al-Kidd v. Ashcroft; forthcoming scholarships

1. al-Kidd v. Ashcroft (9th Cir. Friday Sep. 4th)

A Ninth Circuit panel last Friday concluded (per Judge Smith) that (i) pretextual use of the material witness statute violates the 4th Amendment and (ii) this was sufficiently clear in 2003 so as to preclude a qualified immunity claim by former Attorney General John Ashcroft. The panel also rejected an absolute immunity claim, and rejected certain other causes of action.

The opinion obviously is quite significant, and almost certainly headed for further review.  Combined with a partial dissent from Judge Bea, the opinions in the case run to 91 pages.  Fortunately Orin Kerr (GW) has posted a thorough and insightful analysis here.  I agree with his take across the board, and so will not try to reinvent the wheel here.  I will, however, provide a key portion of his analysis just to make sure that the point is conveyed to those of you who don’t have time to click through and read Orin’s full assessment.  On the Fourth Amendment issue (and, by extension, the qualified immunity claim):

In my view, the constitutionality of preventive detention under a material witness warrant rests on whether and how the national security setting changes the probable cause inquiry for national security detention in the same way it does so for searches. This is an untested area for the courts, and a range of different approaches are plausible. Unfortunately, however, the majority seems to have overlooked the issue entirely. It simply assumed that the use of the detention authority for terrorist suspects had to fit into the Fourth Amendment doctrine for criminal cases instead of for national security cases. I think this is a pretty big problem with the majority’s opinion, and let me explain why.

“  … Smith rests his analysis in a critical assumption: That if the government is fighting terrorism by using the material witness statute pretextually to detain terrorist suspects, that detention is a criminal law detention rather than a national security detention. Judge Smith then looks at how the Fourth Amendment applies to criminal law detentions, and he sees the traditional criminal law arrest doctrine that requires probable cause that the person committed a crime. He then assumes that this is the only way to define probable cause, and when he sees that the material witness warrant doesn’t measure up, he concludes that it must be unconstitutional.

“I don’t think that works. The point of pretextual use of the material witness warrant is to use them for national security purposes: the avowed goal is to try to investigate, monitor, and detain terrorists. Indeed, the pretext is that it’s being used for a criminal investigation at all. And that’s the allegation that al-Kidd makes in his complaint: it alleges that he was detained as part of a general program “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.” Given that, I think you have to define the “programmatic purpose” of the pretext as a national security purpose, and then confront the novel question (novel in the sense that no court has ever addressed it, as far as I know) of what kind of probable cause is needed under a United States District Court analysis for a national security detention warrant.

“As I said, I don’t really know what the answer is: It’s a difficult question, I think. But my sense is that this is the right question to ask, and as best I can tell Judge Smith simply doesn’t address it.…”

2. Forthcoming scholarship

The Strange Origins of the Constitutional Right of Association

John D. Inazu (Duke University School of Law)

Tennessee Law Review (forthcoming)

Although much has been written about the freedom of association and its ongoing importance to the American experiment, much recent scholarship mistakenly relies on a truncated history that begins Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components and introduced the paradigm that continues today. Roberts’s doctrinal framework has been rightly criticized. But neither the right of association nor all of its doctrinal problems start with Roberts. The Court’s foray into the constitutional right of association began a generation earlier, in its 1958 decision, NAACP v. Alabama. This Article offers a new look at the Court’s initial approach to the right of association. I highlight three factors that influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor). I suggest how these factors shaped a right of association with an ambiguous constitutional anchor and an ill-defined doctrinal framework. Despite its shortcomings, the right of association quickly took hold in legal and political discourse and handed the Court a resource that has arguably become more responsive to political pressure than constitutional principle. Part of that whimsicality stems from the Court’s reformulation of the right of association in Roberts. But Roberts cannot bear all of the blame. If today’s freedom of association is less than we might like it to be, the roots of its problems may lie in the political, jurisprudential, and theoretical factors present at its inception.

Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy”

Anuj C. Desai (University of Wisconsin Law School)

The Legal Workshop (The Legal Workshop is a nifty site operated by a consortium of top law reviews.  The idea is to have authors of recently-published articles write up much shorter summary pieces for publication here, with links to the full piece as well).

From the opening paragraphs:

“As the new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy.  Still unresolved from the previous administration are the legality of President Bush’s so-called Terrorist Surveillance Program (the National Security Agency surveillance program code-named “Stellar Wind” that was first made public by the New York Times in December 2005) and the constitutionality of the Foreign Intelligence Surveillance Act.  Rather than address that debate directly, I want to look at a premise that all sides in that debate accept:  that the Fourth Amendment to the United States Constitution protects communications privacy.

“How is it that the Fourth Amendment came to protect communications privacy?  On its face, the language of the Amendment makes no reference to the notion of communications privacy.  The textual argument on which the principle is based is the notion that surveillance of communications constitutes a “search” and that the communications themselves—the telephone conversations, e-mails, etc.—constitute “persons, houses, papers, [or] effects” within the meaning of the Fourth Amendment.  Plausible, but not exactly compelling.   Moreover, the history of the drafting and ratification of the Constitution likewise provides little in the way of support for the notion of communications privacy.  Instead, to find the origins of the constitutional principle of communications privacy, we must tap a different historical source, the history of one particular communications network.  That communications network, maligned today as a relic from another era, is the post office, the most prominent federal “administrative agency” in the early American republic….”

Note that this essay is based on Anuj C. Desai,Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553 (2007): Click Here for the Full Article.

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