By Mike Dorf
Yesterday, in Ashcroft v. Al-Kidd, the Supreme Court unanimously ruled that former Attorney General John Ashcroft was entitled to qualified immunity against a federal lawsuit alleging that Ashcroft ordered the use of material witness warrants as a pretext for detaining terrorism suspects against whom there was insufficient evidence to justify detention for crime. All eight participating justices (Justice Kagan was recused) thought that it had not previously been clearly established that using a material witness warrant in this way is unconstitutional. There were, nonetheless, some rather serious disagreements, which I'll attempt to explain and referee here.
1) Justice Scalia, writing for a five-justice majority (himself, CJ Roberts, and Justices Kennedy, Thomas, and Alito), also reached the merits of the claim. Citing a substantial body of precedent that, for the most part, makes a government official's subjective state of mind irrelevant to the lawfulness of his conduct under the Fourth Amendment, Justice Scalia held that the same should be true here: Where there is an otherwise valid material witness warrant (more about that below), Justice Scalia and the majority said that courts should not inquire into the "real" reasons why the material witness warrant is executed.
2) Three justices (Ginsburg, Breyer, and Sotomayor) chastised the majority for deciding the merits rather than simply deciding the qualified immunity issue. This strikes me as a bogus objection. It's true that Pearson v. Callahan permits courts (including the SCOTUS) to decide the qualified immunity issue without deciding the merits, but Pearson also recognized that "it's often beneficial" to consider the merits as well, especially because doing so furthers development of the law. As Justice Scalia noted, the lower court had decided the merits and so the issue was nicely teed up. In addition, it's hard to see that these three justices would have complained had the Court decided the merits the other way.
3) Justices Ginsburg, Breyer, and Sotomayor had another objection, one that strikes me as more telling, although probably not significant beyond this case. They disputed the majority's characterization of the record. According to Justice Scalia (in footnote 3), Al-Kidd's argument assumes the validity of the material witness warrant. But Justices Ginsburg, Breyer, and Sotomayor say that Al-Kidd's pleadings--which must be accepted as true in light of the procedural posture of the case--never conceded that his detention as a material witness was lawful. I looked at the complaint, and I have to say that Justices Ginsburg, Breyer, and Sotomayor are clearly right about that. Indeed, I don't even think Justice Scalia disagrees. He doesn't say that Al-Kidd's complaint or even any of his subsequent filings concede the validity of the material witness warrant. What Justice Scalia says instead is that Al-Kidd's argument, and the fact that he also brought civil complaints against lower-level officials, somehow implies that he conceded the lawfulness of the material witness warrant arguendo. I don't see why that is so, but as I said, it's hard to see this aspect of the case having far-reaching consequences.
4) Meanwhile, although Justice Kennedy joined Justice Scalia's majority opinion, he wrote a concurrence--joined in its key parts by Justices Ginsburg, Breyer, and Sotomayor--in which he hinted that, in light of the facts alleged, the underlying material witness warrant is not valid and more broadly, that the material witness statute may be invalid. The key move is Justice Kennedy's suggestion that the standard for whether a material witness warrant satisfies the Fourth Amendment may not be the same as the standard for whether a warrant based on probable cause to believe that the suspect has committed a crime satisfies the Fourth Amendment.
Justice Kennedy has good reason to worry about the potential limitlessness of material witness warrants. One possibility, which even Justice Scalia seems to say might be problematic, is that a material witness warrant need only be based "probable cause to suspect a violation of law, and not probable cause to believe that the individual named in the warrant was a material witness." One certainly hopes that could not support a material witness under the Fourth Amendment, for if it did, then anybody could be held as a material witness with respect to any crime!
Yet even the narrower standard--probable cause to believe that the individual named in the warrant is a material witness--is potentially overbroad under the Fourth Amendment. The standard set forth in the material witness statute has the same problem. It allows detention of a material witness whose testimony cannot be procured by subpoena if her testimony "is material in a criminal proceeding." And there's the rub: Whether a person's testimony is material will depend on a host of factors almost solely in the prosecution's control, such as what physical evidence to introduce, what other witnesses to call, and how to cross the defense witnesses, if any. The materiality inquiry is deeply embedded in the prosecution's trial tactics in a way that seems quite easy to manipulate.
For my money, I would like to see a material witness standard (at least in the statute and perhaps even as a construction of the Fourth Amendment) that requires something more--something like a requirement that the government show that the witness's testimony is vital to a case (and that it can't be procured via subpoena). There also ought to be some burden of explanation on the government when, as in Al-Kidd's case, it holds someone as a material witness but never calls on him to testify. Four justices in Al-Kidd hinted that they may be receptive to tightening up on the use of material witness warrants, and I would guess that Justice Kagan would join them if the issue were to return. In the meantime, the best outcome would be for Congress to amend the material witness standard to limit future abuses--not that I'm holding my breath.