Associate Professor Wesley M. Oliver
recently filed a brief in the United States Supreme Court supporting John Ashcroft's Petition for a Writ of Certiorari in Ashcroft v. Al-Kidd.
A Ninth Circuit decision recently held that former United States Attorney General John Ashcroft violated the Fourth Amendment when he used material witness detentions to hold individuals identified as material witnesses whom he also suspected of terrorist activities. The decision also held that this illegal use of material witness detentions would provide sufficient cause for a lawsuit against Ashcroft as an individual to move forward.
Despite no previous court ruling regarding the act as illegal, the Ninth Circuit ruling indicated that the act’s illegality was apparent. To explain the absence of precedent condemning the pretextual use of material witness detentions, the Ninth Circuit observed that Ashcroft’s use of the detentions to hold suspects was unprecedented.
Professor Oliver’s recent work on his JSD dissertation led him to a different conclusion. “Pretextual detentions were common for about a century. In fact, between 1840 and 1930 the public was outraged when authorities held witnesses whom prosecutors did not suspect of criminal activity,” said Oliver, adding, “The public was, however, aware of pretextual witness detentions during this period and generally approved of such uses of the power. In short, for about a century, the public tolerated material witness detentions only if they were used in the way the Ninth Circuit condemned as clearly unconstitutional.”
In the brief, Professor Oliver opens his conclusion by noting, “For nearly a quarter century police and prosecutors used material witness detentions in exactly the same way former Attorney General Ashcroft is alleged to have used them in this case.” The brief itself aims to give a more accurate picture of how material witness detentions were used throughout history. Professor Oliver concludes that, “this historical background is certainly relevant in determining whether it was ‘apparent’ to the former Attorney General that he was violating the Constitution when he held those he suspected of terrorism as material witnesses. Given the Ninth Circuit’s reliance on incorrect historical facts, this court ought to consider this issue in light of the accurate historical record.”