When it comes to getting the old fur ruffled, there is a lot of action these days at the Supreme Court. Justice Samuel Alito wrote a scorching dissent, joined by no one, in today's ruling that the Phelps Family Roadshow of Bilious Bigotry has a First Amendment right to protest at funerals. In Alito's view, sticks and stones may break your bones, but words can punch your face in. Meanwhile, Justice Clarence Thomas has been thundering away (in private gatherings) about ominous-yet-existential threats to Liberty. Justice Antonin Scalia evidenced some Grade-A chest-thumpage in this morning's oral argument about the right to confront witnesses against you. And as we all learned Tuesday, don't even try to get on the wrong side of Chief Justice John Roberts and his Webster's American English Dictionary.
But there is very little ruffled fur or uppity dander at this morning's argument in a case about an American citizen held under brutally abusive conditions for over two weeks as a material witness—even though he was willing to testify and was never charged with anything. The party line here regarding Sept. 11 seems to be this: Mistakes were made. Knit. Purl.
Abdullah al-Kidd was born Lavoni Kidd, a U.S. citizen and former football star at the University of Idaho. He converted to Islam after college. In 2003, he was detained under the federal material witness statute , then spent 16 days in federal detention, sometimes naked and sometimes shackled, often freezing and in cells lit for 24 hours a day. Nobody suspected him of wrongdoing. He was simply an acquaintance of Sami Omar al-Hussayen, who was being investigated for ties to terrorism. Even though al-Kidd had cooperated with the FBI previously, the agency sought a material witness warrant based on the (inaccurate) claim that he was about to flee to Saudi Arabia with a first-class one way-ticket worth $5,000. (In fact, he had a round-trip coach-class ticket that he paid about $1,700 for. He was going to study for a doctorate in religion.) Although the authorities claimed they needed to detain al-Kidd so he would testify against al-Hussayen, he was never called to testify, and al-Hussayen was not convicted.
Al-Kidd sued many. This appeal concerns his suit against then-Attorney General John Ashcroft. As Adam Liptak pointed out, this detention was widely hyped at the time. "When the director of the Federal Bureau of Investigation, Robert S. Mueller III, gave Congress a progress report in early 2003 on the agency's success in 'identifying and dismantling terrorist networks,' his first example was the capture of Khalid Shaikh Mohammed, the mastermind of the Sept. 11 attacks. His second was the arrest of Abdullah al-Kidd."
Al-Kidd's claim is that Ashcroft created a policy that allowed the FBI to distort the material witness statute—a law aimed at preventing witnesses from fleeing before trial—as a pretext for long-term preventive detention for suspects they never intended to call to testify. The government says Ashcroft cannot be personally liable and is entitled to absolute immunity from lawsuits against state officials carrying out prosecutorial duties, as well as qualified immunity because it was unclear at the time that a clearly established constitutional right was being violated. The United States Court of Appeals for the 9th Circuit disagreed. Many—including other members of the 9th Circuit—disagreed with that.
Acting Solicitor General Neal Katyal opens today by explaining that "this lawsuit seeks personal money damages against a former attorney general of the United States for doing his job." He adds that allowing litigants to second-guess the motives of the attorney general would lead to "time-consuming, vexatious, burdensome, and, indeed, destabilizing discovery and litigation." He meets almost no resistance as he barrels through an excellent argument, explaining that "the material witness warrant statute laces into it a whole suite of safeguards to prevent against … the potential for abuse."
Justice Ruth Bader Ginsburg tries to explain that the courts don't look at the subjective intentions of prosecutors in cases where they already have probable cause to detain someone. But in this case, she says: "There was no probable cause to believe that al-Kidd did anything. There was no violation of the law."
Justice Stephen Breyer wonders what happens if the prosecutor had said, "I do not intend to try this person, ever, no matter what; I just want to ask him questions." Does that violate the material witness statute? Katyal says it does but goes on to argue for absolute immunity in this case because "absolute immunity isn't some rule to just protect prosecutors willy-nilly; it's to protect the public. … No doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties."
Justice Sonia Sotomayor gives off the first trace of raised dander when she retorts, "You don't think there's a reason to make prosecutors flinch against willy-nilly … out of pure investigative reasoning, out of whatever motive they have, just lock people up?" To which Katyal replies, "Making prosecutors flinch is always a bad thing."
Lee Gelernt of the ACLU tries to whip up a little indignation on the bench by reminding the justices of the "bedrock Fourth Amendment principle that a criminal suspect may not be arrested, absent probable cause to believe there has been a law violated." He describes this as "fundamental to our traditions," a "defining feature of our country," and "steadfastly protected by this court for more than two centuries in both good and bad times."
Silence. You half expect him to tap the mike and say, "Is this thing on?"
As Gelernt explains that the sole constitutional purpose of a material witness warrant is "to secure testimony and not to preventively detain and investigate the witness himself," Scalia interrupts to ask whether he believes even that to be unconstitutional. And Gelernt, possibly thinking that if he can't woo 'em with liberty, he might yet grab 'em on originalism, explains that the material witness statute that "the Framers enacted in 1789 would not allow the arrest of any witness unless they came voluntarily before the magistrate and refused to even promise to return."
Crickets. Originalist crickets, but still, crickets.
Eventually Alito decides to make fun of the hypothetical: "So your hypothetical is a situation in which there is a witness and this witness has important testimony that could be used in a pending criminal case, and yet the prosecution has absolutely no interest in calling that person as a witness. How often is that going to arise?"