On January 28, 2011, CJA filed an amicus brief before the U.S. Supreme Court in Ashcroft v. Al Kidd, arguing that Attorney General Ashcroft unconstitutionally detained a U.S. citizen without probable cause by holding him as a witness while investigating him as a suspect.

Background

Abdullah al-Kidd, a U.S. citizen and former football player for the University of Idaho, was arrested in March 2003 under 18 U.S.C. § 3144, a statute that authorizes the detention of a witness to a crime to compel his testimony under certain narrow circumstances when his testimony might otherwise be unavailable.

Mr. Al-Kidd alleged that former Attorney General Ashcroft instituted an unconstitutional policy of detaining individuals—including U.S. citizens—under Section 3144, as a pretext for holding suspects when probably cause for their arrest was lacking.

Argument

CJA’s brief surveyes foreign laws on detention and concludes that many States maintain a procedural firewall between witness detention and preventative detention for terrorism.  Those countries that permit preventative detention do so within a framework of due process safeguards and forbid the use of witness detention as a pretext for investigating suspects.

Our brief argues that the U.S. Justice Department exceeded its authority to detain U.S. citizens when it used witness detention to circumvent the Fourth Amendment requirement of probable cause.  Congress never intended the detention of material witnesses to be a vehicle for detaining U.S. citizens.  Indeed, in post 9-11 legislation, Congress chose not to authorize the preventative detention of U.S. citizens.  Nonetheless, the Executive branch unilaterally assumed this detention power.

Attached Documents

28 Jan 11 Brief of The Center for Justice and Accountability as Amicus Curiae in Support of Respondent