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Opinion recap: Narrow ruling on anti-terrorism tactic (UPDATED)

Analysis  (final update 9:20 p.m.)

The Bush Administration’s wide use of an arrest tool to take terrorism suspects off the streets barely — and perhaps only temporarily — survived a major test in the Supreme Court on Tuesday, even though its principal architect — former Attorney General John D. Ashcroft — will not have to go to trial to defend it.  While finding that Ashcroft is entitled to limited legal immunity for a single, controversial use of the tactic, fully half of the eight Justices voting on the case sent out clear indications that they are deeply skeptical about it.  That was the somewhat contradictory outcome in Ashcroft v. al-Kidd (docket 10-98).

The tactic at issue is to use a law — the federal “material witness” statute — to take an individual suspected of terrorism ties into custody, and then hold them without any definite purpose of later calling them as a witness.  A few weeks after the Sept. 11, 2001, terrorist attacks, Ashcroft said publicly that the tactic was being used as part of an energetic new effort to take “suspected terrorists off the street.” The case decided Tuesday involved the arrest and detention of a citizen, Abdullah al-Kidd, as a potential “material witness” in the trial of another individual, though al-Kidd was never summoned to testify.

The Ninth Circuit had cleared the way for trial of al-Kidd’s damages claim against Ashcroft personally, based on the theory that it was unconstitutional for the then-attorney general to authorize the use of a material-witness arrest warrant as a pretext, aiming solely to achieve detention, not to assure that the witness would be available to take the stand.  In the Court’s new ruling, that trial was blocked — by a unanimous vote.

All members of the Court taking part (Justice Elena Kagan was recused) agreed that, at the time of al-Kidd’s arrest and detention, it was not a clear constitutional rule that a government official acted illegally in directing subordinates to use the material-witness law in the way that Ashcroft allegedly had done.   Justice Antonin Scalia, in the Court’s main opinion, said that the Court generally does not allow lower courts to inquire into the subjective purpose of why an arrest warrant is sought.   Lacking such a precedent, therefore, Ashcroft had immunity to al-Kidd’s constitutional claim, the decision concluded.

The Scalia opinion was based upon the premise that, in this appeal, al-Kidd did not claim that the use of the material-witness law to achieve detention was itself unconstitutional under the Fourth Amendment.  His only claim was that Ashcroft had acted unconstitutionally because the law was used as a pretext to isolate a terrorism suspect. The Court rejected that claim, and in the process left for another day the question of whether using the law for detention purposes would, by itself, violate the Fourth Amendment.

Justice Scalia’s opinion had the full support of four other Justices — Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Clarence Thomas.  Thus, there was a clear majority for the conclusion that Ashcroft was immune because he had not violated a constitutional right that existed at the time of al-Kidd’s arrest in March 2003.  Some of the concurring Justices would not have resolved that issue in this case, finding it unnecessary to the outcome.

From an examination of the three separate opinions written by other Justices — including Kennedy — there are significant hints that federal magistrate judges, when asked by the government to issue a material-arrest warrant, might be well advised to examine more closely the basis for the government’s request for such a warrant.   Some of those Justices clearly were disturbed by what had happened to al-Kidd, and seemed to be suggesting that the FBI may not have been held to a strict enough standard when it sought the witness arrest warrant.

All eight Justices in the case suggested that al-Kidd still may pursue a claim against individual FBI agents, on the premise that they acted illegally in obtaining the arrest warrant for him, allegedly for misrepresenting or omitting key facts. The Court did not resolve such a claim, leaving it to al-Kidd to pursue.  They did not finally resolve whether that challenge would actually succeed.

Kennedy, who joined the Scalia opinion in full, wrote separately to stress that the Court had not resolved the constitutionality of using material witness arrests for purposes of detention.  He said “the scope of the statute’s lawful authorization is uncertain,” and he ticked off circumstances — resembling the facts of al-Kidd’s case, Kennedy said — that would make the use of the statute of doubtful validity.  “Given the difficulty of these issues,” Kennedy wrote, the Court was right in settling “only the legal theory put before it” (that is, the use of the law as a pretext).

The part of Kennedy’s opinion raising questions about the arrest and detention tactic was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.  (They did not join an unusual solo section of the Kennedy concurrence, in which Kennedy laid out a theory that officers of the national government — such as the Attorney General — should be given a greater measure of leeway when determining whether they qualified for legal immunity for their actions.)

Justice Ginsburg’s separate opinion, joined by Justices Breyer and Sotomayor, chastised the Scalia opinion for operating on the assumption that the material-witness arrest warrant for al-Kidd was valid.  (Scalia countered that this was a concession by al-Kidd, not an assumption by the Court.)  Ginsburg then went on to argue that the warrant for al-Kidd was probably illegally obtained by FBI agents, based on their failure to tell the magistrate judge that their purpose was not to call al-Kidd as a witness, and based also on facts they misrepresented or left out.   Ginsburg noted that al-Kidd still may have legal claims against individual FBI agents for the way they sought the warrant.

Ginsburg’s opinion went on to warn magistrate judges to be “vigilant” in exercising their “checking role” over potential abuses of material-witness arrest warrants.  Noting the harsh conditions to which al-Kidd was found to have faced during the 16 days he was detained, Ginsburg said his ordeal might have been avoided if the magistrate judge in this case had “insisted on more concrete showings” of the need to arrest him as a potential witness.

Justice Sotomayor’s separate opinion, joined by Justices Breyer and Ginsburg, argued that the Court majority had unnecessarily resolved the issue of whether a constitutional challenge to a material-witness arrest could be based upon a claim of pretext.   The Court, Sotomayor wrote, has never decided previously whether a government official’s “subjective intent” mattered when an individual was taken into custody and detained without being suspected personally of a crime.

She, too, questioned the validity of the warrant that led to al-Kidd’s arrest and detention.  And she stressed, in closing, that the Court ruling did not place the Court’s “imprimatur on the actions taken by the government against al-Kidd.”

For Ashcroft personally, the ruling was the second legal victory provided by the Court in the past two years.  In a ruling in May 2009, the Court made it more difficult to bring lawsuits against high officials, such as the Attorney General, by individuals rounded up in the immediate aftermath of the terrorist attacks in 2001 (the ruling in Ashcroft v. Iqbal).  The Court did not immediately throw out the specific lawsuit against Ashcroft, returning it to lower courts for further review.  The case was then settled without a new ruling.

Recommended Citation: Lyle Denniston, Opinion recap: Narrow ruling on anti-terrorism tactic (UPDATED), SCOTUSblog (May. 31, 2011, 11:29 AM),