Gelernt replies, "It did happen in this case, it happened after 9/11."
Roberts: "So every time the prosecutor elects not to call one of these witnesses for a variety of reasons, you would have a claim that this wasn't designed to elicit testimony?"
Alito: "Your argument is that the Constitution does not allow a material witness to be detained, so long as the witness says in court that he or she will show up for trial, no matter how much evidence there is that this person poses a great risk of flight? If the person says in court, I will be there, that's the end of it, the person cannot be detained?"
Scalia: "But the Fourth Amendment doesn't say you need probable cause. There are situations where you can conduct a search without probable cause. There's the Terry search. There's administrative searches. There's a lot of exceptions."
Roberts, wondering whether government officials trying to decide what to do in a major terror case should really be asking, "If I'm the officer in that situation, I say, 'Well, I'm just not going to run the risk of having to sell the house'."
The left wing of the court knits one, purls one.
The case is beautifully argued on both sides. Gelernt tries to close by painting a picture of a statute "that had enormous consequences." As he reminds us, ACLU-ishly: " People were held—half the people were held more than 30 days, even though the statutory presumption is 10 days. Many people were held for months. They were arrested at gunpoint. They were not immunized. Half the people were not called to testify. It went on in cities all over the country. People being held under horrendous conditions for long periods of time, interrogated about their own activities."
Katyal brings everyone back to earth with a rebuttal that begins: "This is a simple case. It's not about Guantanamo, it's not about separation of powers, it's about one simple thing: Should we allow damages actions against an attorney general of the United States and ultimately assistant U.S. attorneys for doing their job, when they're alleged to have a bad motive?"
Katyal adds that if there has indeed been a " 'national pattern of abuse' of the material witness statute, something which we—with which we vigorously disagree … then you'll be having these damages actions quite a bit of the time."
And that would be terrible.
Ginsburg has a brief emoticon moment when she stops Katyal to note that "there are some elements of this picture that are very disturbing, and we are talking about the attorney general and the attorney general's immunity. But there are allegations here that this man was kept awake, the lights shining in his cell for 24 hours, kept without clothes. Now that doesn't sound like the way one would treat someone whose testimony you want. Is there a remedy that he has for that obvious mistreatment?"
Katyal explains that al-Kidd has sued his prison guards for that purpose.
Nobody is here to suggest that these questions of responsibility for the abusive detentions that happened after Sept. 11 are easy. The problem is that, because nobody is ever held responsible for anything, they have been made to look easy. "Hey, we were just doing our jobs," and "Hey, we were all just freaking out" have become acceptable answers. And if oral argument today is proof of anything, it's that when it comes to the civil liberties fallout post-Sept. 11, nobody can ever muster the energy to ask the questions.
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