At yesterday’s Supreme Court oral arguments in Ashcroft v. Al-Kidd, Acting Solicitor General Neal Katyal provided a fair and measured defense of Justice Department anti-terrorism policies under former Attorney General John Ashcroft.  Ashcroft is being sued for damages by Abdullah Al-Kidd, who alleges that federal prosecutors made improper use of the Material Witness Statute when they detained him for 15 days in 2003.  Katyal argued that prosecutors ought to be immune from such suits; he argued that there are better ways, other than tort suits for money damages, to ensure that prosecutors respect individual rights.

Yet, a number of press reports about the oral arguments inaccurately suggest that Katyal stated that the public interest requires that there be virtually no checks on federal officials when they carry out their prosecutorial functions.  As support for their slanted view of the issues, both the Associated Press and Slate columnist Dahlia Lithwick quote Katyal as stating, in response to a question from Justice Sotomayor, that “making prosecutors flinch is always a bad thing.”  In fact, Katyal said precisely the opposite: “Making prosecutors flinch isn’t always a bad thing.”  Katyal went on to explain that several provisions of the Material Witness Statute create safeguards against prosecutorial abuse, by providing a witness numerous opportunities to contest his detention before an impartial judge. 

In fairness to AP and Lithwick, they were quoting directly from the Court’s daily transcript of Supreme Court proceedings.  But this instance is a good illustration of the danger of relying on those transcripts, which make no claim to 100% accuracy.  The inaccuracy of the transcript in this instance will be apparent once the Court releases its recording of the oral argument later this week.  Additionally, in light of the government’s, and in particular Acting SG Katyal’s, caution on the rights of terror detainees, those reporting on the argument should have called into question the accuracy of such an extreme, blanket statement on prosecutorial authority.

Katyal and the Obama Administration ought to be commended for their willingness to stand up to those activists who believe that the best way to express their policy differences with officials in the Bush Administration is to sue those officials for money damages.  As WLF argued, in a brief filed in this case on behalf of a bipartisan group of five former U.S. Attorneys General, permitting such suits to go forward is likely to deter Executive Branch officials from exercising the full range of their lawful authority to protect the security of the United States.