−Kidd. Responses due by 8/13/2007 (Attachments: # 1 Memorandum in Support of Plaintiff's Motion for Summary Judgment# 2 Statement of Undisputed Facts in Support of Plaintiff's Motion for Summary Judgment# 3 Affidavit of Lee Gelernt# 4 Exhibit 1−5 to Affidavit of Lee Gelernt# 5 Exhibit 6−7 to Affidavit of Lee Gelernt# 6 Exhibit 8−11 to Affidavit of Lee Gelernt# 7 Exhibit 12−19 to Affidavit of Lee Gelernt# 8 Exhibit 20−26 to Affidavit of Lee Gelernt# 9 Exhibit 27−32 to Affidavit of Lee Gelernt# 10 Exhibit 33−34 to Affidavit of Lee Gelernt# 11 Exhibit 35−39 to Affidavit of Lee Gelernt# 12 Exhibit 40 to Affidavit of Lee Gelernt# 13 Exhibit 41−44 to Affidavit of Lee Gelernt# 14 Exhibit 45−50 to Affidavit of Lee Gelernt)(Gelernt, Lee)
150 Sealed Document Re: 149 MOTION for Summary Judgment Sealed Second Affidavit of Lee Gelernt. (Attachments: # 1 Exhibit 2 to Second Affidavit of Lee Gelernt# 2 Exhibit 22 to Second Affidavit of Lee Gelernt# 3 Exhibit 43 to Second Affidavit of Lee Gelernt# 4 Exhibit 44 to Second Affidavit of Lee Gelernt)(Gelernt, Lee)
151 MOTION to Seal Document 150 Sealed Document, (Certain Exhibits in Support of Plaintiff's Motion for Summary Judgment) by Abdullah Al−Kidd. Responses due by 8/13/2007 (Attachments: # 1 Memorandum in Support of Plaintiff's Motion to Seal Certain Exhibits)(Gelernt, Lee)
152 ORDER GRANTING PLAINTIFF'S MOTION TO FILE CERTAIN EXHIBITS UNDER SEAL 151 Motion to Seal Document. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jg, )
153 SUPPLEMENT by Defendant Vaughn Killeen re 146 MOTION for Summary Judgment Exhibit One to Affidavit of H. Martin Stiewig. (Attachments: # 1 Exhibit Two to Affidavit of H. Martin Stiewig# 2 Exhibit Three to Affidavit of H. Martin Stiewig)(Reading, Julie)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 17 of 33

08/02/2007 08/03/2007 08/07/2007 08/07/2007 08/07/2007 08/08/2007 08/09/2007
08/09/2007 08/13/2007
08/13/2007
08/13/2007 08/13/2007 08/13/2007 08/13/2007 08/17/2007

154 RESPONSE to Motion re 139 Expedited MOTION to Compel Certain Discovery from Def. Killeen filed by Vaughn Killeen. Replies due by 8/20/2007. (Reading, Julie)
155 Consent MOTION for Protective Order by United States. Responses due by 8/27/2007 (Meeks, J)
156 PROTECTIVE ORDER granting 155 Motion for Protective Order. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
157 REPLY to Response to Motion re 139 Expedited MOTION to Compel Certain Discovery from Def. Killeen filed by Abdullah Al−Kidd. (Gelernt, Lee)
158 Joint MOTION for Extension of Time to Complete Discovery , and to Extend the Mediation Deadline, Pre−Trial Motion Deadline, &for a New Trial Date by Federal Defendants by Abdullah Al−Kidd. Responses due by 8/31/2007 (Gelernt, Lee)
159 ADR Plan by Defendant Vaughn Killeen(Reading, Julie)
160 ORDER granting 158 Motion for Extension of Time to Complete Discovery. Discovery due by 12/14/2007. Pre−trial motions due by 2/11/2008. Trial reset for 10/7/2008 at 9:30 am in Boise, ID before the Honorable Edward J. Lodge. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
Reset Deadlines/Hearings: This is a court utility event only. Discovery due by 12/14/2007. Pre−Trial Motions due by 2/11/2008. Jury Trial reset for 10/7/2008 09:30 AM in Boise, ID before Judge Edward J. Lodge. (jlg, )
161 MEMORANDUM in Opposition re 149 MOTION for Summary Judgment filed by Vaughn Killeen. Replies due by 8/30/2007. (Attachments: # 1 Affidavit of Julie D. Reading in Opposition to Plaintiff's Motion for Summary Judgment# 2 Exhibit Exhibit 1 to Aff of Julie D. Reading, pp. 1 − 133# 3 Exhibit 1 to Affidavit of Julie Reading, pp. 134−272)(Reading, Julie)
162 MEMORANDUM in Opposition re 146 MOTION for Summary Judgment by Defendant Killeen filed by Abdullah Al−Kidd. Replies due by 8/30/2007. (Attachments: # 1 Plaintiff's Statement of Facts in Opposition to Defendant Killeen's Statement of Facts# 2 Affidavit of Lee Gelernt in Support of Plaintiff's Opposition to Defendant Killeen's Motion for Summary Judgment# 3 Exhibit : 1−5# 4 Exhibit : 6−7# 5 Exhibit : 8−11)(Gelernt, Lee)
163 SUPPLEMENT by Plaintiff Abdullah Al−Kidd re 162 Memorandum in Opposition to Motion, Exhibits 12−19. (Attachments: # 1 Exhibit : 20−24# 2 Exhibit : 25−26# 3 Exhibit : 27−32# 4 Exhibit : 33−35# 5 Exhibit : 36−39# 6 Exhibit : 40)(Gelernt, Lee)
164 SUPPLEMENT by Plaintiff Abdullah Al−Kidd re 162 Memorandum in Opposition to Motion, Exhibits # 41−44. (Attachments: # 1 Exhibit : 45−50# 2 Exhibit : 51−55# 3 Exhibit : 56−57)(Gelernt, Lee)
165 Sealed Document Re: 162 Memorandum in Opposition to Motion,. (Attachments: # 1 Affidavit of Lee Gelernt in Support of Plaintiff's Opposition to Defendant Killeen's Motion for Summary Judgment# 2 Exhibit 2# 3 Exhibit 22# 4 Exhibit : 43# 5 Exhibit : 44)(Gelernt, Lee)
166 MOTION to Seal Document 165 Sealed Document, by Abdullah Al−Kidd. Responses due by 9/7/2007 (Attachments: # 1 Memorandum in Support of Plaintiff's Motion to File Certain Exhibits Under Seal)(Gelernt, Lee)
167 ORDER granting 130 Motion to Disclose specific grand jury materials. Parties to submit a joint proposed protective order for the Court's approval prior to the Federal Defendants producing documents. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 18 of 33

08/17/2007 08/28/2007 08/28/2007 08/30/2007 08/30/2007 09/13/2007 09/25/2007 09/27/2007
10/24/2007 10/24/2007 10/24/2007 10/24/2007 10/25/2007 10/25/2007
10/25/2007 10/25/2007

168 ORDER granting 166 Motion to File Certain Exhibits Under Seal in support of opposition to 146 MOTION for Summary Judgment. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
169 Joint MOTION for Protective Order by James Gneckow, Scott Mace, United States, Abdullah Al−Kidd. Responses due by 9/21/2007 (Meeks, J)
170 PROTECTIVE ORDER granting 169 Joint Motion for Protective Order filed by Scott Mace, James Gneckow, Abdullah Al−Kidd, United States. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
171 REPLY to Response to Motion re 146 MOTION for Summary Judgment filed by Vaughn Killeen. (Reading, Julie)
172 REPLY to Response to Motion re 149 MOTION for Summary Judgment Against Defendant Killeen filed by Abdullah Al−Kidd. (Gelernt, Lee)
173 NOTICE by United States of Intent to Use Foreign Intelligence Surveillance Act Information (Meeks, J)
174 NOTICE of Substitution − Attorney Sherry A Morgan and Julie D. Reading for Vaughn Killeen, Lorna K Jorgensen and Julie D. Reading for Vaughn Killeen added. Attorney Julie D. Reading terminated. (Reading, Julie)
175 ORDER Substituting Sherry A. Morgan and Lorna K. Jorgensen for Julie D. Reading as counsel of record for Defendant Vaughn Killeen re 174 Notice of Substitution. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
176 Expedited MOTION to Compel Discovery From Federal Defendants by Abdullah Al−Kidd. Responses due by 11/19/2007 (Attachments: # 1 Memorandum in Support of Pl.'s Motion to Compel# 2 Addendum A# 3 Addendum B# 4 Exhibit 1# 5 Exhibit 2# 6 Exhibit 3# 7 Exhibit 4)(Gelernt, Lee)
177 Sealed Document Re: 176 Expedited MOTION to Compel Discovery From Federal Defendants. (Attachments: # 1 Part 2 of sealed document# 2 Part 3 of sealed document# 3 Part 4 of sealed document# 4 Part 5 of sealed document# 5 Part 6 of sealed document# 6 Part 7 of sealed document)(Gelernt, Lee)
178 MOTION to Seal Document 177 Sealed Document, by Abdullah Al−Kidd. Responses due by 11/19/2007 (Attachments: # 1 Memorandum in Support of Pl.'s Motion to File Under Seal)(Gelernt, Lee)
179 MOTION to Expedite Pl.'s Motion to Compel Discovery from Federal Defs. by Abdullah Al−Kidd. Responses due by 11/19/2007 (Gelernt, Lee)
180 ORDER granting 178 Motion to file certain exhibits under seal re 177 Exhibit 2. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
181 MEMORANDUM in Opposition re 179 MOTION to Expedite Pl.'s Motion to Compel Discovery from Federal Defs. filed by James Gneckow, Scott Mace, United States. Replies due by 11/13/2007. (Attachments: # 1 Exhibit Correspondence# 2 Exhibit Correspondence# 3 Exhibit Correspondence# 4 Exhibit Correspondence# 5 Exhibit Correspondence)(Meeks, J)
182 ORDER granting in part and denying in part 179 Motion to Expedite. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
Set/Reset Deadlines as to 176 Expedited MOTION to Compel Discovery From Federal Defendants. This is a court utility event only. Responses due by 11/7/2007 Replies due by 11/9/2007. Motion Hearing set for 11/14/2007 02:00 PM in Boise, ID before Judge Mikel H. Williams. (dks, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 19 of 33

10/25/2007 10/30/2007 11/01/2007
11/02/2007
11/02/2007 11/07/2007
11/07/2007 11/07/2007 11/07/2007 11/09/2007 11/09/2007 11/09/2007

183 DOCKET ENTRY NOTICE of Hearing on Motion: 176 Expedited MOTION to Compel Discovery From Federal Defendants − Motion Hearing set for 11/14/2007 02:00 PM in Boise, ID before Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ah, )
184 AMENDED ORDER Referring Case for all Pretrial Matters to Judge Mikel H. Williams. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
185 ORDER withdrawing 104 Motion for Summary Judgment; denying as moot 118 Rule 56(f) Motion; denying as moot 138 Motion to Strike ; granting 143 Motion to Withdraw Affidavit of Rajeev Sahni; granting 148 Motion to Seal Affidavit of Julie D. Reading; staying 139 Expedited Motion to Compel Certain Discovery from Defendant Killeen. Plaintiff and Defendant Killeen are to submit Motions for Summary Judgment, Memoranda of Points and Authorities and all supporting materials to chambers by 11/16/2007. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
186 RESPONSE to Motion re 176 Expedited MOTION to Compel Discovery From Federal Defendants The United States' Opposition to the Plaintiff's Expedited Motion to Compel Production of Documents Created Under the Authority of the Foreign Intelligence Surveillance Act as Untimely, Or in the Alternative for an Extension of Time to Fully Respond to That Portion of Plaintiff's Expedited Motion to Compel filed by United States. Replies due by 11/23/2007. (Attachments: # 1 Exhibit Declaration of Scott J. Glick)(Meeks, J)
187 REPLY to Response to Motion re 176 Expedited MOTION to Compel Discovery From Federal Defendants − The United States' Opposition to the Plaintiff's Expedited Motion to Compel Production of Documents Created Under the Authority of the Foreign Intelligence Surveillance Act as Untimely filed by Abdullah Al−Kidd. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gelernt, Lee)
188 MEMORANDUM in Opposition re 176 Expedited MOTION to Compel Discovery From Federal Defendants filed by James Gneckow, Scott Mace, United States. Replies due by 11/26/2007. (Attachments: # 1 Exhibit Correspondence# 2 Exhibit Redaction codes# 3 Exhibit Discovery response# 4 Exhibit Declaration of H. Marshall Jarrett# 5 Exhibit Declaration of Susan T. Mitchell# 6 Exhibit Declaration of John P. Clark# 7 Exhibit Declaration of Thomas J. Harrington# 8 Exhibit Notice of filing Declaration of James W. McJunkin In camera# 9 Exhibit Correspondence)(Meeks, J)
189 Sealed Document Unredacted Version of the Federal Defendants' Opposition to Plaintiff's Expedited Motion to Compel and Unredacted Versions of Declarations in Support of the Opposition. (Attachments: # 1 Exhibit Unredacted Declaration of SusanT. Mitchell# 2 Exhibit Ex parte Declaration of John P. Clark# 3 Exhibit Unredacted declaration of Thomas J. Harrington)(Meeks, J)
190 MOTION to Seal Document 189 Sealed Document, Unredaction Version of Defendants' Opposition to Plaintiff's Expedited Motion to Compel and Unredacted Versions of Declarations In Support of the Motion by James Gneckow, Scott Mace, United States. Responses due by 12/3/2007 (Attachments: # 1 Memorandum in Support)(Meeks, J)
191 MOTION for Leave to File In Camera the Declaration of James W. McJunkin by James Gneckow, Scott Mace, United States. Responses due by 12/3/2007 (Meeks, J)
192 MOTION to Clarify Order 185 ORDER by Vaughn Killeen. Responses due by 12/3/2007 (Morgan, Sherry) .
193 REPLY to Response to Motion re 176 Expedited MOTION to Compel Discovery From Federal Defendants filed by Abdullah Al−Kidd. (Gelernt, Lee)
194 ORDER granting 190 Motion to Seal an Unredacted version of brief in opposition to motion to compel re 189 Sealed Document. Signed by Judge Mikel H. Williams.

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 20 of 33

11/14/2007
11/20/2007 11/21/2007 11/26/2007 11/26/2007
11/28/2007 12/10/2007
12/14/2007 12/17/2007 12/20/2007 12/21/2007 12/23/2007 12/26/2007 12/26/2007 01/02/2008

(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, ) (Entered: 11/13/2007)
195 Docket Text Minute Entry for proceedings held before Judge Mikel H. Williams: Appearance by Lee Gelernt for the Plaintiff; Marcus Meeks and Henry Felix for the Defendants. Motion Hearing held on 11/14/2007 re 176 Expedited MOTION to Compel Discovery From Federal Defendants filed by Abdullah Al−Kidd. Oral argument heard. Motion taken under advisement. Order forthcoming. (ESR V. Jones.) (ah, ) (Entered: 11/15/2007)
196 SUPPLEMENT by Plaintiff Abdullah Al−Kidd re 176 Expedited MOTION to Compel Discovery From Federal Defendants − Letter to Judge Williams. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Gelernt, Lee)
197 RESPONSE re 196 Supplement filed by James Gneckow, Scott Mace, United States. (Meeks, J)
198 ORDER granting 192 Motion for Clarification of Order. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
199 DOCKET ENTRY NOTICE of Hearing on Motions: 146 MOTION for Summary Judgment and 149 MOTION for Summary Judgment − Motion Hearing set for 1/17/2008 02:00 PM in Boise, ID before Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ah, )
200 SUPPLEMENT by Plaintiff Abdullah Al−Kidd re 176 Expedited MOTION to Compel Discovery From Federal Defendants − Letter to Judge Williams. (Attachments: # 1 VGTOF Manual)(Gelernt, Lee)
201 MEMORANDUM DECISION AND ORDER granting in part and denying in part 176 Motion to Compel; granting 191 Motion for Leave to File McJunkin declaration in camera. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
202 MOTION to Compel Deposition by Abdullah Al−Kidd. Responses due by 1/7/2008 (Attachments: # 1 Memorandum in Support of Plaintiff's Motion to Compel Deposition)(Gelernt, Lee)
203 STATUS REPORT re Mediation (JOINT) by Federal Defendants and by Abdullah Al−Kidd. (Gelernt, Lee)
204 MOTION for Leave to File Excess Pages, MOTION for Leave to File Classified Materials In Camera, Ex Parte by James Gneckow, Scott Mace, United States. Responses due by 1/14/2008 (Attachments: # 1 Prior Order by Judge Lodge)(Levine, Brant)
205 Consent MOTION for Extension of Time to File Response to the Court's December 10th Order by James Gneckow, Scott Mace, United States. Responses due by 1/14/2008 (Levine, Brant)
206 RESPONSE re 201 Order on Motion to Compel, Order on Motion for Leave to File,, filed by Abdullah Al−Kidd. (Gelernt, Lee)
207 RESPONSE to Motion re 202 MOTION to Compel Deposition filed by James Gneckow, Scott Mace, United States. Replies due by 1/14/2008.(Levine, Brant)
208 ORDER granting 205 Federal Defendants' Consent Motion for Extension of Time to Comply With Court's Dec. 10, 2007 Order. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by KLW)
209 TRANSCRIPT of Proceedings held on 11/14/2007 before Judge Mikel H. Williams. Court Reporter: ESR (Transcription by Canyon Transcription). This transcript is not available to the general public and as such is sealed. (jlg)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 21 of 33

01/03/2008 01/04/2008 01/07/2008 01/08/2008 01/10/2008 01/11/2008 01/11/2008 01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/16/2008

210 Consent MOTION for Protective Order (Amended) J Marcus Meeks appearing for Defendant United States.Motions referred to Mikel H. Williams. Responses due by 1/28/2008 (Meeks, J)
211 AMENDED PROTECTIVE ORDER granting 210 Motion for Amended Protective Order. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
212 ORDER granting in part and denying in part 204 Motion for Leave to File Excess Pages; granting in part and denying in part 204 Motion to Submit In Camera Ex Parte Classified Materials. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, ) (Entered: 01/08/2008)
213 MOTION for Reconsideration re 201 Memorandum Decision and Order, Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 2/1/2008 (Attachments: # 1 Memorandum in Support)(Gelernt, Lee)
214 Consent MOTION for Protective Order to submit in camera, ex parte classified national security materials Brant S Levine appearing for Defendant United States.Motions referred to Mikel H. Williams. Responses due by 2/4/2008 (Attachments: # 1 Proposed Order)(Levine, Brant)
215 NOTICE of Supplemental Briefing by Vaughn Killeen re 125 Reply to Response to Motion, 105 Sealed Document, 115 Response to Motion, 161 Memorandum in Opposition to Motion, of Supplemental Briefing (Morgan, Sherry)
216 PROTECTIVE ORDER for Submission of In Camera, Ex Parte Classified National Security Materials granting 214 Motion for Protective Order. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, ) (Entered: 01/14/2008)
217 MEMORANDUM in Opposition re 176 Expedited MOTION to Compel Discovery From Federal Defendants filed by United States. Replies due by 2/1/2008. (Attachments: # 1 Declaration and Claim of Privilege by the Attorney General)(Levine, Brant)
218 MEMORANDUM in Opposition re 213 MOTION for Reconsideration re 201 Memorandum Decision and Order The Federal Defendants' Response to Plaintiff's Objection to Chief Magistrate Judge Williams's Partial Denial of Plaintiff's Motion to Compel filed by James Gneckow, Scott Mace, United States. Replies due by 2/1/2008.(Meeks, J)
219 Sealed Document Re: 218 Memorandum in Opposition to Motion, The Federal Defendants' Response to Plaintiff's Objection to Chief Magistrate Judge Williams's Partial Denial of Plaintiff's Motion to Compel [Unredacted]. (Meeks, J)
220 MOTION to Seal Document The Federal Defendants' Response to Plaintiff's Objection to Chief Magistrate Judge Williams's Partial Denial of Plaintiff's Motion to Compel [Unredacted] J Marcus Meeks appearing for Defendants James Gneckow, Scott Mace, United States.Motions referred to Mikel H. Williams. Responses due by 2/7/2008 (Attachments: # 1 Memorandum in Support)(Meeks, J)
252 Sealed Document − One box of sealed exhibits submitted in camera to chambers re 176 Expedited MOTION to Compel Discovery From Federal Defendants. Order number 216 outlines the procedure for submitting these documents. Order number 201 ordered the documents to be produced for in camera review. (jlg) (Entered: 07/31/2008)
221 Joint MOTION for Extension of Time to File Pretrial Motions (Motion to Modify the Schedule for Filing Pretrial Motions) J Marcus Meeks appearing for Defendants James Gneckow, Scott Mace, United States, Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 2/11/2008 (Meeks, J)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 22 of 33

01/17/2008
01/18/2008 01/22/2008
01/23/2008 01/24/2008
01/24/2008 01/30/2008 02/04/2008 02/07/2008 02/13/2008 02/22/2008

222 Docket Text Minute Entry for proceedings held before Judge Mikel H. Williams: Appearance by Lee Gelernt for the Plaintiff; Sherry Morgan and Lorna Jorgensen for Defendant Vaughn Killeen. Motion Hearing held on 1/17/2008 re 146 MOTION for Summary Judgment filed by Vaughn Killeen and 149 MOTION for Summary Judgment filed by Abdullah Al−Kidd. Oral argument heard. Motions taken under advisement. Order forthcoming. (ESR V. Jones.) (ah) (Entered: 01/18/2008)
223 ORDER granting 220 Motion to Seal Document. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jg, )
224 DOCKET ENTRY NOTICE of Hearing: Please take notice a telephone status conference has been set. The Court requests participation by Mr. Gelernt, Mr. Meeks and Mr. Levine only. Parties are directed to call 1−800−516−9896 for connection to the conference call. Enter this code at prompt: 5443366. Please contact Judge Williams' Courtroom Deputy Amy Hickox with any questions at 208−334−9387. Telephonic Status Conference set for 1/23/2008 11:00 AM Mountain Time in Boise Chambers before Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ah, )
225 Docket Text Minute Entry for proceedings held before Judge Mikel H. Williams: Appearance by Lee Gelernt for the Plaintiff; Marcus Meeks and Brant Levine for Federal Defendants. Informal Telephonic Status Conference held on 1/23/2008. Order forthcoming. (Hearing not recorded.) (ah)
226 ORDER granting 221 Joint Motion to Modify the Scheduling Order for Filing Pretrial Motions. Parties to submit to the Court within 7 days of final resolution of all discovery−related disputes a proposed schedule for the filing of pre−trial motions, oppositions and reply briefs. Plaintiff's reply briefs re 176 Motion to Compel and 213 Motion for Reconsideration of Memorandum Decision and Order due by 2/8/2008. Status report regarding settlement conference due by 1/30/2008. This Order affects only Plaintiff and Defendants Michael Gneckow, Scott Mace and the United States. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, ) (Entered: 01/25/2008)
Reset Deadlines as to 213 MOTION for Reconsideration. Replies due by 2/8/2008. (jlg) (Entered: 01/25/2008)
227 STATUS REPORT By Plaintiff and the Federal Defendants Concerning A Settlement Conference by James Gneckow, Scott Mace, United States, Abdullah Al−Kidd. (Meeks, J)
228 ORDER of Referral and Settlement Conference Order, Settlement Conference set for 3/5/2008 09:30 AM in Boise, ID before Judge B. Lynn Winmill. Settlement Conference Questionnaire to be submitted by 2/27/2008 to Judge Winmill's chambers for in camera review. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
229 DOCKET ENTRY NOTICE: The Declaration of James W. McJunkin, filed on 11/07/07 under seal and ex parte with the Court as Docket No. 191−1 has been placed in the Court's appropriate secure location per the parties' protective order, Docket No. 216. (KLW)
230 REPORT AND RECOMMENDATIONS denying as moot 139 Motion to Compel Discovery from Def. Killeen; granting 146 Defendant's Motion for Summary Judgment; denying 149 Plaintiff's Motion for Summary Judgment. Objections to RRdue by 3/3/2008. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, ) (Entered: 02/14/2008)
231 MOTION for Extension of Time to File Written Objections to Chief Magistrate Judge Williams' Report and Recommendation (Dkt. No. 230) Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 3/17/2008 (Gelernt, Lee)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 23 of 33

02/22/2008
02/22/2008 03/05/2008 03/06/2008
03/11/2008
03/12/2008
03/12/2008 03/13/2008 03/17/2008 03/19/2008 03/21/2008
03/21/2008 03/21/2008 03/26/2008 04/04/2008 04/07/2008

232 ORDER granting 231 Motion for Extension of Time to File Written Objections to Chief Magistrate Judge Williams' Report and Recommendation. Plaintiff's objections are due 3/12/2008. Defendant's Response to objections due 3/19/2008. Plaintiff's reply due 3/26/2008. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
Set Deadlines as to 230 REPORT AND RECOMMENDATIONS. Plaintiff's Objections to RRdue by 3/12/2008 (jlg)
234 Minute Entry for proceedings held before Judge B. Lynn Winmill: Settlement Conference held on 3/5/2008. (Court Reporter Not reported by court reporter..) (lg) (Entered: 03/06/2008)
233 DOCKET ENTRY NOTICE of Hearing: Telephonic Status Conference set for 3/13/2008 10:30 AM (BOISE TIME, MDT) in Boise Chambers before Judge B. Lynn Winmill. Court directs counsel for the Department of Justice to initiate the conference call. The court can be reached at (208)334−9145. The Court prefers that a conference operator be used to place the call, and that all counsel are on the line prior to calling the Court.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
235 STIPULATION re 230 REPORT AND RECOMMENDATIONS re 139 Expedited MOTION to Compel Certain Discovery from Def. Killeen filed by Abdullah Al−Kidd, 146 MOTION for Summary Judgment filed by Vaughn Killeen, 149 MOTION for Summary Judgment filed by Abdullah Al−KiddREPORT AND RECOMMENDATIONS re 139 Expedited MOTION to Compel Certain Discovery from Def. Killeen filed by Abdullah Al−Kidd, 146 MOTION for Summary Judgment filed by Vaughn Killeen, 149 MOTION for Summary Judgment filed by Abdullah Al−Kidd Joint Stipulation filed by Vaughn Killeen, Abdullah Al−Kidd. (Gelernt, Lee)
236 ORDER approving 235 Stipulation re 230 Report and Recommendations. Plaintiff's brief due 3/13/2008. Defendant's response brief due 3/21/2008. Plaintiff's reply brief due 3/26/2008. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
Reset Deadlines as to 230 REPORT AND RECOMMENDATIONS. Objections to RRdue by 3/13/2008. (jlg)
237 OBJECTION to 230 Report and Recommendations. (Gelernt, Lee)
238 NOTICE by James Gneckow, Scott Mace, United States, Abdullah Al−Kidd Regarding Settlement Conference (Meeks, J)
239 MOTION to Amend/Correct Briefing Schedule on Various Outstanding Discovery Matters Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 4/14/2008 (Gelernt, Lee)
240 ORDER granting 239 Motion to Reset Briefing Schedule on Various Discovery Matters. Plaintiff's opposition brief on the FISA issue due 4/4/2008. Plaintiff's reply brief on the Motion to Compel due 4/14/2008. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
Reset Deadlines as to 202 MOTION to Compel. Replies due by 4/14/2008. (jlg)
241 RESPONSE TO OBJECTION TO RRfiled by Vaughn Killeen.(Morgan, Sherry)
242 REPLY re 237 Objection to Report and Recommendations filed by Abdullah Al−Kidd. (Gelernt, Lee)
243 REPLY to Response to Motion re 176 Expedited MOTION to Compel Discovery From Federal Defendants filed by Abdullah Al−Kidd.(Gelernt, Lee)
244 ORDER denying 202 Plaintiff's Motion to Compel. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 24 of 33

04/14/2008 04/21/2008 05/08/2008
07/17/2008
07/17/2008 07/17/2008 07/28/2008 08/11/2008
08/15/2008 08/15/2008 08/19/2008 08/25/2008 08/25/2008 08/29/2008 09/11/2008

245 REPLY re 213 MOTION for Reconsideration re 201 Order on Motion to Compel, Order on Motion for Leave to File,, filed by Abdullah Al−Kidd. (Gelernt, Lee)
246 MOTION for Reconsideration re 244 Order on Motion to Compel Deposition Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 5/15/2008 (Gelernt, Lee)
247 RESPONSE to Motion re 246 MOTION for Reconsideration re 244 Order on Motion to Compel Deposition filed by James Gneckow, Scott Mace, United States. Replies due by 5/27/2008. (Attachments: # 1 Ex. 1−−30(b)(6) Notices regarding Director Mueller's Congressional testimony, # 2 Ex. 2−−30(b)(6) Notice regarding use of the Material Witness Statute in terrorism−related cases)(Levine, Brant)
248 MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS for 230 Report and Recommendations, finding as moot 139 Motion to Compel, filed by Abdullah Al−Kidd, denying 146 Motion for Summary Judgment, filed by Vaughn Killeen, granting 149 Motion for Summary Judgment filed by Abdullah Al−Kidd; All the counts against dft Killeen are dismissed. A judgment shall be entered in favor of dft Killeen on all counts. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
249 MEMORANDUM ORDER denying 213 Motion for Reconsideration ; denying 246 Motion for Reconsideration. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
250 JUDGMENT in favor of Vaughn Killeen against Abdullah Al−Kidd. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
251 BILL OF COSTS by Vaughn Killeen. Taxation of Costs due by 8/28/2008 (Morgan, Sherry)
253 MOTION to Strike 251 Bill of Costs or Hold Costs in Abeyance Pending Appeal Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 9/4/2008 (Attachments: # 1 Memorandum in Support of Motion to Strike Bill of Costs or Hold Costs in Abeyance Pending Appeal)(Gelernt, Lee)
254 NOTICE OF APPEAL and Representation Statement as to 248 Memorandum Order Adopting Report and Recommendations, 250 Judgment by Abdullah Al−Kidd. Filing fee $ 455. (Notice sent by e−mail to Court Reporter) (jlg) (Entered: 08/19/2008)
255 APPEAL DOCKETING STATEMENT re 254 Notice of Appeal by Plaintiff Abdullah Al−Kidd (Attachments: # 1 Exhibit A − Memorandum Order dated 7/17/08, # 2 Exhibit B − Judgment, # 3 Exhibit C − Representation Statement)(jlg) (Entered: 08/19/2008)
256 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 254 Notice of Appeal. NOTE: The Transcript Designation and Ordering Form is located on the Court web site at www.id.uscourts.gov>Forms>General>Transcript Designation &Ordering Form. (jlg)
257 USCA Case Number 08−35692 for 254 Notice of Appeal filed by Abdullah Al−Kidd. (jlg) (Entered: 08/26/2008)
258 USCA Time Schedule Order as to 254 Notice of Appeal filed by Abdullah Al−Kidd. (Notice sent by e−mail to Court Reporter) (jlg) (Entered: 08/26/2008)
259 RESPONSE to Motion re 253 MOTION to Strike 251 Bill of Costs or Hold Costs in Abeyance Pending Appeal MOTION to Strike 251 Bill of Costs or Hold Costs in Abeyance Pending Appeal filed by Vaughn Killeen(former Warden, Ada County Jail). Replies due by 9/18/2008.(Morgan, Sherry)
260 TRANSCRIPT REQUEST by Abdullah Al−Kidd for proceedings held on 1/17/2008 before Judge Mikel H. Williams, (Notice sent by e−mail to Court Reporter) (jlg)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 25 of 33

09/15/2008 09/22/2008
09/22/2008 09/22/2008 09/22/2008 09/30/2008
11/14/2008 12/04/2008
12/11/2008 12/18/2008
01/09/2009 01/29/2009 05/07/2009 08/24/2009 09/01/2009 09/04/2009 09/04/2009 09/21/2009

261 REPLY to Response to Motion re 253 MOTION to Strike 251 Bill of Costs or Hold Costs in Abeyance Pending Appeal MOTION to Strike 251 Bill of Costs or Hold Costs in Abeyance Pending Appeal filed by Abdullah Al−Kidd.(Gelernt, Lee)
262 Transcript (Volume I of I−Motion for Summary Judgement) filed for dates of 1/17/08 before Judge Mikel H. Williams, re 254 Notice of Appeal Court Reporter/Transcriber Canyon Transcription, Telephone number (208) 454−1010. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/16/2008. Redacted Transcript Deadline set for 10/27/2008. Release of Transcript Restriction set for 12/24/2008. (dks)
263 Notice of Filing of Official Transcript (dks)
264 CERTIFICATE of Record on Appeal by Abdullah Al−Kidd re 254 Notice of Appeal (dks)
CERTIFICATE of Clerk re 262 Appeal Transcript,, 264 Certificate of Record on Appeal to Ninth Circuit Court of Appeals by dks(dks)
265 DOCKET ENTRY ORDER: The trial date of 10/07/2008 is VACATED pursuant to Order 226 . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc)
266 ORDER granting in part and denying in part 253 Motion to Strike Costs. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg)
267 SUPPLEMENTAL MEMORANDUM DECISION AND ORDER denying 176 Motion to Compel as it relates to the FISA Documents. Parties are advised to comply with the requirements of the Court's 226 Order. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg)
268 NOTICE by Abdullah Al−Kidd of Plaintiff's Intent to File Objections to Chief Magistrate Judge Williams' December 4, 2008 Discovery Order (Dkt. No. 267) (Gelernt, Lee)
269 MOTION for Reconsideration Objection to Chief Judge Williams' Discovery Order regarding FISA documents, No. 267 Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 1/12/2009 (Gelernt, Lee) Modified text on 12/19/2008 (jlg).
270 RESPONSE to Motion re 269 MOTION for Reconsideration filed by United States. Replies due by 1/29/2009.(Levine, Brant)
271 REPLY to Response to Motion re 269 MOTION for Reconsideration filed by Abdullah Al−Kidd.(Gelernt, Lee)
272 NOTICE by Abdullah Al−Kidd Withdrawal of Counsel (Hampton, Teresa)
273 ORDER of USCA granting motion to dismiss appeal as to 254 Notice of Appeal filed by Abdullah Al−Kidd. (jlg) (Entered: 08/25/2009)
274 ORDER of USCA as to 89 Notice of Appeal filed by John Ashcroft (jlg) Modified on 3/26/2010 to link to correct appeal (cjm). (Entered: 09/02/2009)
275 OPINION of USCA as to 89 Notice of Appeal affirming in part and reversing in part. (jlg)
276 ORDER of USCA as to 89 Notice of Appeal (jlg)
277 ORDER denying 269 Motion for Reconsideration re 267 Memorandum Decision and Order. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg) (Entered: 09/22/2009)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 26 of 33

09/22/2009
10/05/2009
10/06/2009
10/20/2009 11/05/2009
11/12/2009 03/18/2010 03/26/2010 03/29/2010 04/09/2010
05/18/2010
06/09/2010 06/18/2010

278 DOCKET ENTRY ORDER: On or before October 6, 2009, counsel are directed to file a Joint Status Report informing the Court on how the parties intend to proceed with the litigation in this case. (Joint Status Report due by 10/6/2009.) Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc)
279 STATUS REPORT Joint Status Report by Abdullah Al−Kidd, John Ashcroft, Donna Bucella, Michael Chertoff, Federal Bureau of Investigation, James Gneckow, Alberto Gonzales, John Does 1−25, Scott Mace, Robert Mueller, Terrorist Screening Center, U.S. Dept of Homeland Security, U.S. Dept of Justice, United States. (Gelernt, Lee)
280 DOCKET ENTRY ORDER: On or before November 5, 2009, counsel for the parties shall submit an updated joint status report advising the Court on how the parties intend to proceed with the litigation in the case. (Joint Status Report due by 11/5/2009.) Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc)
281 ORDER of USCA as to 89 Notice of Appeal filed by John Ashcroft (dks) Modified on 3/26/2010 to link to correct appeal(cjm). (Entered: 10/23/2009)
282 STATUS REPORT Updated Joint Status Report by Abdullah Al−Kidd, John Ashcroft, Donna Bucella, Michael Chertoff, Federal Bureau of Investigation, James Gneckow, Alberto Gonzales, John Does 1−25, Scott Mace, Robert Mueller, Terrorist Screening Center, U.S. Dept of Homeland Security, U.S. Dept of Justice, United States. (Gelernt, Lee)
283 ORDER Re: Further mediation or setting a briefing schedule. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks) (Entered: 11/13/2009)
284 OPINION of USCA as to 89 Notice of Appeal filed by John Ashcroft (cjm) Modified on 3/26/2010 to link to correct appeal (cjm). (Entered: 03/19/2010)
285 MANDATE of USCA as to 89 Notice of Appeal filed by John Ashcroft (cjm)
286 STATUS REPORT by Abdullah Al−Kidd, James Gneckow, Scott Mace, United States. (Meeks, J)
287 DOCKET ENTRY ORDER − The Order of Referral 228 filed February 4, 2008, is vacated. Additionally, IT IS HEREBY ORDERED THAT this matter shall be referred to The Honorable Candy Wagahoff Dale, Chief Magistrate Judge, United States District Court, for the District of Idaho, for the purpose of conducting a settlement conference. Local Rule 16.4. Plaintiff shall contact Amy Hickox, Judge Dale's In−Court Deputy at (208) 334−9387 no later than April 23, 2010 to set up a Settlement Conference. Signed by Judge Edward J. Lodge. (sbh)
288 SETTLEMENT CONFERENCE ORDER, (Settlement Conference set for 6/29/2010 09:00 AM in Boise, ID before Judge Candy W Dale.). Each party shall prepare a response to the questionnaire and submit it to Judge Dale's chambers for in camera review no later that 6/23/2010. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
289 Letter from the Supreme Court of the United States, Office of the Clerk. The application for an extension of time wihtin which to file a petition for a writ of certiorari is extended to 7/16/2010.(cjm) (Entered: 06/15/2010)
290 DOCKET ENTRY ORDER. Counsel for the Defendant has informed the Court that the United States has decided to seek review of the Ninth Circuit Court of Appeals decision in this matter. Therefore, the United States has requested that the settlement conference currently set for June 29, 2010 be delayed until a later date. Based on the foregoing, and being advised that Plaintiff does not oppose the request, IT IS HEREBY ORDERED that the settlement conference currently set for June 29, 2010 is VACATED, to be reset at a later date if appropriate. The parties are requested to inform the Court as to whether the United States Supreme

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 27 of 33

07/19/2010 10/19/2010 10/20/2010
10/21/2010 06/16/2011 06/20/2011
07/05/2011
07/20/2011 07/21/2011
08/03/2011 09/27/2011 09/28/2011 10/05/2011 10/19/2011
10/21/2011

Court accepts review of the Ninth Circuits decision no later than five days after the United States receives notice. IT IS SO ORDERED. Signed by Judge Candy W Dale. (mem)
291 Letter from the Supreme Court of the United States Office of the Clerk. The petition for a writ of certiorari in the above entitled case was filed on 7/16/2010 and placed on the docket 7/19/2010 as No. 10−98.(cjm) (Entered: 07/26/2010)
292 NOTICE by Abdullah Al−Kidd, James Gneckow, Scott Mace, United States re 290 Order, Order, Order, Order (Levine, Brant)
293 DOCKET ENTRY ORDER: Pursuant to the parties' Notice (DKT. 292 ), the United States Supreme Court has granted Defendant Ashcroft's Petition for Certiorari. Accordingly, the Court orders that any further settlement proceedings are STAYED until after the Supreme Court rules on Defendant Ashcroft's appeal. Signed by Judge Candy W Dale. (klw)
294 Letter from Supreme Court of the United States in re: Docket Entry Order #293(dks)
295 NOTICE by Abdullah Al−Kidd, James Gneckow, Scott Mace, United States re 293 Order, Order (Levine, Brant)
296 DOCKET ENTRY ORDER: Pursuant to 295 Joint Notice Regarding Settlement Proceedings, this matter shall be STAYED until 8/1/2011. The parties are directed to submit a Joint Status Report due no later than 8/1/2011. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc)
297 LETTER from Supreme Court of the United States as to Abdullah Al−Kidd with copy of judgment from the Supreme Court of the United States that the judgment of the above court is reversed with costs, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings consistent with the opinion of this Court. IT IS FURTHER ORDERED that the petitioner John D. Ashcroft recover from Abdullah al−Kidd Eight Hundred Ninety−three Dollars and Sixty−six Cents ($893.66) for costs herein expended. (dks)
298 NOTICE by Abdullah Al−Kidd, James Gneckow, Scott Mace, United States re 296 Order, Set Deadlines, Order, Set Deadlines (Levine, Brant)
299 DOCKET ENTRY ORDER: Pursuant to 298 Notice, this matter shall be STAYED until 9/28/2011. The parties are directed to submit a Joint Status Report due no later than 9/28/2011. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc)
300 ORDER of USCA reversing and remanding the District Court's denial of dft Ashcroft's motion to dismiss as to 89 Notice of Appeal filed by John Ashcroft (dks)
301 MANDATE of USCA as to 89 Notice of Appeal filed by John Ashcroft (dks)
302 NOTICE by Abdullah Al−Kidd, James Gneckow, Scott Mace, United States re 299 Order, Order (Levine, Brant)
303 ORDER LIFTING STAY, ( Dfts' Motions due by 11/7/2011.). Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
304 Joint MOTION for Leave to File Excess Pages Brant S Levine appearing for Plaintiff Abdullah Al−Kidd, Defendants James Gneckow, Scott Mace, United States.Motions referred to Mikel H. Williams. Responses due by 11/14/2011 (Levine, Brant)
305 DOCKET ENTRY ORDER granting 304 Motion for Leave to File Excess Pages. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by klw)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 28 of 33

11/07/2011 11/07/2011 11/07/2011 11/08/2011 12/21/2011
12/21/2011 12/21/2011
12/21/2011 12/22/2011
12/22/2011
12/22/2011 12/22/2011

306 MOTION for Summary Judgment Brant S Levine appearing for Defendants James Gneckow, Scott Mace.Motions referred to Mikel H. Williams. Responses due by 12/1/2011 (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibits 1−7, # 4 Exhibits 8−12, # 5 Exhibits 13−18, # 6 Exhibits 19−23)(Levine, Brant)
307 MOTION for Summary Judgment Brant S Levine appearing for Defendant United States.Motions referred to Mikel H. Williams. Responses due by 12/1/2011 (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibits 1−7, # 4 Exhibits 8−12, # 5 Exhibits 13−18, # 6 Exhibits 19−23)(Levine, Brant)
Set/Reset Deadlines per Doc #303 as to 307 MOTION for Summary Judgment, 306 MOTION for Summary Judgment. Responses due by 12/21/2011 Replies due by 2/6/2012. (dks) (Entered: 11/09/2011)
NOTICE TO COURT that counsel Merlyn W. Clark wishes to no longer be noticed electronically on this case as of the date of this notice. (Clark, Merlyn)
308 MOTION for Summary Judgment Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 1/17/2012 (Attachments: # 1 Memo in Support of Motion for Summary Judgment Against the United States, # 2 Statement of Facts, # 3 Exhibit Table of Exhibits, # 4 Exhibit Exhibits 1−9, # 5 Exhibit Exhibits 10−17, # 6 Exhibit Exhibits 18−23, # 7 Motion to File Sealed Exhibits, # 8 Response to United States Statement of Facts)(Gelernt, Lee)
309 Sealed Document Re: 308 MOTION for Summary Judgment. (Attachments: # 1 Sealed Gelernt Declaration in Support of Motion to File Sealed Documents, # 2 Sealed Sealed Exhibit A, # 3 Sealed Sealed Exhibit B)(Gelernt, Lee)
310 MOTION for Summary Judgment Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 1/17/2012 (Attachments: # 1 Memo in Support of Motion for Summary Judgment Against the Individual Federal Defendants, # 2 Statement of Facts, # 3 Table of Exhibits, # 4 Exhibits 1−9, # 5 Exhibits 10−17, # 6 Exhibits 18−23, # 7 Motion to File Sealed Exhibits, # 8 Response to Individual Federal Defendants' Statement of Facts)(Gelernt, Lee)
311 Sealed Document Re: 310 MOTION for Summary Judgment. (Attachments: # 1 Gelernt Declaration in Support of Motion to File Sealed Documents, # 2 Sealed Exhibit A, # 3 Sealed Exhibit B)(Gelernt, Lee)
CORRECTIVE ENTRY − The entry docket number 308 MOTION for Summary Judgment filed by Abdullah Al−Kidd was filed incorrectly in this case as it pertains to Attachment #7 only. Attachment #7 is a separate Motion and should be filed as such on the docket. The filing party shall re−submit Attachment #7 as Motion to Seal located under Motions and link to docket #309. Please call Carrie with any questions at 208−334−9397.(cjm)
DISREGARD CORRECTIVE ENTRY − The entry docket number 311 Sealed Document, 310 MOTION for Summary Judgment filed by Abdullah Al−Kidd were filed incorrectly in this case as they appear to be duplicate filings of dockets #308 and #309 respectively. The Clerks office shall term docket #310 as a pending motion. (cjm) Modified on 12/22/2011 to reflect issued in error per Docket Annotation 12/22/2011 (cjm).
Please disregard Corrective Entry issued for dockets 310 Motion for Summary Judgment and 311 Sealed Document. They are not duplicates in that they are filed in respect to different Defendants and briefing is different. The Clerks office shall reinstate the motion as pending. (cjm)
312 MOTION to Seal Document 309 Sealed Document Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 1/17/2012 (Attachments: # 1 Memo in Support of Motion to file the Declaration of Lee Gelernt and attached exhibits under seal in support of Plaintiffs Opposition To Defendant United States Motion For Summary Judgment And In Support of Plaintiffs Cross−Motion For Summary Judgment (filed as docket no. 309))(Gelernt, Lee)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 29 of 33

12/22/2011
01/10/2012 01/10/2012 01/10/2012 01/11/2012
01/17/2012 01/17/2012 01/17/2012
01/17/2012
02/06/2012 02/06/2012 02/06/2012 02/06/2012

313 MOTION to Seal Document 311 Sealed Document Lee Gelernt appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 1/17/2012 (Attachments: # 1 Memo in Support of Motion to file the Declaration of Lee Gelernt and attached exhibits under seal in support of Plaintiffs Opposition To Individual Federal Defendants Motion For Summary Judgment And In Support of Plaintiffs Cross−Motion For Summary Judgment (filed as docket no. 311))(Gelernt, Lee)
314 MOTION FOR PRO HAC VICE APPEARANCE by Katherine Desormeau. ( Filing fee $ 225 receipt number 0976−835342.)Lea Candy Cooper appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 2/3/2012 (Cooper, Lea)
315 MOTION FOR PRO HAC VICE APPEARANCE by Michael Tan. ( Filing fee $ 225 receipt number 0976−835348.)Lea Candy Cooper appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 2/3/2012 (Cooper, Lea)
316 MOTION FOR PRO HAC VICE APPEARANCE by Esha Bhandari. ( Filing fee $ 225 receipt number 0976−835349.)Lea Candy Cooper appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 2/3/2012 (Cooper, Lea)
317 DOCKET ENTRY ORDER granting 314 315 and 316 Motions for Pro Hac Vice Appearance of attorneys Katherine Desormeau, Michael K.T. Tan, and Esha Bhandari for Abdullah Al−Kidd. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
318 RESPONSE to Motion re 312 MOTION to Seal Document 309 Sealed Document filed by United States. Replies due by 2/3/2012.(Meeks, J)
319 RESPONSE to Motion re 313 MOTION to Seal Document 311 Sealed Document filed by James Gneckow, Scott Mace. Replies due by 2/3/2012.(Meeks, J)
320 DOCKET ENTRY ORDER Finding good cause, and no opposition thereto (See Dkt. 318 ), the Motion to Seal (Dkt. 312 ) is GRANTED and Dkt. 309 shall remain under seal. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by klw)
321 DOCKET ENTRY ORDER Finding good cause, and no opposition thereto (See Dkt. 319 ), the Motion to Seal (Dkt. 313 ) is GRANTED. Dkt. 311 shall remain under seal. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by klw)
322 MEMORANDUM in Opposition re 308 MOTION for Summary Judgment filed by United States. Replies due by 2/24/2012. (Attachments: # 1 Response to Plaintiff's Statement of Undisputed Material Facts, # 2 Exhibit Exhibits 24−29)(Meeks, J)
323 REPLY to Response to Motion re 307 MOTION for Summary Judgment, filed by United States.(Meeks, J) Modified on 2/7/2012 to correct link per Corrective Entry (cjm).
324 MEMORANDUM in Opposition re 310 MOTION for Summary Judgment filed by James Gneckow, Scott Mace. Replies due by 2/24/2012. (Attachments: # 1 Response to Plaintiff's Statement of Undisputed Material Facts, # 2 Exhibits 24−29)(Meeks, J)
325 REPLY to Response to Motion re 306 MOTION for Summary Judgment, filed by James Gneckow, Scott Mace.(Meeks, J) Modified on 2/7/2012 to edit link per Corrective Entry (cjm).

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 30 of 33

02/07/2012
02/07/2012 02/07/2012 02/27/2012 03/07/2012 03/07/2012 03/12/2012 03/27/2012 03/27/2012
03/28/2012
03/29/2012 05/10/2012
05/25/2012

CORRECTIVE ENTRY − The entry docket number 325 Reply to Response to Motion filed by Scott Mace, James Gneckow, 323 Reply to Response to Motion filed by United States was filed incorrectly in this case as they are linked as Replies to the wrong motions at dockets 308 and 310. No action is required by the filing party as the Clerks office shall edit the link to reflect dockets 307 and 306 and reinstate reply deadline of 2/24/2012 for Motions dockets 308 and 310.(cjm)
Reset Deadlines as to 310 MOTION for Summary Judgment, 308 MOTION for Summary Judgment. Replies due by 2/24/2012. Reinstated reply deadlines per Corrective Entry.(cjm)
Reset Deadlines as to 310 MOTION for Summary Judgment, 308 MOTION for Summary Judgment. Replies due by 3/7/2012. Per Order dkt #303.(cjm)
326 NOTICE of supplement authority by James Gneckow, Scott Mace re 306 MOTION for Summary Judgment (Meeks, J)
327 REPLY to Response to Motion re 308 MOTION for Summary Judgment Against Defendant United States filed by Abdullah Al−Kidd. (Attachments: # 1 Exhibit Table of Additional Exhibits, # 2 Exhibit Additional Exhibits 24−26)(Gelernt, Lee)
328 REPLY to Response to Motion re 310 MOTION for Summary Judgment Against Individual Federal Defendants filed by Abdullah Al−Kidd. (Attachments: # 1 Exhibit Table of Additional Exhibits, # 2 Exhibit Additional Exhibits 24−26)(Gelernt, Lee)
329 DOCKET ENTRY NOTICE of Hearing on Motions: 310 MOTION for Summary Judgment, 308 MOTION for Summary Judgment, 307 MOTION for Summary Judgment, 306 MOTION for Summary Judgment − Motion Hearing set for 5/10/2012 10:30 AM in Boise − Courtroom 1 before Judge Mikel H. Williams. (klw)
330 Consent MOTION for Entry of Judgment Dismissing With Prejudice Claims Against Former Attorney General John Ashcroft J Marcus Meeks appearing for Defendant John Ashcroft.Motions referred to Mikel H. Williams. Responses due by 4/20/2012 (Meeks, J)
331 STIPULATION Regarding Termination of Certain Parties Against Whom Claims Are No Longer Pending and Correction of the Caption by Abdullah Al−Kidd, Donna Bucella, Michael Chertoff, Federal Bureau of Investigation, James Gneckow, Alberto Gonzales, Scott Mace, Robert Mueller, Terorist Screening Center, U.S. Dept of Homeland Security, U.S. Dept of Justice, United States. (Meeks, J)
332 ORDER approving 331 Stipulation regarding termination of certain parties against whom claims are no longer pending and correction of the caption, filed by Scott Mace, U.S. Dept of Homeland Security, United States, Federal Bureau of Investigation, Donna Bucella, Alberto Gonzales, Michael Chertoff, Robert Mueller, James Gneckow, Terorist Screening Center, Abdullah Al−Kidd, U.S. Dept of Justice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
333 ORDER granting 330 Motion for Entry of Dismissal with prejudice as to the claims against former Attorney General John Ashcroft. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
334 Minute Entry for proceedings held before Judge Mikel H. Williams: Motion Hearing held on 5/10/2012 re 307 MOTION for Summary Judgment filed by United States, 306 MOTION for Summary Judgment filed by Scott Mace, James Gneckow, 308 MOTION for Summary Judgment filed by Abdullah Al−Kidd, 310 MOTION for Summary Judgment filed by Abdullah Al−Kidd. Motions taken Under Advisement. (Court Reporter/ESR Darlene Smith.) (so) (Entered: 05/18/2012)
335 NOTICE of Substitution − Attorney Richard Alan Eppink for Abdullah Al−Kidd added. Attorney Lea Candy Cooper terminated. (Eppink, Richard)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 31 of 33

06/18/2012
06/26/2012
06/29/2012 06/29/2012
06/29/2012
08/20/2012 08/20/2012 08/20/2012 08/20/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/11/2012

336 REPORT AND RECOMMENDATIONS ON CROSS MOTIONS FOR SUMMARY JUDGMENT− It is Recommended that Plaintiff's Cross−Motion for Summary Judgment (Dkt. 310 ) as to Agent Gneckow be GRANTED; that Defendants' Motion for Summary Judgment (Dkt. 306 ) as to Agent Gneckow be DENIED; and that as to Agent Mace, Defendants' Motion for Summary Judgment (Dkt. 306 ) and Plaintiff's Cross−Motion for Summary Judgement (Dkt. 310 ) be decided by the District Court following DE NOVO REVIEW. Objections to RRdue by 7/5/2012. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)
337 REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT− UNITED STATES− It is hereby recommended that Plaintiff's Motion for Summary Judgment Against the United States (Dkt. 308 ) be DENIED IN PART AND GRANTED IN PART, and Defendant United States Motion for Summary Judgment (Dkt. 307 ) be DENIED. Objections to RRdue by 7/13/2012. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)
338 Consent MOTION for Extension of Time to File Objections to Report and Recommendations Brant S Levine appearing for Defendants James Gneckow, Scott Mace, United States.Motions referred to Mikel H. Williams. Responses due by 7/23/2012 (Levine, Brant)
339 ORDER granting in part 338 Motion for Extension of Time to File objections to Report and Recommendation; Both sides shall file any objections to both Reports and Recommendations on or before August 20, 2012. Responses to the objections shall be filed no later than September 10, 2012. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
Set/Reset Deadlines per Doc #339 as to 336 REPORT AND RECOMMENDATIONS re 306 MOTION for Summary Judgment filed by Scott Mace, James Gneckow, 310 MOTION for Summary Judgment filed by Abdullah Al−Kidd, 337 REPORT AND RECOMMENDATIONS re 307 MOTION for Summary Judgment filed by United States, 308 MOTION for Summary Judgment filed by Abdullah Al−Kidd. Responses due by 8/20/2012 Replies due by 9/10/2012. (dks)
340 OBJECTION to 336 Report and Recommendations on Bivens Claims Against Individual Federal Defendants by Abdullah Al−Kidd. (Gelernt, Lee)
341 OBJECTION to 337 Report and Recommendations on FTCA Claims Against Defendant United States by Abdullah Al−Kidd. (Gelernt, Lee)
342 OBJECTION to 336 Report and Recommendations On Cross Motions for Summary Judgment Concerning Bivens Claims Against Michael Gneckow and Scott Mace. (Meeks, J)
343 OBJECTION to 337 Report and Recommendations On Cross Motions for Summary Judgment Concerning Claims Against the United States. (Meeks, J)
344 RESPONSE TO OBJECTION TO RRfiled by United States.(Meeks, J)
345 RESPONSE TO OBJECTION TO RRfiled by James Gneckow, Scott Mace. (Attachments: # 1 Exhibit Mace Deposition)(Meeks, J)
346 RESPONSE TO OBJECTION TO RRfiled by Abdullah Al−Kidd.(Gelernt, Lee)
347 RESPONSE TO OBJECTION TO RRfiled by Abdullah Al−Kidd.(Gelernt, Lee)
348 SUPPLEMENT by Plaintiff Abdullah Al−Kidd re 347 Response to Objection to RRDisregard 347 . (Gelernt, Lee)
349 NOTICE by James Gneckow, Scott Mace, United States Withdrawal of Counsel (Meeks, J)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 32 of 33

09/27/2012
09/27/2012
11/19/2012
11/19/2012 11/19/2012 11/26/2012 01/10/2013
01/11/2013 07/19/2013 07/22/2013 11/18/2013
11/25/2014 12/30/2014 01/05/2015

350 ORDER ADOPTING 336 REPORT AND RECOMMENDATIONS ; granting in part and denying in part 306 Motion for Summary Judgment; granting in part and denying in part 310 Motion for Summary Judgment;. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
351 ORDER ADOPTING 337 REPORT AND RECOMMENDATIONS ; denying 307 Motion for Summary Judgment; granting in part and denying in part 308 Motion for Summary Judgment. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
352 NOTICE OF APPEAL as to 350 Order Adopting Report and Recommendations, Order on Motion for Summary Judgment,, Order on Report and Recommendations,,,, by James Gneckow. (Notice sent to Court Reporter &9th Cir) (Attachments: # 1 Representation Statement, # 2 Order Denying Qualified Immunity)(Levine, Brant)(12−35957)
353 USCA Case Number 12−35957 for 352 Notice of Appeal, filed by James Gneckow. (cjm)
354 USCA Scheduling Order as to 352 Notice of Appeal, filed by James Gneckow. (Notice sent by e−mail to Court Reporter) (cjm)
355 TRANSCRIPT REQUEST by James Gneckow for proceedings held on May 10, 2012 before Judge Williams, (Notice sent by e−mail to Court Reporter) (Levine, Brant)
356 Transcript filed for dates of 5/10/2012 (Motion Hearing) before Judge Mikel H. Williams, re 352 Notice of Appeal, Court Reporter/Transcriber Canyon Transcription, Telephone number 208−454−1010. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/4/2013. Redacted Transcript Deadline set for 2/14/2013. Release of Transcript Restriction set for 4/15/2013. (cjm) (Entered: 01/11/2013)
357 Notice of Filing of Official Transcript (cjm)
358 MOTION to Withdraw as Attorney Esha Bhandari Esha Bhandari appearing for Plaintiff Abdullah Al−Kidd.Motions referred to Mikel H. Williams. Responses due by 8/12/2013 (Bhandari, Esha)
359 DOCKET ENTRY ORDER granting 358 Motion to Withdraw as Attorney. Attorney Esha Bhandari terminated. Signed by Judge Mikel H. Williams. (klw)
360 AMENDED ORDER OF REFERENCE. IT IS HEREBY ORDERED that ALL MATTERS in the above case are referred to United States Magistrate Judge Candy W. Dale. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
361 ORDER of USCA as to 352 Notice of Appeal, filed by James Gneckow. The partiesshall provide a status update on or before 12/22/2014. (cjm)
362 ORDER of USCA as to 352 Notice of Appeal, filed by James Gneckow. The panel has voted to grant the parties request to continue mediation efforts, on the condition that the parties submit a status report no later than 1/16/2015. (cjs)
363 DOCKET ENTRY ORDER − The Court has been informed that this case has settled in its entirety, which will resolve all remaining claims on appeal and in the district court. Therefore, the appropriate dismissal documents shall be filed with the Court by March 6, 2015. SO ORDERED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)

Case 1:05-cv-93 Document <docnum> Filed <datefiled> Page 33 of 33

01/06/2015
01/13/2015 01/13/2015

364 ORDER of USCA (12−35957) as to 352 Notice of Appeal, filed by James Gneckow. A copy of this order shall serve as the mandate of this court. (st) (Entered: 01/07/2015)
365 STIPULATION of Dismissal by Abdullah Al−Kidd. (Gelernt, Lee)
366 ORDER DISMISSING REMAINING CLAIMS AND RETAINING JURISDICTION granting 365 Stipulation of Dismissal. All remaining claims are hereby DISMISSED WITH PREJUDICE. The Court shall retain jurisdiction to enforce the terms of the Stipulation for Compromise Settlement and Release. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

 
 US Settles ACLU Lawsuit Challenging Post-9/11 Arrests of Muslim Men | American Civil Liberties Union

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US Settles ACLU Lawsuit Challenging Post-9/11 Arrests of Muslim Men
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January 16, 2015
FOR IMMEDIATE RELEASE 
CONTACT: 212-549-2666, media@aclu.org
NEW YORK – The American Civil Liberties Union announced a settlement in a major test case challenging the U.S. government's post-9/11 practice of imprisoning Muslim men as material witnesses without any basis for holding them. As part of the settlement, the federal government offered its regrets and agreed to compensate U.S. citizen Abdullah al-Kidd over his arrest and detention as a material witness in the wake of Sept. 11, 2001.
"I am pleased the government has finally acknowledged the trouble it put me through and has compensated me for that trouble. I hope no one else has to go through what I went through," said al-Kidd, a Kansas-born American citizen, father, and graduate of the University of Idaho where he was a star football player.
Al-Kidd was arrested by the FBI in 2003 ostensibly so he would testify as a material witness in the trial of a student who was facing visa fraud charges. He was imprisoned for 16 days, moved to three separate federal detention facilities in three different states, and was sometimes held naked and shackled hand and foot. He was never ultimately called to testify.
The ACLU sued on his behalf in a case that has spanned a decade and included one trip to the U.S. Supreme Court and two trips to the federal court of appeals. In a Jan. 15 letter to al-Kidd, federal officials wrote: "The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention."
The U.S. government and an individual FBI agent named as a defendant also agreed to pay al-Kidd a total of $385,000 as part of the settlement.
"The government systematically abused the material witness process after September 11," said Lee Gelernt, deputy director of the ACLU Immigrants' Rights Project. "This settlement and the court opinions detailing the government’s unlawful actions will hopefully deter future such abuses."
ACLU cooperating attorney Michael Wishnie of Yale Law School served as cocounsel, with additional counsel from the ACLU of Idaho, the Law Offices of Cynthia J. Wooley, and Roark Law Firm.
More information is at: https://www.aclu.org/immigrants-rights-nationalsecurity/abdullah-al-kidd-v-united-states-et-al
Abdullah al-Kidd v. United States, et al.

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https://www.aclu.org/immigrants-rights-national-security/us-settles-aclu-lawsuit-challenging-post-911-arrests-muslim-men[3/1/2015 9:55:20 PM]