Critical Lessons of Al-Kidd: Respecting the Dignity of Material Witnesses through the Special Needs Doctrine

I. INTRODUCTIONSince the September 11, 2001 terrorist attacks, the government has increasingly relied upon the federal material witness statute to arrest and detain persons with knowledge of or connections to suspected terrorists.1 Of these detentions, the arrest of Abdullah al-Kidd was one of the most publicized in the media, primarily due to his subsequent lawsuit against former Attorney General John Ashcroft. His case made national headlines when the Supreme Court granted certiorari to hear it.2 Although the appeal only challenged the Ninth Circuit Court of Appeals' decision regarding Ashcroft's immunity from liability, the ensuing debate centered heavily upon the propriety of the government's use of the federal material witness statute to detain suspected terrorists rather than actual witnesses.Al-Kidd's central allegation was that Ashcroft had developed a policy to circumvent ordinary Fourth Amendment requirements through use of the federal material witness statute.3 The Supreme Court eventually rejected al-Kidd's suit on the basis that Ashcroft enjoyed immunity from liability.4 In unusual fashion, however, the Court went beyond ordinary judicial procedure by also holding that no Fourth Amendment violation had even occurred, despite the lack of effect of the additional holding on the outcome of the case.5 This Comment argues that the Fourth Amendment prohibits the pretextual use of the material witness statute to preemptively detain criminal suspects for whom ordinary criminal arrest would be impossible. Part II reviews the federal material witness statute and the exceptions made in the law for special needs cases. After providing an overview of al- Kidd's case against the government, it then introduces concepts of feminist theory and dignity ethics relevant to the social impact of the Fourth Amendment ruling against al-Kidd.6 Part III contends that the Supreme Court should not have addressed the Fourth Amendment issues because they were not determinative to the outcome of the case and further argues that the material witness statute falls within the special needs search and seizure line of case law.7 Part IV then proposes policy rationales for prohibiting the use of the material witness statute to detain criminal suspects based on insights from feminist theory and dignity ethics.8 Finally, Part V concludes that the Court's holding in Ashcroft v. al-Kidd will have negative effects on the social and legal perception of witness cooperation.II. BACKGROUNDA. The Federal Material Witness StatuteThe federal material witness statute permits the arrest of a person who appears to be material in a criminal proceeding and whose presence may be impracticable to secure at a trial or deposition.9 Material witness statutes are meant to aid prosecutors in the gathering of important information against a criminal, and thus allow for the arrest of an individual who is not suspected of a crime. Despite the unique situation presented by the arrest of individuals for the purpose of testimony, material witness arrests are subject to the Fourth Amendment reasonableness requirements because they are seizures within the meaning of the Constitution.10 Therefore, a material witness arrest warrant must establish probable cause that the statutory requirements are satisfied.11Material witness arrest warrants, however, do not involve ordinary probable cause that a person is suspected of criminal wrongdoing because the witness is only held to secure testimony.12 The modification of the probable cause requirement consequently changes other aspects of the warrant and arrest procedure for material witnesses, often lowering the burden on the government in comparison to ordinary criminal arrests. For example, Miranda warnings are not required for an incarcerated witness.13 Additionally, the establishment of materiality requires only a representation by a "responsible official," such as a federal prosecutor.14B. …