Many on the political and legal left—including, perhaps most prominently, Glenn Greenwald—have routinely expressed their staunch disapproval of the Obama Administration’s handling of civil liberties in the realm of national security.  Their bill of particulars is lengthy and spans his entire presidency; a small but notorious sampling of these charges includes obstructing judicial redress for torture victims, utilizing “kidnapping and torture chambers, albeit by proxy,” and executing drone strikes against American citizens abroad who are merely suspected of terrorist activity (which at least one prominent conservative legal academic has judged likely illegal).

To these critics, the Obama Administration is presumably no better for continuing to defend the Bush Administration’s use of material witness warrants [1] to detain individuals connected to terrorism investigations “whom they would otherwise lack probable cause to arrest” from judicial review.  As of the end of 2011, the Obama and Bush Administrations appeared to have succeeded in shielding this controversial practice from thorough judicial scrutiny, when, in Ashcroft v. Al-Kidd, the Supreme Court limited governmental liability for such preventive detention by holding that the Fourth Amendment does not prohibit “an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant, even when the “arresting authority [possesses an] improper motive.”  The federal government’s sixteen-day detention of Abdullah al-Kidd, “a native-born United States citizen,” as a material witness to a criminal proceeding was “objectively reasonable” because al-Kidd was about to board a flight to Saudi Arabia and federal officials believed that if he did so, “information ‘crucial’ to the prosecution” of a terrorism suspect for visa fraud, Sami Omar al-Hussayen (an acquaintance and fellow student), “would be lost.” And since al-Kidd’s detention pursuant to the material witness statute did not violate clearly established federal law, former Attorney General Ashcroft was entitled to qualified immunity.

So at the end of last year, the prospects for al-Kidd obtaining meaningful redress for his detention—during which he purportedly was “confined in three different detention centers…kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist”—did not appear so bright.

But at the end of last month last month, the tides appear to have turned—at least slightly—for al-Kidd.  Given the 2011 Supreme Court decision, al-Kidd retained only one fairly narrow avenue for challenge: alleging that his material witness warrant was invalidly obtained.  And, of course, this is precisely what he did on remand in Idaho Federal District Court.  Perhaps surprisingly, he was successful, at least in part: the court [2] held that one of the federal agents—Agent Michael Gneckow—involved in detaining al-Kidd was not entitled to qualified immunity [3] for his actions in obtaining and executing the warrant. [4]

The court reached its decision by leaning on Franks v. Delaware, a Supreme Court decision which held that when a “defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included” in an officer’s warrant affidavit, “and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”  If, then, at the hearing, the defendant establishes his perjury or reckless disregard allegations by a preponderance of the evidence, and the affidavit, absent the false material, remains “insufficient to establish probable cause,” the warrant is void. Since it was “clearly established that the United States Constitution did not permit a police officer deliberately, or with reckless disregard for the truth, to make material misrepresentations or omissions to obtain a warrant that would otherwise be without probable cause” when al-Kidd’s warrant was issued, qualified immunity would not be available to Agent Gneckow if al-Kidd established a Franks violation.

There was and remains little dispute that al-Kidd’s testimony could have been material to al-Hussayen’s visa fraud prosecution. [5]   Accordingly, the sole issue involved was whether it would be impracticable for the government to secure al-Kidd’s testimony by subpoena.  The government’s case for impracticability—laid out in Agent Gneckow’s March 14, 2003 affidavit—rested primarily on an assertion that al-Kidd had bought a $5000, one-way, first-class plane ticket to Saudi Arabia for March 16, 2003.  And it was apparently buttressed by suggestions that al-Kidd “was a Saudi national involved with suspected terrorists, with no ties to the United States, fleeing the country within one month of the al-Hussayen indictment.”  Indeed, the affidavit implied that al-Kidd was foreign-born, through referencing al-Kidd first by his Muslim name and noting that “Lavoni T. Kidd,” his birth name, was one of his aliases; that al-Kidd was involved in terrorism, through noting that the underlying investigation had been conducted by a terrorism task force; that al-Kidd had received over $20,000 from al-Hussayen, suggesting that al-Hussayen directly funded al-Kidd’s upcoming trip; and that al-Kidd had traveled to Yemen in the past, after which he emptied a storage locker with al-Hussayen’s associates; etc.

The problem with the affidavit, the court noted, was that it was profoundly misleading—both in its express assertions and its omissions. Al-Kidd’s plane ticket was actually a $2000 open-ended round trip coach ticket.  As Agent Gneckow knew, Al-Kidd had received the $20,000 from al-Hussayen in installments as salary for work that Al-Kidd had done for al-Hussayen on a website called al-Multaqa.  Al-Kidd was traveling to Saudi Arabia “to further his course of study in Arabic language and Islamic law, and had begun making arrangements to do so beginning in April of 2002.”  In reality, al-Kidd “was a native-born United States citizen with a wife, son, and other family living in the United States.”  Importantly, al-Kidd “had voluntarily cooperated with the FBI on multiple occasions in the past.”  No one had informed al-Kidd that the government might need his testimony, and no one told him that he should not travel.  No one told him to advise the FBI if he planned to travel overseas.  And the FBI—Agent Gneckow obviously included—had not contacted him in more than eight months.  Furthermore, the FBI made no effort to reach out to them regarding his travel plans before pursuing a material witness warrant.  Although Agent Gneckow had received the information about al-Kidd’s travel plans from an ICE agent on March 13, the court concluded that Agent Gneckow’s actions exhibited “a reckless disregard for the truth” amounting to a Franks violation.  Accordingly, the court decided that Agent Gneckow was not entitled to qualified immunity as a matter of law, thus clearing the way for a jury trial on whether Agent Gneckow’s actions in securing al-Kidd’s material witness warrant were lawful.

Certainly, this decision is a welcome development for civil libertarians, and I applaud the ACLU and al-Kidd for advocating so tenaciously and skillfully.  As suggested by the case’s tortuous procedural history, it was a hard fought victory—one that, as of the end of last year with the Supreme Court’s decision, perhaps seemed unlikely.  For years, critics of the War on Terror’s concomitant war on civil liberties—myself included—have relished the precious few opportunities for providing redress to its most immediate victims, like al-Kidd.[6]  Each such opportunity provides at least a chance to bolster accountability in an area—the amorphous and expanding realm of national security—where it is in troublingly short supply.

Too little, too late?  I’m loath to say it’s “too late,” because for al-Kidd, delayed redress is assuredly better than none.  But it really is way too late.  Al-Kidd suffered these manifest injustices nearly ten years ago.  Only after a surely disappointing trip to the Supreme Court does al-Kidd finally have the chance—one that could vanish soon, given, among other things, the outcome of probable appeals—to force the government to justify his detention.

Of course, if he is fortunate enough to have that opportunity, he is apparently well positioned to be vindicated.  It should be clear to a jury that Agent Gneckow acted recklessly—at the very least—in preparing the warrant and that al-Kidd was detained as a proximate result of that misconduct.  Satisfying to al-Kidd?  Surely.  Profoundly frustrating to al-Kidd because this entire ordeal could have been avoided if Agent Gneckow had merely reached out to him before March 16, 2003?  Definitely.

Which brings me to the second issue: “too little.”  The trial, if it occurs, will focus on Agent Gneckow.  And, if the Obama Administration is playing this case as close to the chest as it uniformly has in the national security realm, the focus will not veer too far from Agent Gneckow, especially since he is the sole remaining defendant.  Unless Agent Gneckow goes Serpico (ostensibly unlikely), the trial will not likely reveal much about the policy and practice of material witness warrants more generally.  Accordingly, questions about the scope of the program will remain unanswered, and much wrongdoing may well remain unaccounted for.  Agent Gneckow will be painted as a rogue officer who blatantly and stupidly misused an otherwise constitutionally valid tool—as opposed to one of possibly many federal agents who operated just as rashly and xenophobically as he did, perhaps in accord with directions from above.  More optimistically, perhaps the trial will reveal yet again the worrying degree to which prejudice inflected national security operations in the wake of 9/11 and remind us of the need to institute additional safeguards against such invidious practices in the future—but even if the general public concurs, the scant news coverage of the al-Kidd decision [7] dims the prospect of such reckoning and reform.  And even were the American public tuned in to the al-Kidd case, the fact that 62% of Americans approve of the Obama Administration’s drone program makes it unlikely that they will roundly oppose the use of a valid statute to temporarily detain alleged terrorists or those associated with alleged terrorists.

If al-Kidd faced an uphill battle in challenging the War on Terror’s infrastructure when he first filed his lawsuit in 2005, before Congress had even passed the Military Commissions Act, he certainly faces a similarly difficult battle now, when much of that infrastructure has been tacitly or directly approved by each branch of our federal government, and when newer, concerning policies have been approved by large majorities in Congress and the President.  In the new normal—the world of the “national security consensus”—al-Kidd’s suffering has gone from remarkable to routine.  This is not to minimize the grave injustices he has endured.  It is merely a suggestion that once a patchwork of powerful institutions deems certain costs of doing business as necessary (if not inevitable or, cynically, desirable), the chance of achieving systemic reform through exposing those costs—as concerning as they may be—is slimmer.  Too little, too late.

It is important, however, to recognize the victory in al-Kidd’s case for what it is—a hard-earned chance to obtain a degree of justice for grievous wrongs.  Even if its reformative potential is not all we wish it were, at least that remains true.