In its 1971 Bivens decision, the Supreme Court for the first time recognized the right of an individual to sue federal officials for damages if he believes that the officials violated his constitutional rights.  The Court nonetheless has always been hesitant to interpret that right too expansively.  Among other limitations, the Court has recognized a qualified immunity defense, under which the plaintiff has no cause of action unless he can demonstrate that the right he asserts was “clearly established” at the time the officials acted.

Unfortunately, the qualified immunity doctrine has not prevented a deluge of damage claims against senior members of the last several Administrations.  Although the doctrine was intended to facilitate the dismissal of lawsuits at the pleadings stage (thereby protecting government officials from the burdens of litigation), recent appeals court decisions have made it increasingly hard for officials to win early dismissal.  Former Attorney General John Ashcroft, himself the target of numerous claims for damages, has asked the Supreme Court to grant review in one such case, Ashcroft v. Al-Kidd, to consider whether the Court needs to beef up the qualified immunity defense.

Al-Kidd is, in essence, an ACLU challenge to the Bush Administration’s anti-terrorism policy.  The suit seeks to recover damages from Ashcroft on behalf of a man who was detained for 15 days as a “material witness” in connection with an investigation into illegal fundraising by terrorist groups.  All agree that the federal government’s decision to detain Mr. Al-Kidd met the literal requirements of the material witness statute, 18 U.S.C. § 3144.   He had worked closely with a Saudi Arabian citizen who was under federal indictment in connection with terrorism investigations (and thus Al-Kidd was a potential witness), and he was preparing to leave the United States for a period of extended study in Saudi Arabia (and thus prosecutors might have been unable to secure his testimony by means of a subpoena).

But Al-Kidd alleges that securing his testimony was not the real reason that prosecutors detained him.  Rather, he asserts, prosecutors wanted to detain him while it investigated his involvement in criminal activity, yet they lacked sufficient evidence to charge him with a crime.  Thus he alleges that prosecutors used the material witness statute as a “pretext” for their real purpose, and argues that detaining an individual in the absence of probable cause to believe that the individual has committed a crime violates the Fourth Amendment’s prohibition against unreasonable searches and seizures.

In fact, the great weight of legal authority points in the opposite direction.  Numerous courts have held that a law enforcement official’s subjective intent is irrelevant and that a seizure is constitutionally permissible whenever it is undertaken pursuant to a objectively valid warrant.  But even accepting that the Ninth Circuit’s view of the Fourth Amendment might ultimately prevail, that is no reason to deny qualified immunity to Ashcroft.  Given the absence of case-law that “clearly established” the Ninth Circuit’s understanding of the law as of 2003 (when Al-Kidd was detained), the qualified immunity doctrine requires dismissal of Al-Kidd’s suit.  Eight judges on the Ninth Circuit dissented from the denial of Ashcroft’s petition for rehearing en banc and argued that Ashcroft’s alleged policy of encouraging “pretextual” use of § 3144 did not violate the Fourth Amendment.  That vote by itself is strong evidence that the illegality of “pretextual” use was not  “clearly established” in March 2010 (when the vote occurred), let alone in 2003.

This past Wednesday, five former Attorneys General (William Barr, Benjamin Civiletti, Edwin Meese, Michael Mukasey, and Dick Thornburgh) filed an amicus brief, urging the Supreme Court to grant Ashcroft’s certiorari petition.  Represented by the Washington Legal Foundation, the former AGs asserted that the Ninth Circuit’s decision threatens to undermine the effectiveness of the material witness statute.  They argued that the threat of damages awards might deter Attorneys General from exercising the full range of their lawful authority to protect the security of the United States.  That threat will remain significant unless the Supreme Court steps in and requires the lower federal courts to throw out damage suits of this sort except when the constitutional claim the plaintiffs assert truly is “clearly established.”