Government Abuse of Material Witness Warrants, Al-Kidd v. Dunning

Under the federal material witness statute (18 U.S.C. § 3144), the government may detain innocent individuals, without charges, in order to secure their testimony in a criminal trial.  The statute contains several critical safeguards to prevent this power from being abused: First, the statute may not be used as a pretext to arrest an individual whom the government lacks probable cause to charge with a crime but nonetheless wishes to detain preventively and/or to hold for further investigation.  Second, the witness may not be arrested unless he has engaged in some action that provides a legitimate basis for reasonably believing that his testimony could not be secured voluntarily or by issuance of a subpoena. Finally, an individual arrested as a material witness must be detain under conditions consistent with his status as an innocent witness, and not under the conditions used to jail criminal suspects, much less those actually convicted of a crime.  Post 9/11, these safeguards have frequently been ignored, and the material witness statute has been misused to detain individuals whom the government has no intention of calling as witnesses, but whom they wish to detain without probable cause.

Abdullah Al-Kidd, an American citizen and Idaho resident, was arrested at Dulles Airport in March 2003 on a material witness warrant.  He was detained for about 15 days, first at the Alexandria Detention Center, and then at jails in Oklahoma and Idaho.  At each facility, he was treated more like a convicted terrorist than a mere witness.  In Alexandria, he was housed in a high security unit, was allowed out of his cell only one or two hours a day, and was refused visitors.  The ACLU has filed suit in both Idaho and Virginia on Al-Kidd's behalf.  In Virginia, we argue that the Alexandria sheriff violated Al-Kidd's due process rights by imposing unduly harsh and restrictive confinement.  On October 31, 2006, Judge Hilton denied the defendant's motion to dismiss, clearing the way for us to proceed with the case.  However, on February 20, 2007, the judge granted the defendant's motion for summary judgment, holding that we could not prove a constitutional violation. We appealed to the Fourth Circuit in March 2007. The case was settled on August 5, 2008, with the sheriff agreeing to pay Al-Kidd $1000 and institute procedures for the protection of material witnesses.


Rebecca K. Glenberg, ACLU of Virginia; Lee Gelernt, Lucas Guttentag, Robin Goldfaden, ACLU Immigrants Rights Project

Date filed

September 5, 2006


U.S. District Court, Eastern District of Virginia. Alexandria Division.