Orin Kerr on the Strange Fourth Amendment Case of Ashcroft v. Al-Kidd

Orin Kerr is the Fourth Amendment scholar that I definitely am not, so I read with interest his Volokh post this morning on Ashcroft v. Al-Kidd, which the Supreme Court will be hearing next week.  He says it is a strange case for a couple of reasons.  The two basic issues in the case are:

First, whether using the material witness statue for national security reasons violates the Fourth Amendment; and second, whether Ashcroft has immunity against liability.

Al-Kidd is a strange case for two reasons. First, the high stakes of the case are largely separate from the ultimate outcome. The Ninth Circuit’s ruling that Ashcroft was not entitled to qualified immunity is pretty clearly wrong. As Al-Kidd’s brief concedes, there was no precedent that covered the question at the time of the detention in this case. As a result, the Court will almost certainly reverse, probably 9–0, on the immunity issue. But that turns out to be only a small part of the case. The parties really care about the Fourth Amendment issue in the case: Both DOJ (counsel for Ashcroft) and Al-Kidd want a ruling on the underlying Fourth Amendment issue no matter how the Court rules on qualified immunity. As a result, the parties are focused on the merits of the Fourth Amendment claim even though it’s highly likely to be irrelevant to the outcome of the litigation.

The second strange part of Al-Kidd is that DOJ is using this case to get a ruling on its use of the material witness statute for national security reasons without actually making any national security-related Fourth Amendment arguments. This may sound puzzling at first, so let me explain. Right after 9/11, in the debate over the Patriot Act, DOJ tried to get a statute passed on the legal rules governing national security detentions. The statutory proposal proved controversial and was never passed. In the absence of an explicit statute, DOJ relied instead on the material witness statute, a statute designed to ensure the presence of witnesses in criminal cases, to obtain warrants to detain citizens for national security reasons. In the Al-Kidd case, DOJ wants a ruling on whether it can use the material witness statute in this way. If the Court gives DOJ a thumbs up, DOJ doesn’t have to go back to Congress and can just use the material witness statute in the future.