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Ruling On Anti-Terror Tactics Subjects Law Enforcement Officials To Personal Liability
Topic: National Security Policy and Law
By The Honorable Dick Thornburgh, Attorney General of the United States from 1988 to 1991 and Governor of Pennsylvania from 1979 to 1987. Governor Thornburgh currently is Counsel to the law firm of K&L Gates LLP and Chair of Washington Legal Foundationís Legal Policy Advisory Board.
Legal Opinion Letter, June 4, 2010, 2 pages
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WLF Legal Opinion Letter 

Ruling on Anti-Terror Tactics Subjects Law Enforcement Officials To Personal Liability

By The Honorable Dick Thornburgh
June 4, 2010 (Vol. 19  No. 11)


The May 1 bomb scare in Times Square is a grim reminder of the ever-present terrorist threat our country faces and, more importantly, the need for diligent law enforcement efforts to thwart our enemies.  Fast response times and effective tools are necessary to keep the nation safe, and America needs talented and committed professionals occupying senior law enforcement positions in government. 

A recent ruling by the U.S. Court of Appeals for the Ninth Circuit regrettably jeopardizes our ability to satisfy these needs.  A bare majority of the circuit's judges have denied en banc review to a three-judge panel's ruling in Al-Kidd v. Ashcroft, which held the Attorney General of the United States personally liable for supporting the use of the material witness statute in the context of investigating terrorism.  580 F.3d 949 (9th Cir. 2009), en banc reh'g denied, 598 F.3d 1129 (9th Cir. 2010).  The material witness statute, 18 U.S.C. sec. 3144, is a valuable tool which allows a warrant to be issued for the arrest of one whose testimony is "material to a criminal proceeding" and whose presence may be "impracticable" to secure by subpoena.  The impassioned and well-reasoned dissent of eight circuit judges from the denial of rehearing, along with the ruling's disregard of prevailing case law precedents, make Al-Kidd a promising candidate for U.S. Supreme Court review.

The plaintiff, Abdullah al-Kidd, was arrested pursuant to a material witness warrant because federal officials believed that he could provide information concerning one of his associates.  Al-Kidd was arrested at the airport before boarding a flight to Saudi Arabia and was subsequently detained at several federal detention facilities over the course of sixteen days.

  Al-Kidd filed a Bivens action against several federal officials, including former Attorney General Ashcroft, and claimed violations of his constitutional rights.  Particular to General Ashcroft, al-Kidd alleged that his rights were violated by Ashcroft's "post-9/11 material witness policies and practices," such as the use of the material witness statute as a pretext to arrest individuals it wished to further investigate.  He argued that Ashcroft was personally liable for his arrest because Ashcroft "developed, implemented and set into motion a policy and/or practice under which the FBI and DOJ would use the material witness statute to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventively or to investigate further."  Al-Kidd claimed pretextual use of material witness warrants was illegal because it violated the material witness statute and unconstitutional because it violated the Fourth Amendment.

Unfortunately, a majority of Ninth Circuit judges have accepted al-Kidd's arguments twice.  Both the original three-judge panel and the concurring opinion in the denial of rehearing refused General Ashcroft absolute immunity despite the fact that "absolute immunity ordinarily attaches to the decision to seek a material witness warrant."  Al-Kidd, 580 F.3d at 959.  Instead, the court held that "when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than secure his testimony at another's trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity."  Id. at 963.

The panel found the government's alleged purpose for arresting al-Kidd as dispositive in its analysis of General Ashcroft's qualified immunity defense.  Government officials are owed qualified immunity from personal liability unless the official's conduct violated a constitutional right that was clearly established in the context of the specific case. Id. at 964 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).  As to whether al-Kidd's constitutional rights were actually violated, the court reasoned that, when the material witness statute is used to detain someone for investigative purposes and not just to secure their testimony, probable cause of criminal wrongdoing is required.  Id. at 970. Thus, al-Kidd's otherwise lawful detainment under the material witness statute was illegal if law enforcement officials intended to detain or investigate him.

The panel went on to hold that such a right was clearly established.  Even though "no case had squarely confronted the question," the court held that General Ashcroft should have known that "an investigatory programmatic purpose renders a program of seizures without probable cause unconstitutional."  Id. at 971.  As Judge O'Scannlain wrote in his dissent from the denial of rehearing, such a court judgment "effectively declares the material witness statute unconstitutional as applied to al-Kidd."  598 F.3d at 1137.

Judge Smith's reasoning in the original opinion that a valid material witness warrant can somehow become constitutionally invalid based upon the intentions of the applying government official goes against Supreme Court precedent affirming that subjective intentions do not apply in Fourth Amendment analysis.  See Whren v. United States, 517 U.S. 806 (1996).  Further, it ignores the fact that the Fourth Amendment's reasonableness requirement is already met as material witness warrants are issued by a neutral magistrate and supported by probable cause.  The court reads an extra requirement into the statute -- no suspected witness may be wanted for any further investigative purposes.  Such a result is untenable by text of the statute and common sense.

More troubling than the court's acrobatic method of statutory interpretation is its willingness to deny qualified immunity to government officials who are seeking to use lawful means to bolster national security.  To be denied qualified immunity, an official must have been aware that he was crossing a clearly established line into unconstitutional behavior.  Use of material witness warrants to detain terrorism suspects may have been unconventional, but it is an unfair application of hindsight to hold that General Ashcroft was on notice that such use could be unconstitutional.  Judge O'Scannlain captured the gravity of this outcome: "One shudders at the thought that this decision might deter the incumbent and future Attorneys General from exercising the full range of their lawful authority to protect the security of the United States."  598 F.3d at 1141.

The court's decision is also an affront to Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which held that in a Bivens action, a government official is only liable for his own conduct. Id. at 1949.  Further, a plaintiff must plead sufficient facts that are more than "merely consistent with a defendant's liability."  Id.  The facts plead by al-Kidd, however, establish only that General Ashcroft favored aggressive use of the material witness statute, a practice that "violate[d] neither the statute nor the Constitution." Al-Kidd, 580 F.3d at 992 (Bea, J., dissenting). 

The Ninth Circuit's decision threatens high level government officials with a dangerous probability of personal liability because it interprets Iqbal's requirement of personal conduct to include liability for high level policy decisions that are later interpreted by the courts to lack constitutional support.  Al-Kidd v. Ashcroft amounts to an unfortunate case of judicial second guessing of policy judgments. 

The Ninth Circuit's reasoning is simply wrong as a matter of law, and that alone should provide four Supreme Court justices ample reason to grant review.  Circuit Judge Gould, in his dissent from the denial of rehearing, offered this broader, more pragmatic reason to grant cert:  "I fear that it will become more difficult to persuade a person of great talent and integrity to leave his or her current occupation in order to hold the nation's highest law office.  The panel majority's decision in effect says ‘good bye' to many talented persons who would otherwise be willing to serve as Attorney General with great distinction and attendant benefit to our country."  598 F.3d at 1142.

The Honorable Dick Thornburgh served as Attorney General of the United States from 1988 to 1991 and Governor of Pennsylvania from 1979 to 1987.  He currently is Counsel to the law firm of K&L Gates LLP and Chair of Washington Legal Foundation's Legal Policy Advisory Board
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