Legal Commentary

In cross-posts at Volokh and SCOTUSblog, Orin Kerr takes issue with the government?s litigation strategy in Ashcroft v. al-Kidd, the material witness/Fourth Amendment/qualified immunity appeal in which the Supreme Court is set to hear argument on Wednesday. Orin?s argument is worth reading in full, but I will focus on his principal point -- that, when it comes to the substantive Fourth Amendment question in the case, "DOJ is making an argument with one arm tied behind its back.? I don?t think that?s right. Instead, as I explain below the fold, DOJ does not, in fact, have available the alternative ?national security detention? argument that Orin believes it is avoiding.

As Orin notes, DOJ's merits-based argument is argument is that because it has available a criminal law enforcement justification for detaining someone under the material witness statute, it does not violate the Fourth Amendment if the government?s ?real? reason for the detention is instead a national security objective, such as interrogating the detainee to discover if he has information about possible future national security threats.

What Orin finds curious is that DOJ is not arguing that the national security justification is itself an independent ground for the detention. As Orin puts it, ?DOJ never makes the argument that its use of the material witness statute for national security reasons is permitted by its national security detention powers. . . . DOJ is arguing that the Court shouldn?t even look at its non-law-enforcement purpose and therefore shouldn?t get into its national security powers. . . ." This choice puzzles Orin. He writes that ?[i]t?s not clear to me why DOJ has limited its argument in this way. But . . . [t]he Justices presumably will want to know . . . what DOJ thinks its national security powers are.? What this overlooks is that the government is probably forgoing such an argument because it does not have any such ?national security? power to detain a U.S. citizen for over two weeks (as happened to al-Kidd).  Indeed, I think it's fairly clear that neither the Constitution nor any federal statute affords the government such authority, at least in this case.

For starters, federal law specifically forbids it. The so-called Non-Detention Act, 18 U.S.C. § 4001(a), provides that ?[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.? In Hamdi, the government argued that this prohibition does not apply to military detention. The Court did not specifically rule on that question, but as I wrote way back when, its earlier decision in Howe v. Smith had held that ?[t]his argument . . . fails to give adequate weight to the plain language of § 4001(a) proscribing detention of any kind by the United States, absent a congressional grant of authority to detain.?

To be sure, as Hamdi itself suggests, the Non-Detention Act is merely a baseline restriction: It does not prevent Congress from authorizing ?national security detention.? (Indeed, the Hamdi Court went on to hold that Hamdi?s detention was authorized by the 2001 Authorization for Use of Military Force.) The material witness statute might well provide such authority in some cases ? the government?s argument is that it did so in the al-Kidd case. Orin?s puzzlement, however, is why DOJ is not also citing a stand-alone ?national security? basis for al-Kidd's detention, rather than falling back on the material witness statute.

The reason for DOJ's reticence on that score is that Congress has not afforded the Executive such an authority. Section 412 of the USA PATRIOT Act does authorize the detention of non-citizens suspected of terrorism-related activities for up to seven days, before the detainee must either be (1) charged with a crime; (2) placed in removal proceedings; or (3) released. But that authority would not help in al-Kidd, both because he is a citizen and because his detention more than doubled the seven-day statutory limit. Moreover, as Orin himself notes, DOJ urged Congress during the debate over the PATRIOT Act to enact a broader statute authorizing national security detentions that might cover the case here, but that ?proposal proved controversial and was never passed.?

It might be argued instead that the AUMF authorizes the very ?national security detention? Orin contemplates. It is very much an open question whether the AUMF does (and constitutionally could) authorize the detention of individuals, especially U.S. persons, who are apprehended within the United States and alleged to be enemy forces, among the persons covered by the terms of the AUMF. That was the question raised in both the Padilla (U.S. citizen) and al-Marri (lawfully resident non-citizen) cases, which the Supreme Court did not resolve because the government returned the two detainees to criminal custody. But whatever the government's national security detention authority might be as to members of enemy forces captured inside the United States, the AUMF cannot be of assistance here; the government is not alleging that al-Kidd is part of enemy forces, or otherwise covered in any way by the terms of the AUMF.

Nor am I aware of any extant statutory authority for long-term ?national security detention? beyond what the material witness statute, the USA PATRIOT Act (for non-citizens), and the AUMF provide. Together with the prohibition of the Non-Detention Act, this absence of statutory authority explains why the government?s sole argument for its authority to detain al-Kidd is based on the material witness statute. To be fair, If I?m reading his posts correctly, Orin appears to think that the Fourth Amendment itself might provide the government with the authority that the U.S. Code does not for a long-term ?national security? detention of a U.S. citizen. But I had always understood the Fourth Amendment as only limiting the government?s power to seize persons ? not as creating such powers.

In short, then, it seems to me that the Justice Department isn?t forgoing any important arguments here. Leaving aside whether or not former Attorney General Ashcroft is entitled to qualified immunity, the underlying merits issue is whether the material witness statute authorized al-Kidd?s detention -- and, if it did, whether that detention nevertheless violated the Fourth Amendment if the government?s motives were pretextual in the way al-Kidd alleges (allegations that must be taken as true at this stage of the litigation). It's still an important and tricky case to be sure, but I just don't see Orin's dog that didn't bark...