Analysis

Midway through a civil liberties lawyer’s argument on Wednesday against one of the Bush Administration’s first responses to the “war on terrorism,” the usually engaged and notably voluble Justices of the Supreme Court visibly appeared to be losing interest. They did not fall completely silent, but the normal mode of intensive involvement had palpably slackened, and the questions from the bench tailed off. Whether the lawyer had lost the case, as well as the Court’s interest, was not immediately clear, but that was the hint that spoke eloquently.

Former Attorney General John D. Ashcroft’s attempt to head off a trial claiming money damages for allegedly ordering the use of a witness-summons law as a cover for detention of terrorism suspects depends very heavily upon the Court concluding that he had legal immunity to any such claim. And so the argument in Ashcroft v. al-Kidd (10-98) was all about what level of immunity — absolute or qualified — the former top prosecutor might get from the Court. Despite implications that some members of the Court might be a bit worried that the federal law at issue might be subject to abuse, it is not clear that the sentiment could be written into an opinion unless Ashcroft was first denied immunity altogether, and that did not seem likely.

Here are the ingredients of the decisional dilemma: the federal “material witness” law allows potential witnesses in a criminal case to be arrested if prosecutors can show that a subpoena is not a practical way to assure that their testimony will be available to prosecutors, Ashcroft is accused in this case of ordering FBI agents to use that law to round up suspects in order to hold them in “preventive detention” with no plan to call them as witnesses, Ashcroft insists that the courts may not examine his motives even if that is what he actually did, and that, in any event, he cannot be held to account legally for his prosecutorial choices. For the Court to get at the issue of potential abuse of the statute, however, it must start with the final point first: is Ashcroft immune, or not? If he is, that’s the end of the case.

Acting U.S. Solicitor General Neal K. Katyal had a relatively easy time of it at the lectern Wednesday, finishing his initial presentation with ten minutes to spare. And, while some of the questioning had been intense, Katyal did not back down at all. His argument followed these simple steps: the “material witness” law has built-in safeguards against potential abuse, but, even if it did not, the decision to put that law to work to bring in an individual in whom the government has an investigative interest is a prosecutor’s choice, and it simply will not work to expose prosecutors to potential damage lawsuits for making that kind of choice. He suggested that the lower court was wrong in clearing this lawsuit to go forward when it held that “prosecutorial immunity can be pierced by bad motive.”

Justice Antonin Scalia framed the issue simply: either what Ashcroft allegedly did with the law “is a core prosecutorial function or it is not,’ and, if it is not, what difference does it make which kind of immunity should follow? This was prosecutorial choice, Katyal responded, because “this is what prosecutors do.” And, he suggested, agreeing with Scalia, that, if the action was prosecutorial, it would not make any difference whether there was a material witness law at all to give the prosecutor authority to order a witness’s arrest, and it would not make any difference whether there were a judicial process for challenging such a step.

Katyal also disagreed with a suggestion by Justice Sonia Sotomayor that there should be some method by which to “make prosecutors flinch” so that they do not abuse their powers. When Justice Scalia suggested as an answer to Sotomayor that, with limitations written into the law on the availability of a witness arrest warrant, it was not necessary to “make prosecutors flinch,” Katyal agreed, but added that the Constitution did not require that there be a way to make prosecutors flinch.

Lee Gelernt, a New York lawyer for the American Civil Liberties Union, speaking for the young man, Abdullah al-Kidd, who was held in harsh conditions for 15 days after being arrested as a “material witness” in a case in which he never appeared as a witness, sought at the outset of his argument to persuade the Court that his argument was a narrow one. He told Justice Scalia that al-Kidd was not challenging the constitutionality of the witness-arrest law, but only challenging Ashcroft’s alleged use of that law in a way that broke with two centuries of legal tradition.

Al-Kidd’s argument, Gelernt said, was simply that the law “cannot be used for ulterior purposes.” He also said that Ashcroft’s lawyers had been wrong in conjuring up the prospect of a flood of lawsuits against prosecutors over alleged misuse of the law. “We are not trying to fiddle with the use of the law in the everyday context,” and damage lawsuits would not be numerous if they were allowed. Chief Justice John G. Roberts, Jr., flatly disagreed, saying the claim “could be made in every case that ‘this is one of those extreme cases'” of alleged abuse.

Roberts added that, every time a prosecutor obtained the arrest of a potential witness but did not call that witness to testify (the situation with al-Kidd), then there is going to be a claim of prosecutorial misconduct. “We don’t think so,” Gelernt replied. “You have to allege much more” than a mere accusation of abuse of the law. And he tried to assure Justice Anthony M. Kennedy that, at most, there would be perhaps no more than 100 such lawsuits a year against federal prosecutors — a suggestion that Katyal would later interpret as evidence of a rash of lawsuits.

After further difficult exchanges Gelernt had with the Chief Justice and Justice Alito, observers in the courtroom could see the Justices begin to lean back in their chairs, and Gelernt was allowed to go on making some points at considerable length without frequent interruption. When a question did come from then on, it was mostly premised upon a negative comment about what he was arguing. Justice Alito flatly accused him of trying to relying upon two centuries of history about the material witness law, when what the Court was dealing with was whether to allow a constitutional claim to go ahead against Ashcroft for what the Attorney General may have done in 2003, under a constitutional lawsuit of a kind that the Court had only started to allow in 1971.

Katyal, back at the lectern with ten minutes of rebuttal time, called the case a simple one, and said it had nothing to do with abuses like those that have been alleged at Guantanamo Bay, and had nothing to do with “separation of powers,” but had everything to do with the flood of damage lawsuits that would ensue against prosecutors “in every case” in which a material witness had been arrested. It would destroy the incentive of defense lawyers to engage in plea bargaining, and the criminal justice system depends upon such bargains to resolve more than 90 percent of all of the cases, he argued.

When Justice Ruth Bader Ginsburg said that “some elements of this picture are very disturbing,” referring to the harsh conditions faced by some of those rounded up, as al-Kidd was, in the days after the 9/11 terrorist attacks, Katyal said that was an issue of “conditions of confinement,” not before the Court in this case.

Even if the case might not turn out to be an easy one for the Court, it was clear, in the end, that it had been quite an easy outing for Katyal.

Recommended Citation: Lyle Denniston, Argument recap: Eloquence in an unspoken hint, SCOTUSblog (Mar. 2, 2011, 2:58 PM), https://www.scotusblog.com/2011/03/argument-recap-eloquence-in-an-unspoken-hint/