[JURIST] The US Supreme Court [official website, JURIST news archive] on Monday granted certorari [order list, PDF] in Ashcroft v. al-Kidd [docket; cert. petition, PDF] to determine whether former US attorney general John Ashcroft [JURIST news archive] is entitled to absolute or qualified immunity against claims that he used the material witness statute [18 USC § 3144 text] as a “pretext” to preventatively detain terrorism suspects. Ashcroft appealed the September 2009 ruling [JURIST report] of the US Court of Appeals for the Ninth Circuit [official website], which upheld a lower court decision [JURIST report] rejecting his immunity claims in a lawsuit brought by the American Civil Liberties Union (ACLU) [advocacy website] on behalf of Abdullah al-Kidd. Al-Kidd was detained for 15 days [ACLU backgrounder] in March 2003 pursuant to a material witness order, as the government lacked probable cause to hold him as a terrorism suspect. Deputy Director of the ACLU Immigrants’ Rights Project and lead attorney for al-Kidd Lee Gelernt said [press release]:

Arresting and detaining someone for an extended period without probable cause to believe he violated the law goes against the most basic principles on which our country is founded. The appeals court made it very clear that former Attorney General Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution’s longstanding rule that a suspect may not be arrested without probable cause of wrongdoing. The appeals court opinion was the right one, and the Supreme Court should uphold that decision. Government architects of policies that so clearly defy the Constitution must be held accountable to the law.

The Supreme Court will limit its review to the two issues involving Ashcroft’s entitlement to immunity and will not review a third issue as to whether Ashcroft could be held liable for alleged false statements made in an affidavit supporting the material witness warrant, as that issue has since been dropped by the ACLU.

In May the Supreme Court ruled [JURIST report] that a similar case challenging Ashcroft’s immunity from lawsuits for mistreatment of prisoners could not go forward because of failure of the plaintiff to adequately state a claim. The court declined to rule on Ashcroft’s assertion of qualified immunity, except to note that the denial of a motion to dismiss based on qualified immunity “can fall within the narrow class of appealable orders despite ‘the absence of a final judgment.'” Earlier this year, the Ninth Circuit denied Ashcroft’s motion for rehearing [JURIST report] in the al-Kidd case, setting the stage for a Supreme Court appeal. The Ninth Circuit originally was split over the question of Ashcroft’s immunity, with the dissent questioning the scope of the majority’s decision and stating that, “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.” However, the majority and those in support of its decision believe it necessary to rein in the ability of government officials to distort the law and in doing so, abridge the rights guaranteed to citizens by the Constitution.