Legal Commentary

Supreme Court Agrees to Review Ninth Circuit Decision on Using Material Witness Statute to Detain Terrorist Suspects

By Orin Kerr

Today the Supreme Court granted cert in Ashcroft v. Al Kidd, the case holding then-Attorney General John Ashcroft personally liable for his role in the detention of terrorist suspects under the material witness statute. 

I had a long post on the Ninth Circuit panel decision here: al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?. As I noted then, the qualified immunity analysis in the Ninth Circuit was pretty clearly wrong:

This case raises a novel question of law. I am a Fourth Amendment specialist who teaches and writes in this area and has spent a lot of time pondering how the Fourth Amendment applies in the war on terror specifically, and I myself am not sure whether pretextual use of the material witness warrant statute violates the Fourth Amendment. It?s a really hard question, and there is no caselaw on it all. Given that, I would be hard pressed to understand how this legal question could have been ?clearly established? back in 2003, as the majority says.

Part of the problem is that the majority?s qualified immunity analysis is just unpersuasive: It looks to things like the general purpose of the Fourth Amendment, dicta in a footnote in a district court opinion, and the like, all of which is pretty hard to square with how the Supreme Court applied qualified immunity in the most obviously relevant case, Mitchell v. Forsyth, 472 U.S. 511 (1985), which like this case was a civil suit filed against the Attorney General alleging a Fourth Amendment violation in the national security context. 

I also noted:

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.

Depending on how the case is briefed and how broadly the Justices want to decide it, it looks like they may take advantage of the opportunity. Either way, I would think that a reversal of the Ninth Circuit is highly likely on the qualified immunity issue.

Incidentally, I have a short article on how the Supreme Court has approached Fourth Amendment standards in the national security context here: The Modest Role of the Warrant Clause in National Security Investigations, 88 Texas L. Rev. 1669 (2010).

Full post as published by The Volokh Conspiracy on October 18, 2010 (boomark / email).