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al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?:
The Ninth Circuit handed down a fascinating and important case on preventive detention on Friday, and one that I suspect added a new case to the Supreme Court's docket next year: al-Kidd v. Ashcroft. The basic holding of the opinion is that the post-9/11 practice of using the material witness statute to detain suspected terrorists is not only unconstitutional, but clearly unconstitutional, and that former AG Ashcroft can be personally sued for his role in it. The majority opinion was written by Judge Milan Smith and joined by Judge Thompson; Judge Bea wrote a partial concurrence and partial dissent.

  There's a lot of coverage of the case in newspapers and around the web, but nothing that really delves into the legal questions. That's understandable, as the opinions in the case fill about 100 pages. But in this post, I wanted to delve into the legal questions and see if the court's opinion holds up to scrutiny.

  My basic take is that parts of the opinion are persuasive and parts are pretty unpersuasive. First, the rejection of absolute immunity seems right. Second, the Fourth Amendment holding seems possible but rather unlikely, and in general misses the key legal question raised by the case. Third, I think the qualified immunity analysis is clearly incorrect.

  Fortunately, this case is perfect for Supreme Court review: If the en banc Ninth Circuit passes on it, this case will give the Supreme Court an ideal opportunity to evaluate the very important question of how the Fourth Amendment applies to preventive detention.

A. The Facts

 Al-Kidd is a U.S. citizen who converted to Islam and had suspicious contacts with a suspected terrorist Sami Omar Al-Hussayen, who had recently been arrested and charged with fraud. Soon after al-Hussayen was charged, officials learned that Al-Kidd was planning to leave the United States to travel Saudi Arabia. Al-Kidd said he was going to Saudi Arabia to study Islam; U.S. officials feared he was trying to leave the U.S. to escape U.S. authorities.

  DOJ officials obtained a "material witness" warrant under 18 U.S.C. § 3144 ordering that al-Kidd be detained as a possible witness in the criminal case against Al-Hussayen. Section 3144 states:
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.
  al-Kidd was held for about two weeks, and he claimed that he was treated very badly; he was released only when he surrendered his passport and agreed to certain conditions of release. He had to comply with those conditions of release for 15 months, and during that time he lost his job and couldn't maintain steady employment. Notably, al-Kidd was never actually called to testify at al-Hussayen's trial.

B. The Lawsuit

  al-Kidd then brought this civil suit alleging that his detention violated his Fourth Amendment rights and the material witness statute, and that his treatment during the detention violated his Fifth Amendment and Eighth Amendment rights. Importantly, the part of the suit that is on appeal is only the part that is against then-Attorney General John Ashcroft in his personal capacity. al-Kidd sued Ashcroft in his personal capacity on the theory that Ashcroft had created and authorized a program of misusing the material witness statute. Pursuant to Ashcroft's program, al-Kidd argued, DOJ had obtained a material witness warrant and detained him not because he was actually a material witness, but because they wanted to preventively detain and investigate him as a potential terrorist. Al-Kidd argued that this misuse of the material witness statute violated the statute and the Fourth Amendment.

  The Ninth Circuit in al-Kidd had to consider three questions: 1) Is an Attorney General immune from such a lawsuit? 2) If the Attorney General is not immune from suit, do the alleged facts (assuming they are true) sufficiently plead a violation of the Fourth, Fifth, and/or Eighth Amendment or Section 3144 by Ashcroft? 3) If so, was the illegality of the detention and treatment "clearly established" at the time it occurred so that there is no qualified immunity?

C. The Ninth Circuit's Decision

  Issue One: Judge Smith first ruled that Ashcroft was not entitled to absolute immunity, but rather was entitled only to qualified immunity. Smith reasoned that prosecutors get absolute immunity for prosecutorial acts but not investigative acts: Because Ashcroft's alleged acts were investigative, he was only entitled to qualified immunity. Smith noted that the act of getting a material witness warrant is ordinarily considered a prosecutorial function that triggers absolute immunity, but he reasoned that it's a different case if the allegation is that the prosecutor was using the warrant authority as a ruse to investigate.

  The Court thus holds: "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." The court adds that the plaintiff in such a case needs to state facts allowing the court to reach a conclusion that this intent was reasonably likely; a mere allegation of intent, without support, won't do.

  Issue Two: The next question is whether Ashcroft had violated al-Kidd's rights. This really breaks down into three discrete questions: whether Ashcroft violated al-Kidd's Fourth Amendment rights by the detention; whether Ashcroft violated Al-Kidd's statutory rights under the material witness statute; and whether Ashcroft violated al-Kidd's Fifth and Eighth Amendment rights through the conditions of confinement.

  (a) Fourth Amendment. Did Ashcroft violate al-Kidd's Fourth Amendment rights? Yes, the court concludes. The Ninth Circuit holds that if the feds are arresting someone to detain them for investigative purposes, they need the same probable cause traditionally required to arrest someone and charge them with a crime: They need probable cause to believe that a crime was committed and that the person arrested committed it. They can detain someone under a material witness warrant if they really plan to use the person as a material witness, but if the purpose of the detention was merely investigatory, they can't do that.

  In response to Judge Bea's argument that this focus on subjective intent runs contrary to Fourth Amendment law — specifically, that you can't look at the subjective intent of the detention to determine if it violates the Fourth Amendment — Judge Smith reads the checkpoint/special needs cases such as Indianapolis v. Edmond as allowing an inquiry into programmatic purpose. Because the programmatic purpose of the preventive detention regime is presumed to be investigatory — specifically, to investigate that person for a criminal act --- that purpose governs and the government can only detain the person with probable cause that they actually committed an offense.

  The Court expresses its holding on this point as follows:
probable cause— including individualized suspicion of criminal wrongdoing— is required [by the Fourth Amendment] when 18 U.S.C. § 3144 is not being used for its stated purpose, but instead for the purpose of criminal investigation. . . . 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.
  (b) Violation of 18 U.S.C. § 3144. al-Kidd next argued that the warrant that was signed by the judge to detain him did not comply with the material witness statute, and that Ashcroft was responsible for the violation: Ashcroft had played a role in establishing the use of material witness warrants to preventively detain terrorist suspects, and the creation of that program led to the use of the statute that violated al-Kidd's statutory rights. The Ninth Circuit agrees, at least at the Rule 12 dismissal stage, although it notes that there may be a different result at summary judgment depending on Ashcroft's role in using the material witness warrant to preventively detain suspects.

  (c) Fifth Amendment and Eighth Amendment. The court holds that al-Kidd's allegations that Ashcroft was responsible for his treatment during his detention cannot go forward, as "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."

  Issue Three: The third and final issue was whether the violation of al-Kidd's Fourth Amendment rights was clearly established in 2003, when the detention occurred. This is required because Ashcroft is protected by the doctrine of qualified immunity: He is only personally liable for the alleged Fourth Amendment violation if a reasonable person in his situation would have known that the detention violated the Fourth Amendment. This inquiry generally requires a study of caselaw at the time of the time of the detention, to see if it was clear at the time that the detention was unconstitutional.

  The court acknowledges straightforwardly that there was no case law on this specific issue at the time: "In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution." However, the Court rules that the violation was clearly established because there were clear enough signs in 2003 that such detention should be deemed unconstitutional.

  Judge Smith lists five sources of law that he says collectively "clearly established" that al-Kidd's Fourth Amendment rights were violated at the time of his detention.
1) Dicta in some cases already on the books at that time saying that the statute should be limited to real witnesses, and not used as a pretext;
2)The traditional definition of probable cause in the context of criminal arrests;
3) The Supreme Court's automobile checkpoint cases, which indicated that "investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause";
4) The general "history and purposes of the Fourth Amendment," namely, limiting arbitrary government power and seizures based on less than probable cause; and finally,
5) Dicta in a footnote in one district court opinion decided before March 2003 saying "categorically" that use of the material witness statute for investigatory purposes was "illegitimate."
  Putting these five sources together, the Court concludes 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. "

ruuffles (mail) (www):

If the en banc Ninth Circuit passes on it, this case will give the Supreme Court an ideal opportunity to evaluate the very important question of how the Fourth Amendment applies to preventive detention.

Given the make up of this panel and the Ninth Circuit overall, would there be a reasonable chance an en banc panel would adopt the dissent? Heck, Reinhardt et al might just keep going and let the 5th and 8th amendment claims proceed.

perhaps poor briefing by the DOJ civil division, perhaps something else

Might Ashcroft follow Yoo and ditch his DOJ lawyers and get private attorneys at gov't expense?
9.7.2009 1:12pm
Repeal 16-17 (mail):
Because of the complexity of the case and there being a dissenter regarding whether Ashcroft is entitled to qualified immunity, I believe this case will be reheard before a mini-en banc panel.
9.7.2009 1:13pm
Repeal 16-17 (mail):
What happened to the post by CDU? Before I posted my comment, there was a comment by CDU.

OK Comments: Our comment policy states: "If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment." Ruffles used a comment to point out that I had used a wrong word; after I changed the post to correct the word, I deleted the comment. I hope you can understand: Having spent about 10 hours on Labor Day weekend writing a post about an important new case, my preference is for the thread to be about the legal issues raised by the case, not editing errors. If you prefer a blog that does not edit comment threads, there are of course many you can find on the web.
9.7.2009 1:16pm
dcuser (mail):
Fascinating post -- thanks for putting the time in on it!
9.7.2009 1:23pm
David Walser:
Just how "clearly established" is a legal rule when one of the three judges on a panel disagrees that the rule has been established? If one of the three judges believes it was unclear, in 2003, that Ashcroft's actions violated al-Kidd's 4th Amendment rights, how can the majority conclude Ashcroft had on basis for believing his actions legal? The majority seems to saying their colleague is being unreasonable.
9.7.2009 1:25pm
ruuffles (mail) (www):
Here's some interesting information about Judge Smith

An odd Congressional couple suggested his appointment: U.S. Sen. Barbara Boxer Barbara Levy Boxer and Sen. Orrin Hatch, the powerful Republican from Utah.
...
In fact, Smith comes from a political family. His grandfather was chief justice of the Arizona Supreme Court ; his cousin Rex Lee, was solicitor general during the Reagan Administration, and his father, also Milan Smith, was assistant secretary of agriculture under President Eisenhower.
9.7.2009 1:26pm
OrinKerr:
David Walser,

This happens all the time, actually: I believe I once wrote a post on it.
9.7.2009 1:27pm
David Walser:
had on basis should read: had no basis. Sorry for the typo.
9.7.2009 1:27pm
ruuffles (mail) (www):

I believe I once wrote a post on it.

DO you have a link or keyword I can search? I find these details fascinating.
9.7.2009 1:28pm
Tatil:
At first glance, it might make sense to say that if it is a national security issue, let's say the person is believed to be an agent of foreign power, we can have different standards. If the prosecutors can define terrorist groups as foreign power, what would stop them from defining drug cartels or gangs as such? Drugs and organized crime kill many people, too. Do you assume judges will stand in the way, only because terrorists sound more scary than gangs? How about when a prosecutor goes public after a horrific crime and claim that he could have stopped it if only the judge signed that warrant? Can't you just see "the tough on crime, vote for me instead of this softie" political ads? I don't see this working nicely.

Besides, DOJ did not ask for a different standard on an arrest warrant on national security grounds, they simply abused a different rule to get what they want. In the end, it seems the guy was not very dangerous to begin with, as it sounds like he is still free. Should we open official holes in our legal system for the prosecutors to use when they get paranoid or the public gets scared and demands something to be done? This will almost certainly result in mistreatment of unpopular minorities at times of real or perceived crisis.
9.7.2009 1:32pm
gab:
I read section "(1) How the National Security Context Alters the Probable Cause Inquiry for Searches" but I don't get why this is the case. Apparently the standard differs if the authorities believe the suspect is an agent of a foreign power but it's not clear to me why this should matter other than the flight risk.

Doesn't every bad guy pose a flight risk
9.7.2009 1:41pm
Paul Allen:
One of the most fascinating posts here in a long while--an excellent illustration of the mechanics of the law and the necessity of reading through opinions rather than merely reporting on them. Thanks Orin.
9.7.2009 1:48pm
Vermando (mail) (www):
Thanks also for the post, Professor.

I have one question. I thought that Keith stood for the opposite of what you claim, affirming the applicability of traditional Fourth Amendment doctrine even in National Security cases. The distinction, I thought, between Keith and the FISA cases was the foreign element, not the strength of the government interest in national security. Am I mistaken, or am I simply missing a nuance in your post?

Many thanks.
9.7.2009 1:59pm
David Walser:
Orin,

Thank you for replying to my comment. (And thanks, for the original post. It reflects a lot of work and I appreciate it.)

I understand that the kind of thing I pointed out happens all the time. It just bothers me that the judges seem blind to the apparent irony. I'm a tax professional, so I'm most likely completely misunderstanding the various burdens in this context, but it seems to me the Supreme Court's rulings in this area make it fairly difficult for a public official to lose his or her qualified immunity. At the time of the conduct, the law has to be "clear" that such conduct was unconstitutional.

This seems analogous to the tax law's "reasonable cause" exception to underpayment penalties. (See Internal Revenue Code section 6664.) If a taxpayer has substantial authority for a position (and discloses the position on the tax return), the taxpayer will not be subject to penalties. If one of a three judge Tax Court panel believes the taxpayer's position is proper, that would seem proof positive that the taxpayer's position had substantial authority and that penalties should not be imposed (the tax, with interest, would still be due). Similarly, if one of three judges believes the law was unsettled, that seems to be proof that the law was not "clearly established" and that the public official should benefit from qualified immunity.

Things must not be so simple because the 9th Circuit (at least this panel) feels it appropriate to strip Ashcroft of his immunity. By the same token, the Tax Court sometimes imposes penalties even when the panel was split on the merits.
9.7.2009 2:01pm
martinned (mail) (www):

Smith rests his analysis in a critical assumption: That if the government is fighting terrorism by using the material witness statute pretextually to detain terrorist suspects, that detention is a criminal law detention rather than a national security detention. Judge Smith then looks at how the Fourth Amendment applies to criminal law detentions, and he sees the traditional criminal law arrest doctrine that requires probable cause that the person committed a crime. He then assumes that this is the only way to define probable cause, and when he sees that the material witness warrant doesn't measure up, he concludes that it must be unconstitutional.

And what is your basis for assuming that in the United States such a thing as "national security detention" even exists? If it did, there would have been no need for the DoJ to fib and use the material witness statute. Just because a "national security wiretap" exists as part of the government's counter-espionage activities, doesn't mean that "national security detention" also exists.

It might be possible to invent such a thing, but that would have to be done in an Act of Congress. You can't simply grab another statute that more or less looks like what it is you need and bend it to give you what you want. Or rather, you can bend a little, but this case clearly goes way too far.
9.7.2009 2:01pm
Upend, Coming:
Excellent post - I guess I'm part of the miniscule percentage reading through this.

I never really understood the court's willingness to require so little when the phrase "national security" attaches. The Constitution explicitly provides that no person shall be convicted of treason except upon the testimony of two direct witnesses or a confession in open court.

The framers of the Constitution were cognizant of the danger of being called an enemy of these state. I simply fail to understand how saying "its national security but we're not saying he committed treason" should entitle the government to a lower bar. This is the same semantic gymnastics with "enhanced interrogation technique" vs. "torture."

Being a mere Constitutional dilettante at this point, I am sure there are plenty of reasons about which I haven't yet read.
9.7.2009 2:02pm
Upend, Coming:
Pardon the two errors (these for the &its for it's)
9.7.2009 2:03pm
ArthurKirkland:
I still can't figure this one out, but the analysis still was worthwhile.

This case smells -- the attorney general boasts about "aggressive" use of material witness proceedings, the government lies repeatedly in an affidavit, the victim is strip-searched and shuttled around the country, the 'essential material witness' is never called to testify, etc. -- but this is probably just one more example of how bad policy and character at the top can corrode an entire system, straining safeguards and creating unnecessarily difficult issues. Some powerful people in our government were scared out of their (shockingly meager, in some cases) wits, generating cascading dysfunction down the line.

Do you believe, Prof. Kerr, that al-Kidd has advanced sturdy claims outside the personal-liability-for-Ashcroft context?
9.7.2009 2:03pm
Oren:
Orin, thanks for the post.

I'm a bit confused as to why the whole pretext argument doesn't fall down along the lines of Whren?
9.7.2009 2:07pm
Putting Two and Two...:
"Unprecedented" used to have a bad connotation in situations like this. Now it appears to be a feature...
9.7.2009 2:10pm
Roy Englert:
David Walser -- A colleague and I published in February a very short article about cases in which panels divide about the existence of a constitutional right yet the majority says that the right was "clearly established." If you're interested, the article can be found at http://www.law.com/jsp/PubArticle.jsp?id=1202428401231.

In my opinion, which on this particular subject is a bit cynical, most Ninth Circuit judges simply are not willing to let defendants off the hook when they believe that those defendants have violated plaintiffs' constitutional rights, so they often use disingenuous reasoning to get around the qualified-immunity doctrine as stated by the Supreme Court. Notably, the Supreme Court itself sometimes seems uncomfortable with taking its own statements about qualified immunity to their logical limit, as reflected in the two dissenting votes in Safford Unified School District #1 v. Redding (decided June 25, 2009) and some cautionary statements in the majority opinion in the same case.
9.7.2009 2:12pm
David Walser:
And what is your basis for assuming that in the United States such a thing as "national security detention" even exists? If it did, there would have been no need for the DoJ to fib and use the material witness statute. Just because a "national security wiretap" exists as part of the government's counter-espionage activities, doesn't mean that "national security detention" also exists.



Kerr's not arguing that the probable cause standard for detentions differs for criminal detentions as opposed to national security detentions. Kerr's merely arguing that the state of the law was unclear in 2003. Indeed, the law remained unclear until this ruling came down (assuming this ruling settles the question). Kerr's point is that the Supreme Court has said the "probable cause" standard differs in the criminal and national security contexts. The Court's ruling was in the context of a search as opposed to a detention. Since the Court has NOT said it's differing take on the probable cause standard does not apply to detentions as well as searches, how is the law "clear" in this area? To retain his immunity, Ashcroft's belief that the detention was constitutional did not need to be right, it just needed to be reasonable -- that's a much lower standard.
9.7.2009 2:15pm
OrinKerr:
Martinned writes:
[W]hat is your basis for assuming that in the United States such a thing as "national security detention" even exists? If it did, there would have been no need for the DoJ to fib and use the material witness statute. Just because a "national security wiretap" exists as part of the government's counter-espionage activities, doesn't mean that "national security detention" also exists.

It might be possible to invent such a thing, but that would have to be done in an Act of Congress. You can't simply grab another statute that more or less looks like what it is you need and bend it to give you what you want. Or rather, you can bend a little, but this case clearly goes way too far.
The significance of whether a statute exists that specifically authorizes detention for national security reasons is a very interesting question. Consider that there was no no statute that authorized federal courts to issue warrants in the usual criminal setting until 1917: Courts just issued them absent any statutory authority at all. But I don't think anyone has argued that all warrants issued before 1917 are unconstitutional, or that that absence of statutory authorization made a difference. Perhaps it's different if a statute designed to be used for one reason by is being used for another? Or if the warrant falls outside the traditional jurisdiction of the common law courts? Perhaps, but I think that argument would need to be made based on legal authorities, not bare assertions about what the government cannot do. I look forward to hearing the argument, Martinned.
9.7.2009 2:19pm
martinned (mail) (www):
@David Walser: I'm not sure if your reading of the OP is correct. Either way: on what basis does the OP say that legally there is such a thing as national security detention, or that Ashcroft's belief that such a thing existed was not unreasonable? If this was so, why not detain Al-Kidd directly under Korematsu, like they did with Padilla? If Ashcroft believed he was doing something legal, why would he (= the DoJ) need to lie to the magistrate judge?
9.7.2009 2:22pm
Anonymous 3L:
martinned, I think the problem arises not because Kerr necessarily believes that national security interests require a different result, but that the question was never asked in the first place.

Now, we might view that as nothing more than legal nitpicking - but it's the exact kind of question that must be asked and at least reasoned through.

As someone who is skeptical that there is such a rule, I would still like to have seen the issue dealt with in a persuasive manner. The opinion loses a lot of its persuasive power otherwise.
9.7.2009 2:26pm
martinned (mail) (www):
@OrinKerr: Given that the 4th amendment specifically mentions warrants, that presumably implies the power to issue them. If not that, then the authority can probably be found in the common law.

Otherwise, I don't think I'm arguing from bare assertions, except the assertion that the (federal) government can do nothing except what is somehow authorised by law. I'm merely observing that the basis for your disagreement with the 9th circuit seems to be that you're introducing a category of detention that they don't seem to know exists. That is fine, but then you'd have to adduce some evidence supporting the contention that this category of detention exists, and you would also have to explain why the DOJ didn't use it.

Incidentally, when I was writing my previous comment, something occurred to me. If the Bush adminstration claimed the right to detain people who it considered combattants in the global war on terror, even if they were US citizens found in the US, such as José Padilla, why didn't they use that authority on Kidd? At least that would have been an honest detention, in the sense of being based on a clear legal theory supported by actual evidence as to why this law would apply to the detainee in question.
9.7.2009 2:28pm
martinned (mail) (www):
@Anonymous 3L: Isn't it up to Ashcroft's lawyers to make this argument? Presumably they didn't, otherwise the court would have discussed the possibility.
9.7.2009 2:29pm
OrinKerr:
Roy Englert writes:
In my opinion, which on this particular subject is a bit cynical, most Ninth Circuit judges simply are not willing to let defendants off the hook when they believe that those defendants have violated plaintiffs' constitutional rights, so they often use disingenuous reasoning to get around the qualified-immunity doctrine as stated by the Supreme Court. Notably, the Supreme Court itself sometimes seems uncomfortable with taking its own statements about qualified immunity to their logical limit, as reflected in the two dissenting votes in Safford Unified School District #1 v. Redding (decided June 25, 2009) and some cautionary statements in the majority opinion in the same case.
I also think there is a natural clash between strongly held opinion and deference doctrines like qualified immunity that makes hard for some judges to apply qualified immunity in emotionally charged cases. Some people in some cases, upon arriving at a conclusion they think is correct, feel deep down in their bones that their view is the only possible way to look at the problem. The more a person feels this, the harder it may be for them to see that other people reasonably disagree, which is the basic trigger of qualified immunity.
9.7.2009 2:30pm
David Walser:
A colleague and I published in February a very short article about cases in which panels divide about the existence of a constitutional right yet the majority says that the right was "clearly established." If you're interested, the article can be found at http://www.law.com/jsp/PubArticle.jsp?id=1202428401231.



Ron - Thanks to the pointer to your article. I found it interesting.
9.7.2009 2:32pm
OrinKerr:
Martinned writes:
If the Bush adminstration claimed the right to detain people who it considered combattants in the global war on terror, even if they were US citizens found in the US, such as José Padilla, why didn't they use that authority on Kidd? At least that would have been an honest detention, in the sense of being based on a clear legal theory supported by actual evidence as to why this law would apply to the detainee in question.
Martinned, I think of you as a strong civil libertarian. Are you really objecting because the government went to a judge, obtained a warrant, and held Al-Kidd for two weeks rather than seized him in the name of Article II and the AUMF and held him in military custody indefinitely with no judicial review?
9.7.2009 2:38pm
David Walser:
...I'm merely observing that the basis for your disagreement with the 9th circuit seems to be that you're introducing a category of detention that they don't seem to know exists. That is fine, but then you'd have to adduce some evidence supporting the contention that this category of detention exists, and you would also have to explain why the DOJ didn't use it.

...


Why does Kerr or anyone else need to adduce evidence that this category of detention exists? Before the Supreme Court decided that the standard of probable cause differed in the criminal and national security contexts, what evidence could have been offered for the proposition that searches in those two contexts would have differing standards applied to determine their reasonableness under the 4th Amendment?
9.7.2009 2:41pm
Anonymous 3L:
martinned, maybe yes, maybe no. The court can and should raise issues sua sponte when they are important enough (and to be clear, I haven't read the DOJ brief and it may have been brought up there)

I don't want to get into a debate about when the court should take judicial notice of things not in the record. But when the court makes an implicit assumption that the 4A in this case is in a "criminal law" world and not a "national security" world, they should reveal that assumption and the cases on which it relies.
9.7.2009 2:48pm
Anon21:
Fascinating post, Orin. I did have questions about this section, however:

Unfortunately, Judge Smith's majority opinion never even asks these questions. Smith rests his analysis in a critical assumption: That if the government is fighting terrorism by using the material witness statute pretextually to detain terrorist suspects, that detention is a criminal law detention rather than a national security detention. Judge Smith then looks at how the Fourth Amendment applies to criminal law detentions, and he sees the traditional criminal law arrest doctrine that requires probable cause that the person committed a crime. He then assumes that this is the only way to define probable cause, and when he sees that the material witness warrant doesn't measure up, he concludes that it must be unconstitutional.

I don't think that works. The point of pretextual use of the material witness warrant is to use them for national security purposes: the avowed goal is to try to investigate, monitor, and detain terrorists. Indeed, the pretext is that it's being used for a criminal investigation at all. And that's the allegation that al-Kidd makes in his complaint: it alleges that he was detained as part of a general program “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." Given that, I think you have to define the "programmatic purpose" of the pretext as a national security purpose, and then confront the novel question (novel in the sense that no court has ever addressed it, as far as I know) of what kind of probable cause is needed under a United States District Court analysis for a national security detention warrant.

It strikes me that Ashcroft and the government ought to be barred from taking advantage of the actual, hidden basis for this program of pretextual national security detentions in defending the constitutionality of these detentions. The concept I have in mind bears some relation to collateral estoppel, although I would imagine (with my limited knowledge of that doctrine) that the analogy is imperfect. Nevertheless, it goes something like this: when the government takes legal position X (in this case, that a person is actually being detained as a material witness rather than as a terrorism suspect) in one proceeding (in this case, the original decision and any litigation that resulted from al-Kidd's original detention), it ought then to be barred from taking contrary legal position Y (in this case, that the person's detention really had nothing to do with the material witness statute and its purposes, but rather was a national security detention) in a separate but related proceeding (the case before the Ninth Circuit panel). It strikes me that as a matter of justice and perhaps as a general legal rule, once a party takes a certain position, and that position is relied upon as the basis for obtaining a ruling (or for preventing litigation or investigation into the legal basis for its actions, perhaps a trickier assertion to make), then that party is and should be barred from shifting positions as a matter of tactical convenience in another case.

Now, perhaps the analogy to collateral estoppel fails because (and I have no clue whether this is true or not) there was actually no litigation connected with al-Kidd's original detention, and thus the DoJ's pretext of material witness detention never became the basis for any ruling in its favor. Or perhaps it doesn't apply because Ashcroft (in his personal capacity) was not a party to that (hypothetical) prior action, meaning he isn't bound by the DoJ's position taken in that case. (If this latter rationale holds, I think it essentially just subverts the intent of collateral estoppel, since Ashcroft was apparently deeply involved in crafting the legal strategy used to justify the program that detained al-Kidd and others.) But, in a hypothetical case in which the issue had been litigated with regard to the detention itself (likely in a habeas action), and a judge had relied on the DoJ's pretext in denying the detainee's claim, should the DoJ and its officers then be foreclosed from asserting the non-pretextual, "real" reason for the detention in order to avoid liability in a separate proceeding?

Sorry if that's not especially clear--it's a bit stream-of-consciousness, but that particular part of the post raised a lot of interesting questions in my mind, and I would appreciate hearing what others think about them.
9.7.2009 2:49pm
OrinKerr:
Incidentally, I am surprised we are 33 comments in and no one has managed to find a way to say, "al-kidding aside...."
9.7.2009 2:56pm
Frater Plotter:
The expression "pretextual warrant" seems to be a euphemism for "warrant obtained under false pretense" -- just as, a few years ago, we found out about the euphemism "pretexting" for "obtaining confidential records by lying."

It was my impression that warrants are issued on the basis of sworn statements, and that the word for lying under oath to a court is "perjury". Sadly, it seems that perjury by federal officials has gone unpursued for so long that it is now standard practice.
9.7.2009 2:57pm
ShelbyC:
Martinned:

If the Bush adminstration claimed the right to detain people who it considered combattants in the global war on terror, even if they were US citizens found in the US, such as José Padilla, why didn't they use that authority on Kidd?


Presumably the authority to detain him as an enemy combattant would have been under the Congressional authorization for the use of force against the 9-11 folks. Maybe I missed it, but I didn't see any any allegation that Kidd was involved with Al-Quadea or the Taliban or anybody like that, correct?
9.7.2009 2:58pm
martinned (mail) (www):
@OrinKerr: I would have also disagreed with a AUMF detention for Al-Kidd, but at least it would have allowed for an honest discussion. Also, I would have probably had no problem with qualified immunity in such a context.

@David Walser: None, of course. But there would have been evidence that it is legally possible to conduct a search outside the context of a criminal investigation.

@Anonymous 3L: The court analysed this as a criminal law situation because that's how the DoJ started the whole affair: They used a criminal law statute to detain him, and claimed throughout that this was necessary for the purposes of a criminal trial against another. At no point in the litigation, either before the district court or before the court of appeals, did the defendants abandon that position. That's why there might be an Iqbal problem here: the defendants are not admitting that they were detaining al-Kidd for any other reason than to assure his testimony in the Al-Hussayen case.
9.7.2009 3:00pm
ArthurKirkland:
I wonder whether the perjury in this case has been pursued? It strikes me as relevant, in the context of the issues associated with al-Kidd's claims, that such a perjurer seems more likely to have been candidates for commendation than for punishment while Mr. Ashcroft led the Department of Justice.
9.7.2009 3:03pm
martinned (mail) (www):
@ShelbyC: Well, assuming the government's allegations are true, he was closer than those Uighurs. Either way, that's a conversation we can have. My point is that they used criminal law as a legal basis for this detention because they didn't think a general (unwritten?) category of "national security detention" existed, contrary to what the OP seems to claim, and they also didn't think they could make the connection to Al-Qaeda stick.
9.7.2009 3:05pm
Philistine (mail):
@Anon21

It sounds more like judicial estoppel, then collateral estoppel. Judicial estoppel is generally defined as preventing "one party who successfully maintains a position in one proceeding from afterwards adopting a clearly inconsistent position in another proceeding to obtain an unfair advantage." Generally the purpose is to prevent parties from "playing fast and loose with the justice system."

Seems more or less appropriate--though IIRC, there is some uncertainty/dispute as to whether judicial estoppel applies in a criminal case against the Government.
9.7.2009 3:07pm
SalB:
Is there any factual basis for this argument?

Did Ashcroft beleive that he had to meet a special propbabale cause requirement or the traditional probable cause requirement?

There being no facts, and this being the pleading stage, I don't think this claim is presently presented.
9.7.2009 3:10pm
Soronel Haetir (mail):
Prof Kerr

I too would be interested in your answer to ArthurKirkland's question on whether you believe al-Kidd has sturdy claims against others, leaving Ashcroft to the side for the time being.
9.7.2009 3:11pm
Oren:

The expression "pretextual warrant" seems to be a euphemism for "warrant obtained under false pretense" -- just as, a few years ago, we found out about the euphemism "pretexting" for "obtaining confidential records by lying."

Yup.


It was my impression that warrants are issued on the basis of sworn statements, and that the word for lying under oath to a court is "perjury". Sadly, it seems that perjury by federal officials has gone unpursued for so long that it is now standard practice.

Did the affiant swear that neither he nor his superiors had an ulterior motive in applying for the warrant?

Again, the way I see it is in analogy to Whren -- if an official has objective legal cause to seize someone (here, possessing a warrant) then his motives are irrelevant. That is, the actual arrest (seizure) was pursuant to a valid warrant and thus reasonable.

At that point, the plaintiff can attack the original affidavit and warrant by analogy to Franks, but the standard is "knowing or reckless falsehood", which is a substantial burden.

All this discussion of preventative detention and whatnot seems entirely silly to me. There is nothing that suggests (at least to me) that, if the objective criteria for a MWW are met, the government may not use that statute simply because it has different goals in mind.

[ I would love to be wrong about all this, I happen to think Whren is a wretched decision that all but invites abuse. OTOH, the law is that an officer with an objective cause to seize can do so irrespective of his mental state. ]
9.7.2009 3:14pm
Oren:
Sorry, I didn't mean "silly" in the sense of "stupid" but rather as entirely irrelevant to the disposition of this case. No insult intended.
9.7.2009 3:15pm
Anon21:
Philistine: Yes, I think you're right, and that the concept I'm thinking of is more along the lines of judicial estoppel, as you say. I wonder, however, if collateral estoppel might also apply, if one assumes that there was a prior proceeding, and that in that proceeding there was a final judgment that these pretextual material witness detentions were, as a matter of fact, taking place for their avowed purpose of holding detainees until they could be deposed for a trial. Would collateral estoppel then come into play in this case (and preclude Ashcroft from now taking the position that these were really national security detentions), or am I still confused about its doctrinal basis?
9.7.2009 3:17pm
martinned (mail) (www):

Did the affiant swear that neither he nor his superiors had an ulterior motive in applying for the warrant?

I don't think that was the point. Quite apart from any accusation of ulterior motive, there is this (p. 12273):


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.

This seems to suggest there might be a case for perjury, and it would be interesting to hear what prof. Kerr thinks about this.
9.7.2009 3:20pm
Soronel Haetir (mail):
Martin's post brings up something else, what is the standard for perjury when the accusation is knowing omission of facts that may shed a different light on even truthful statements made in a sworn statement?

I suppose it doesn't matter since prosecutors aren't very likely to go after government agents for perjury charges.
9.7.2009 3:25pm
OrinKerr:
Soronel writes: "Prof Kerr I too would be interested in your answer to ArthurKirkland's question on whether you believe al-Kidd has sturdy claims against others, leaving Ashcroft to the side for the time being.

Martinned writes" "This seems to suggest there might be a case for perjury, and it would be interesting to hear what prof. Kerr thinks about this.

I very much appreciate all the questions. At the same time, having spent more than 10 hours on the issues actually raised by this case, though, I think I probably would rather not try to spend a few more hours trying to figure out the many other issues that could have been raised by this case but were not. Sorry!
9.7.2009 3:28pm
JJL (mail):

It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of [the criminal law Wiretap Act], but should allege other circumstances more appropriate to domestic security cases[.]


I have a question about what the quoted text from District Court means. If it means that the 4th Amendment can be met by investigators have probable cause for non-traditional things in the national security context, then the rest of Orin's argument follows. However, if it means that Congress may create warrants for national security purposes that are different from traditional criminal investigations, then I don't see how the rest of the argument follows. Congress created the new FISA - all well and good. The material witness statute is one Congress created for criminal investigations, which leads to the majority's analysis. The fact that Congress could create a FISA for material witnesses does need not grant authority to investigators to pretextually use a current statute.
9.7.2009 3:28pm
Anon21:
Philistine: Yes, I think you're right, and that the concept I'm thinking of is more along the lines of judicial estoppel, as you say. I wonder, however, if collateral estoppel might also apply, if one assumes that there was a prior proceeding, and that in that proceeding there was a final judgment that these pretextual material witness detentions were, as a matter of fact, taking place for their avowed purpose of holding detainees until they could be deposed for a trial. Would collateral estoppel then come into play in this case (and preclude Ashcroft from now taking the position that these were really national security detentions), or am I still confused about its doctrinal basis?

Scratch this--Black's has set me straight as to the definition of collateral estoppel.
9.7.2009 3:31pm
martinned (mail) (www):

I very much appreciate all the questions. At the same time, having spent more than 10 hours on the issues actually raised by this case, though, I think I probably would rather not try to spend a few more hours trying to figure out the many other issues that could have been raised by this case but were not. Sorry!

I understand. How about this question: Why is it that of all the people named as defendants in this case, only Ashcroft filed for an interlocutory appeal? Surely many of the issues he raised could have been raised equally by a number of other people in the chain of command who were presumably sued here. (The ruling doesn't list the other defendants.)
9.7.2009 3:32pm
martinned (mail) (www):

I have a question about what the quoted text from District Court means. If it means that the 4th Amendment can be met by investigators have probable cause for non-traditional things in the national security context, then the rest of Orin's argument follows. However, if it means that Congress may create warrants for national security purposes that are different from traditional criminal investigations, then I don't see how the rest of the argument follows. Congress created the new FISA - all well and good. The material witness statute is one Congress created for criminal investigations, which leads to the majority's analysis. The fact that Congress could create a FISA for material witnesses does need not grant authority to investigators to pretextually use a current statute.

My point exactly.
9.7.2009 3:33pm
OrinKerr:
What do you think, Martinned? ;-)
9.7.2009 3:33pm
OrinKerr:
I have a question about what the quoted text from District Court means. If it means that the 4th Amendment can be met by investigators have probable cause for non-traditional things in the national security context, then the rest of Orin's argument follows. However, if it means that Congress may create warrants for national security purposes that are different from traditional criminal investigations, then I don't see how the rest of the argument follows. Congress created the new FISA - all well and good. The material witness statute is one Congress created for criminal investigations, which leads to the majority's analysis. The fact that Congress could create a FISA for material witnesses does need not grant authority to investigators to pretextually use a current statute
As noted above, it's a fair question, and I am looking forward to hearing the argument on this issue.

Of course, this question also raises the Whren question: If the rule is that criminal warrant statutes can only justify criminal warrants, what is the legal basis for rejecting the criminal law rule that you can't look at subjective intent as to why the search or seizure is occurring? The warrant is either a criminal law warrant or a national security warrant: If you say that it's a criminal law warrant, then I'm not sure how you get around the Whren rule that motive and subjective intent doesn't matter.
9.7.2009 3:40pm
martinned (mail) (www):

What do you think, Martinned? ;-)

I don't know, that's why I asked. I'd say that the logic of these constitutional torts implies that the closer someone is to the work floor, i.e. to this guy Mace, the more likely it is that they will be on the hook for damages. Still, why wouldn't they join their boss in this appeal?
9.7.2009 3:50pm
martinned (mail) (www):

If you say that it's a criminal law warrant, then I'm not sure how you get around the Whren rule that motive and subjective intent doesn't matter.

Isn't the court's argument that there was no legal reason to issue a material witness warrant here, and that the defendants misled the MJ into thinking there was? I'd say that if they had been honest to the MJ, and he had issued the warrant anyway, Kidd wouldn't have had a case here.
9.7.2009 3:52pm
Mark N. (www):

Isn't the court's argument that there was no legal reason to issue a material witness warrant here, and that the defendants misled the MJ into thinking there was? I'd say that if they had been honest to the MJ, and he had issued the warrant anyway, Kidd wouldn't have had a case here.

It seems a little more convoluted than that: the court doesn't actually claim that there was no legal reason to issue a material witness warrant, but that the purpose of the program Ashcroft authorized was to misuse material-witness warrants, which renders it unconstitutional, even if a non-pretext-using Attorney General could have actually, in good faith, obtained this particular warrant.
9.7.2009 4:09pm
ArthurKirkland:
It's easy to forget that Prof. Kerr is not a public utility, and that immediate and extended debate is sometimes too much to expect.

It doesn't seem to be expecting too much, however, to expect our government to conduct itself at a higher standard than that exhibited in this case. If al-Kidd obtains a civil judgment against those who lied and abused authority -- and establishes a precedent that might restrain another official tempted to abuse authority -- he will have served his country well.
9.7.2009 4:34pm
mike% (mail):
1. Great example where empathy is needed. We all know the realpolitik of this case. Yet here we are, pretending as if these are hard issues. The legal issues are complex; the reality is simple. It is cases like these that make me respect the Ninth Circuit more.

2a. Re: reasonable disagreement and qualified immunity. Do you folks also thing that in any split opinion in a criminial case interpreting a criminal statute, the criminal should escape liability in light of the Rule of Lenity?

2b. Don't judges act unreasonably all the time? If not, then what explains the Ninth Circus comments? Clearly a large constituency of VC readers thinkmany judges unreasonably apply the law regularly!
9.7.2009 4:37pm
OrinKerr:
Mike writes:"
Great example where empathy is needed. We all know the realpolitik of this case. Yet here we are, pretending as if these are hard issues. The legal issues are complex; the reality is simple. It is cases like these that make me respect the Ninth Circuit more.
Mike, I don't understand what you have in mind. If you're referring to our instinctive reactions to what was alleged as "reality," then I suspect different people would have very different reactions.

2a. Do you folks also think that in any split opinion in a criminial case interpreting a criminal statute, the criminal should escape liability in light of the Rule of Lenity?
I think 2B answers why that wouldn't work.
9.7.2009 4:44pm
mike% (mail):
Orin: Do you or anyone else really think that al-Kidd was being held under a material witness warrant because DOJ needed his testimony?
9.7.2009 4:51pm
einhverfr (mail) (www):
Very interesting article. Time consuming to write, I am sure. It will take a while for me to think things through and post some thoughts.

One question though that might come up is whether the detention can be said to be in the pursuit of national security rather than criminal investigation, given the fact that the Supreme Court had been unwilling to allow indefinite detention without habeas proceedings in Hamdi and other cases where seizure powers seemed more in the government's court. It seems to me that when a US person is detained in this country for speculative reasons, the 4th Amendment and the Habeas provision in Article 1 are meaningless. And it seems that this was CLEARLY outside of bounds.

I don't know yet how I stand on the qualified immunity element, but it seems fairly clear in recent jurisprudence that anyone with a high school education and willing to read recent court cases would have known that holding someone in jail for 15 months with little recourse would be Unconstitutional.
9.7.2009 4:53pm
martinned (mail) (www):

I don't know yet how I stand on the qualified immunity element, but it seems fairly clear in recent jurisprudence that anyone with a high school education and willing to read recent court cases would have known that holding someone in jail for 15 months with little recourse would be Unconstitutional.

It wasn't quite that bad. He was detained for a few weeks, and then "paroled" for 15 months.
9.7.2009 5:01pm
Anderson (mail):
Interesting post. Much seems to depend upon United States v. United States District Court, but accepting Prof. Kerr's analysis of that case, it seems difficult to argue that "clearly established" law existed so as to overcome qualified immunity.

(At any rate, while I can think of a few things I'd like to see Ashcroft personally liable for, this isn't high on my list. It would be great just to get a decision on the merits from SCOTUS so that the state of the law *is* clearly established in future.)
9.7.2009 5:04pm
OrinKerr:
Orin: Do you or anyone else really think that al-Kidd was being held under a material witness warrant because DOJ needed his testimony?

No, but I suspect I know a lot of people who think that temporarily detaining and then keeping tabs on terrorist suspects using material witness warrants is a good idea.
9.7.2009 5:06pm
martinned (mail) (www):

Orin: Do you or anyone else really think that al-Kidd was being held under a material witness warrant because DOJ needed his testimony?

No, but I suspect I know a lot of people who think that temporarily detaining and then keeping tabs on terrorist suspects using material witness warrants is a good idea.

OK, and do you know anyone who thinks that holding someone under a material witness warrant who is not actually a material witness to anything is OK?
9.7.2009 5:08pm
CDU (mail) (www):
OK, and do you know anyone who thinks that holding someone under a material witness warrant who is not actually a material witness to anything is OK?


It seems to me there is a distinction between using a material witness warrant to hold someone who is not a material witness and using it to hold someone who is a material witness but with some other goal than securing their testimony in mind.
9.7.2009 5:19pm
martinned (mail) (www):

It seems to me there is a distinction between using a material witness warrant to hold someone who is not a material witness and using it to hold someone who is a material witness but with some other goal than securing their testimony in mind.

I agree. That's why I would ask Kidd to prove that the magistrate was misled, and that an actual basis for the warrant was lacking. Whether the panel here requires this as well, I'm not sure.
9.7.2009 5:21pm
Andrew Hyman (mail) (www):
I don't have any substantive comments (yet, anyway). But here are some typos:

"U.S. officials feared he was tryng to leave the U.S. to escape U.S. authorities. "

"They can detain someone under a material witness warrant if they really plan to use the person as a material witness, but oif the purpose of the detention was merely investigatory, they can't do that."

"The Ninth Circuit agrees, at least at the Rule 12 dismissal stage, although it notes that there may be a different result at sumary judgment depending on Aschroft's role in using the material witness warrant to preventively detain suspects."

"Dicta in some cases already on the books at that time saying that the statute should be limited to real witnesses, and not used as a prextext...."

"Judge Bea sharply disgreed...."


"The courts have held that this satisifes the Fourth Amendment"

"I'm not realy sure what the best answer is; it's a hard question, raising a lot of difficult issues."

"After not seeing the hard issues, the Ninth Circuit concludes that the issue was easy; that Ashcroft really should have understood it; and that therefore Ashcroft is not entitled to qualified immunity,"

No biggies.
9.7.2009 6:09pm
Andrew Hyman (mail) (www):
"at the time of the time of the detention"

"whether the government obtained the material witness warrant to hold a-Kidd"
9.7.2009 6:20pm
ArthurKirkland:

No, but I suspect I know a lot of people who think that temporarily detaining and then keeping tabs on terrorist suspects using material witness warrants is a good idea.

May I suggest hanging out with a better class of people, Professor?
9.7.2009 6:27pm
Andrew Hyman (mail) (www):
Two more typos:

"the meaning of a' warrant'"

"there is no caselaw on it all."

Okay, my only question is as follows. Suppose that Ashcroft knew with 99% certainty that using a material witness statute in the al-Kidd case was unconstitutional. Based on the 1% chance, he puts the question to a neutral magistrate, who says it's constitutional and issues a warrant. Assuming that Ashcroft did not mislead the magistrate at all, would Ashcroft have qualified immunity?

In other words, why has Orin not addressed the fact that a magistrate issued a warrant, and how that might give Ashcroft qualified immunity?
9.7.2009 6:31pm
David Schwartz (mail):
I don't understand why this is a national security issue at all. Is it one simply because Ashcroft says it is? Al-Kidd was detained pursuant to a material witness warrant and the constitutionality of his detention should live or die on the constitutionality of using a material witness warrant in the way such warrant was used in this case. If the standard is a purely objective one, why should anyone's subjective claim that there was a national security issue even matter?
9.7.2009 7:00pm
ArthurKirkland:
The attorney general announces a sketchy policy regarding misuse of material witness proceedings.

Someone decides to use the material witness power to detain a citizen for reasons other than securing testimony.

Law enforcement personnel sign (to be kind) misleading affidavits.

A prosecutor presents the defective information to a magistrate.

The magistrate issues the order sending an innocent American citizen into custody.

Law enforcement personnel strip-search the citizen repeatedly, shuttling him among several cities.

So many people were required to do the wrong thing to effect this result, yet each performed the necessary function. At each step of the way there is a substantial obstacle to accountability, with plenty of people rooting for those who used government power at a citizen's expense to avoid accountability.
9.7.2009 7:00pm
Andrew Hyman (mail) (www):
"[W]here a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable. But it is different if no officer of reasonable competence would have requested the warrant, i. e., his request is outside the range of the professional competence expected of an officer. If the magistrate issues the warrant in such a case, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty. The officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate."

MALLEY v. BRIGGS, 475 U.S. 335 (1986)
9.7.2009 7:03pm
martinned (mail) (www):

I don't understand why this is a national security issue at all. Is it one simply because Ashcroft says it is? Al-Kidd was detained pursuant to a material witness warrant and the constitutionality of his detention should live or die on the constitutionality of using a material witness warrant in the way such warrant was used in this case. If the standard is a purely objective one, why should anyone's subjective claim that there was a national security issue even matter?

Hear, hear!

P.S. @Andrew Hyman: I don't think there is any indication in this case of neglect of duty on the part of the magistrate, is there?
9.7.2009 7:09pm
Andrew Hyman (mail) (www):
Exactly. There is no indication in this case of neglect of duty on the part of the magistrate. Therefore, the Attorney General cannot be held liable if he did not know about or instruct that any misleading info be given to the magistrate judge. Ashcroft's underlings may lose their qualified immunity in such a hypothetical scenario, but not Ashcroft, per the Malley decision.
9.7.2009 7:16pm
SuperSkeptic (mail):
Broader issue that seem to be touched upon by most/all:

the slow evisceration of the 4th Am. protection for U.S. citizens ("war on terror" aside) - whren, leon, et. al.

With the bar already lowered, it doesn't seem a far cry to bend it a little lower for counter-terrorism purposes, hence the professors' friends willingness to support such a slight bendy...sad but true
9.7.2009 7:20pm
SuperSkeptic (mail):
I don't understand why this is a national security issue at all. Is it one simply because Ashcroft says it is?

Yeap, it seems thats what the Court will allow whenever the Executive branch cries "national security" ... its analogous to when the local/state police cry "safety of the officer"
9.7.2009 7:23pm
ArthurKirkland:

I don't think there is any indication in this case of neglect of duty on the part of the magistrate, is there?

Why would there be?

The submitting law enforcement personnel argue, 'the neutral magistrate issued the warrant, not us.'

The magistrate says, 'I just relied on information I had no way of knowing was false. What was I supposed to do, question law enforcement officers about a matter of national security?'

At a less flip level, does anyone know of any governing mechanism that tracks and addresses lies by government affiants? Is there any practical method of identifying and addressing rubber-stamping magistrates?

Who polices the police in a land of immunity?

I genuinely would be grateful for any insight from someone familiar with these matters.
9.7.2009 7:24pm
martinned (mail) (www):
@Andrew Hyman: I don't think that works. That case seems to concern the application of the warrant statutes to an undisputed set of facts, for example when in the Kidd case the DoJ had given all the correct facts to the MJ. If the MJ grants a warrant that is way out of bounds, that Malley case seems controlling. In Malley, a warrant was issued when it shouldn't have been, not because the trooper misrepresented the facts, but because the trooper and the magistrate erred in applying the law to those facts.
9.7.2009 7:38pm
martinned (mail) (www):
@ArthurKirkland: AFAIK, the magistrate judge is entitled to accept what is written in the affidavit. If the affidavit contains lies or misrepresentations, the person who signed it is liable to a perjury prosecution.

@SuperSkeptic: In this case, it is prof. Kerr who introduces the new category of "national security detention". The Court did no such thing. They treated this just like any other criminal case.
9.7.2009 7:41pm
einhverfr (mail) (www):
Professor Kerr:

No, but I suspect I know a lot of people who think that temporarily detaining and then keeping tabs on terrorist suspects using material witness warrants is a good idea.


I don't think there is a "good idea" clause in the Constitution. The fundamental question isn't whether, given credible evidence that someone is a potential terrorist it is a good idea to protect ourselves, but rather what neutral principles can be applied in order to ensure that rules which are set forth are not subject to such gross abuse as to undermine our republican system of government.

In short it is whether there is any reasonable argument that this satisfies the both the 4th Amendment and the separation of powers principle. I don't think there is. The best that seems to be offered here is "maybe this argument might work" but seems to run against core Constitutional concerns not only of the 4th Amendment but also of basic Constitutional powers.

My reasoning here would be a little different and would not rely on claims of national security. Because I think that Al-Kidd's rights were blatantly violated I think that the officers which applied for and executed the pretextual warrant should be liable.

However, when you go from application of a warrant to a policy for using warrants, I think the standard goes higher. The fundamental question in my mind is whether bad faith can be shown in Ashcroft's policies that lead to this detention or whether personal knowledge was shown by Ashcroft of the specifics of this case. I didn't see anything in the opinion which alleged personal knowledge of circumstances sufficient to show Ashcroft was directly complicit.

However, in terms of bad faith, the opinion laid out in clear form evidence for bad faith on the part of Ashcroft and other high-ranking Bush administration officials. I think this is sufficient to allow further decisions to be based on developed records of evidence.

Consequently, I think that this is a good decision. It doesn't mean the claims against Ashcroft would necessarily survive a summary judgement proceeding, but it would suggest that since Ashcroft was interested in misusing these warrants in ways which were blatantly Unconstitutional (to essentially effect a form of administrative detention of suspects unconnected to trials), I think the case should go forward.

Administrative detention of suspects even for mere weeks without trial is an anathema to the ideal of a free state. The only way that such detention could be Constitutional would be if Congress properly suspended habeas corpus.

The practices that resulted in administration of Al-Kidd, Padilla, and others are ones which cannot possibly be Constitutional. The Bush Administration's decision to transfer and charge Padilla following the grant of Cert. by the Supreme Court shows to my mind evidence that they knew they didn't really stand a chance once it hit Supreme Court review. The request for the 4th Circuit to vacate their opinion shows more bad faith on their part.

Similarly in this case, I have to ask, why use material warrants at all if national security power is so great? Why not just detail and tell the court not to grant habeas petitions on that basis? After all, that's what they did with Padilla. But the executive doesn't have this right in our system. The abuse of other statutes in plainly pretextual ways is evidence of a bad-faith attempt to get around the fact that they don't have this power.

After reading the opinion and the dissent, I agree with the majority.
9.7.2009 7:56pm
Soronel Haetir (mail):
The MJ should be able to take the statement as being true. Whoever swore it made representations to its truthfulness. The crucial and missing step here is how rarely people are prosecuted for perjury, both in warrant affidavits and open court.

There simply is little interest in it, why go after people you're going to need later?
9.7.2009 8:00pm
Andrew Hyman (mail) (www):
Martinned, I don't get your point. Kidd is now asserting two things: (1) the magistrate was given bogus facts, and (2) even if the magistrate had been given correct facts, the warrant would have been an unlawful misuse of the material witness statute.

Kidd has not alleged that Ashcroft was responsible for (1). So, Ashcroft was entitled to believe that the magistrate had been given correct facts. In other words, Ashcroft had no reason to believe that the magistrate was guilty of "gross incompetence" or "neglect of duty", which are the legal standards established by Malley for loss of qualified immunity.
9.7.2009 8:03pm
OrinKerr:
I don't understand why this is a national security issue at all. Is it one simply because Ashcroft says it is? Al-Kidd was detained pursuant to a material witness warrant and the constitutionality of his detention should live or die on the constitutionality of using a material witness warrant in the way such warrant was used in this case. If the standard is a purely objective one, why should anyone's subjective claim that there was a national security issue even matter?
I think it's a national security issue because al-Kidd claims it is, and at the Rule 12 stage we have to accept the allegation as true. As I understand the complaint, as described in the opinion, al-Kidd's primary Fourth Amendment argument is that the use of the material witness statute is lawful if it is used in the normal criminal setting but is unlawful when used as a pretext to detain terrorist suspects. It's that allegation that gets al-Kidd around the absolute immunity issue; the court invokes this allegation to get around absolute immunity, but then seems to forget the point in the Fourth Amendment discussion.
9.7.2009 8:07pm
OrinKerr:
einhverfr,

You have the context backwards, I think: I was the one defending the rule of law against the idea that we should just be following our gut sense of what is a good idea. My point was only that if we follow our gut sense, there's not going to be consensus of what is a good idea.
9.7.2009 8:11pm
OrinKerr:
Arthur asks: At a less flip level, does anyone know of any governing mechanism that tracks and addresses lies by government affiants?

You might want to read Franks v. Delaware.
9.7.2009 8:13pm
martinned (mail) (www):
@Andrew Hyman: Kidd has alleged that Ashcroft, at least indirectly, was responsible for (1).


Administrative detention of suspects even for mere weeks without trial is an anathema to the ideal of a free state. The only way that such detention could be Constitutional would be if Congress properly suspended habeas corpus.

Regarding my earlier comments on legal basis, I'd like to note that a suspension of the writ is only possible in case of "rebellion or invasion", in which case the laws of war provide the legal basis for detention. Suspending the writ, without more, does not suffice to provide a legal basis for the government to act.
9.7.2009 8:14pm
martinned (mail) (www):

It's that allegation that gets al-Kidd around the absolute immunity issue; the court invokes this allegation to get around absolute immunity, but then seems to forget the point in the Fourth Amendment discussion.

??? As far as I can see, they get around the absolute immunity by allowing the plaintiff to argue abuse of the warrant statute, i.e. use of the material warrant statute to investigate. That's what you write in the original post:


Smith noted that the act of getting a material witness warrant is ordinarily considered a prosecutorial function that triggers absolute immunity, but he reasoned that it's a different case if the allegation is that the prosecutor was using the warrant authority as a ruse to investigate.

I don't see anyone mentioning national security here.
9.7.2009 8:17pm
Oren:

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.

This seems to suggest there might be a case for perjury, and it would be interesting to hear what prof. Kerr thinks about this.

It would be a case for perjury if you had any evidence that the affiants knew the true facts and intentionally or recklessly disregarded the truth. Instead, all we have here is an incorrect statement with no indication that the government knew or should have known it was incorrect.

In fact, the standard for perjury is much like the standard in Franks in that both require intentional deception -- an allegation without much substance.
9.7.2009 8:21pm
Andrew Hyman (mail) (www):
martinned, is that blockquote merely from another commenter?
9.7.2009 8:22pm
martinned (mail) (www):
@Oren: That's why I wrote "might". There isn't enough information in the opinion.
9.7.2009 8:22pm
Oren:

Of course, this question also raises the Whren question: If the rule is that criminal warrant statutes can only justify criminal warrants, what is the legal basis for rejecting the criminal law rule that you can't look at subjective intent as to why the search or seizure is occurring? The warrant is either a criminal law warrant or a national security warrant: If you say that it's a criminal law warrant, then I'm not sure how you get around the Whren rule that motive and subjective intent doesn't matter.

Indeed, this was the point I was trying to make (inartfully) in the first thread.


Isn't the court's argument that there was no legal reason to issue a material witness warrant here, and that the defendants misled the MJ into thinking there was? I'd say that if they had been honest to the MJ, and he had issued the warrant anyway, Kidd wouldn't have had a case here.

But that raises the question of what level of scrutiny should attach to a tort proceeding challenging the issuance of a warrant before an MJ. By analogy to criminal cases, I would think it would fall somewhere in the vicinity of Franks.


It seems a little more convoluted than that: the court doesn't actually claim that there was no legal reason to issue a material witness warrant, but that the purpose of the program Ashcroft authorized was to misuse material-witness warrants, which renders it unconstitutional, even if a non-pretext-using Attorney General could have actually, in good faith, obtained this particular warrant.

Which is a nice way of saying that an official is forbidden from doing something clearly within his power simply because that action satisfies some other goal that he might have had in mind.

Bea is right to call this absurd and, more damning still, entirely dissonant with the rest of fourth amendment law.
9.7.2009 8:28pm
martinned (mail) (www):
@Andrew Hyman: The one from my 8:14 comment? Yes, I was combining two comments into one.
9.7.2009 8:29pm
Oren:

OK, and do you know anyone who thinks that holding someone under a material witness warrant who is not actually a material witness to anything satisfies the objective criteria of the statute to the satisfaction of a neutral magistrate who retains oversight of the seizure is OK?

The more I read this thread, the more I feel like the ball is in Congress' court to write a tighter material witness statue.
9.7.2009 8:31pm
martinned (mail) (www):
@Oren: Do you have any proposals? What rewrite of the statute could avoid what happened here? Is the magistrate supposed to conduct a separate investigation to make sure the affidavit is truthful?
9.7.2009 8:38pm
OrinKerr:
Martinned: "As far as I can see, they get around the absolute immunity by allowing the plaintiff to argue abuse of the warrant statute, i.e. use of the material warrant statute to investigate."

Um, to investigate who, for what, and why? The complaint alleges that it's to investigate terrorist suspects for potential terrorist activity. Do you disagree with that? If so, why do you think al-kidd was detained?
9.7.2009 8:39pm
martinned (mail) (www):
@Oren: What I mean is, the statute as it is couldn't be clearer, and the Bush DoJ went diagonally against it in a way that no magistrate could have stopped.
9.7.2009 8:40pm
ArthurKirkland:
Thank you for the pointer to Franks, Professor.

My eyes grated on this statement:

The Delaware Supreme Court affirmed, holding that a defendant under no circumstances may challenge the veracity of a sworn statement used by police to procure a search warrant.

Are you familiar enough with the underlying circumstances to confirm whether, as it appears, the entire Supreme Court of Delaware was recused, and that the case consequently was decided at the state level by judges on special designation from Burma, North Korea, Cristiani's El Salvador, Saudi Arabia, Pinochet's Chile, the Somozas' Nicaragua, and Zimbabwe?

Plus, it was like old times to find Justice Rehnquest still raging against justice, from the grave.
9.7.2009 8:41pm
martinned (mail) (www):
@Prof. Kerr: Now you're adding things to what the court said, and to how you described it above. Investigate is where the sentence stops. The fact that in this case the point was to investigate terrorist activity is irrelevant. If, instead, this case had been about bank fraud, the result would have been exactly the same: still no absolute immunity.

On page 12292, the panel concludes its discussion of absolute immunity as follows:


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

In other words, whether the investigation is for the purposes of national security or criminal prosecution is irrelevant. In either case, the petition for a warrant is not part of the "prosecutorial function", meaning: no absolute immunity.

Incidentally, the fact that the court refers to "national security-related preemptive detention" here does not, imho, mean that such a thing is possible under US constitutional law.
9.7.2009 8:47pm
Oren:

Oren: Do you have any proposals? What rewrite of the statute could avoid what happened here? Is the magistrate supposed to conduct a separate investigation to make sure the affidavit is truthful?

@Oren: What I mean is, the statute as it is couldn't be clearer, and the Bush DoJ went diagonally against it in a way that no magistrate could have stopped.

Ah, we are arguing two separate points. Kidd makes two points:

(1) That the affiants lied to the MJ to get the warrant.
(2) That even if the warrant was totally above board, using it pretextually renders it illegal.

The first complaint ought to be handled at the level of Franks or even Bivens -- the plaintiff must allege (and offer proofs) that the affiants willfully or recklessly lied.

The second point is simply a matter of writing a better statute. As it stands, there is nothing in the statute that requires (or even suggests) that the government's primary purpose in using a MWW must be to secure a material witness. Instead it lays out a set of objective criteria and allows the government to detain those who meet the objective criteria regardless of the underlying motive.
9.7.2009 8:49pm
Soronel Haetir (mail):
And again I would say that getting simple things like whether someone has a one-way or round trip ticket wrong reeks of recklessness or deliberate indifference.

At some point such things point to government employees who just aren't interested in doing a complete job.

(Note I consider laziness in this sort of situation to be the kind explanation.)
9.7.2009 8:49pm
OrinKerr:
Martinned,

You keep declining to address what the complaint actually alleges. Why?
9.7.2009 8:50pm
Oren:

And again I would say that getting simple things like whether someone has a one-way or round trip ticket wrong reeks of recklessness or deliberate indifference.

I hope the IRS takes the same attitude if they discover mistakes in your tax returns.
9.7.2009 8:54pm
SalB:

Um, to investigate who, for what, and why? The complaint alleges that it's to investigate terrorist suspects for potential terrorist activity. Do you disagree with that? If so, why do you think al-kidd was detained?


This is a crime. So the criminal standard applies.
9.7.2009 9:01pm
martinned (mail) (www):
@OrinKerr: In my last comment, I considered the panel's conclusion more relevant.

As for what Kidd alleged, let me see. [... searching through the opinion for references to national security...]

p. 12285:

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.

Lower on that page:

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.

Page 12292-3:

The Attorney General may still be entitled to qualified immunity for acts taken in furtherance of an investigatory or national security function.

Page 12308-9:

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 (quoting Harlow, 457 U.S. at 819) (internal citations omitted).

These are all the references to national security in either opinion. As far as I can tell, neither Al-Kidd nor the panel has ever decided whether this case comes under the heading "criminal investigation" or "national security", the former presumably because he wants to keep his options open, and the latter presumably because they did not think it relevant in this case.

What part of what Al-Kidd alleges am I overlooking? And, more importantly, why should his claim matter more than what the panel does with it?
9.7.2009 9:03pm
SalB:
Fraom the opinion p. 12308


Ashcroft has raised in this appeal neither a national
security nor an exigency defense to al-Kidd’s action


Given that Ashcroft did not raise the defense, the Article III court should not raise it for him.
9.7.2009 9:12pm
OrinKerr:
Martinned asks: What part of what Al-Kidd alleges am I overlooking? And, more importantly, why should his claim matter more than what the panel does with it?

In response to the first question, the Ninth Circuit's opinion quotes the complaint as alleging that the program was created and implemented "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."

In response to the second question, we are debating whether the court was correct: In such a discussion, the fact that the court said something is not proof that it was correct.
9.7.2009 9:12pm
OrinKerr:
(Oh, and I just realized, Martinned, that I don't think you have a U.S. law degree, so we have to take the complaint as true for procedural reasons.)
9.7.2009 9:14pm
OrinKerr:
Sal,

I don't think of this as a "national security defense", or at least I'm not sure it is one; it's just a Fourth Amendment issue, and Ashcroft's brief did argue that this wasn't a Fourth Amendment violation. As I said in the post, though, it's possible that they didn't adequately make the argument above enough to flag it for the panel.
9.7.2009 9:20pm
martinned (mail) (www):
@OrinKerr: Rule 8 of the Federal Rules of Civil Procedure. It is surely a sign that I spend way too much time reading US law blogs instead of working on my dissertation that I know that without looking it up.

We are debating whether the court was correct, but to do that we first need an accurate summary of what the court said. The OP provides that, but then you start adding national security considerations into the story, even though the only relevant difference the panel keeps returning to is between "prosecutorial" on the one hand, and "investigatory or national security function" on the other hand.

Given that terrorism is also a crime, references to the fact that Kidd was suspected of involvement in terrorism don't imply any kind of choice between the other two functions of the AG; it is merely part of the fact pattern.

Both on the absolute immunity point and on the issue of "pretext", the relevant difference is between prosecution (= absolute immunity and proper use of material witness statute), and the other two (= no absolute immunity and pretext).

[OK comments: Martinnned, we've gone back and forth on this a bunch of times, and at this point I don't think a resolution is possible. Let's both get back to our work and let the Supreme Court handle it from here. ;-) ]
9.7.2009 9:20pm
SalB:
Alternatively, at the pleading stage Al Kidd can raise alternative claims 1) a criminal investigation pretext or 2) a national security investigation pretext. Only the second is arguably vulnerable to OK's argument but as long as the first isn't, the complaint survives.
9.7.2009 9:21pm
martinned (mail) (www):

[OK comments: Martinnned, we've gone back and forth on this a bunch of times, and at this point I don't think a resolution is possible. Let's both get back to our work and let the Supreme Court handle it from here. ;-) ]

Fair enough. I don't really have anything to add, either. Feel free to ponder what I wrote, though. I may not have a US law degree, but I do have a Dutch one. I spend my days reading cases from the EU, the UK, the Netherlands and God knows where else, in addition to wasting my time commenting on blogs. I do know how to read a case, I'm not making this stuff up.
9.7.2009 9:35pm
Andrew Hyman (mail) (www):
Has Kidd alleged that AG Ashcroft sought to conceal his ulterior motive from the magistrate judge? On the contrary, Kidd says that Ashcroft publicly laid out his ulterior motives, e.g. in a press conference on October 31, 2001.

I don't know that Ashcroft had any obligation to explain ulterior motives to the magistrate, but even if there was such an obligation, Kidd does not seem to allege that Ashcroft did anything personally to violate it. Frankly, this whole decision seems bizarre. The whole purpose of getting a warrant is to cover yourself.
9.7.2009 9:52pm
markm (mail):

Okay, my only question is as follows. Suppose that Ashcroft knew with 99% certainty that using a material witness statute in the al-Kidd case was unconstitutional. Based on the 1% chance, he puts the question to a neutral magistrate, who says it's constitutional and issues a warrant. Assuming that Ashcroft did not mislead the magistrate at all, would Ashcroft have qualified immunity?

In other words, why has Orin not addressed the fact that a magistrate issued a warrant, and how that might give Ashcroft qualified immunity?

If the magistrate approved a warrant that said, "We don't really want to hold al-Kidd as a material witness, but rather to use that as a pretext to hold him", then there's a magistrate that isn't doing his job. But I very much doubt that the warrant said that. Rather, the warrant application was written to misinform the magistrate.

And wasn't submitting a falsified warrant perjury? There's no form of immunity that protects that. Ashcroft's responsibility for the perjury may be unclear, but that certainly sounds like a jury question to me...
9.7.2009 9:55pm
Anderson (mail):
Reading the longer thread, I find myself agreeing more with Martinned:

And what is your basis for assuming that in the United States such a thing as "national security detention" even exists?

In my ignorance of criminal procedure, it seems a stretch from national-security *searches* under the Fourth Amendment, to national-security *detentions*.

Prof. Kerr criticizes the court for failing to consider "how does this flexible approach to probable cause inquiry apply in the case of a warrant to detain a suspect for national security reasons?"

Possibly the court did not think that it applied at all, that searches and detention were simply too different.

(And, frankly, if you suspect a guy of terrorist connections but have nothing to justify an arrest warrant, you're better surveilling him than you are locking him up -- it's very difficult to see how THAT did anything to further an investigation, other than making damn sure that none of his alleged terrorist buddies would touch him with a 10-foot-pole afterwards. Not that this goes to the legal issue, but just illustrates yet again Ashcroft's dubious utility.)
9.7.2009 9:55pm
Mike& (mail):
I was the one defending the rule of law against the idea that we should just be following our gut sense of what is a good idea.

No one has denied that Ashcroft used the material warrant statute in order to arrest Americans. Everyone agrees that Ashcroft tried to use the statute to make an end-run around the Fourth Amendment.

And so...We follow the rule of law by allowing Ashcroft to escape liability for detaining an American citizen who committed no crime.

Which goes to show how totally bizarre this case is. If the rule of law means Ashcroft can ruin the lives of innocent civilians, then something is wrong with the rule of law.

It would e great if courts were as vigilant in protecting the rights of innocent citizens are they are protecting people like Ashcroft. Al-Kidd might have no legal remedy, even though his life was ruined. How is that consistent with the Civil Rights Act of 1871?

Qualified immunity is a total perversion of separation of powers doctrine. Courts are more concerned with protecting John Ashcroft than they are with protecting Al-Kidd. This, even though Section 1983 is a congressional enactment designed to vindicate constitutional rights. Qualified immunity is a common law doctrine. I.s, the Supreme Court exercised will, not judgment, when it limited Section 1983's reach.

In cases like this, as a matter of first principle, it's hard to see why a court should side with John Ashcroft.
9.7.2009 10:00pm
OrinKerr:
Possibly the court did not think that it applied at all, that searches and detention were simply too different.

Perhaps. If they had thought about the issue, however, I would think they would have at least have mentioned it. In particular, it would be quite relevant at the QI stage, even if the court ruled that the Fourth Amendment should be interpreted to not allow anything like it.

I should add, in case it's not clear from the post, that I am not saying such warrants exist, or advocating in favor of them. I'm just arguing that this is the issue naturally aised by the case, and unfortunately it wasn't addressed.
9.7.2009 10:00pm
SalB:
I think he alleged that they swore an oath that he was wanted as a witness in a trial.
9.7.2009 10:00pm
einhverfr (mail) (www):
Prof. Kerr:

My apologies if misunderstood your previous comment.
9.7.2009 10:01pm
Mike& (mail):
No, but I suspect I know a lot of people who think that temporarily detaining and then keeping tabs on terrorist suspects using material witness warrants is a good idea.

This is why so many of us were against the PATRIOT Act.

In theory, the material witness warrant is a fantastic idea. It's useful.

If I had opposed the material witness statute, you'd likely have said wrong I was; that I was overreacting; that I really didn't understand how it worked.

And yet, here, the material witness warrant was used to arrest innocent (factually, legally, or both) American citizens. You don't even dispute that.

Even if the law, facially, seems like a good idea: We now have irrefutable proof that the law will be abused.

Fortunately, this is a republic and not The Republic. We're not willing to make people like John Ashcroft a philosopher-king. At least not yet.
9.7.2009 10:09pm
eeyn524:

The whole purpose of getting a warrant is to cover yourself.


Thanks. I always suspected that's how you legal types viewed it, but it's nice to have it spelled out so clearly.
9.7.2009 10:09pm
Andrew Hyman (mail) (www):
Well, that's historically been the purpose of a warrant. It's supposed to protect the police officer from charges of trespassing, false imprisonment, and the like.
9.7.2009 10:15pm
GTF:
Regarding the pretext issue, it's interesting that Whren itself concedes that there are areas where pretext does invalidate a search or seizure: "Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes." 517 U.S. 806, 811-12.

If one views a material witness warrant not as a warrant based on probable cause, but as an administrative exception to the Fourth Amendment, then the Ninth Circuit's analysis is pretty much spot on (except perhaps with regard to qualified immunity). While it is true that a material witness warrant must be based on probable cause, see, e.g., U.S. v. McVeigh, 940 F.Supp. 1541, the requirement is "probable cause to believe that it is or may be impracticable to rely on a subpoena to get the witness before the grand jury." 940 F.Supp. at 1562.

However, probable cause to seize a person under the Fourth Amendment is typically rendered as probable cause to believe that that person has committed a crime. See, e.g., Dumbra v. U.S., 268 U.S. 435, 441 (defining probable cause as "reasonable ground of suspicion . . . that the party is guilty of the offense with which he is charged"). The Fourth Amendment does not say what there must be probable cause to believe to make an arrest, but clearly there must be some limits (the police cannot arrest me based on probable cause to believe that I owe Orin Kerr a beer). It seems to me that probable cause to believe that someone has relevant testimony and is a flight risk is insufficient under the Fourth Amendment, but I am unaware of any case law directly on point. If a material witness warrant is not based on Fourth Amendment probable cause, then arguably it should be considered as an administrative exception to the warrant requirement that would, per Whren, be invalid when obtained as a pretext.
9.7.2009 10:26pm
OrinKerr:
the police cannot arrest me based on probable cause to believe that I owe Orin Kerr a beer

Unless you stole the beer from me, that is. ;-)
9.7.2009 10:41pm
SuperSkeptic (mail):
And look at the inversion!
9.7.2009 10:48pm
Andrew Hyman (mail) (www):
FYI, the FBI affidavit is at page 52 of this document.
9.7.2009 11:09pm
Andrew Hyman (mail) (www):
Actually, page 48 of that document.

And also see this interesting WaPo article from November 24, 2002:


Two federal judges from New York's Southern District issued conflicting rulings earlier this year on whether the government has legally applied the material witness statute to grand juries investigating terrorism. In the first ruling, Judge Shira A. Scheindlin said authorities cannot legally use the statute to detain terror suspects for grand jury proceedings. But in a separate decision, Chief Judge Michael Mukasey upheld the use of the statute in the terror probe. The Justice Department has appealed Scheindlin's decision…. The statute does not set limits on how long the government can hold a witness, or whether it must ultimately compel the witness to testify.
9.7.2009 11:20pm
Oren:

Everyone agrees that Ashcroft tried to use the statute to make an end-run around the Fourth Amendment.

I don't agree. I think he used the statute to arrest Al-Kidd in a way that complies with the Fourth Amendment.


If one views a material witness warrant not as a warrant based on probable cause, but as an administrative exception to the Fourth Amendment, then the Ninth Circuit's analysis is pretty much spot on

I see nothing in the statute that would suggest that Congress intended such a classification.


It seems to me that probable cause to believe that someone has relevant testimony and is a flight risk is insufficient under the Fourth Amendment, but I am unaware of any case law directly on point.

(1) The power to arrest material witnesses to secure their testimony is ancient, dating to the First Judiciary Act of 1789 and back to 1612 if you count English Common Law.

(2) The Supreme Court has endorsed the detention of innocent but unwilling witnesses. Quoting the opinion


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. This Court never has held that the Fourteenth Amendment prohibits a state from such detention and interrogation of a suspect as under the circumstances appears reasonable and not coercive.


PS. Martined, if you are still there, Sen Leahy wrote a nice amendment to the MWS clarifying it in a manner you might like.
9.7.2009 11:22pm
Mike& (mail):
The Affidavit is amazing. If Al-Kidd was simply needed to testify about his friend's visa fraud: Who cares if Al-Kidd emptied out a storage locker? Also, why does it matter that the affiant had expertise in terrorism?

What does most of the stuff in the Affidavit have anything to do with Al-Kidd's testimony about his friend's immigration offenses? Wasn't the issue simply whether Al-Kidd had information material to a visa-fraud prosecution?

It's pretty clear what was going on here. Al-Kidd was a Mulsim who had Muslim friends and he attended Muslim seminars. Therefore, terrorist!

If you can't prove he's a terrorist, pretend he's a material witness. Even though you really don't need his testimony. Just manipulate the law. Lie.

It'd be one thing if the above conduct were done by a rogue prosecutor. Yet it was the Attorney General himself - a man sworn to uphold the Constitution and who serves as the highest officer in the land - who developed the scheme.

Amazing.
9.7.2009 11:24pm
Mike& (mail):
I don't agree. I think he used the statute to arrest Al-Kidd in a way that complies with the Fourth Amendment.

Awesome. Ashcroft arrested an innocent American citizen in order to comply with the Constitution. My God this doublethink!
9.7.2009 11:27pm
Oren:

If you can't prove he's a terrorist, pretend he's a material witness. Even though you really don't need his testimony. Just manipulate the law. Lie.

The statute does not distinguish based on the motive or opinion of the Attorney General. It's objective -- if he meets the conditions in the statute then he can be detained.
9.7.2009 11:27pm
Oren:

Awesome. Ashcroft obtained a warrant signed by a neutral magistrate before he arrested an innocent American citizen in order to comply with the Constitution. My God this doublethink!

Also, I should note that every American detained under 18 U.S.C. § 3144 is innocent.
9.7.2009 11:31pm
Oren:

What does most of the stuff in the Affidavit have anything to do with Al-Kidd's testimony about his friend's immigration offenses? Wasn't the issue simply whether Al-Kidd had information material to a visa-fraud prosecution?

If your intent is to cast doubt on the magistrate's decision to grant the warrant, I don't see the strategic payoff. Even if the MJ erred, Ashcroft is blameless.

You seem to continually conflate two distinct allegations:

(1) That the DOJ deliberately or recklessly mislead the MJ such that, had they been honest, he would not have issued the warrant.

(2) That seizure under a valid warrant can be a constitutional violation if the authority arresting it has an ulterior motive in mind.
9.7.2009 11:35pm
Mike& (mail):
Also, I should note that every American detained under 18 U.S.C. § 3144 is innocent.

LOL. No. It is often used against factually-guilty parties, too. E.g., illegal immigrants. See, e.g., U.S. v. Rivera (illegal aliens deposed pursuant to material witness statute).

Incidentally, Rivera has a lot to say about holding material witnesses. "[H]umanitarian considerations alone demand that something be done to release them from incarceration, when their only purpose for being incarcerated is to be witnesses []."
9.7.2009 11:38pm
GTF:

I see nothing in the statute that would suggest that Congress intended such a classification.


Congress' intent is irrelevant. If probable cause to believe that someone is a material witness and a flight risk is not the right kind of probable cause to sustain a warrant under the Fourth Amendment, then a material witness warrant is permissible only as an exception to the warrant requirement. Congress could enact a statute authorizing warrants for the seizure of vehicles based on probable cause to believe that the vehicle is impeding traffic, but that would not change the fact that the community caretaking exception is an exception to the warrant requirement that is valid only with an administrative, rather than investigatory, purpose.

(2) The Supreme Court has endorsed the detention of innocent but unwilling witnesses.


The question is not whether detention as a material witness is permitted under the Fourth Amendment; clearly it is permitted. Rather, the question is whether material witness warrants are permitted because they are "Warrants [that] shall issue . . . upon probable cause," or whether they are instead permitted as an exception to the warrant requirement, akin to an inventory search. If they are Fourth Amendment warrants, then Whren indicates that the subjective intent of the government official is irrelevant. If they are an exception to the Fourth Amendment warrant requirement, however, then Whren indicates that improper subjective intent could invalidate them.
9.7.2009 11:39pm
David Schwartz (mail):
Oren: What facts were put in the warrant application show the thinking of the people who obtained the warrant. That's directly relevant because it would be hard to believe the accusations al-Kidd mad in a vacuum. But understanding the entire context of his detention makes his claims much more plausible.

If I said a MWW was used as a pretext to detain me so that that detention could be made as miserable as possible in an attempt to gain my confession or cooperation you would, undoubtedly, find that very hard to believe. But if you saw an affidavit such as that in the al-Kidd case and statements by Ashcroft such as those made in the al-Kidd case, his accusations become not only plausible but undeniable.
9.7.2009 11:40pm
martinned (mail) (www):

The Supreme Court has endorsed the detention of innocent but unwilling witnesses.

Interesting. IIRC, the panel in al-Kidd said that there was no SCOTUS precedent one way or another.
9.7.2009 11:44pm
ArthurKirkland:
These cases present complex legal issues but frequently (and simultaneously) also resolve into litmus tests for morality.

Or, far too often, lack of it.
9.7.2009 11:53pm
Mike& (mail):
BTW, let's return to the text of the material witness statute, in light of the Affidavit:

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


What the heck in the Affidavit established that Al-Kidd's testimony was relevant to Sami Omar Al-Hussayen's immigration crimes? Because he got money from him and had some mutual friends? Seriously: What specific facts in the Affidavit establish that Al-Kidd had "material" testimony?

That is relevant because, without the material witness statute, there would have been no legal basis to hold Al-Kidd.

Does anyone here think it would be reasonable to be held in prison for 16 days, and put on probation for a year, because a guy had given you money and you knew some friends; and thus you must have material information bout the guy's immigration status. Seriously?
9.7.2009 11:56pm
Ricardo (mail):
Also, I should note that every American detained under 18 U.S.C. § 3144 is innocent.

In practice, it looks to me that most uses of the material witness warrant are in gang or organized-crime cases where one of the members of the crime syndicate is called to testify.

This brings a non-legal consideration into play. People are willing to tolerate the ability of the police to arrest and detain "innocent" people only so long as that power is rarely used and even then if it is only used against people who are clearly scumbags. Allow it for widespread use against people with no clear involvement in illegal activity and you risk turning the public against the practice altogether. This also may be the reason why there isn't very much precedent concerning the proper uses of material witness warrants: prosecutors may have exercised enough discretion in the past that those they arrested clearly needed to be arrested.

I found a reference to the case of one of the witnesses against James Earl Ray. Police detained him as a material witness on concerns for his safety but allowed him initially to leave the jail whenever he wanted with a bodyguard (he was living in a shabby flophouse in Memphis so jail wasn't necessarily that much worse). But soon enough, they revoked his ability to leave at will (again, over supposed fears for his safety) and had him locked down. His lawyers eventually were able to have him released though since the fears for the witness's safety weren't based on any actual evidence.
9.8.2009 12:22am
Soronel Haetir (mail):
One thing to keep in mind about the al-Hussein case, he was originally charged with aiding terrorism, the jury aquitted on those charges however. They also aquitted on numerous visa violation charges, hanging one just one.

It may be that al-Kidd is/was trying to downplay the charges al-Hussein was facing, or this complaint was filed after the jury trial, at which point only the one mentioned charge was left.

The al-Hussein case itself was also a farce, I was living in Idaho at the time and there were lots of folks unhappy about it. People still remember Ruby Ridge and aren't particularly trusting of government statements.
9.8.2009 12:24am
Mike& (mail):
Here's some interesting trivia:

"On April 21, 1995, the U.S. District Court for the Western District of Oklahomaissued a Warrant for Arrest of Witness, pursuant to 18 U.S.C. 3144, naming Terry Lynn Nichols and requiring him to appear before a federal grand jury in Oklahoma City."

IN RE: MATERIAL WITNESS WARRANT TERRY LYNN NICHOLS.
9.8.2009 12:42am
Aaron:
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

You know what I would have like to have seen in the affidavit? Facts supporting the bolded portion of the above.
Indeed, the facts alleged in para 7. regarding the one-way ticket (that was shown to be false in the panel's opinion) still seem insufficient, given that there is contrary evidence averred in para 6. that on a previous occasion Al-Kidd had left the US and returned. What flight risk? There were no facts averred that the gov't had attempted to secure Al-Kidd's cooperation for testimony, either at trial or by deposition, and been rebuffed. Seems to me that the MJ did a piss-poor job of actually seeing to it that the gov't met its burden to show that, absent the issuance of the warrant, the gov't would be unable to secure Al-Kidd's testimony at trial.
9.8.2009 2:21am
Mike& (mail):
I found a copy of a CRS research paper on the material witness statute. Some (*cough - Oren - cough*) might want to read up on this stuff: CRS Report. It's really interesting stuff, anyway.

Most interesting: There was quite a body of case law on Section 3144. Before 9/11, you'd just depose a guy under a material witness warrant. There's even a Fifth circuit case saying that the law requires you to do a deposition when the only basis for holding a defendant is a material witness warrant.

Somehow, though, while Al-Kidd supposedly had all of this material information: No one in DOJ wanted to depose him. Pretty interesting stuff.
9.8.2009 2:33am
Andrew Hyman (mail) (www):
Judge Michael Mukasey (later Attorney General) signed the 2002 material witness warrant that allowed the FBI to arrest U.S. citizen Jose Padilla. I don't know how Judge Smith's rationale would apply against the warrant signed by Mukasey, but it seems useful to compare the Kidd warrant to the Padilla warrant. Mukasey has written about the latter warrant in a WSJ column:

Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.

The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned--but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.

Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.

Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.
The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go.


Will Padilla be seeking compensation from Ashcroft's personal savings account too?
9.8.2009 5:26am
Ricardo (mail):
Will Padilla be seeking compensation from Ashcroft's personal savings account too?

No but he is suing John Yoo. As a non-lawyer, it seems to me that Padilla has the better argument. Not only were the rights violations more egregious (an American citizen held in the U.S. for a lengthy period of time in military custody without access to a lawyer and without due process) but there is precedent from Lippoldt v. Cole for suing government lawyers if the advice they give their government clients is sufficiently bogus and just a fig leaf for a wholesale violation of constitutional rights.

I think you are focused on the material witness warrant that brought Padilla into custody in the first place but that's like arguing over the speeding ticket a murderer got when he was pulled over right before being taken into custody.
9.8.2009 5:38am
Dcuser (mail):
Those arguing for "depositions" as an alternative to use of the material witness warrant must have missed the fact that Crawford would make testimony from such depositions flatly unadmissable in criminal trials, except in unusual circumstances.
9.8.2009 8:39am
Non:
How does Crawford limit the use of depositions? Before Crawford, depositions were only admissable when the witness is unavailable and the parties had an opportunity to cross examine at the deposition.

Besides, a deposition is not an "alternative," the material witness statute requires depositions.
9.8.2009 9:49am
Soronel Haetir (mail):
Deposition makes perfect sense for testimony that is to be presented to a grand jury, it's not like anyone has a right to cross-examine at that point.

Introducing a deposition at trial would raise Crawford issues though, if the defense hadn't been present and allowed to examine the witness.
9.8.2009 10:09am
Philistine (mail):
Here is a link to a 7th Circuit case holding that use at trial of a Rule 15 deposition at which the Defendant participated was not a Crawford violation.

Notably, Rule 15(a)(2) provides:


A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript.



I wonder if al-Kidd filed such a motion, and what the Government's response was (or would have been).
9.8.2009 10:54am
Dave N (mail):
Philistine,
A jury convicted Cannon of distributing crack cocaine. During trial, the government played a videotaped deposition of Agent Jackson in lieu of his live testimony. Videotaped testimony is the exception in criminal trials, but the district court allowed it here because Jackson was in the Marine Corps Reserves and was deployed to Iraq before the start of trial, thus satisfying the “exceptional circumstances” requirement of Rule 15 of the Federal Rules of Criminal Procedure. Cannon and his counsel were present for the deposition, and Jackson was subjected to crossexamination.
Factually, quite different--since the case was at the trial stage and the defendant was fully capable of cross-examining the witness.

Note also that the witness was not being held as a material witness.
9.8.2009 11:03am
SalB:
I noted:

. . . opinion p. 12308

Ashcroft has raised in this appeal neither a national
security nor an exigency defense to al-Kidd’s action

Given that Ashcroft did not raise the defense, the Article III court should not raise it for him.


The good Prof. responded,


I don't think of this as a "national security defense", or at least I'm not sure it is one; it's just a Fourth Amendment issue . , ,


Ashcroft's immunity claim is a defense just like all immunity claims. That's pretty well settled. So if he wants the benefit of a specially tailored national security standard to judge this defense, he needs to raise it.
9.8.2009 11:04am
OrinKerr:
Sal,

There are two distinct issues here: Absolute immunity and the Fourth Amendment. The first is plainly a defense, but I don't think it's the common parlance for the other to be considered a defense. I don't think it works to combine the two distinct claims into one.
9.8.2009 11:17am
einhverfr (mail) (www):
GTF:

I think the facts here are sufficiently different from Whren for the cases to be differentiated. In Whren, a vehicle was stopped because it violated traffic laws, and when the officers arrived at the stopped car, drugs were in plain sight, on car occupants' laps. The argument was that the traffic stop itself was pretextual and therefore subsequent discovery was to be quashed.

I don't think that one can extend Whren to cover arrests, searches, etc. This was specific to traffic stops, and basically the Supreme Court said that if you violate the traffic laws, you can be pulled over. The justices of the Whren opinion clearly differentiated it from past jurisprudence relating to pretextual searches, so relying on Whren beyond questions of traffic stops seems to my mind very dangerous.
9.8.2009 11:24am
einhverfr (mail) (www):
(my reading of Whren was that it refused to provide a higher standard for traffic stops, but didn't affect rules for searches per se)
9.8.2009 11:39am
ckirksey (mail):
"The touchstone of the Fourth Amendment is reasonableness." This is viewed from the state actor's viewpoint. But "nreasonable" and "the people" are the words used in the 4A. I am not a lawyer but having researched alot of cases regarding "warrantless arrests" at or near a house it has struck me as very odd that the courts are always assessing the police action fron a reasonable policeman's point of view but never from what a reasonable person would think about the police action. Very strange.

I did come across a post by Prof Kerr from last year that helps explain this sort of "law enforcement" viewpoint. To arrive at that viewpoint it seems the courts have turned the 4A completely around. The 4A doesn't protect the rights of the people it only limits what a reasonable policeman can do. Everything I have read indicates that there are very few actions that police think are unreasonable. Somehow this situation needs to change.
9.8.2009 11:54am
einhverfr (mail) (www):
ckirksey:

I think it is a balancing test. One also sees questions (such as searches of students on school) based on the competing interests of the student for privacy vs the school for order and security.
9.8.2009 1:04pm
Oren:

If probable cause to believe that someone is a material witness and a flight risk is not the right kind of probable cause to sustain a warrant under the Fourth Amendment, then a material witness warrant is permissible only as an exception to the warrant requirement.

A warrant as an exception to the requirement to have a warrant?

I happen to think that the MWW is neither probable cause of the traditional kind nor an administrative exception but is sui generis, flowing from the interest of the gov't in doing justice. In this sense, it is analogous to a bench warrant for contempt, which is neither policing nor administrative.
9.8.2009 1:49pm
Oren:

If I said a MWW was used as a pretext to detain me so that that detention could be made as miserable as possible in an attempt to gain my confession or cooperation you would, undoubtedly, find that very hard to believe. But if you saw an affidavit such as that in the al-Kidd case and statements by Ashcroft such as those made in the al-Kidd case, his accusations become not only plausible but undeniable.

Hard to believe, but regrettably legal under the statute that Congress passed.

I linked to a proposed amendment by Sen. Leahy that would fix the statute but no one seems to be interested in actually fixing it so that future administrations will be constrained in their use of MWWs. I call that short-sighted.
9.8.2009 1:51pm
Oren:


The Supreme Court has endorsed the detention of innocent but unwilling witnesses.

Interesting. IIRC, the panel in al-Kidd said that there was no SCOTUS precedent one way or another.

It was dicta, not precedent. My apologies for being unclear.
9.8.2009 1:51pm
Oren:

What the heck in the Affidavit established that Al-Kidd's testimony was relevant to Sami Omar Al-Hussayen's immigration crimes? Because he got money from him and had some mutual friends? Seriously: What specific facts in the Affidavit establish that Al-Kidd had "material" testimony?

Again, even if the MJ erred in granting the warrant, Ashcroft is still not liable


That is relevant because, without the material witness statute, there would have been no legal basis to hold Al-Kidd.

That's not how warrants work. Having a warrant issued by a neutral magistrate servers two purposes, the first we are all familiar with -- to restrain overzealous officials. The second, however, is to protect those officials from claims such as these by showing that they demonstrated their evidence to the satisfaction of the judge. For instance:


Where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable. But it is different if no officer of reasonable competence would have requested the warrant, i. e., his request is outside the range of the professional competence expected of an officer. If the magistrate issues the warrant in such a case, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty. The officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.

Malley v. Briggs
9.8.2009 1:56pm
martinned (mail) (www):
@Oren: As I wrote before, Malley v Briggs deals with the situation where the magistrate errs in granting a warrant based on truthful information. That case doesn't deal with officials who lie to the magistrate.
9.8.2009 2:02pm
Oren:

Seems to me that the MJ did a piss-poor job of actually seeing to it that the gov't met its burden to show that, absent the issuance of the warrant, the gov't would be unable to secure Al-Kidd's testimony at trial.

Agreed.


I found a copy of a CRS research paper on the material witness statute. Some (*cough - Oren - cough*) might want to read up on this stuff: CRS Report. It's really interesting stuff, anyway.

Thanks for the link. Again, this only proves to me that we need to amend the statute (per Leahy's proposal or similar) to be protected in the future.


There was quite a body of case law on Section 3144. Before 9/11, you'd just depose a guy under a material witness warrant. There's even a Fifth circuit case saying that the law requires you to do a deposition when the only basis for holding a defendant is a material witness warrant.

If only Al-Kidd had traveled through Atlanta ...
9.8.2009 2:02pm
Oren:

That case doesn't deal with officials who lie to the magistrate.

No, then you have Franks v. Delaware. Even if AK could meet the burden in Franks (willfully or reckless misrepresentations), why would Ashcroft be liable for the affiant's lies?

Therein lies the problem -- everyone seems intent on bagging Ashcroft even though his only sin (as I see it) is openly using the MW statute as a pretext to accomplish his goals. If the affiants lied, bag them under a theory of tort analogous to Franks.

Moreover, many continue to insist that, even absent any misrepresentation on the part of the gov't, using the MWW pretextually does not satisfy the fourth amendment. This is the argument to which I am most vehemently opposed.
9.8.2009 2:08pm
martinned (mail) (www):

Even if AK could meet the burden in Franks (willfully or reckless misrepresentations), why would Ashcroft be liable for the affiant's lies?

Because he created the policy that those lies were a part of. Quoting Wasserman's Prawfs post:


There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.
9.8.2009 2:18pm
ckirksey (mail):
einhverfr:
Balancing??? I haven't read an opinion where the judge would opine that the police officer didn't investigate enough or take precautions. The judge only looks at the police action not the preconditions that led to the action. "The people" would look at the whole situation and decide if the police action was unreasonable. The people can still decide the action is reasonable. Maybe it is the threat of 1983 lawsuits that force judges to decide what a reasonable police officer would do. But that again is from the wrong perspective at least for me. Police never do anything unreasonable.
9.8.2009 2:20pm
GTF:

The justices of the Whren opinion clearly differentiated it from past jurisprudence relating to pretextual searches, so relying on Whren beyond questions of traffic stops seems to my mind very dangerous.


Yes. My point is that the people saying Whren means that pretext is never relevant under the Fourth Amendment are wrong; it clearly countenances situations where pretext does render illegal an otherwise permissible search. Whether this is one such situation is, as you correctly note, beyond the scope of Whren. Insofar as there was not probable cause to believe that al-Kidd had committed a crime, Whren does not say that pretext is irrelevant in his case.


A warrant as an exception to the requirement to have a warrant?


Yes. Say, for example, Congress enacted a statute that allowed for the issuance of a warrant based on probable cause to believe that someone is of the species homo sapiens. A seizure based on such a warrant, even if the warrant were validly issued under the statute, would be illegal because that is not the kind of warrant contemplated by the Fourth Amendment. The question, then, is whether a material witness warrant is the kind of warrant contemplated by the Fourth Amendment; I think it is not, you apparently think it is, but as far as I know there is no binding authority either way.
9.8.2009 2:33pm
Oren:
martinned, I hadn't read those circuit decisions. Taking a look now.
9.8.2009 2:34pm
SalB:
Prof.

The complaint is that Ashcroft violated the 4th amendment because he got this witness' warrant and arrest under several possible pretexts, including criminal investigation. The court finds this complaint viable at the pleading stage because there is authority that a criminal investigation pretext is unreasonable, perhaps, even unlawful.

The immunity defense assumes the forth amendment violation occurred but says that there is no clear standard. The court disagrees and says, assuming a fourth amendement violation, there is a clear standard in the criminal investigation context and Ashcroft has not raised national security issues in his defense.
9.8.2009 2:37pm
Anderson (mail):
and Ashcroft has not raised national security issues in his defense

That in itself seems pretty decisive -- many otherwise puzzling judicial decisions come down to poor lawyering.
9.8.2009 2:48pm
Andrew Hyman (mail) (www):
A case in the First Circuit Court of Appeals from 1983 seems like it might be relevant here. See In re Alberto DE JESUS BERRIOS, 706 F.2d 355:

The related argument that appellant was a target of the grand jury and that this fact was hidden from the magistrate who issued the arrest warrant is without merit. A key factor in determining whether an individual is a target of the grand jury is indictability. United States v. Crocker, 568 F.2d 1049, 1054 (3rd Cir.1977). We have no basis for believing that the grand jury had sufficient evidence before it to consider indicting appellant. Indeed the government asserts in its brief that there was not a basis for indictment.


In other words, an ulterior motive did not vitiuate an arrest warrant
9.8.2009 3:00pm
Andrew Hyman (mail) (www):
vitiate!
9.8.2009 3:01pm
byomtov (mail):
I have at least one objection to this idea of a "national security detention." Normal detentions have a defined endpoint. Material witnesses and acquitted defendants are presumably free to go after the trial. Even a convicted defendant has a defined sentence.

What is the endpoint for someone being held "for investigative purposes?" Investigations can take a long time. The detainee is basically being held at the pleasure of the prosecutor. That doesn't seem right.
9.8.2009 3:24pm
Anderson (mail):
What is the endpoint for someone being held "for investigative purposes?"

Well, the presidency is limited to an 8-year term ....
9.8.2009 3:33pm
Oren:
byomtov, in the instant case, the plantiff was held for 14 days.
9.8.2009 3:50pm
Oren:

A seizure based on such a warrant, even if the warrant were validly issued under the statute, would be illegal because that is not the kind of warrant contemplated by the Fourth Amendment.

This is an interesting assertion but I'm not sure it's a fact.
9.8.2009 3:57pm
Anderson (mail):
A seizure based on such a warrant, even if the warrant were validly issued under the statute, would be illegal because that is not the kind of warrant contemplated by the Fourth Amendment.

Well, suppose they'd gotten a warrant to "seize" the guy's wife and told him that they were going to hold her until he made a full confession to his evil, lawless deeds.

Can we agree that THAT would not be "the kind of warrant contemplated by the Fourth Amendment"?

I'm just checking to make sure that not every conceivable "warrant" is conformable to the intent of the amendment.
9.8.2009 4:25pm
Andrew Hyman (mail) (www):
The following excerpt is from a 2005 article in the Vanderbilt Law Review by Ricardo Bascuas, titled "The Unconstitutionality of 'Hold Until Cleared': Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet."

The subjective reason for the seizure-i.e. whether the arresting agent or prosecutor believes that the target is a potential criminal or a witness necessary at some proceeding-is of no constitutional significance. The Supreme Court has unanimously rejected the notion that the constitutionality of a seizure under the Fourth Amendment depends on the government agent's subjective motivation for making it.97 Such determinations are not only extremely difficult to make-imagine a defense attorney cross-examining a prosecutor about the government's true reasons for seeking a given "material witness" warrant-but are ultimately irrelevant. If Section 3144 in fact authorizes a constitutional procedure and a person is a "material witness" under that statute's criteria, why should the arresting agent's or the prosecutor's motivation affect the legality of the seizure? As the Court put it, "the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent."98 The Constitution either permits the incarceration of innocent witnesses or it does not. The government's subjective reasons for wanting to detain the witnesses legally do not and should not matter.

To be sure, there is no doubt that DOJ has detained people as "material witnesses" to investigate and interrogate them as possible terrorists. The Department of Justice has made no secret of it. Indeed, Michael Chertoff, then head of the DOJ's Criminal Division and now Secretary of the Department of Homeland Security, told The Washington Post that a material witness warrant is "an important investigative tool in the war on terrorism."100 Mr. Chertoff added, "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."101


While some may disagree with this analysis by Professor Bascuas, I don't think Bascuas was clearly contradicting settled law.
9.8.2009 4:47pm
Oren:

I'm just checking to make sure that not every conceivable "warrant" is conformable to the intent of the amendment.

The amendment is pretty clear -- if the seizure is reasonable it complies. Since the Supreme Court (yes, in *dicta*) approved the detention of the innocent, I'm going to gather they would find it reasonable.

Moreover, the Material Witness Statute has a long pedigree in the US, introduced in 1789. This differentiates it from an act Congress just passed yesterday in the sense that it is deeply rooted both in this Nation's legal history and in British Common Law (see the citations to Bacon in Stein v. New York). To argue that such a longstanding statute violates the fourth amendment is a losing proposition.

IMO, this forecloses the plaintiff's second argument entirely.

[ Like I said, I'm still sympathetic to the "reckless or deliberate misleading the MJ" argument, but that one is fact-intensive, to say the least. ]
9.8.2009 4:58pm
Soronel Haetir (mail):
Oren,

Except he was also placed on probation like conditions for a considerable period of time. There are plenty of SCOTUS rulings to the effect that such conditions are a significant restriction of liberty.
9.8.2009 5:22pm
einhverfr (mail) (www):
Oren:

Moreover, the Material Witness Statute has a long pedigree in the US, introduced in 1789. This differentiates it from an act Congress just passed yesterday in the sense that it is deeply rooted both in this Nation's legal history and in British Common Law (see the citations to Bacon in Stein v. New York). To argue that such a longstanding statute violates the fourth amendment is a losing proposition.


I didn't see the second argument as being foreclosed by this at all. I don't think the Constitutionality of the material witness statute is at issue in this case (at least no facial challenge seems to have been presented).

What is alleged is that Ashcroft and others crafted a policy of misusing this act in order to create a patently Unconstitutional system of administrative detention.

If the allegations made in the complaint are borne out, I don't see how any colorable argument can be made that the Constitution allows arbitrary and administrative detention of this sort. This isn't just a 4th Amendment issue as it touches on powers in the main body of the document itself, and also on 5th amendment protections as well (due process isn't just a principle limited to the Bill of Rights as it finds supporting protections in Article 1 as well).

If there isn't a colorable argument that one can arrest folk and hold them for weeks simply because one articulates a suspicion of involvement in terrorist activity and absent proper suspension of habeas corpus, then qualified immunity doesn't apply.

Now, it may be that the evidence doesn't bear this interpretation out but this is more or less what the complaint alleges. It is sufficient and sufficiently supported to let it go on to discovery.

My prediction is that the Supreme Court will decline to review this until it comes up for summary judgement. Then we might see the Supreme Court wading into the issues of law here.
9.8.2009 5:26pm
byomtov (mail):
byomtov, in the instant case, the plantiff was held for 14 days.

From the decision:

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 facili-
ties, 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.


No big deal.

And of course even after his release he was subject to considerable restrictions that had a major negative impact on his life.
9.8.2009 5:29pm
David Schwartz (mail):
einhverfr: And don't forget that this was not just administrative detention, but *punitive* administrative detention. That is, the detention was intentionally made unpleasant so as to induce cooperation.
9.8.2009 5:37pm
Oren:

What is alleged is that Ashcroft and others crafted a policy of misusing this act in order to create a patently Unconstitutional system of administrative detention.

Doesn't matter one whit. If the material witness statute is constitutional and Ashcroft properly detained AK under the statute then it's a huge stretch to say that his other motives transform a legal detention into an illegal one.
9.8.2009 5:51pm
Oren:
The conditions of confinement are irrelevant to the plaintiff's argument unless he wants to bring up a new claim for violation of the 5A/8A on the terms of his confinement.

I think the main problem here is that the plaintiff has three bad claims ( misrep to get the warrant, pretext when getting the warrant, conditions of confinement/release) and wants to mash them together into one valid claim.

Unfortunately, that's not how it works. Either the conditions of confinement were constitutional or they weren't and that argument stands or falls entirely independently of the other two.

Same for the pretextual use of the MWW -- either it's constitutional to use the statute with other motives or its not. That fact is irrespective of the conditions of confinement or the manner in which the warrant was obtained.

On the totality of the circumstances, what Ashcroft did was amazingly pigheaded. On the level of each alleged violation, however, the law was on his side, at least with regards to the pretext/conditions part -- the misrep part is up in the air.
9.8.2009 5:54pm
martinned (mail) (www):

Doesn't matter one whit. If the material witness statute is constitutional and Ashcroft properly detained AK under the statute then it's a huge stretch to say that his other motives transform a legal detention into an illegal one.

True. But it matters for Ashcroft's personal liability.
9.8.2009 5:54pm
Oren:
Just to get it out the way, do you at least agree that we should take each allegation (misrep, pretext and conditions) separately and judge them each on their own merits?

Many of the other commenters are (IMO improperly) mixing elements of these distinct allegations.
9.8.2009 5:59pm
martinned (mail) (www):

The conditions of confinement are irrelevant to the plaintiff's argument unless he wants to bring up a new claim for violation of the 5A/8A on the terms of his confinement.

He did bring this up, but the panel through it out on Iqbal grounds, i.e. Kidd's pleadings were insufficient with respect to tying Ashcroft personally to any 5th/8th amendment violations that may have occurred. It's on p. 12319-12321.

That's why the dissent is only a partial dissent: this is the part all three agreed on. (Cf. dissent on p. 12329.)
9.8.2009 5:59pm
Mike& (mail):
After Oren proved he didn't understand the scope of the material witness warrant (claiming that everyone arrested under it is innocent); or the basic facts of the case (how many days Al-Kidd was actually detained); he is still telling us all how wrong we are about a bunch of other stuff. Excuse me if his opinions no longer carry any authority - their wannabe-authoritative tone notwithstanding
9.8.2009 5:59pm
SalB:
Damages are always an element of tort liability, without damages he would have no claim.
9.8.2009 6:03pm
einhverfr (mail) (www):
Oren:

Doesn't matter one whit. If the material witness statute is constitutional and Ashcroft properly detained AK under the statute then it's a huge stretch to say that his other motives transform a legal detention into an illegal one.


I am sorry but I don't see how that follows. Just because a statute may not be facially Unconstitutional doesn't mean that it cannot possibly be applied in blatantly Unconstitutional ways.
9.8.2009 6:52pm
ArthurKirkland:
If Mr. Chertoff enthused about 'we also get their DNA and fingerprints' as a positive element of detaining people with material witness warrants, calling him pond scum would unfairly disparage congealed algae.

Someone remind me again how anyone who supports that point of view can reasonably claim to be libertarian.

And thank goodness Chertoff is no longer a federal judge.
9.8.2009 7:52pm
OrinKerr:
After Oren proved he didn't understand the scope of the material witness warrant (claiming that everyone arrested under it is innocent); or the basic facts of the case (how many days Al-Kidd was actually detained); he is still telling us all how wrong we are about a bunch of other stuff. Excuse me if his opinions no longer carry any authority - their wannabe-authoritative tone notwithstanding

Be nice, everyone.
9.8.2009 8:30pm
David Schwartz (mail):
If the fourth amendment doesn't clearly prohibit a policy of misrepresenting the facts to friendly judges to get bogus material witness warrants so that you can make life miserable for people in order to induce them to cooperate, then we need to amend it. I suggest leaving everything the same but adding "and we really mean it" to the end.
9.8.2009 8:43pm
Andrew Hyman (mail) (www):
David Schwartz:

Did al-Kidd allege that Ashcroft had the slightest role in falsely telling the magistrate judge that Kidd had a one-way ticket to Saudi Arabia?

Did al-Kidd allege that Ashcroft had the slightest inclination to conceal the fact that he had ulterior motives for detaining material witnesses?

No, and no, as far as I can tell. The FBI agents may be personally liable for both of these things, but I just think it's extremely excessive to pin this on Ashcroft, who had every reason to think that the magistrate was fully informed when the warrant issued, and to think that the magistrate was competent.
9.8.2009 9:03pm
David Schwartz (mail):
AH: Yes (see the excerpt up-thread, Martinned at 2:18 I think). No, but I don't see why that matters. Ashcroft personally implemented a policy of getting WMMs by whatever means necessary in order to use punitive detentions to induce cooperation. He has said as much.
9.8.2009 9:19pm
Oren:

If the fourth amendment doesn't clearly prohibit a policy of misrepresenting the facts to friendly judges to get bogus material witness warrants so that you can make life miserable for people in order to induce them to cooperate, then we need to amend it. I suggest leaving everything the same but adding "and we really mean it" to the end.

Again, the 4A does prohibit misrepresenting the facts to a magistrate judge. See Franks.

On the other hand, if the defendant objectively meet the requirement for an MWW, then he can be detained under the terms of that statute. That's not an outrageous assertion, even if you disagree with it.
9.8.2009 9:38pm
Oren:

After Oren proved he didn't understand the scope of the material witness warrant (claiming that everyone arrested under it is innocent); or the basic facts of the case (how many days Al-Kidd was actually detained); he is still telling us all how wrong we are about a bunch of other stuff. Excuse me if his opinions no longer carry any authority - their wannabe-authoritative tone notwithstanding

Nice quibble.

(1) Everyone detained under a material witness warrant is innocent (in the sense of no evidence is proffered of their guilty) in the commencing action. My point is that the statute allows citizens to be detained without any probable cause of their guilt.

(2) That fourth amendment law rarely (if ever) delves into the subjective intent when analyzing the lawful of seizures is a rather mundane observation. Usually, the analysis is done at the objective level -- did the circumstances meet the criteria as laid out in the statute/caselaw?
9.8.2009 9:43pm
Oren:

Ashcroft personally implemented a policy of getting WMMs by whatever means necessary in order to use punitive detentions to induce cooperation. He has said as much.

If his policy included willful or reckless misrepresentations to the MJs, then that is certainly tortious.

But that would be just as well if we were talking about lying to an MJ to get an arrest warrant or a search warrant. That is, the propriety of misrepresentation in a warrant application is logically unrelated to the type of warrant being sought.
9.8.2009 9:46pm
einhverfr (mail) (www):
Oren:


On the other hand, if the defendant objectively meet the requirement for an MWW, then he can be detained under the terms of that statute. That's not an outrageous assertion, even if you disagree with it.


What is being alleged here though is that the MWW process was abused to detain individuals on suspicion and without trial not because they were being called as a witness but because the government thought it was a good idea to detain them at the time.

For someone to be in prison for WEEKS and then on probation for MONTHS under these warrants makes a foul mockery of writs of habeas corpus and due process of law.

I would also note you seem to think the harsh treatment should be brought up as an eighth amendment claim but MWW's aren't intended to be punative, so the 8th Amendment doesn't seem to apply. In short the government could easily counter that since his detention wasn't formally punitive, the conditions couldn't possibly have been cruel and unusual punishment (even if they were cruel and unusual, they weren't punishment).
9.8.2009 9:48pm
Nik B.:
Oren wrote:

Again, the 4A does prohibit misrepresenting the facts to a magistrate judge. See Franks.

On the other hand, if the defendant objectively meet the requirement for an MWW, then he can be detained under the terms of that statute. That's not an outrageous assertion, even if you disagree with it.

It seems from this and other posts in this thread that you're suggesting that one can "objectively meet the requirements for an MWW" even if the facts of the case are misrepresented and the Magistrate Judge issues the material witness warrant based on those misrepresented facts. Am I reading that right?!


"
9.8.2009 9:54pm
Andrew Hyman (mail) (www):
Ashcroft personally implemented a policy of getting MWWs by whatever means necessary in order to use punitive detentions to induce cooperation.


No, not by any means necessary, unless you believe that Ashcroft said to get the MWWs by threatening the magistrate judges, committing perjury, bribing federal district court judges, framing suspects, and doing a million other unlawful things. Ashcroft sanctioned none of that.
9.8.2009 10:02pm
ArthurKirkland:
To summarize . . .

When government officials have been frightened out of their wits, these rules apply:

If you have violated no law, the government may lie and obtain pretextual warrants to commence strip-searching, shuttling and discomforting you, all cricket. Laudable, even.

If you violated the law using the power of the government, however, you should not be prosecuted -- particularly if you commissioned a legal opinion that couldn't even avoid repudiation by your ideological comrades -- because that just wouldn't be sporting. Appointments to federal bench optional.
9.8.2009 10:28pm
David Schwartz (mail):
AH: According to you, if I say he used "whatever means necessary" that must mean that I'm suggesting he used threats and bribes.

By that standard, consider this quote from Ashcroft: "It's our position at the Justice Department and the position of this administration that we need to unleash every possible tool in the fight against terrorism and to do so promptly."

Since bombs, threats, and summary executions are "possible tools" to fight against terrorism, Ashcroft must have meant that it was his position that we need to use them.

See how easy it is to prove people wrong when you adopt a bizarre and nonsensical standard?
9.8.2009 10:28pm
ArthurKirkland:

Ashcroft sanctioned none of that.


A reference to Ashcroft's response to falsified affidavits supporting warrant applications would be helpful.

Without that reference, Ashcroft's public statements support an inference that the falsified affidavits were within his comfort zone.
9.8.2009 10:31pm
Oren:

What is being alleged here though is that the MWW process was abused to detain individuals on suspicion and without trial not because they were being called as a witness but because the government thought it was a good idea to detain them at the time.

And cars are pulled over for trivial traffic infractions because the police officers thought it was a good idea to seize them. Unsavory, yes. Unlawful, not in my opinion.


For someone to be in prison for WEEKS and then on probation for MONTHS under these warrants makes a foul mockery of writs of habeas corpus and due process of law.

I don't understand the HC and DP argument here -- at all times the defendant had a lawyer and his detention was monitored by the MJ (pursuant to the statute).


I would also note you seem to think the harsh treatment should be brought up as an eighth amendment claim but MWW's aren't intended to be punative, so the 8th Amendment doesn't seem to apply. In short the government could easily counter that since his detention wasn't formally punitive, the conditions couldn't possibly have been cruel and unusual punishment (even if they were cruel and unusual, they weren't punishment).

Then they come up under due process. Surely you can't publicly flog those held pre-trial in lieu of bail just because they haven't been convicted yet.

Moreover, whatever the harsh treatment was, would succeed or fail on its own merits independently of the material witness matter. That is, if AK's treatment was unconstitutional, it would likewise be unconstitutional as applied to any other pre-trial prisoner in the Federal system.


It seems from this and other posts in this thread that you're suggesting that one can "objectively meet the requirements for an MWW" even if the facts of the case are misrepresented and the Magistrate Judge issues the material witness warrant based on those misrepresented facts. Am I reading that right?!

No, if the affiants deliberately or recklessly mislead the MJ, then their actions are tortious under Malley.

What I have said is that, if an official gets a valid material witness warrant under the statute then his subjective intent is irrelevant for the purpose of 4A analysis. This, I believe, is the most natural result of a long list of 4A cases in which pretextual-but-objectively-valid searches and seizures are deemed to conform with the 4A: Whren, Macon, Scott, Robnison. Quoting Whren:

We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U.S. 218 (1973), we held that a traffic violation arrest (of the sort here) would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search," id., at 221, n. 1; and that a lawful post arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U.S. 260, 266 (1973). And in Scott v. United States, 436 U.S. 128, 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." We described Robinson as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U. S., at 138.


I read this to totally preclude any attempt by AK to insinuate that the MWW becomes less valid because of Ashcroft's ulterior motives. Either it was objectively supported or it wasn't.
9.8.2009 10:43pm
einhverfr (mail) (www):
Oren:

And cars are pulled over for trivial traffic infractions because the police officers thought it was a good idea to seize them. Unsavory, yes. Unlawful, not in my opinion.


If the officers have reasonable suspicion that a traffic law is objectively being violated and the state law allows the car to be pulled over, I don't see a problem with this. This is part of a legitimate exercise of law enforcement power.

Furthermore failure to signal stops at issue in Whren are generally pretextual in that the behavior correlates strongly with drunk driving. This is well accepted in most places. I see no reason why it is even unsavory-- failure to signal is a "marker offence."


I don't understand the HC and DP argument here -- at all times the defendant had a lawyer and his detention was monitored by the MJ (pursuant to the statute).


The basic complaint alleges blatant violations of the material witness statute (as per the opinion) and hands-on involvement from high levels of the FBI as well. Among other things:

1) Al-Kidd was detained and placed on probation for no criminal reason and had cooperated with the FBI in the past.
2) Al-Kidd was NEVER called as a witness to any trial.
3) The FBI's report to Congress listed his ARREST as a major success in the war on terror.

The combination of these three facts stink more than a three-day-old mackerel and the court is right to let the evidentiary record play out.

Re-reading the decision it looks like a part of the allegation is that the requests for the warrants were made in excess of what was authorized under the MWW statute and thus were NOT properly requested (or hence issued).

That does seem to raise due process issues, does it not?

Additionally, it looks like both 4th and 5th amendment claims as well as statutory violations are alleged. While HC is not directly implicated, the reason why we HAVE HC is to prevent preventative and administrative detention without trials as occurred in this case. Thus I think that the logic behind strong HC protections is informative in determining what level of process is due when an arrest, detention, and probation are ordered for someone who is not, in fact, charged with a crime.
9.9.2009 12:25am
Nik B.:
Oren wrote:

No, if the affiants deliberately or recklessly mislead the MJ, then their actions are tortious under Malley.

What I have said is that, if an official gets a valid material witness warrant under the statute then his subjective intent is irrelevant for the purpose of 4A analysis.

This basically boils down to: "the actions of the affiants in misleading the Magistrate may be tortious, but the material witness warrant obtained as a result is gold because the misrepresented facts are objectively valid."

Thanks for clarifying...
9.9.2009 12:52am
ReaderY:
I'll simply note that this case, involving the use (and alleged abuse) of legal process by civilian officials within U.S. territory, is quite a bit different from cases involving allegedly military actions by military officials involving non-citizens abroad.
9.9.2009 1:03am
Oren:


Furthermore failure to signal stops at issue in Whren are generally pretextual in that the behavior correlates strongly with drunk driving. This is well accepted in most places. I see no reason why it is even unsavory-- failure to signal is a "marker offence."

Except that an officer can decide, before the infraction occurs "I want to stop this car" and then follow him until he sees a traffic infraction. That is the 4A allows him to first decide that he wants to stop a particular car and later develop a reason why, so long as the reason satisfies the objective criteria.

Pretextual stops under Whren are not limited to "correlated" offenses like failure-to-signal and drunk driving but rather can be used regardless of the underlying suspicion.


The basic complaint alleges blatant violations of the material witness statute (as per the opinion) and hands-on involvement from high levels of the FBI as well. Among other things:

I don't read it that way, I read it to say that the arrest under the material witness statute is unconstitutional when done for ulterior motive.


1) Al-Kidd was detained and placed on probation for no criminal reason and had cooperated with the FBI in the past.

The material witness statute never required a "criminal reason".


2) Al-Kidd was NEVER called as a witness to any trial.

The statute does not require that the witness eventually be called to trial.

Leahy's amended statute does (see my link above) but it is not law.


3) The FBI's report to Congress listed his ARREST as a major success in the war on terror.

Relevance?


Re-reading the decision it looks like a part of the allegation is that the requests for the warrants were made in excess of what was authorized under the MWW statute and thus were NOT properly requested (or hence issued).

That is not how it works -- a faulty affadavit does not render the warrant invalid from its inception. Rather, the police are entitled to rely on the warrant so long as it was not so deficient that no officer could reasonably rely on it (see, e.g. Leon or Franks). Quoting Leon

[A]n officer cannot be expected to question the magistrate's probable cause determination or his judgment that the form of the warrant is technically sufficient. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law, and penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.

A police officer's reliance on the magistrate's probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable.

[An officer may not rely on a warrant] if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, or if the issuing magistrate wholly abandoned his detached and neutral judicial role.

Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid.


So even if we grant that the warrant was incorrectly issued, it does not follow that officers relying on it are liable unless they were reckless, deliberately misleading or the warrant application was so devoid of reliability as to be unreasonable.

Moreover, that would be exactly identical in the case of a search warrant or normal arrest warrant.


That does seem to raise due process issues, does it not?

The material witness statute is public knowledge -- everyone know that it exists

Nik, either you are intentionally misreading me or I didn't write clearly, but what you said was not at all what I (intended to) have written.

To clarify: the warrant is not "gold" if the affiants deliberately or recklessly misrepresented the facts.
9.9.2009 1:30am
David Schwartz (mail):
Do you think Al-Kidd satisfactorily alleged that the searches and seizures that took place here were objectively unreasonable? And if so, do you think the fourth amendment clearly prohibits them? And if not, would you provide us some suggestions on how to draft a law that clearly prohibits objectively unreasonable searched and seizures? (Perhaps there are some magic words that need to be used?)
9.9.2009 6:28am
Oren:
David,

The instant case is not about whether the seizure violated the fourth amendment but rather whether such violation is actionable under Bivens with respect to defendant Ashcroft. Perhaps regrettably, the law in the United States is such that not every unreasonable seizure gives rise to an actionable tort.

(1) Al-Kidd was seized pursuant to a warrant signed by a neutral magistrate. Except under extraordinary circumstances (see 2), such a warrant shields to the officer from liability in these cases even when the warrant should not have issued in the first place.

(2) The (relevant) exceptional circumstances are either:
(a) Reckless or deliberate falsehood in the affidavit
(b) An affidavit so lacking as to render any belief in its validity unreasonable.

(3) Al-Kidd's allegations of (2)(a) do not sufficiently allege defendant's involvement in recklessly or materially falsehood in the affidavit. It attempts to draw such conclusions by inference from broad public statements with no direct bearing on the preparation of affidavits. The complaint does not allege any specific actions defendant took that lead to the deliberate or reckless inclusion of falsehoods.

(4) If you had actually read my previous comments, you would have seen my link to Sen. Leahy's proposal to amend the material witness statute with precisely this situation in mind. As usual, Congress passed the material witness statute and it falls to Congress to amend it if the results are displeasing to you.

I'll quote the relevant provisions here:

`(1) IN GENERAL- A judicial officer may order the arrest of a person as a material witness, if it appears from an affidavit filed by a party in a criminal case before a court of the United States, or by an attorney for the Government in a matter occurring before a Federal grand jury, that there is probable cause to believe that--

`(A) the testimony of such person is material in such case or matter; and

`(B) the person has been served with a summons or subpoena and failed or refused to appear as required.

Note that the bolded part is not part of the statute as currently written. Onwards:

`(2) EXCEPTION- A judicial officer may waive the summons or subpoena requirement described in paragraph (1)(B), if the judicial officer finds by clear and convincing evidence that the service of a summons or subpoena--

`(A) is likely to result in the person fleeing; or

`(B) cannot adequately secure the appearance of the person as required.

"Clear and convincing" is a higher standard than probable cause. Onward still!


`(d) Release or Detention-

`(1) IN GENERAL- Upon the appearance before a judicial officer of a material witness arrested pursuant to a warrant issued under subsection (a), the judicial officer shall order the release or detention of such witness.

`(2) RELEASE-

`(A) IN GENERAL- A judicial officer shall order the release of a material witness arrested pursuant to a warrant issued under subsection (a) on personal recognizance or upon execution of an unsecured appearance bond under section 3142(b), or on a condition or combination of conditions under section 3142(c), unless the judicial officer determines by clear and convincing evidence that such release will not reasonably assure the appearance of the witness as required.

NB: The old statute does not direct the judge to prefer release, instead says he can be treated like any other pretrial detainee. This is a major change.

Also, again we see "clear and convincing evidence" required, as opposed to mere probable cause.

`(3) DETENTION-

`(A) NO REASONABLE ASSURANCE OF APPEARANCE- If, after a hearing pursuant to the provisions of section 3142(f)(2), a judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of a material witness as required by this section, such judicial officer may order that the witness be detained for a period not to exceed 5 days, or until the testimony of the witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier.

`(B) EXTENSION OF DETENTION-

`(i) IN GENERAL- Subject to clause (ii), upon the motion of a party (or an attorney for the United States Government in a matter occurring before a Federal grand jury), the period of detention under subparagraph (A) may be extended for additional periods of up to 5 days, or until the testimony of a material witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier.

`(ii) LIMIT- The total period of detention under this subparagraph may not exceed--

`(I) 30 days, where the testimony of the witness is sought in a criminal case; or

`(II) 10 days, where the testimony of the witness is sought in a grand jury proceeding.

9.9.2009 9:07am
David Schwartz (mail):
Oren: While it may be helpful to amend the statute, it is not necessary. No reasonable person could construe the statute to authorize objectively unreasonable searches or seizures because any rational person knows:

1) The fourth amendment prohibits objectively unreasonable searches and seizures, and

2) The fourth amendment constrains the material witness warrant statute.

Al-Kidd sufficiently alleged, as argued extensively above, the Aschroft personally created a policy that sought Al-Kidd's detention by whatever means necessary even though Ashcroft personally knew that such a seizure was objectively unreasonable.

And I would go so far as to argue that the affidavit was so lacking as to render any belief in the warrant's validity unreasonable (as also discussed above). There was not one word in the affidavit that addressed either of two entire prongs of the WMM statute requirements.
9.9.2009 9:53am
Oren:
Yes, but not every rational person (e.g. 9CA Judge Bea, our esteemed 4A guru Orin) agrees that:

(3) The seizure of Al-Kidd in the instant case was objectively unreasonable.

Moreover, even after establishing (3), it still doesn't follow that:

(4) It was settled law in 2003 that the seizure of Al-Kidd was objectively unreasonable.


Al-Kidd sufficiently alleged, as argued extensively above, the Aschroft personally created a policy that sought Al-Kidd's detention by whatever means necessary even though Ashcroft personally knew that such a seizure was objectively unreasonable.

Doesn't that beg the question? Ashcroft could well have thought that the seizure was reasonable by virtue of having a warrant. Cases in which seizure pursuant to a warrant has been found unreasonable are few and far between.

[ Also, surely you don't really mean that Ashcroft intended to secure AK's detention by "whatever means necessary". Had the MJ denied the warrant application, Ashcroft would not have personally flown to Idaho and pistol whipped AK, despite the fact that such means would indeed detain him. ]


And I would go so far as to argue that the affidavit was so lacking as to render any belief in the warrant's validity unreasonable (as also discussed above). There was not one word in the affidavit that addressed either of two entire prongs of the WMM statute requirements.

There was a whole paragraph about Al-Kidd's association with Al-Hussayin, which suggest that AK might have information germane to the case.

Note that, unlike the revised state, the 18USC3144 does not require clear and convincing evidence that AK had germane testimony. It doesn't not even require probable cause that he has germane testimony. It only requires (quoting the statute)

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding ...

"If it appears" is a remarkably weak standard, and while the affidavit certainly doesn't establish the fact with any certainty, I think a reasonable MJ could have concluded that it appears from the affidavit that AK had material testimony.
9.9.2009 10:12am
David Schwartz (mail):
Also, surely you don't really mean that Ashcroft intended to secure AK's detention by "whatever means necessary". Had the MJ denied the warrant application, Ashcroft would not have personally flown to Idaho and pistol whipped AK, despite the fact that such means would indeed detain him.
If we take Ashcroft at his word, he would have. He specifically stated he would use "every possible tool".
9.9.2009 10:50am
David Schwartz (mail):
Oren:
"If it appears" is a remarkably weak standard, and while the affidavit certainly doesn't establish the fact with any certainty, I think a reasonable MJ could have concluded that it appears from the affidavit that AK had material testimony.
Again, it doesn't matter what the statute says. The statute can't authorize an objectively unreasonable seizure, any rational person with even the most basic familiarity with American law would know that. One's right to be free from objectively unreasonable searches and seizures is perhaps the most clearly established right in American law.

Ashcroft personally pursued this seizure despite the fact that he knew it was objectively unreasonable under the fourth amendment. What statute he choose to apply unconstitutionally to effect the seizure he personally knew was unreasonble is an interesting detail -- no more.
9.9.2009 10:53am
Non:

Ashcroft could well have thought that the seizure was reasonable by virtue of having a warrant.


Not if he obtained the warrant under pretext. This makes the objectively unreasonable inquiry dependent upon facts. Such facts cannot be determined on a motion to dismiss. They are committed to the trier of fact (jury) or to the judge, if, after discovery, there is no question of fact.
9.9.2009 11:21am
Oren:

Not if he obtained the warrant under pretext. This makes the objectively unreasonable inquiry dependent upon facts.

Care to square that with Whren, Robinson, Macon? Quoting Whren

subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional.


A (sympathetic) plantiff makes the claim that subjective intent makes the otherwise-lawful seizure unconstitutional.

Supreme Court precedent pretty directly says that subjective intent cannot make an otherwise-lawful seizure unconstitutional (one more than one occasional, see also United States v. Villamonte-Marquez).

What do you want me to say? "I'm sorry, this plaintiff got such a raw deal that I'm going to ignore clearly-on-point precedent." Applying precedent is not about doing what's right for justice, it's about doing what's consistent with the law as it exists.
9.9.2009 11:29am
Oren:

If we take Ashcroft at his word, he would have. He specifically stated he would use "every possible tool".

Coming to an absurd conclusion would usually indicate that you misunderstood the words he used.


Again, it doesn't matter what the statute says.

Congress cannot authorize the detention of material witnesses under those terms? That statute has been around since 1789.


The statute can't authorize an objectively unreasonable seizure, any rational person with even the most basic familiarity with American law would know that.

And what is "objectively unreasonable" has to do with the relevant legal norms of the Republic. The existence and use of the statute for two centuries is, itself, evidence that seizure under its terms is not unreasonable (let alone objectively unreasonable).


Ashcroft personally pursued this seizure despite the fact that he knew it was objectively unreasonable under the fourth amendment.

Again, if he read United States v. Villamonte-Marquez (have you?) he would have come to the opposite conclusion.


What statute he choose to apply unconstitutionally to effect the seizure he personally knew was unreasonble is an interesting detail -- no more.

But whether a seizure is allowed under a statute is an important ingredient in determining whether it is unreasonable. You can't decide that a seizure is unreasonable before providing a legal justification for it!
9.9.2009 11:35am
Oren:
Non, how can you square your assertion with United States v. Villamonte-Marquez?

Short version of the facts:

(1) Title 19 U.S.C. § 1581(a) authorizes customs officers to board any vessel at any time and at any place in the United States to examine the vessel's manifest and other documents.

(2) Officers suspected a particular vessel of carrying illegal narcotics.

(3) Officers, intending to uncover evidence of (2), searched the vessel under the authority of (1) with no intent of examining the manifest or other documents. That is, they decided they wanted to seize the boat first and then came up with a viable legal way to do so.

(4) The Supreme Court explains that the legal authority in (1) cannot be diminished by the subjective intent of (2).

(5) The Supreme Court also explains that statutes authorizing seizures are to be examined in light of the historical record. Quoting the opinion:

Although no Act of Congress can authorize a violation of the Constitution, in 1790, in a lineal ancestor to § 1581(a), the First Congress clearly authorized the suspicionless boarding of vessels by Government officers, reflecting its view that such boardings are not contrary to the Fourth Amendment, which was promulgated by the same Congress.

Almost exactly analogously in this case, the Bail Act of 1789 clearly authorizes the arrest of material witnesses, reflecting the 1st Congress' view that such arrests were not contrary to the Fourth Amendment.
9.9.2009 11:42am
Non:
Oren:

With respect to Whren, se GTF's comments above.

With respect to questions of fact, see eg., Washington v. Newsom, 977 F2d 991, (where the claim of qualified immunity turns on the knowlege of the defendant that is a question of fact).
9.9.2009 12:20pm
Non:
Also, Oren, are any of the cases you cite motion to dismiss cases?
9.9.2009 12:41pm
David Schwartz (mail):
Oren: It's not clear which of at least two positions you are taking. Are you arguing that Al-Kidd's detention, taking his (sufficiently-supported) allegations as true, is in fact objectively reasonable?

I don't see what you think the relevance of Villamonte-Marquez is. The case essentially held that certain type of vessels with easy access to the border can be reasonably considered to allow border searches. Aside from the more obvious differences, boarding a vehicle to check for documents is not even remotely comparable to detaining someone to induce their cooperation.
9.9.2009 12:51pm
Oren:

With respect to questions of fact, see eg., Washington v. Newsom, 977 F2d 991, (where the claim of qualified immunity turns on the knowlege of the defendant that is a question of fact).

But if the question of fact (Ashcroft's intent) has no bearing on the QI if subjective intent is irrelevant (aka Whren).


I don't see what you think the relevance of Villamonte-Marquez is. The case essentially held that certain type of vessels with easy access to the border can be reasonably considered to allow border searches.

You didn't read the opinion.

(1) The search is not justified by the border search exception, it's authorized by statute.

(2) The statute doesn't violate the 4A because it was clear that the first Congress clearly didn't intend for to impede their own statute.

(3) The most important point of US v. VM is regarding the pretextual use of the statute to seize people that has nothing to do with the purpose of the statute.

Officers wanting to search for drugs can use a statute that has nothing to do with drugs to effect the seizure. The officers admitted that the search had nothing to do with marine safety and that the use of the marine search was a pretext designed solely to justify their search. The Supreme Court said "you can use this unrelated statute to authorize your search and seizure (of this vessel) even if it was just an excuse to look for drugs".

Then Ashcroft used an unrelated statute to seize Al-Kidd with some ulterior motive even though it was just an excuse to hold him for a bit.


Aside from the more obvious differences, boarding a vehicle to check for documents is not even remotely comparable to detaining someone to induce their cooperation.

But they didn't board the vehicle to check for documents! The officers admitted that they just wanted to look for drugs and that the document-check statute was just a convenient pretext.

Similarly, Ashcroft didn't detain Al-Kidd to ensure his availability as a material witness in a pending case, it was just a convenient pretext to do so.
9.9.2009 3:35pm
Oren:

Also, Oren, are any of the cases you cite motion to dismiss cases?

No, they were decided on the merits the first time.

After the first time, settled precedent generally entitles the defendant dismissal (we aren't even at that stage though).
9.9.2009 3:36pm
Non:
We're not at that stage?

At any rate, I am surprised you don't see a difference between a regulated vessel and a free citizen.
9.9.2009 3:55pm
Oren:

We're not at that stage?

No, this is an interlocutory appeal from the denial of qualified immunity. We are not yet at the motions for summary judgment/dismissal.

Procedure counts!


At any rate, I am surprised you don't see a difference between a regulated vessel and a free citizen.

And I'm surprised you don't see the analogy between seizures that are explicitly authorized by statute.
9.9.2009 4:32pm
Non:
Indeed, procedure counts and that's part of the reason your whole analysis is weak, IMO.

Besides, your in error on the procedure we are discussing. This is an interlocutory appeal from a motion to dismiss.


Ashcroft moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6).
9.9.2009 5:04pm
Non:
you're
9.9.2009 5:05pm
Oren:

Ashcroft moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6).

You might want to read a bit more ...

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 ... the district judge denied
the 12(b)(6) motion, rejecting Ashcroft’s claims of absolute
and qualified immunity. ... Ashcroft filed a timely interlocutory appeal.

So this is an interlocutory appeal of the denial of qualified immunity.

If this decision is not reversed, both parties will move for summary judgment based on all the issues other than QI.
9.9.2009 5:26pm
Andrew Hyman (mail) (www):
The Ninth Circuit's opinion stated:

Finally, only months before al-Kidd’s arrest, one district court in a high-profile case had already indicated, in the spring of 2002, that Section 3144 itself should not be used 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.” [Cam Simpson, “Roundup Unnerves Oklahoma Muslims,” 4/21/02 Chi. Trib.
1, available at 2002 WL 2647213 (quoting Attorney General John Ashcroft).] 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.


Adwallah 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 after the opinion was first issued. It is difficult to imagine what, in early 2003, mightg have given John Ashcroft “fair[er] warning” that he could be haled into court for his alleged material witness policies.


I agree with Orin that this footnote in 2002 did not clearly establish unconstitutionality of DOJ’s material witness policy. Not only was there Supreme Court precedent that subjective reasons are irrelevant in a Fourth Amendment context, but also the last sentence in the 2002 footnote is clearly WRONG. It is wrong to think that a person can avoid being arrested as a witness merely because that person himself is also weakly suspected of committing or planning a crime; all that is required for a constitutional arrest is probable cause that the person can provide evidence about another person’s alleged crime.

In the case of al-Kidd, the government didn’t simply arrest al-Kidd based on suspicions that he may have been planning a crime. Instead, the government asserted probable cause that he could provide information regarding allegations against al-Hussayen. And a neutral magistrate agreed. That seems like a legitimate procedure, even if the government was far more concerned about al-Kidd’s suspected crimes than his information about al-Hussayen.

Obviously, al-Kidd should not have been arrested. The warrant application was defective, his testimony ultimately was not used against al-Hussayen, and al-Kidd was innocent of any wrongdoing. But I don’t see that Ashcroft himself did anything unconstitutional here, and certainly it was not clear in 2002. Seven years ago, Ashcroft said:

Every day I tell the staff at the Justice Department: “Think anew. The world is changing. What are the ways we can safeguard the American people from attack? ….I say, “Think outside the box,” but I always say, “think inside the Constitution.”


The tone of the Ninth Circuit’s recent opinion is that the “detention was akin to a government policy of selling babies who are in foster care,” as Howard Wasserman recently put it. I hate to say it, but the Ninth Circuit's opinion seems more political or self-righteous than legal, to me. Everyone agrees that Section 3144 of the Material Witness Statute, as presently written, is highly confusing and ambiguous. And the constituional law in this area was certainly not in much better shape in 2002.
9.9.2009 6:57pm
Non:
Oren: It's a motion to dismiss and that's why the court ruled the way it did. That's the standard it had to apply. When it goes back, Ashcroft will have to file an answer, if he has not already done so, and there will be discovery. Depending on what discovery shows (including, potentially, that Kidd is all wrong) all issues can be decided on a MSJ, including immunity issues consistant with this opinion.
9.9.2009 7:02pm
Andrew Hyman (mail) (www):
By the way, Wasserman also mentions this interesting point:

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?


Any thoughts about that?
9.9.2009 7:08pm
FelixW:
Oren: Do you really not know this was a motion to dismiss?
9.9.2009 7:18pm
Andrew Hyman (mail) (www):
Per Judge Smith's opinion in the al-Kidd case:

Both the complaint and Amici Former Federal Prosecutors note the unprecedented nature of Ashcroft’s alleged material wittness policy, and thus it is unsurprising that published cases directly on point are lacking.


But see In the Sweat Box: A Historical Perspective on the Detention of Material Witnesses by Carolyn B. Ramsey:

[R]ather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects....This Essay demonstrates that the story of material witness detention is one of stasis, not of change.
9.10.2009 4:28am
David Schwartz (mail):
While subjective intent cannot be relevant to a fourth amendment violation, there is no reason in principle it couldn't be completely relevant to analyzing an alleged violation of the WMM statute itself. However, there is no way that you can argue with a straight face that violating the MWW statute in that way violates a clearly-established right.
9.10.2009 6:35am
Oren:

While subjective intent cannot be relevant to a fourth amendment violation, there is no reason in principle it couldn't be completely relevant to analyzing an alleged violation of the WMM statute itself.

Violating the 18USC1344 statute does not create a tort against the official in the way that violating the Fourth Amendment creates an action under Bivens. So even if Ashcroft violated the law, there might not be an action against him.


And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

Wasserman got to my point above before I did!

As to the answer -- Al-Kidd claims that misuse of the MWS in such a fashion implicates the 4A. IOW, it's an "as applied" fourth amendment violation to use the MWS in such a fashion, even if the MWS is facially valid (which no one would argue against).


However, there is no way that you can argue with a straight face that violating the MWW statute in that way violates a clearly-established right.

As a coda to this thread, I would be perfectly happy if the Supreme Court were to distinguish Whren, VM, Robinson, Macon and the lot and create a new precedent that warrants under under the statute have a good-faith requirement.

[ As I've said, I'd prefer the Congress to tighten the statute from "If it appears" to "clear and convincing") but apparently legislative fixes to legislative problems are disfavored for some reason. ]
9.10.2009 1:42pm

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