In March of 2003, Abdullah al-Kidd, an Idaho citizen about to board a flight to Saudi Arabia, was detained by United States authorities as a potential material witness. The officers who took al-Kidd into custody asserted that he “had a one-way first class plane ticket, and that he was ‘crucial’ to the prosecution of Sami Omar al-Hussayen” (Mears, CNN), a suspected terrorist. Thereafter, al-Kidd was transported to several high-security prisons, where he alleged he received brutal treatment.

After his imprisonments, al-Kidd was released upon the surrender of his passport. He now teaches in Saudi Arabia, and no actual evidence was obtained from him in regard to terrorism prosecutions. Two penal institutions were sued by al-Kidd, and settlements were made out of court. What remains today is the American Civil Liberties Union (ACLU) lawsuit currently before the Supreme Court, which claims that al-Kidd was a victim of former Attorney General John Ashcroft, who “authorized the detention of criminal suspects without probable cause by misusing the material witness statue” (ACLU).

This case of discretionary judgment as exercised by the officer who mandated the warrant on al-Kidd is clearly born from the climate of intense fear prevalent in the years immediately following 9/11. Anyone who had Middle Eastern connections or a Middle Eastern background was suspect, and it appears that the federal government acted on the national fear of terrorism to interpret the law loosely. Strictly speaking, there seems to have been no legitimate reason for detaining al-Kidd: “He was never implicated in wrongdoing, but was interviewed repeatedly and voluntarily by the FBI. He was never told his testimony would be needed in any prosecution, nor was he forbidden to leave the country” (Mears, 2011, CNN).

Evidently, the officers who issued the warrant for al-Kidd’s restraint had decided that his overt ties to the Saudi community from within the U.S. were sufficient to hold him. Despite his having no actual link to any terrorist activity, al-Kidd’s chosen religious and ethnic identity rendered him suspect, and his arrest is an instance of simple profiling.

In approaching the Supreme Court, the ACLU is holding to one basic argument: “The Fourth Amendment prohibits the arrest of criminal suspects without probable cause…” (ACLU). This is certainly true, but it overlooks the open parameters of the material witness statutes, for they historically rely wholly on discretion to begin with. All that is necessary to secure an individual as a material witness is a reasonable belief that he or she can provide valuable information, and may as well be likely to flee either the jurisdiction or the country, and this merely rests on the law’s ability to affirm what is reasonable suspicion to an issuing judge.

Then, as noted, the post-9/11 atmosphere allowed for a great deal of liberality in interpreting even so discretionary a statute: “Material witness detention…became a useful surrogate because some of the protections that surround criminal defendants are not available to the material witness who has been detained” (Margulies, 2005, p. 42). No formal charge need be filed to arrest a material witness, and the detainment itself is completely determined by the presiding officers’ and judges’ consideration. It has been strongly alleged that Bush administration, which is the focus of the ACLU lawsuit on behalf of al-Kidd, took advantage of national fears to  flagrantly violate basic civil rights.

The discretionary decision to arrest al-Kidd was a poorly determined one, as it was based on no actual evidence of either terrorist activity or knowledge of such. This was an abuse of legal authority, and not even the widespread dread of terrorism occasioned by 9/11 can excuse what was, essentially, an illegal police action. Moreover, such ill-advised actions greatly harm the validity of the material witness statutes as they exist.