Detention: Law of: Supreme Court Development

Cyber Weapons and Editorials on al-Kidd v. Ashcroft

By Raffaela Wakeman
Wednesday, June 1, 2011, 11:31 AM

Several pieces in the news today may be of interest to Lawfare Readers.

The Washington Post reports on the Pentagon's list of  critical cyber-weapons:

The Pentagon has developed a list of cyber-weapons and -tools, including viruses that can sabotage an adversary’s critical networks, to streamline how the United States engages in computer warfare.

The classified list of capabilities has been in use for several months and has been approved by other agencies, including the CIA, said military officials who spoke on the condition of anonymity to describe a sensitive program. The list forms part of the Pentagon’s set of approved weapons or “fires” that can be employed against an enemy.

The Washington Post also editorializes on Tuesday's Supreme Court decision to throw out Abdullah al-Kidd's lawsuit against former Attorney General John Ashcroft--concluding with the following exhortation to create reasonable detention rules, rather that continuing to rely on laws like the material witness statute:

The Sept. 11, 2001, terrorist attacks encouraged law enforcement officials to tap every existing tool and to stretch their application in an effort to avert further strikes. But the government should not be in the business of contorting the material-witness statute as a means to investigate and detain suspects. The better lesson to learn from the al-Kidd case is the need for the administration and Congress to work together to establish a lawful framework with stringent judicial review to govern those rare instances when preventive detention is necessary.

The New York Times also has an editorial regarding the al-Kidd decision, noting that while the court did reach an 8-0 decision, the way the two wings of the court reached those opinions diverge:

For himself and the court’s four other conservatives, Justice Antonin Scalia goes beyond the limited holding to find that Mr. Kidd’s detention was reasonable and didn’t violate the Constitution. Precedents keep the court from considering Mr. Ashcroft’s motives in this case, Justice Scalia contends, so the five reject Mr. Kidd’s claim that Mr. Ashcroft used it unconstitutionally as a pretext.

In separate opinions, however, Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor, all joined by Stephen Breyer, stressed that the holding “leaves unresolved whether the government’s use of the material witness statute in this case was lawful.”

To reach its position, the majority assumes that the government validly obtained the warrant to detain Mr. Kidd. How could that be so, Justice Ginsburg asks, “when the affidavit on which it is based fails to inform the issuing magistrate judge” that the government had no intention of using him as a witness against another man?