The Supreme Court has reversed the Ninth Circuit in al-Kidd v. Ashcroft, a Bivens action in which the plaintiff alleges (among other things) that then-Attorney General John Ashcroft violated the Fourth Amendment by directing prosecutors to use the material witness detention statute pretextually in order to incarcerate terrorism-related suspects.
The statute in question, 18 USC 3144, provides:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
The Ninth Circuit held that the Fourth Amendment forbids the pretextual use of section 3144--i.e., to detain persons for reasons other than securing their testimony--and that this was a point of law sufficiently well-established to preclude Attorney General Ashcroft from asserting qualified or absolute immunity. Today, the Supreme Court reversed on both grounds.
In a unanimous opinion (8 votes, with Justice Kagan recused), Justice Scalia wrote that the test of constitutionality under the Fourth Amendment in this context must be objective rather than subjective, thus precluding the pretext argument as a general proposition. Key to the analysis was the fact that, in the majority's view, the plaintiff in this instance conceded the validity of the warrant but for the pretext issue. Thus the opinion concludes:
We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. (slip op. at 12)
Justice Scalia's opinion also concludes that Attorney General Ashcroft in any event should have received qualified immunity. On that issue, the Court was entirely unanimous, with none of the four concurring justices expressing qualms. So why then were there four Justices writing or joining three separate concurring opinions?
All were concerned with the possibility of other Fourth Amendment challenges to the material witness statute. Justice Kennedy wrote a concurrence making two points, as to the first of which he was joined by Justices Ginsburg, Breyer, and Sotomayor. First, he noted that the use of the material witness process against al-Kidd may yet prove unconstitutional, notwithstanding the demise of al-Kidd's pretext argument. Justice Kennedy explained that (i) it may be that the "warrant" under section 3144 is not a "warrant" within the meaning of the Fourth Amendment and (ii) it may be that in some applications the issuance of a section 3144 "warrant" is not reasonable as required by the Fourth Amendment. To illustrate the point, Justice Kennedy offered a hypothetical situation involving a "law-abiding citizen" who happens to witness a crime and who also happens to be on the verge of boarding a pre-planned international flight, where the witness might well voluntarily testify if asked and where the government delays until the person is at the airport before getting the warrant. "These possibilities resemble the facts in this case," he observed. (slip op. at 2). Second, Justice Kennedy commented on the idea that "[w]hen faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken." (slip op. at 3).
Justices Ginsburg and Sotomayor each wrote separate concurrences, joining each other and also joined by Justice Breyer. The main points for each were that (i) the Court should not have reached the merits of the pretext/Fourth Amendment issue (and Justice Sotomayor's concurrence more specifically questions whether the Court resolved that question correctly) and (ii) al-Kidd's remaining claims against the FBI agents involved in the case may yet have merit for the reasons suggested by Justice Kennedy (and Justice Ginsburg's concurrence recites facts about mistakes or misrepresentations in the underyling affidavit that do not look good, to say the least).
So what does all this signify from a counterterrorism perspective? At first blush it seems a huge win for the government insofar as a majority of the Court (all but Ginsburg, Breyer, and Sotomayor) reject the proposition that the Fourth Amendment forbids the pretextual invocation of section 3144. But on closer inspection the jury remains out. First, as Justice Kennedy suggests, it it quite possible that section 3144 going forward will turn out to be problematic under the Fourth Amendment quite apart from the question of pretext, at least when applied in some settings that appear particularly harsh. Second, the lingering prospect of Bivens liability for FBI agents who mistate or misrepresent facts in the underlying 3144 warrant application to some degree will check the pretextual use of 3144. Wholly pretextual uses--i.e., situations in which the government cannot really make a plausible showing of its testimonial interests--will be relatively risky to pursue or at least difficult to actually succeed with. Where the case can actually be made that the person's testimony is needed and at risk, however, this decision should pave the way for reliance on 3144 even if the underlying motivation is primarily to incapacitate a potentially dangerous person (or to pressure that person in order to induce cooperation, etc.).
A final note: As quoted above, 3144 does not authorize indefinite or long-term detention. The last sentence of the statute plainly contemplates that testimony be secured by deposition if necessary, with delayed release available only for such time as is reasonable to facilitate that deposition. Magistrates who issue section 3144 warrants should be diligent in enforcing this requirement.