On Tuesday, February 22, 2011, Associate Professor Wesley M. Oliver
spoke to students on the Harrisburg campus about Ashcroft v. Al-Kidd, a U.S. Supreme Court case focusing on the issue of whether the federal material witness statute can be used to detain a terrorism suspect where there is no probable cause to directly hold the individual.
Professor Oliver explained his view that the material witness statute can be used to detain an innocent witness in order to secure his testimony in another case, citing historical precedence. The material witness statute dates back to the 1840s in New York, where they had a house called the “Tombs.” This house was used to detain prisoners along with material witnesses. However, these witnesses were often simply people who had useful information. From 1741 to 1841, Professor Oliver notes that 60 women rape victims were held in the house as witnesses.
New York became concerned with the innocent witnesses being detained with the prisoners and reformed the law so witnesses may only be detained if they are suspects for another case. In 1904, New York changed their statute back to allow material witnesses to be detained if they know any relevant information and might not be around for the trial.
The current issue involves Al-Kidd, a 38-year-old alumnus of the University of Idaho. He converted to Islam and gave up a job in corporate America to work with an Islamic charity. The charity was linked to Al-Qaeda, and Al-Kidd was questioned by the FBI but cooperated with them every step of the way. Al-Kidd had a round trip ticket to travel to Saudi Arabia, where he intended to pursue further religious studies. While waiting for his flight, he was detained at Dallas Airport. He was taken into custody and held in maximum security for two weeks. He was left naked, shackled and held next to a death row inmate. Al-Kidd pursued a lawsuit and the 9th Circuit granted relief on the theory that such a use of the material witness statute violates the Fourth Amendment.
Professor Oliver noted that while he did not endorse what the government did to Al-Kidd, he had a problem with the Ninth Circuit’s decision in Ashcroft v. Al-Kidd, believing that the Court was completely wrong and had no historical evidence to back their decision. The Ninth Circuit opinion under Supreme Court review cited Professor Oliver’s scholarship on the material witness statute. Professor Oliver has also been quoted in the NY Times, and he published an op-ed in the Huffington Post on the subject as well.