Al-Kidd v. Ashcroft

580 F.3d 949, 2009 U.S. App. LEXIS 20000, 2009 WL 2836448

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 4, 2009
• Docket: 06-36059
• Status: Published

Opinions

Opinion by Judge MILAN D. SMITH, JR. Partial Concurrence and Partial Dissent by Judge BEA. ■

MILAN D. SMITH, JR., Circuit Judge:

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against alKidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.

FACTS AND PROCEDURAL BACKGROUND¹

A. al-Kidd

Plaintiff-Appellee al-Kidd was born Lavoni T. Kidd in Wichita, Kansas. While attending college at the University of Idaho, where he was a highly regarded running back on the University’s football team, he converted to Islam and changed his name. In the spring and summer of 2002, he and his then-wife were the target of a Federal Bureau of Investigation (FBI) surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men.² No evidence of criminal activity by al-Kidd was ever discovered. Al-Kidd planned to fly to Saudi Arabia in the spring of 2003 to study Arabic and Islamic law on a scholarship at a Saudi university.

On February 13, 2003, a federal grand jury in Idaho indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. officials. On March 14, the Idaho U.S. Attorney’s Office submitted an application to a magistrate judge of the District of Idaho, seeking al-Kidd’s arrest as a material witness in the Al-Hussayen trial. Appended to the application was an affidavit by Scott Mace, a Special Agent of the FBI in Boise (the Mace Affidavit). The Mace Affidavit described two contacts al-Kidd had with Al-Hussayen: al-Kidd had received “in excess of $20,000” from Al-Hussayen (though the Mace Affidavit does not indicate what this payment was for), and al-Kidd had “met with Al-Hussayen’s associates” after returning from a trip to Yemen. It also contained evidence of al-Kidd’s contacts with officials of the Islamic Assembly of North America (IANA, an organization with which Al-Hussayen was affiliated),³ including one official “who was recently arrested in New York.” It ended with the statement, “[d]ue to al-Kidd’s demonstrated involvement with the defendant ... he is believed to be in possession of information germane to this matter which will be crucial to the prosecution.” The Mace Affidavit did not elaborate on what “information” al-Kidd might have had, nor how his testimony might be “germane” — let alone “crucial”— to the prosecution of Al-Hussayen.

The affidavit further stated:

Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia____ It is believed that if al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.

In fact, al-Kidd had a round-trip, coach class ticket, costing approximately $1700. The Mace Affidavit omitted the facts that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him. The magistrate judge issued the warrant the same day.

Pursuant to the material witness warrant, al-Kidd was arrested two days later at the ticket counter at Dulles International Airport. He was handcuffed and taken to the airport’s police substation, where he was interrogated. Thereafter, he was detained for an aggregate of sixteen days at the Alexandria Detention Center in Virginia, the Oklahoma Federal Transfer Center, and the Ada County, Idaho, Jail. He was strip searched on multiple occasions and confined in the high-security unit of each facility. During transfer between facilities, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was allowed out of his cell only one to two hours each day, and his cell was kept lit twenty-four hours a day, unlike other cells in the high-security wing.

On March 31, after petitioning the court, al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws’ home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport. After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, Nevada, as alKidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen’s trial, more than fifteen months after being arrested.⁴ In July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.

Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding.

B. Ashcroft

Defendant-Appellant Ashcroft was Attorney General of the United States during the relevant time period. According to alKidd’s complaint, following the September 11, 2001 terrorist attacks, Ashcroft developed and promulgated a policy by which the FBI and DOJ would use the federal material witness statute⁵ as a pretext “to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further.” (Cited in, and emphasis added to, al-Kidd’s complaint.)

To support this allegation, the complaint first quotes Ashcroft’s own statement at a press briefing:

Today, I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street ... Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.

John Ashcroft, Attorney General, Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force (Oct. 31, 2001), available at http://www. usdoj.gov/archive/ag/speeches/2001/agcrisisremarksl0_31.htm (emphasis added in complaint). The complaint also cites internal DOJ memoranda quoted in a report by the DOJ’s Office of the Inspector General (OIG Report),⁶ which describe the use of “aggressive arrest and detention tactics in the war on terror,” OIG Report at 12, including the use of material witness warrants to confine aliens suspected of terrorist involvement, id. at 38-39, 75. The complaint also quotes the public statements of a number of DOJ and White House officials implying or stating outright that suspects were being held under material witness warrants as an alternative means of investigative arrest or preventative detention. In addition to this direct evidence, the complaint cites a number of press reports describing the detention of numerous Muslim individuals under material witness warrants. The complaint further alleges that the policies designed and promulgated by Ashcroft have caused individuals to be “impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been impracticable to secure their testimony voluntarily or by subpoena,” in violation of the terms of § 3144.

In his complaint, al-Kidd links his personal detention to these broader policies not only through inference, but also through the statements of Robert Mueller, the Director of the FBI. On March 27, while al-Kidd was jailed in Idaho, Mueller testified before Congress, listing five “major successes” in the FBI’s efforts toward “identifying and dismantling terrorist networks.” The first was the capture of Khalid Shaikh Mohammed, identified as “a key planner and the mastermind of the September 11th attack.” The second was al-Kidd, identified as having been “arrested ... en route to Saudi Arabia.” The other three “successes” all involved individuals “indicted” or “charged” with some crime connected to terrorism. See FBI’s Fiscal Year (FY) 2001p Budget: Hearing Before the Subcommittee on the Departments of Commerce, Justice and State, House Appropriations Committee, 108th Cong. (2003) (statement of Robert S. Mueller, III, Director, FBI), available at http:// www.fbi.gov/congress/congress03/mueller 032703.htm (hereafter Mueller Testimony).

Finally, the complaint notes that “material witnesses have been routinely held in high security detention facilities.” The OIG Report cites an Assistant U.S. Attorney who complained that the DOJ’s Bureau of Prisons “did not distinguish between detainees who, in his view, posed a security risk and those detained aliens who were uninvolved witnesses.” OIG Report at 20. It alleges “a general policy” of extensive mistreatment of material witnesses at the New York City Metropolitan Correctional Center (MCC). It cites a case, United States v. Awadallah, 202 F.Supp.2d 55, 59-61 (S.D.N.Y.2002) (Awadallah I), rev’d on other grounds, 349 F.3d 42 (2d Cir.2003) {Awadallah II), which discusses the conditions of confinement of another putative material witness, Osama Awadallah, held in New York City. The complaint avers that Ashcroft “knew or reasonably should have known of the unlawful, excessive, and punitive manner in which the federal material witness statute was being used,” and that such manner “would also foreseeably subject” detainees “to unreasonable and unlawful use of force, to unconstitutional conditions of confinement, and to punishment without due process.”

C. Prior Proceedings

In March 2005, al-Kidd filed this lawsuit in Idaho federal district court. The first amended complaint was filed that November, naming as defendants, among others, Ashcroft, the United States, Mace and Gneckow (the two FBI agents named in the Mace Affidavit), and a number of government agencies and officers in their official capacities.⁷ It sought damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of al-Kidd’s rights under the Fourth and Fifth Amendments to the Constitution (a “Bivens action”), and for a direct violation of § 3144.

Ashcroft moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over Ashcroft in Idaho. Specifically, al-Kidd had alleged that Ashcroft “spear-headed the post September 11, 2001 practice ... to use the material witness statute to detain individuals whom they sought to investigate,” and that “Ashcroft either knew or should have known the violations were occurring and did not act to correct the violations.” Next, the district judge denied the 12(b)(6) motion, rejecting Ashcroft’s claims of absolute and qualified immunity. The district court held that “[t]he development and practice of using the material witness statute to detain individuals while investigating possible criminal activity qualifies as police type investigative activity, not prosecutorial advocacy” for which absolute immunity is reserved. Turning to the claims for qualified immunity, the district court held that “the allegations against Mr. Ashcroft involve more than vicarious liability but assert claims involving Mr. Ashcroft’s own knowledge and actions related to Mr. Kidd’s alleged constitutional deprivations.” The principal deprivation the district court mentioned was the allegation “that probable cause was not shown in the warrant application.” The district court also rejected qualified immunity for the FBI agents.

Ashcroft filed a timely interlocutory appeal.

JURISDICTION AND STANDARD OF REVIEW

A. Failure to State a Claim

Section 1291 of U.S.Code Title 28 grants this court jurisdiction over “final decisions” of the district court. Ordinarily, the denial of a motion under Federal Rule of Civil Procedure 12(b)(6) would not constitute a “final decision.” The district court’s denial of absolute and qualified immunity, however, is a “final decision” for § 1291 purposes because these immunities are immunities from suit, not just from damages. See Mitchell v. Forsyth, 472 U.S. 511, 525, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

As we have recognized in the past, interlocutory review of a Rule 12(b)(6) motion to dismiss puts our court in the difficult position of deciding “far-reaching constitutional questions on a nonexistent factual record.” Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir.2004). However, because Ashcroft chose to exercise his right to appeal before a fuller record could be developed, we proceed as we must in a review of all Rule 12(b)(6) motions, accepting as true all facts alleged in the complaint, and drawing all reasonable inferences in favor of the plaintiff. See Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n. 2 (9th Cir.2008). To avoid dismissal under Rule 12(b)(6), a plaintiff must aver in his complaint “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

We review de novo the district court’s rulings on absolute and qualified immunity. KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir.2004); Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1179 (9th Cir.2007).

B. Personal Jurisdiction

Ashcroft also argues that the district court does not have personal jurisdiction over him. Because denials of motions to dismiss for lack of personal jurisdiction are not ordinarily reviewable on interlocutory appeal, Ashcroft requests that this court exercise its “pendent appellate jurisdiction” to reach the question of personal jurisdiction.

In Hendricks v. Bank of America, N.A., we summarized the criteria for the exercise of pendent appellate jurisdiction:

Under 28 U.S.C. § 1292(a)(1), we may exercise ... pendent jurisdiction over any otherwise nonappealable ruling that is “inextricably intertwined” with or “necessary to ensure meaningful review of’ the order properly before us on interlocutory appeal. District court rulings are “inextricably intertwined” with a preliminary injunction when the legal theories on which the issues advance are so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue. We also construe Swint’s “necessary to ensure meaningful review” language narrowly to require much more than a tangential relationship to the decision properly before us on interlocutory appeal.

408 F.3d 1127, 1134 (9th Cir.2005) (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)) (internal quotation marks, citations, and alterations omitted). Thus, Ashcroft must demonstrate that the issue of personal jurisdiction is either (1) “inextricably intertwined” with or (2) “necessary to ensure meaningful review of’ the issues of absolute or qualified immunity, in order for us to exercise the pendent appellate jurisdiction he requests.

DISCUSSION

Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was impracticable to secure the witness’s testimony — in other words, in violation of the express terms of § 3144 itself — and that al-Kidd was arrested as a result of this policy (the § 3144 Claim). Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ would arrest individuals who may have met the facial statutory requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).

Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims.

A. Absolute Immunity

In Bivens actions and those taken under 42 U.S.C. § 1983,⁸ “[m]ost public officials are entitled only to qualified immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Prosecutors are entitled to absolute immunity, however, when they engage in activities “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and done “in the course of [their] role as an advocate for the State,” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. They are entitled only to qualified immunity, however, when they perform investigatory or administrative functions, or are essentially functioning as police officers or detectives. Id. In addition, the United States Attorney General is not entitled to absolute immunity in the performance of his or her “national security functions.” Mitchell, 472 U.S. at 520, 105 S.Ct. 2806. The burden to establish absolute immunity rests with the official seeking it:

The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been “quite sparing” in our recognition of absolute immunity, and have refused to extend it any “further than its justification would warrant.”

Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (quoting Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[I]f application of the principle is unclear, the defendant simply loses,” and receives only the default of qualified immunity. Buckley, 509 U.S. at 281, 113 S.Ct. 2606 (Scalia, J., concurring).

To determine whether an action is “prosecutorial,” and so entitled to absolute immunity, the Supreme Court has adopted a “ ‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269, 113 S.Ct. 2606 (quoting Burns, 500 U.S. at 486, 111 S.Ct. 1934; Forrester, 484 U.S. at 229, 108 S.Ct. 538). “In Imbler, the Court concluded that the ‘reasons for absolute immunity applied] with full force’ to the conduct at issue because it was ‘intimately associated with the judicial phase of the criminal process.’ ” Van de Kamp v. Goldstein, —U.S.-, 129 S.Ct. 855, 861, 172 L.Ed.2d 706 (2009) (citing Imbler, 424 U.S. at 430, 96 S.Ct. 984). While the “duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom,” Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984, absolute prosecutorial immunity will be given “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct,” Burns, 500 U.S. at 494, 111 S.Ct. 1934.

As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984 (“Drawing a proper line between these functions may present difficult questions.... ”). The Supreme Court has given us few bright lines,⁹ and its cases on prosecutorial immunity have proceeded on a function-by-fnnction basis. Thus, the Court has held that prosecutors receive absolute immunity for initiating a prosecution, id, for presenting false or perjured testimony, id, for appearing in court to apply for a search warrant, Burns, 500 U.S. at 492, 111 S.Ct. 1934, and for preparing and filing an information and a motion for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). By contrast, prosecutors receive only qualified immunity for giving legal advice to the police, Burns, 500 U.S. at 496, 111 S.Ct. 1934, for investigating and fabricating physical evidence at a crime scene, Buckley, 509 U.S. at 274-75, 113 S.Ct. 2606 (involving a bootprint left at the scene of a crime), for holding a press conference, id. at 276-78, 113 S.Ct. 2606, and for acting as a complaining witness in support of a warrant application, Kalina, 522 U.S. at 130-31, 118 S.Ct. 502. See also Van de Kamp, 129 S.Ct. at 861.

In determining the scope of the functions to which absolute immunity extends, the Supreme Court has “generally looked for a historical or common-law basis for the immunity in question.” Mitchell, 472 U.S. at 521, 105 S.Ct. 2806. The existence of a common-law immunity, however, is a necessary, but not sufficient, condition for the recognition of absolute immunity: “Even when we can identify a common-law tradition of absolute immunity for a given function, we have considered “whether § 1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.’ ” Buckley, 509 U.S. at 269, 113 S.Ct. 2606 (quoting Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984)).

Ashcroft contends that the decision to seek a material witness warrant is always a prosecutorial function. He has presented us with no historical evidence that a common-law tradition of absolute immunity from suit for prosecutors in seeking material witness arrests exists, and our own research has uncovered none, even though the practice of detaining witnesses who are not criminal suspects dates back to at least the 1840s. See generally Wesley MacNeil Oliver, The Rise and Fall of Material Witness Detention in Nineteenth Century New York, 1 N.Y.U. J.L. & Liberty 727 (2005). Other circuits, however, have held that the decision to seek a material witness warrant to secure a witness’s testimony at trial is sufficiently related to judicial proceedings to be protected by absolute prosecutorial immunity. See Betts v. Richard, 726 F.2d 79, 81 (2d Cir.1984); Daniels v. Kieser, 586 F.2d 64, 68-69 (7th Cir.1978); see also White ex rel. Swafford v. Gerbitz, 860 F.2d 661, 665 n. 4 (6th Cir.1988) (suggesting in dicta that the decision to seek a material witness order is prosecutorial). But see Odd v. Malone, 538 F.3d 202, 217 (3d Cir.2008) (holding “that the policies underlying the recognition of prosecutorial immunity do not apply with the same force” to detained material witnesses because “the aggrieved persons are unindicted third-party witnesses rather than criminal defendants”). In Betts and Daniels, the plaintiffs, who had been previously subpoenaed as witnesses, failed to appear on the day they were set to testify, and the prosecutor sought a material witness warrant. Betts, 726 F.2d at 80; Daniels, 586 F.2d at 66. The Seventh Circuit in Daniels held that “[b]ecause defendant was attempting to secure Daniels’ presence at the resumption of the trial, we must consider that he was functioning as an advocate rather than as an investigator or administrator,” and was therefore entitled to absolute immunity. 586 F.2d at 69; see also Betts, 726 F.2d at 81 (citing Daniels).

Al-Kidd does not contest that absolute immunity ordinarily attaches to the decision to seek a material witness warrant. He contends, rather, that in his case, the decision to arrest was an act in furtherance of an investigative or national security function, for which the Attorney General may claim only qualified immunity. That is, al-Kidd claims he was arrested not in order to secure his testimony at Al-Hussayen’s trial, but in order to detain, interrogate, and gather evidence against him, in particular. He notes that, in both Betts and Daniels, there was never any question that the material witness arrest was made for any reason other than to secure the witnesses’ testimony at trial.

Ashcroft responds that any investigation into the purpose or motive behind the decision to arrest al-Kidd is inconsistent with the “functional” approach the Supreme Court has outlined. However, the cases he cites in support of this proposition are distinguishable. Those cases universally involve allegations that the otherwise prosecutorial action was secretly motivated by malice, spite, bad faith, or self-interest. See, e.g., Bernard v. County of Suffolk, 356 F.3d 495, 504 (2nd Cir.2004) (alleging “racially invidious or partisan prosecutions”); Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 779 (9th Cir.2001) (involving prosecutor accused of initiating prosecution in order “to deny the plaintiffs access to public works construction job sites”); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.1986) (“To foreclose immunity upon allegations that judicial and prosecutorial decisions were conditioned upon a conspiracy or bribery serves to defeat these policies.”). None of these cases attempts to distinguish between a prosecutor’s investigative or national security functions and his prosecutorial functions, which is the question here.

The cases distinguishing investigative and prosecutorial function take into account the goal of performing an action to determine function. In Buckley v. Fitzsimmons, the Supreme Court held that the prosecutors lacked absolute immunity for their actions before they had probable cause to arrest a suspect because “[tjheir mission at that time was entirely investigative in character.” 509 U.S. at 274, 113 S.Ct. 2606. Even after a grand jury had been empaneled, the prosecutor’s actions before it were not shielded by absolute immunity because “its immediate purpose was to conduct a more thorough investigation of the crime — not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. at 275, 113 S.Ct. 2606.¹⁰

This circuit has followed the Supreme Court’s instruction. In KRL v. Moore, a grand jury had indicted the plaintiff, based on evidence obtained from an initial search warrant, on twenty-one criminal counts, mostly concerning environmental infractions relating to the removal of an underground fuel storage tank. 384 F.3d at 1108. The following month, however, prosecutors obtained two additional warrants to search for evidence with little relevance to the charges in the indictment. Id. at 1109. We held that the prosecutors were engaged, at least in part, in investigative functions when they requested the second and third warrants, even though they already had probable cause as to those suspects for other crimes. We cited the prosecutors’ investigatory purpose, which they had admitted both in depositions and on a talk radio program. Id. at 1114-15. “Thus, we eonclude[d] that, because the warrant ... was to further a ‘stand-alone investigation’ into environmental crimes, [defendants were] not entitled to absolute immunity from Plaintiffs’ claim of judicial deception.” Id. at 1115. By contrast, “the second search warrant had two goals: it sought evidence to prosecute the pending indictment against Womack, and it sought to investigate and uncover new crimes.” Id. at 1111. We held that “to the extent the second search warrant sought evidence to prosecute the crimes charged in the indictment, [defendants’] review of the warrant prior to submission was intimately associated with the judicial process,” and therefore entitled them to absolute immunity. Id. at 1112. Our focus on ends, rather than the labels attached to means, was explicit and effectively determinative.¹¹

Likewise, in Genzler v. Longanbach, 410 F.3d 630, 638 (9th Cir.2005), we noted that “[w]itness interviews may serve either an investigative or an advocacy-related function,” and demonstrated how that function can be inferred from the circumstances of the interviews. In that case, the timing of the interviews, id. at 639, 642, as well as the “nature of the inforihation obtained,” id. at 640, led us to hold that “evidence in the record supports the conclusion that [the defendants] were engaged in police-type investigative work during” the witness interviews, id. at 642.¹²

Indeed, Daniels and Betts, while granting absolute immunity for material witness arrests, are entirely compatible with an inquiry into immediate purpose similar to that in Genzler. Both emphasized the close temporal and circumstantial connection between trial and seeking the arrest. Betts, 726 F.2d at 81; Daniels, 586 F.2d at 68-69. The Daniels court noted that “[i]n seeking to guarantee Daniels’ presence at the trial through the material witness warrant, defendant was attempting to prove all elements charged in the indictment.” Id. at 68. Other circuits have likewise used the language of purpose in determining function.¹³

They were justified in doing so. Even were we not constrained by our precedents in KRL and Genzler, the Supreme Court, in adopting a “functional” test, has necessarily required us to look beyond the labels a prosecutor attaches to his or her actions and examine their underlying ends. The very word function reflects, at least in part, a teleological perspective. See, e.g., Oxford English Dictionary, Function (2d ed. 1989) (defining “function” as “[t]he special kind of activity proper to anything; the mode of action by which it fulfills its purpose”). In Buckley, the Supreme Court found it proper to inquire into the prosecutor’s mission and purpose, the very inquiry that Ashcroft and the dissent in this case find distasteful. 509 U.S. at 274-75, 113 S.Ct. 2606.

Ashcroft’s suggested approach, by contrast, would convert the Supreme Court’s functional approach into a formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish. Because the application for the arrest warrant had the words “Material Witness” in the caption, Ashcroft seems to contend, our inquiry must stop there. Our dissenting colleague agrees, and would hold that so long as a material witness warrant is sought pursuant to a criminal trial, the decision to seek the material witness warrant should always be shielded by absolute immunity, regardless of whether its purpose was purely investigative. Dissent at 12351.

We disagree. Many tools and tactics available to prosecutors can serve either an investigatory or advocacy-related function. A grand jury may be used to return an indictment against a particular suspect, or to conduct a wide-ranging investigation. Buckley, 509 U.S. at 274, 113 S.Ct. 2606. A witness interview’s function may be to gather evidence, or to prepare the witness to testify at imminent trial. Genzler, 410 F.3d at 638. And the power to arrest, even as a material witness, can be investigatory. As cited in al-Kidd’s complaint, Michael Chertoff, then Assistant Attorney General for the DOJ’s Criminal Division, described the material witness statute as “an important investigative tool in the war on terrorism.... Bear in mind that you get not only testimony — you get fingerprints, you get hair samples — so there’s all kinds of evidence you can get from a witness.” Steve Fainaru & Margot Williams, Material Witness Law Has Many in Limbo: Nearly Half Held in War On Terror Haven’t Testified, Wash. Post, Nov. 24, 2002, at A1 (quoting Chertoff) (emphasis added).

Ashcroft argues that an inquiry into purpose cannot be cabined: a prosecutor filing charges against a foot soldier in an organized crime syndicate, for example, might hope that the prospect of a lengthy incarceration will encourage the defendant to turn state’s evidence, permitting investigation of those higher in the organization. A wide-ranging investigation into such motives would likely prove unworkable. It is for that reason that the Supreme Court has spoken only of “immediate purpose.” Buckley, 509 U.S. at 275, 113 S.Ct. 2606 (emphasis added). As a common law court, we can rule only on the case before us. We believe, however, that while the prosecutor who files charges may hope, eventually, that the petty crook will implicate his boss, the immediate purpose of filing charges is to begin a prosecution— the better to pressure the defendant into providing information.

We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity.¹⁴ We emphasize that our holding here does not rest upon an unadorned assertion of secret, unprovable motive, as the dissent seems to imply. Even before the Supreme Court’s decision in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it was likely that conclusory allegations of motive, without more, would not have been enough to survive a motion to dismiss. See, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (facts pled must be accepted as true, but conclusory allegations need not be). Twombly’s general requirement that “[flactual allegations must be enough to raise a right to relief above the speculative level,” 550 U.S. at 555, 127 S.Ct. 1955, applies with equal force to allegations that a prosecutor’s actions served an investigatory function. In this case, however, alKidd has averred ample facts to render plausible the allegation of an investigatory function:

• Al-Kidd’s arrest was sought a month after Al-Hussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler, 410 F.3d at 639 (“The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official’s core advocacy function.... ”). Cf. Betts, 726 F.2d at 81 (arrest warrant issued day of trial); Daniels, 586 F.2d at 68 (same).

• The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts, 726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels, 586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).

• The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen’s alleged visa violations. Cf. Genzler, 410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).

• Al-Kidd never actually testified for the prosecution in Al-Hussayen’s or any other case, despite his assurances that he would be willing to do so. Cf. Betts, 726 F.2d at 80 (“On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness.”); Daniels, 586 F.2d at 66 (“Plaintiff subsequently testified as a government witness when Phoenix’s trial resumed.”).

All of these are objective indicia, similar to those we cited in Genzler, 410 F.3d at 641—43, that al-Kidd’s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness’s testimony for trial. Finally:

• Ashcroft’s immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd’s arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a “major suecess[]” in “identifying and dismantling terrorist networks.” Mueller Testimony, supra. Cf. KRL, 384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”).

We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfills an investigative function.

B. Qualified Immunity

The Attorney General may still be entitled to qualified immunity for acts taken in furtherance of an investigatory or national security function. Before addressing each of al-Kidd’s claims in turn, we address the general requirements of qualified immunity applicable to all his claims.

1. Qualified Immunity Generally

Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks omitted). It is within our “sound discretion” to address these two prongs in any sequence we see fit. Pearson v. Callahan,— U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Here, we apply the two-step Saucier analysis in the traditional sequence, as this sequence “promotes the development of constitutional precedent,” which is especially valuable in addressing constitutional questions such as the one at hand, “that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id. at 818.

2. Qualified Immunity for Supervisors

Because qualified immunity is “an immunity from suit rather than a mere defense to liability,” Mitchell, 472 U.S. at 526, 105 S.Ct. 2806, courts have also evaluated the sufficiency of the allegations of the defendant’s personal involvement in the deprivation of the right at the second stage of the qualified immunity analysis. Neither a 42 U.S.C. § 1983 nor a Bivens action will hold a supervisor strictly vicariously liable for the actions of his subordinates under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Although this question is a part of the substance of § 1983 and Bivens liability, it is also a proper component of the qualified immunity inquiry:

In conducting qualified immunity analysis ..., courts do not merely ask whether, taking the plaintiffs allegations as true, the plaintiffs clearly established rights were violated. Rather, courts must consider as well whether each defendant’s alleged conduct violated the plaintiffs clearly' established rights. For instance, an allegation that Defendant A violated a plaintiffs clearly established rights does nothing to overcome Defendant B’s assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A’s conduct.'

Hope, 536 U.S. at 751 n. 9, 122 S.Ct. 2508 (Thomas, J., dissenting). In Kwai Fun Wong v. United States, we, on interlocutory appeal, dismissed part of a Bivens action for failure to state a claim where the complaint “fail[ed] to identify what role, if any, each individual defendant had in placing [the plaintiff] in detention.” 373 F.3d at 966.

Al-Kidd’s complaint does not allege that Ashcroft was directly involved in the decision to detain al-Kidd. But “direct, personal participation is not necessary to establish liability for a constitutional violation.” Id. Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a “reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (internal quotation marks omitted). Any one of these bases will suffice to establish the personal involvement of the defendant in the constitutional violation.

S. The Fourth Amendment Claim

Al-Kidd’s complaint principally alleges that Ashcroft “developed, implemented and set into motion a policy and/or practice under which the FBI and DOJ would use the material witness statute to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventively or to investigate further.” Al-Kidd argues that using § 3144 to detain suspects to investigate them violates the Fourth Amendment’s guarantee against unreasonable seizure.

a. Alr-Kidd’s Fourth Amendment Rights Were Violated.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons ... against unreasonable searches and seizures, shah not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We have previously held that material witness arrests are “seizures” within the meaning of the Fourth Amendment and are therefore subject to its reasonableness requirement. Bacon v. United States, 449 F.2d 933, 942 (9th Cir.1971).

The Supreme Court has never held that detention of innocent persons as material witnesses is permissible under the Fourth Amendment,¹⁵ and this circuit, in one of the few circuit-level cases to examine the validity of material witness detentions under the Fourth Amendment, declined to reach the facial constitutionality of the predecessor of § 3144. Id. at 941. Al-Kidd does not contend that § 3144 is facially unconstitutional. Rather, he contends that it is intended to be a “limited exception” to the ordinary rule that arrests may only be made upon probable cause of criminal wrongdoing. He further claims that its use for any purpose other than obtaining testimony, and specifically to investigate or preemptively detain terrorism suspects, without probable cause, is unconstitutional. Ashcroft contends that this position is inconsistent with Whren v. United States’s rule that “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). But arrests of material witnesses are neither “ordinary,”¹⁶ nor involve “probable cause” as that term has historically been understood.

Whren rejected only the proposition that “ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.” Id. at 811, 116 S.Ct. 1769 (emphasis added). Indeed, probable cause, since before the founding, has always been a term of art of criminal procedure. As Chief Justice Marshall wrote:

[TJhe term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress.

Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364 (1813). Its most famous modern formulation comes from Justice Stewart’s opinion in Beck v. Ohio:

Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). This definition has been reiterated in Supreme Court cases over the decades:

This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Probable cause has both a burden-of-proof component (facts sufficient to make a reasonable person believe ...) and a substantive component (... that the suspect is involved in crime). “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (citations and quotation marks omitted). An arrest of a material witness is not justified by probable cause because the two requirements of § 3144 (materiality and impracticability) do not constitute the elements of a crime.¹⁷

The dissent disputes this traditional definition of probable cause, contending that no substantive component exists and that Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), prevents an inquiry into whether wrongdoing has occurred. Dissent at 12338. The dissent misreads Zurcher and confuses the different requirements for probable cause in situations for the seizure of a person and the probable cause required for a search warrant. As Zurcher explains, “while probable cause for arrest requires information justifying a reasonable belief that a crime has been committed and that a particular person committed it, a search warrant may be issued on a complaint which does not identify any particular person as the likely offender.” Id. at 556 n. 6, 98 S.Ct. 1970. Thus, the dissent’s analogy to Zurcher is inapplicable, and nothing in our holding here contravenes Zurcher.

Further, our decision in Bacon v. United States is not to the contrary. In Bacon, we held that the two criteria for arrest in the predecessor of § 3144, materiality of the witness’s testimony and impracticability of securing the witness’s testimony by subpoena, must be met by “probable cause” to arrest the material witness. 449 F.2d at 943.¹⁸ We stated that “[tjhese requirements are reasonable, and if they are met, an arrest warrant may issue.” Id. Bacon cannot be read for the proposition that this alone satisfies the “probable cause” requirement of the Fourth Amendment, however, and even if it could, such a reading has been superseded by the dozens of subsequent Supreme Court reaffirmations of the traditional definition of probable cause. Rather, Bacon simply borrowed, by analogy, some of the procedural protections traditionally afforded to criminal suspects, including the burden-of-proof component of probable cause. We therefore required that the elements of the material witness statute be shown by “probable cause,” not because that, in itself, satisfies the Fourth Amendment’s “probable cause” requirement, but because permitting arrests only upon establishing the elements by that burden of proof was “reasonable” under the Fourth Amendment. Id.

Because material witness arrests are seizures without suspicion of wrongdoing, the Whren rule, that subjective motivation is irrelevant in the presence of probable cause, does not apply to our Fourth Amendment analysis in this case. In City of Indianapolis v. Edmond, the Supreme Court struck down motor vehicle checkpoints set up “to interdict unlawful drugs” carried by those stopped. 531 U.S. 32, 35, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). The Court explained that “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts.” Id. at 45-46, 121 S.Ct. 447. The Court went on to clarify:

our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.

... [W]e examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.

Id. at 46-47, 121 S.Ct. 447 (citation omitted).

Edmond, therefore, establishes that “programmatic purpose” is relevant to Fourth Amendment analysis of programs of seizures without probable cause.¹⁹ It further establishes that if that programmatic purpose is criminal investigation, it is fatal to the program’s constitutionality: “the constitutional defect of the program is that its primary purpose is to advance the general interest in crime control.” Id. at 44, 121 S.Ct. 447. The following year’s Ferguson v. City of Charleston held unconstitutional a program of mandatory drug testing of maternity patients because “the immediate objective of the searches was to generate evidence for law enforcement purposes ” against the women tested. 532 U.S. 67, 83, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). By contrast, in Illinois v. Lidster, the Court upheld seizures at a motor vehicle checkpoint set up by the police a week after a hit-and-run accident, “at about the same time of night and at about the same place” as the accident, where the checkpoint was “designed to obtain more information about the accident from the motoring public.” 540 U.S. 419, 422, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004). The Court in Lidster distinguished the seizure in Edmond on the basis that, in Lidster:

the stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.

Id. at 423, 124 S.Ct. 885. As Justice Stevens wrote in concurrence, “[tjhere is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier.” Id. at 428, 124 S.Ct. 885 (Stevens, J., concurring in part, dissenting in part).²⁰ That is precisely the distinction at work here, and the reason we hold that Ashcroft’s policy as alleged was unconstitutional.

Al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation. Contrary to the dissent’s alarmist claims, we are not probing into the minds of individual officers at the scene; instead, we are inquiring into the programmatic purpose of a general policy as contemplated by Edmond, 531 U.S. at 47, 121 S.Ct. 447, and finding that the purpose of the policy alleged in al-Kidd’s first amended complaint is impermissible under the Fourth Amendment.

Further, the dissent’s assertion that we are suggesting “the only governmental interest of sufficient weight to justify an arrest is a reasonable belief that the arrestee has committed a crime” grossly mischaracterizes our holding. Dissent at 12336. To the contrary, we recognize that when the material witness statute is genuinely used to secure “testimony of a person ... material in a criminal proceeding” because “it is shown that it may become impracticable to secure the presence of the person by subpoena,” 18 U.S.C. § 3144, a showing of probable cause is not required. Our holding does nothing to curb the use of the material witness statute for its stated purpose. What we do hold is that probable cause — including individualized suspicion of criminal wrongdoing — is required when 18 U.S.C. § SHlp is not being used for its stated purpose, but instead for the purpose of criminal investigation. We thus do not render the material witness statute “entirely superfluous,” dissent at 989; it is only the misuse of the statute, resulting in the detention of a person without probable cause for purposes of criminal investigation, that is repugnant to the Fourth Amendment.

All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment. Accord Awadallah II, 349 F.3d at 59 (“[I]t would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.”).

b. AUKidd’s Right Was “Clearly Established.”

Ashcroft alternatively contends that if we conclude that the use of material witness orders for investigatory purposes violates the Constitution, we should still grant him qualified immunity because that constitutional right was not “clearly established” in March 2003, when al-Kidd was arrested. We disagree.

In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution. Both the complaint and Amici Former Federal Prosecutors note the unprecedented nature of Ashcroft’s alleged material witness policy, and thus it is unsurprising that published cases directly on point are lacking. However, this alone is not enough to give Ashcroft immunity: “ ‘while there may be no published cases holding similar policies [unjconstitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue.’ ” Moreno v. Baca, 431 F.3d 633, 641 (9th Cir.2005) (quoting Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002)). Indeed, as the Supreme Court has stated:

For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.”

Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (internal citations omitted). “[Ojfficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741, 122 S.Ct. 2508.

What was clearly established in March 2003? No federal appellate court had yet squarely held that the federal material witness statute satisfied the requirements of the Fourth Amendment. Even our decision in Bacon held only that it was unconstitutional as applied to the petitioner. 449 F.2d at 943. What obiter dicta existed on material witness detention, however, clearly linked its justification only to the state’s overriding need to compel testimony in criminal cases.²¹ Even dicta, if sufficiently clear, can suffice to “clearly establish” a constitutional right. See Hope, 536 U.S. at 740-41, 122 S.Ct. 2508. But there is more.

The definition of probable cause, as set forth in Beck v. Ohio, was certainly clearly established. While the Supreme Court’s decision permitting suspicionless seizures in some circumstances in Lidster had not yet been decided, its decision in Edmond, stating that an investigatory programmatic purpose renders a program of seizures without probable cause unconstitutional, had been decided two and a half years earlier. 531 U.S. at 47, 121 S.Ct. 447. That holding was reaffirmed the following year in Ferguson, 532 U.S. at 81-83, 121 S.Ct. 1281, which highlighted the close connection between the investigative “programmatic purpose” and the search scheme that was ruled unconstitutional. Those decisions, which emphasized that an investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause, should have been sufficient to put Ashcroft on notice that the material witness detentions — involving a far more severe seizure than a mere traffic stop — would be similarly subject to an inquiry into programmatic purpose.

Moreover, the history and purposes of the Fourth Amendment were known well before 2003:

The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. “The requirement of probable cause has roots that are deep in our history.” Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that “common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.”

Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (quoting Henry v. United States, 361 U.S. 98, 100-01, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)) (internal citation omitted). The Fourth Amendment “reflects] the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

The facts alleged of al-Kidd’s arrest, that he was arrested because he was assodated with the webmaster of an allegedly jihadist website, demonstrate the continued relevance of the Founders’ concerns. The Fourth Amendment was, in large measure, a direct response to the so-called “Wilkes cases.” As summarized by the Supreme Court:

The Wilkes case arose out of the Crown’s attempt to stifle a publication called The North Briton, anonymously published by John Wilkes, then a member of Parliament — particularly issue No. 45 of that journal. Lord Halifax, as Secretary of State, issued a warrant ordering four of the King’s messengers “to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled, The North Briton, No. 45, * * * and them, or any of them, having found, to apprehend and seize, together with their papers.” “Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect.” Holding that this was “a ridiculous warrant against the whole English nation,” the Court of Common Pleas awarded Wilkes damages against the Secretary of State.

Id. at 483, 85 S.Ct. 506 (alteration in original) (footnotes omitted). Within three days of the issuance of Halifax’s general warrants, forty-nine people had been arrested, none of whom was named in the warrant, but all of whom were alleged associates of the allegedly seditious pamphleteer. Nelson B. Lasson, The Fourth Amendment to the Constitution 43^4 (1937). The warrant authorizing al-Kidd named him in particular, and so was not a general warrant in that sense. But the result was the same: gutting the substantive protections of the Fourth Amendment’s “probable cause” requirement and giving the state the power to arrest upon the executive’s mere suspicion.

Finally, months before al-Kidd’s arrest, one district court in a high-profile case had already indicated, in the spring of 2002, that § Slkk itself should not be abused as an investigatory anti-terrorism tool, calling out Ashcroft by name:

Other reasons may motivate prosecutors and law enforcement officers to rely upon the material witness statute. Attorney General John Ashcroft has been reported as saying: “Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute. If there is probable cause to believe an individual has committed a crime or is conspiring to commit a crime, then the government may lawfully arrest that person, but only upon such a showing.

Awadallah I, 202 F.Supp.2d at 77 n. 28 (citation omitted, first emphasis added). The statement was dicta in a footnote of a district court opinion. But it was categorical, and it addressed exactly what al-Kidd alleges happened ten months after the opinion was first issued. It is difficult to imagine what, in early 2003,²² might have given John Ashcroft “fair[er] warning” that he could be haled into court for his alleged material witness policies. Hope, 536 U.S. at 741, 122 S.Ct. 2508.

We therefore hold that al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003. Although Ashcroft has raised in this appeal neither a national security nor an exigency defense to al-Kidd’s action, we note that we are mindful of the pressures under which the Attorney General must operate. We do not intend to “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). But, as the Supreme Court has aptly noted, qualified immunity must

not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.... ” This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.

Mitchell, 472 U.S. at 524, 105 S.Ct. 2806 (quoting Harlow, 457 U.S. at 819, 102 S.Ct. 2727) (internal citations omitted).

k- The § SlJpí Claim

In addition to alleging that Ashcroft misused § 3144 for unconstitutional purposes the statute did not intend, alKidd alleges that his arrest violated the terms of § 3144 itself. Section 3144 authorizes the arrest of material witnesses only if (1) “the testimony of a person is material in a criminal proceeding,” and (2) “it may become impracticable to secure the presence of the person by subpoena.” Bacon v. United States requires that these elements be shown by presenting the judicial officer with an affidavit showing “the underlying facts or circumstances from which the judicial officer could find probable cause.” 449 F.2d at 943. Al-Kidd claims that, in his case, the Mace Affidavit fails to demonstrate probable cause for either the materiality of his testimony or the reasons it would be impracticable to secure that testimony by subpoena. This allegation is the § 3144 claim: that, independent of the constitutionality of the use of § 3144 for investigatory purposes, alKidd’s arrest failed to meet the statutory requirements set forth by Congress, and was therefore unlawful.

Although the arrest was conducted pursuant to a warrant issued by a magistrate judge, we allow challenges to the validity of searches and seizures conducted pursuant to a warrant if the affidavit in support of the warrant included false statements or material omissions that were made intentionally or recklessly. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Stanert, 762 F.2d 775, 781 (9th Cir.1985) (extending Franks to material omissions); see also Awadallah I, 349 F.3d at 64-65 & n. 17 (assuming, without deciding, that Franks applies to a material witness warrants and conducting the Franks analysis). Ashcroft does not contest that such an inquiry would be appropriate, or that reckless or intentional misstatements or omissions could, if proven, constitute a valid claim of the violation of a clearly established right. Rather, he argues that alKidd has not pled sufficient acts or omissions to establish supervisory liability for the § 3144 Claim.²³

Prior to Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, we held that a plaintiff “does not need to show with great specificity how each defendant contributed to the violation of his constitutional rights. Rather, he must state the allegations generally so as to provide notice to the defendants and alert the court as to what conduct violated clearly established law.” Preschooler II, 479 F.3d at 1182. Ashcroft argues that alKidd’s allegations as to Ashcroft’s personal involvement in the § 3144 Claim amount simply to “sheer speculation,” and are insufficient to state a claim under Twombly.

In Twombly, the Supreme Court held that an allegation of parallel conduct by competitors, without more, does not suffice to plead an antitrust violation under 15 U.S.C. § 1. 550 U.S. at 548, 127 S.Ct. 1955. While the Court expressly disclaimed any intention to require general “heightened fact pleading of specifics,” id. at 570, 127 S.Ct. 1955, and reaffirmed the holding of Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (rejecting a fact pleading requirement for Title VII employment discrimination), it stated that, to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must aver “enough facts to state a claim to relief that is plausible on its face,” id. at 570,122 S.Ct. 992.

Since the argument and initial briefing in this case, the Supreme Court, in Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), has clarified Twombly's reach to cases such as these. Iqbal concerned claims against a number of defendants, including FBI Director Mueller and Attorney General Ashcroft, made by Javaid Iqbal, a Muslim Pakistani who was part of the mass roundup of Muslim aliens on immigration charges following the September 11 attacks. Iqbal claimed that Mueller and Ashcroft were responsible for selectively placing detainees in their restrictive conditions on account of their race and religion. Id. at 1951. The Supreme Court found the allegations in the complaint insufficient to state a discrimination claim under the above-discussed Twombly “plausibility” standard. Id. at 1952. The Court held that a pleading “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ” is insufficient to state a claim under Rule 8 of the Federal Rules of Civil Procedure. Id. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

In reviewing the complaint in Iqbal, the Court noted that the complaint did not contain any factual allegations claiming that Mueller or Ashcroft may have intentionally discriminated on the basis of race or religion. Id. at 1952 (“Accepting the truth of [the allegation of a adopting an impermissible policy], the complaint does not show, or even intimate, that petitioners purposefully housed detainees ... due to their race, religion, or national origin.”). The Court concluded that bare assertions regarding an invidious policy were not entitled to the assumption of truth because they amounted to “nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. at 1951 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The Court noted that the alleged facts, even if accepted as true, were more compatible on their face with lawful conduct. Id.

Here, unlike Iqbal’s allegations, alKidd’s complaint “plausibly suggest[s]” unlawful conduct, and does more than contain bare allegations of an impermissible policy. Id. at 1950. While the complaint similarly alleges that Ashcroft is the “principal architect” of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. Ashcroft stated that enhanced tactics, such as the use of the material witness statute, “form one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street,” and that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Other top DOJ officials candidly admitted that the material witness statute was viewed as an important “investigative tool” where they could obtain “evidence” about the witness. The complaint also contains reference to congressional testimony from FBI Director Mueller, stating that al-Kidd’s arrest was one of the government’s anti-terrorism successes — without any caveat that al-Kidd was arrested only as a witness. Comparatively, Iqbal’s complaint contained no factual allegations detailing statements made by Mueller and Ashcroft regarding discrimination. The specific allegations in al-Kidd’s complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.

Further, unlike in Twombly and Iqbal, where the plaintiffs alleged a conspiracy or discriminatory practice in the most eonclusory terms, al-Kidd does not rely solely on his assertion that Ashcroft ordered, encouraged, or permitted “policies and practices [whereby] individuals have also been impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been practicable to secure their testimony voluntarily or by subpoena.”²⁴ His complaint notes “one account” of material witness practices stating that “nearly fifty percent of those detained in connection with post-9/11 terrorism investigations were not called to testify.” In a declaration filed in another proceeding well before al-Kidd’s arrest, a DOJ official admitted that, of those detained as material witnesses, “it may turn out that these individuals have no information useful to the investigation.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 942 (D.C.Cir.2003) (Tatel, J., dissenting) (quoting Declaration of James Reynolds, Chief of the Terrorism and Violent Crime Section, Criminal Division, Dep’t of Justice).

Al-Kidd need not show that Ashcroft “actually instructed] his subordinates to bypass the plain text of the statute,” as Ashcroft contends. The complaint clearly alleges facts which might support liability on the basis of Ashcroft’s knowing failure to act in the light of even unauthorized abuses, but also alleges facts which may support liability on the basis that Ashcroft purposely used the material witness statute to preventatively detain suspects and that al-Kidd was subjected to this policy.²⁵ As discussed above, Ashcroft publically stated that the material witness statute was an important tool in “taking suspected terrorists off the street,” and that “[a]ggressive detention of ... material witnesses is vital to preventing, disrupting or delaying new attacks.” Again, unlike in Iqbal, these are not bare allegations that the Attorney General “knew of’ the policy. Here, the complaint contains allegations that plausibly suggest that Ashcroft purposely instructed his subordinates to bypass the plain reading of the statute.²⁶ “The plausibility standard is not akin to a ‘probability requirement’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Here, the allegations recounted above clearly “nudge[ ]” alKidd’s claim of illegality “across the line from conceivable to plausible.” Id. at 1952 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Further, the complaint notes that the “abuses occurring under the material witness statute after September 11, 2001, were highly publicized in the media, congressional testimony and correspondence, and in various reports by governmental and non-governmental entities,” which could have given Ashcroft sufficient notice to require affirmative acts to supervise and correct the actions of his subordinates. The complaint also avers that “the Justice Department has issued apologies to 10-12 individuals who were improperly arrested as material witnesses.” Given that the government maintains that it does nothing wrong in the pretextual use of the material witness statute to investigate and preemptively detain, it is reasonable to infer that its apologies were for violations of the terms of the statute itself, of which the DOJ, and presumably its leader, were aware.²⁷ The complaint also contains extensive citations to the OIG Report, which discussed at length abuses and improprieties that occurred in a related context, involving investigatory detention of aliens. While the OIG Report was not released to the public until April 2003, it is reasonable to believe that Ashcroft, as Attorney General, would have been aware of its contents at a date preceding al-Kidd’s arrest.

Our dissenting colleague contends that al-Kidd’s pleadings merely establish that “some material witnesses were detained who did not testify or did not prove to have material information,” perhaps because defendants took plea deals or prosecutors acted hastily in conducting investigations. Dissent at 993. The dissent further contends that this does not amount to a Franks violation. Franks, 438 U.S. at 165, 98 S.Ct. 2674. As discussed above, al-Kidd pleads facts that go much further than merely showing that he was detained under the material witness statute and did not testify. The pleadings show that Ashcroft explicitly stated that enhanced techniques such as the use of the material witness statute “form one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street.” Other top DOJ officials stated that the material witness statute was viewed as an important “investigative tool,” and that al-Kidd’s arrest was touted as one of the government’s anti-terrorism successes, without any mention that he was being held as a material witness. We disagree with the dissent, and hold that al-Kidd has plead that Ashcroft’s “concerted strategy” of misusing the material witness statute plausibly led to alKidd’s detention.

Post-Twombly, plaintiffs face a higher burden of pleading facts, and courts face greater uncertainty in evaluating complaints. As discussed in Iqbal, “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. This concern applied with great force in the civil rights context, where “[t]he basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’ ” Id. at 1953 (citing Siegert v. Gilley, 500 U.S. 226, 236, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Drawing on our “judicial experience and common sense,” as the Supreme Court urges us to do, we find that al-Kidd has met his burden of pleading a claim for relief that is plausible, and that his suit on the § 3144 claim should be allowed to proceed. Id. at 1950.

Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden to show that the Attorney General himself was personally involved in a policy or practice of alleged violations of § 3144. But Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiffs burden. “Asking for plausible grounds to infer” the existence of a claim for relief “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” to prove that claim. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. In this case, we hold that al-Kidd has pled “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.

5. Conditions of Confinement Claim

Lastly, al-Kidd complains that he was mistreated while confined as a material witness. Confinement of criminals is a punishment, and, within the limits of the Fifth and Eighth Amendments, it is supposed to be unpleasant. However, when, as here, the government is empowered to detain those who are not charged with crimes, it is under an obligation not to treat them like criminals. See Youngberg v. Romeo, 457 U.S. 307, 321-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”). Prior to 2003, at least two district courts had refused, on constitutional grounds, to house material witness detainees under the same conditions as those facing trial. See United States v. Nai, 949 F.Supp. 42, 46 (D.Mass.1996) (expressing “concern[ ] that these five material witnesses are being treated as if they were charged with an offense” and ordering them “transferred to a minimum security, residential facility”); In re Cochran, 434 F.Supp. 1207, 1215 (D.Neb.1977) (holding that “a witness who has had, at most, the misfortune of seeing a crime committed” must be held in “the least restrictive alternative that is reasonably calculated to assure the witness’ presence for trial”).

On this appeal, Ashcroft contests neither the substance of the right al-Kidd claims was violated in the Conditions of Confinement Claim, nor whether that right was “clearly established.” Rather, as with the § 3144 Claim, he argues only that al-Kidd has failed to plead sufficient facts to tie Ashcroft, personally, to the alleged violation.

The unconstitutional conditions claim in this ease is substantially similar to the claims in the Supreme Court’s recent Iqbal decision. In Iqbal, the complaint alleged Ashcroft’s liability for the conditions of confinement at the Metropolitan Detention Center in New York, where aliens arrested after 9/11 were held. 129 S.Ct. at 1944. Iqbal’s complaint alleged that Ashcroft and FBI Director Robert Mueller approved of these highly restrictive detention policies in discussions that took place in the weeks after September 11, 2001. Id. at 1951. Similarly, al-Kidd claims here that Ashcroft promulgated and approved the unlawful policy which caused al-Kidd “to be subjected to prolonged, excessive, punitive, harsh, unreasonable detention or post-release conditions.” Contrary to the § 3144 claim, however, the complaint does not allege any specific facts — such as statements from Ashcroft or from high ranking officials in the DOJ — establishing that Ashcroft had personal involvement in setting the conditions of confinement.

As al-Kidd’s complaint notes, media reports had observed the conditions detailed in the OIG Report to apply to Americans and legal aliens held as material witnesses. See, e.g., Naftali Bendavid, Material Witness Arrests Under Fire; Dozens Detained in War on Terror, Chi. Trib., Dec. 24, 2001, at Nl; Fainaru & Williams, supra, at Al; John Riley, Held Without Charge: Material Witness Law Puts Detainees in Legal Limbo, N.Y. Newsday, Sept. 18, 2002, at A6. Their conditions of confinement had also been noted by the courts. The district court in Awadallah I, writing in the spring of 2002, decried at length the state in which Mr. Awadallah had been held:

Awadallah was treated as a high security federal prisoner. Having committed no crime — indeed, without any claim that there was probable cause to believe he had violated any law — Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.

... In many ways, ... the conditions of his confinement were more restrictive than that experienced by the general prison population.

202 F.Supp.2d at 60; see id. at 60-61 & nn. 5-10 (describing Awadallah’s allegations of mistreatment while in custody). While it is possible that these reports were sufficient to put Ashcroft on notice by spring of 2003 that there was a systemic problem at the DOJ with respect to its treatment of material witnesses, the non-specific allegations in the complaint regarding Ashcroft’s involvement fail to nudge the possible to the plausible, as required by Twombly.

Unlike the § 3144 Claim, which specifically avers facts which could sustain the inference that Ashcroft “set[ ] in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” regarding the illegal use of the material witness statute, Kwai Fun Wong, 373 F.3d at 966 (internal quotation marks omitted), the complaint’s more conclusory allegations regarding Ashcroft’s involvement in setting the harsh conditions of confinement (which are very similar to the allegations in Iqbal), are deficient under Rule 8. Accordingly, we reverse the district court on al-Kidd’s Conditions of Confinement claim, and hold that al-Kidd has not alleged adequate facts to render plausible Ashcroft’s personal involvement in setting the harsh conditions of his confinement, and has therefore failed to state a claim for which relief can be granted.

C. Personal Jurisdiction

Finally, Ashcroft contends that the district court erred in denying Ashcroft’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. As this is an interlocutory appeal, we will address the issue only to the extent it falls within our pendent appellate jurisdiction.

1. “Necessary to Provide Meaningful Review ”

Ashcroft first alleges that the issue of personal jurisdiction is “necessary to provide meaningful review” of the district court’s immunity rulings. It is true that personal jurisdiction was a necessary predicate to the district court’s Rule 12(b)(6) ruling denying Ashcroft absolute and qualified immunity. But that could be said about any ruling following a decision on personal jurisdiction, so that alone cannot make our review of personal jurisdiction “necessary to provide meaningful review.” See, e.g., Poulos v. Caesars World, Inc., 379 F.3d 654, 671-72 (9th Cir.2004) (holding that personal jurisdiction not “necessary to ensure meaningful review” of class certification); see also Rux v. Republic of Sudan, 461 F.3d 461, 475-76 (4th Cir.2006) (same with respect to review of subject matter jurisdiction under FISA); E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 204-05 (3d Cir.2001) (same with respect to review of motion to compel arbitration).

The only cases that Ashcroft cites to suggest that personal jurisdiction is necessary to ensure meaningful review are cases involving interlocutory appeals of temporary injunctions. Hendricks, 408 F.3d at 1134-35; In re Diet Drugs, 282 F.3d 220, 230 n. 5 (3d Cir.2002). In entering a preliminary injunction, however, a district court has already necessarily found “at least a reasonable probability of ultimate success upon the question of jurisdiction.” Visual Scis., Inc. v. Integrated Comm., Inc., 660 F.2d 56, 59 (2d Cir.1981) (citation and quotation marks omitted). To rule on the preliminary injunction is necessarily to make a judgment as to the question of jurisdiction. More importantly, the equitable remedy of injunction, granted before trial, is itself an imposition on the defendant that goes well beyond merely being haled into court, and often effectively decides the issue in question. See DuPont, 269 F.3d at 205 n. 9 (distinguishing a precedent involving a permanent injunction because “[i]t is well-settled that when a court grants an injunction, the underlying-personal jurisdiction decision is immediately reviewable on appeal”).

2. “Inextricably Intertwined ”

Ashcroft next argues that the issue of personal jurisdiction is “inextricably intertwined” with the immunity issues. To be “inextricably intertwined,” we “require that the two issues: (a) be so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003) (internal quotation marks and alterations omitted). The first criterion fails: unlike, for example, the temporary injunction, where success on the merits, including on the issue of personal jurisdiction, is an element of the issue being appealed, personal jurisdiction is not a subset of qualified immunity and we need not necessarily address the former to resolve the latter. Cf. id. (“We can decide the anti-SLAPP issue entirely independently of the question of personal jurisdiction, and different legal standards apply to each issue.”).

The second criterion, however, is present — in part. To obtain specific personal jurisdiction over a defendant in a state, the defendant must either purposefully avail himself of the privilege of conducting activities in the state, or purposefully direct his activities toward the state. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.2004). Purposeful direction, in turn, requires that the defendant have (1) committed an “intentional act,” (2) “expressly aimed” at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state. Id. at 805. The first element, an intentional act, is effectively decided by resolution of the “personal involvement” prong of the qualified immunity inquiry. Insofar as Ashcroft’s objection to personal jurisdiction rests on the absence of an intentional act, we affirm the decision of the district court to exercise personal jurisdiction.

Insofar as Ashcroft’s objection to personal jurisdiction rests on the fact that his acts were not “expressly aimed” at Idaho, or that he did not know that his acts were likely to cause harm in Idaho, we decline to rule on the issue. Far from being “inextricably intertwined,” those issues are irrelevant to any element of absolute or qualified immunity. The federal courts of appeals are courts of limited jurisdiction, and Congress has not seen fit to give this court the general power to review district courts’ exercise of personal jurisdiction before a final judgment. We therefore will not do so here.

CONCLUSION

Almost two and a half centuries ago, William Blaekstone, considered by many to be the preeminent pre-Revolutionary War authority on the common law, wrote:

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

1 William Blackstone, Commentaries ON THE Laws of England 131-32 (1765). The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.

We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest,. detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

For the reasons indicated in this opinion, we AFFIRM in part and REVERSE in part the decision of the district court. Each party shall bear its own costs on appeal.

1 . All facts are taken from al-Kidd's first amended complaint, unless otherwise indicated.

2 . Al-Kidd is Muslim, but is African-American and not of Arab descent.

3 . The IANA is identified in the Al-Hussayen indictment as an organization with the "purpose of Da’wa (proselytizing), which included the website dissemination of radical Islamic ideology the purpose of which was indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.”

The IANA's web site currently disseminates a list of goals which include, inter alia, to "[u]nify and coordinate the efforts of the different dawah oriented organizations in North America and guide or direct the Muslims of this land to adhere to the proper Islamic methodology"; "[sjpread the correct knowledge of Islam”; "[w]iden the horizons and understanding ... among Muslims concerning different Islamic contemporary issues”; "[a]ssist the oppressed and tyrannized scholars, Islamic workers and Muslim masses in any locality”; and “[c]reate programs and institutions that will serve the English-speaking Muslims of North America.” Islamic Assembly of N. Am., About IANA, at http://www. iananet.org/about.htm (accessed June 10, 2009). Al-Hussayen, then a computer science graduate student at the University of Idaho, was accused of registering and running the IANA's web site.

4 . Al-Hussayen was not convicted of any of the charges brought against him. His trial ended in acquittal on the most serious charges, including conspiracy to provide material support to terrorists, 18 U.S.C. §§ 2339A, 2339B. After the jury failed to reach a verdict on the remaining lesser charges, the district court declared a mistrial. The government agreed not to retry Al-Hussayen and deported him to Saudi Arabia for visa violations.

5 . The federal material witness statute, 18 U.S.C. § 3144, provides:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

6 . See Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (2003), available at http://www.usdoj.gov/oig/special/ 0306/full.pdf. The OIG Report's focus is the post-9/11 detention on immigration charges of Arab and Muslim aliens, and touches only incidentally on those held as material witnesses. Because the report, an official government document, is cited extensively throughout the complaint, we deem it incorporated by reference, and take judicial notice of its entire contents. See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999) (permitting incorporation by reference of documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading”).

7 . Ashcroft is the only defendant in this case who filed an interlocutory appeal of the district court’s denial of the defendants’ Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6) motions. Accordingly, none of al-Kidd’s claims against the other defendants is before us.

8 . The qualified and absolute immunity defenses to each are the same. See Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) ("[W]e deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.”).

9 . One bright line the Supreme Court has given is that a "prosecutor neither is, nor should he consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274, 113 S.Ct. 2606. The converse, however, is not true: the mere presence of probable cause to have someone arrested "does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” Id. at 274 n. 5, 113 S.Ct. 2606.

10 . Justice Kennedy would have gone even further, extending the inquiry beyond “immediate” purpose:

Two actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions. It may be that a prosecutor and a police officer are examining the same evidence at the same time, but the prosecutor is examining the evidence to determine whether it will be persuasive at trial and of assistance to the trier of fact, while the police officer examines the evidence to decide whether it provides a basis for arresting a suspect. The conduct is the same but the functions distinct.

Id. at 289, 113 S.Ct. 2606 (Kennedy, J., concurring in part, dissenting in part).

11 . In KRL we limited our holding to search warrants, rather than arrest warrants. Id. at 1114. This distinction was based on the Supreme Court's rule that "a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established.” Id. (citing Buckley, 509 U.S. at 274, 113 S.Ct. 2606). The Supreme Court has been clear that probable cause to arrest is necessary, but not sufficient, to the prosecutorial function, and "does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.” Buckley, 509 U.S. at 274 n. 5, 113 S.Ct. 2606. At any rate, this distinction in dicta does nothing to detract from the teleological inquiry that was central to our holding.

12 . The dissent argues that an individual’s detention on a material witness warrant “is subject to continuing oversight, and errors may be corrected though the judicial process[,]” and thus obviates " 'the need for damages actions to prevent unjust results.’ ” Dissent at 996 (citations omitted). The Third Circuit has recently held the opposite, finding that the plaintiffs, who had been detained on material witness statutes, had demonstrated the need for damages actions because "by virtue of their status as third-party witnesses, Plaintiffs are not entitled to the protections available to criminal defendants, including the appellate process.” Odd, 538 F.3d at 217.

13 . See, e.g., Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 30-31 (1st Cir.1995); Parkinson v. Cozzolino, 238 F.3d 145, 151 (2d Cir.2001) ("There can be little doubt that conduct taken with the goal of affirming a conviction on appeal or obtaining a new conviction on retrial falls within the traditional adversarial function of a prosecutor.” (internal quotation marks omitted)); Hill v. City of New York, 45 F.3d 653, 662 (2d Cir.1995) ("To the extent that the creation of the videotapes fulfilled an investigatory purpose, Adago cannot claim absolute immunity.”); Cousin v. Small, 325 (5th Cir.2003) ("The interview was intended to secure evidence that would be used in the presentation of the state’s case at the pending trial of an already identified suspect, not to identify a suspect or establish probable cause.”); Lomaz v. Hennosy, 151 F.3d 493, 499 (6th Cir.1998) ("The purpose for which they sought the warrant, therefore, was not primarily investigative, but was to obtain and preserve the evidence. We think that under these circumstances, the prosecutors were clearly preparing for the initiation of judicial proceedings.' ” (quoting Buckley, 509 U.S. at 273, 113 S.Ct. 2606)); Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir.1983); Rivera v. Leal, 359 F.3d 1350, 1354 (11th Cir.2004) (finding absolute immunity because, inter alia, "there is no indication that Leal was trying to establish probable cause to arrest Appellant. In fact, the purpose of the hearing was to establish whether [another individual] was innocent.”).

14 . The dissent believes that such an inquiry is undesirable because of the incentives it creates. Dissent at 999-1000. Judge Bea states that our inquiry may make a prosecutor go to trial against a defendant simply to ensure his actions will not be subject to attack in a future lawsuit. We disagree. First, prosecutors often make choices regarding prosecutorial strategy that may be in tension with personal liability, see Kalina, 522 U.S. at 130-31, 118 S.Ct. 502, since all actions taken by a prosecutor are not entitled to absolute immunity. Second, we note that creating an incentive for a prosecutor to utilize a material witness he/she has detained for the very purpose alleged in his/ her affidavit is not an undesirable incentive, and certainly not dis-positive to the immediate purpose inquiry.

15 . Two decisions have held that it does not violate other provisions of the Constitution. See Hurtado v. United States, 410 U.S. 578, 589-90, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973) (Fifth and Thirteenth Amendments); New York v. O'Neill, 359 U.S. 1, 6-7, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959) (Privileges or Immunilies Clause of the Fourteenth Amendment). Dicta in two other cases suggest that the practice is ordinarily permissible. See Stein v. New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), overruled by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 (1964) ("The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness."); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-17, 49 S.Ct. 452, 73 L.Ed. 867 (1929) ("[A] court has power in the exercise of a sound discretion to issue a warrant of arrest without a previous subpoena when there is good reason to believe that otherwise the witness will not be forthcoming.... The constitutionality of this statute apparently has never been doubted.”).

16 . In 2003, the year of al-Kidd's arrest, material witness arrests made up only 3.6% of all arrests by federal law enforcement agents. Of those, 92.3% were made by the former Immigration and Naturalization Service, typically to detain illegally smuggled aliens for testimony against their smugglers before removal. See, e.g., Aguilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir.1992). Less than 0.3% of arrests by non-immigration federal law enforcement agents were material witness arrests. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Compendium of Federal Justice Statistics, 2003, NCJ No. 210299 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/ pdfZcfjs0301.pdf, at 18.

17 . One may commit a crime by ignoring or disobeying a subpoena. 18 U.S.C. § 401(3) (authorizing criminal contempt for "[disobedience or resistance to [a court's] lawful writ, process, order, rule, decree, or command”). This was not the case here, where al-Kidd does not ever seem to have been subpoenaed.

18 . The petitioner in Bacon was detained as a material witness in a grand jury proceeding. We stated that "a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy” the materiality criterion in the case of a witness for a grand jury, which maintains broad powers of investigation and whose proceedings are secret. 449 F.2d at 943. Bacon reserved the question of what showing is necessary "in the case of a witness who is to testify at a trial.” Id. We currently see no reason that the showing of materiality as to the witness in a trial, where proceedings are public and bound by the charges in the indictment, should be any different from the showing required for impracticability.

Because Al-Hussayen had already been indicted by the time of al-Kidd's arrest, we do not address whether Bacon's statement that grand juries are "criminal proceedings” within the meaning of the material witness statute was a holding or obiter dicta. Compare Awadallah I, 202 F.Supp.2d at 71 (holding the Bacon language to be dicta because it was unnecessary to the conclusion that the affidavit was insufficient to show impracticability), 1with In re Application for a Material Witness Warrant, 213 F.Supp.2d 287, 291 (S.D.N.Y. 2002) (finding the same language to be a holding).

19 . The dissent contends that United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), does not allow such a broad reading of Edmond. Dissent at 989-90. Villamonte-Marquez, however, is factually limited to searches of sea vessels located in waters providing ready access to the open sea. 462 U.S. at 581, 103 S.Ct. 2573 C'[W]e are concerned only with the more narrow issue” of whether "the Fourth Amendment is offended when Customs officials ... board for inspection of documents a vessel that is located in waters providing ready access to the open sea”). The Supreme Court has expressly distinguished searches of such sea vessels from other types of searches — those of automobiles on land, for example. Id. at 584-92, 103 S.Ct. 2573. Only under the most contorted reading of Villamonte-Marquez would that case also apply to the pretextual detention of a person under a material witness statute.

20 . We are mindful of the difference between a traffic stop and a material witness arrest. The material witness is subject to a seizure an order of magnitude greater than that at issue in Lidster, where the stops were “brief,” and were of drivers in their cars. (As the Court noted, the "Fourth Amendment does not treat a motorist’s car as his castle.” 540 U.S. at 424, 124 S.Ct. 885.) An individual seized as a material witness is taken from her home and daily affairs and confined to a small space for a period of time measured not in minutes or even hours, but ranging from days to months. Al-Kidd disclaims any attack on material witness detention generally, and we are in any event bound by Bacon's determination that the material witness statute, backed by a “probable cause” requirement to guarantee particularity, has struck a “reasonable” balance between the witness’s interest in liberty and the government’s need for testimony. But the severity of the deprivation of liberty in material witness arrests only militates for correspondingly more severe judicial scrutiny of its application.

21 . See, e.g., Stein, 346 U.S. at 184, 73 S.Ct. 1077 (1953) ("The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”); Barry, 279 U.S. at 617, 49 S.Ct. 452 (stating that the material witness statute then in effect "provides that any federal judge ... may have [material witnesses] brought before him by a warrant of arrest, to give recognizance, and that such person may be confined until removed for the purpose of giving his testimony ”) (emphasis added); Bacon, 449 F.2d at 942 ("The public interest [in detaining witnesses] will be protected if grand jury witnesses come forth to provide testimony concerning the possible commission of crimes.”); Awadallah I, 202 F.Supp.2d at 77 ("The only legitimate reason to detain a grand jury witness is to aid in 'an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.' " (quoting United States v. Calandra, 414 U.S. 338, 343-44, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974))).

22 . Mr. Awadallah was detained shortly after the September 11 attacks. Awadallah II, 349 F.3d at 45 (Sept. 20, 2001). He sought his release almost immediately. Id. at 47 (Sept. 25, 2001). By April of 2003, his case had finally reached the court of appeals. Given the speed of our appellate process, it would have been almost impossible for any authority higher than a district court to have opined on defendant’s material witness policies before March 2003. As noted above, the Second Circuit later indicated, in dicta of its own, its agreement with the district court’s statement on this question, even as it reversed the district court’s holding and remanded the case. id. at 59.

23 . As discussed previously, "a plaintiff must plead that each Government-official defendant, though the official's own individual actions” were involved in the constitutional deprivations. Iqbal, 129 S.Ct. at 1948.

24 . Ashcroft contends that al-Kidd does not even go so far as to make such an assertion, and that he never explicitly says in his complaint that Ashcroft designed such a policy. This argument requires a hypertechnical reading of the complaint. The paragraph alleging outright violations of § 3144 begins with “the post-9/11 policies and practices,” with the definite article. (Emphasis added). There is no reason from the text of the complaint to think that those "post-9/11 policies and practices” are anything other than "The post-9/11 material witness policies and practices adopted and implemented by Defendant Ashcroft " alleged fourteen paragraphs earlier in the complaint. (Emphasis added).

25 . The dissent contends that the "knowing failure to act” standard did not survive Iqbal. Dissent at 992 n. 13. The dissent points to the fact that the Court held that Ashcroft could not be held liable for his "knowledge and acquiescence” of his subordinates' unconstitutional discrimination against Muslim men. 129 S.Ct. at 1948. We need not address whether the two standards are distinct, or whether the Court’s comments relate solely to discrimination claims which have an intent element, because al-Kidd plausibly pleads "purpose” rather than just "knowledge” to impose liability on Ashcroft. Id. at 1949 ("[P]urpose rather than knowledge is required to impose Bivens liability ... for an official charged with violations arising from his or her superintendent responsibilities.”).

26 . The dissent believes that al-Kidd's complaint plausibly demonstrates only that Ashcroft directed his subordinates to use the statute "pretextually,” not "unlawfully.” Dissent at 993. As discussed above, the pretextual use of the material witness statute that results in a person being detained for criminal investigation without adequate probable cause runs afoul of the Fourth Amendment, and is thus unlawful.

27 . To be sure, this is not a necessary inference: the apologies could have been for wrongs that do not rise to the level of a constitutional violation. But neither is it an unreasonable inference, and on a Rule 12(b)(6) motion, we draw all reasonable inferences in favor of the plaintiff.