Constitutional Law: Discussion of Al-Kidd Case and DoJ’s Peculiar Posturing

Full credit to Orrin Kerr at SCOTUS Blog:  http://www.scotusblog.com/2011/02/the-strange-case-of-ashcroft-v-al-kidd/:

The Petitioner in this case is John Ashcroft, the former Attorney General, who is represented by the Department of Justice (DOJ). The Respondent is Abdullah Al-Kidd, a person who was detained under the material witness statute, who is represented by the ACLU. Al-Kidd has sued John Ashcroft under the Fourth Amendment for Ashcroft’s policy of using the material witness statute for purposes of national security detention. Ashcroft has denied that the Fourth Amendment was violated, and he has raised both qualified and absolute immunity defenses against liability. The case therefore raises two basic issues: First, whether using the material witness statue for national security reasons violates the Fourth Amendment; and Second, whether Ashcroft has immunity against liability.

Al-Kidd is a strange case for two reasons. First, the high stakes of the case are largely separate from the ultimate outcome. The Ninth Circuit’s ruling that Ashcroft was not entitled to qualified immunity is pretty clearly wrong. As Al-Kidd’s brief concedes, there was no precedent that covered the question at the time of the detention in this case. As a result, the Court will almost certainly reverse, probably 9-0, on the immunity issue. But that turns out to be only a small part of the case. The parties really care about the Fourth Amendment issue in the case: Both DOJ (counsel for Ashcroft) and Al-Kidd want a ruling on the underlying Fourth Amendment issue no matter how the Court rules on qualified immunity. As a result, the parties are focused on the merits of the Fourth Amendment claim even though it’s highly likely to be irrelevant to the outcome of the litigation.

The second strange part of Al-Kidd is that DOJ is using this case to get a ruling on its use of the material witness statute for national security reasons without actually making any national security-related Fourth Amendment arguments. This may sound puzzling at first, so let me explain. Right after 9/11, in the debate over the Patriot Act, DOJ tried to get a statute passed on the legal rules governing national security detentions. The statutory proposal proved controversial and was never passed. In the absence of an explicit statute, DOJ relied instead on the material witness statute, a statute designed to ensure the presence of witnesses in criminal cases, to obtain warrants to detain citizens for national security reasons. In the Al-Kidd case, DOJ wants a ruling on whether it can use the material witness statute in this way. If the Court gives DOJ a thumbs up, DOJ doesn’t have to go back to Congress and can just use the material witness statute in the future.

Now here’s the strange part. Although DOJ wants a ruling on whether it can use the material witness statute for national security reasons, DOJ is not making any arguments that actually relate to its national security detention powers. Fourth Amendment law generally permits the government to search and seize for different important government interests in different ways. If the government is conducting a search and seizure for criminal law reasons, there is a set of criminal law powers; if the government is conducting a search and seizure for national security reasons, there is a set of national security powers. But instead of making an argument based on its national security powers — which are quite murky and undeveloped — DOJ’s claim in this case is based entirely on its criminal law powers.

DOJ’s argument is that in the criminal law setting, courts permit pretextual seizures, and thus, based on those powers, DOJ should be allowed to use the material witness statute pretextually. But DOJ never makes the argument that its use of the material witness statute for national security reasons is permitted by its national security detention powers. The resulting dynamic is quite strange, I think. In most “special needs” cases — a category that includes national security cases — it’s the government that is arguing that it has a non-law-enforcement purpose in order to trigger the non-law enforcement authorities. But in this case, DOJ is arguing that the Court shouldn’t even look at its non-law-enforcement purpose and therefore shouldn’t get into its national security powers.

It’s not clear to me why DOJ has limited its argument in this way. But whatever the reason, it may create some headaches for the Justices. In effect, DOJ is making an argument with one arm tied behind its back. The Justices presumably will want to know about the other arm: They will want to know what DOJ thinks its national security powers are, which is directly relevant to its case. But given that DOJ has declined to litigate that issue in its briefs, DOJ may simply decline to articulate its position at oral argument. If so, that will force the Justices to resolve the case based only on a very partial picture of the relevant legal authorities. Either that, or the Justices may just decline to resolve the Fourth Amendment issues until a future case in which DOJ is willing to litigate the question fully. All of which makes Al-Kidd a rather strange case.