Even in the War on Terror, bad cases make bad law

Earlier this month, the Ninth Circuit Court of Appeals overturned the dismissal of a lawsuit filed by Abdullah Al-Kidd, an American Muslim, against former Attorney General John Ashcroft personally.  The Ninth Circuit reinstated part of al-Kidd's suit becuase they determined he had presented sufficient evidence that Ashcroft had misused a material witness law to wrongfully imprison al-Kidd and thereby was not entitled to immunity.

At first blush, the ruling sounds like a victory for terror suspects.  You can just imagine current and future detainees lining up lawsuits against government officials on this slippery slope.  A closer look reveals that it's not that simple.

Lawyers have a saying:  "Bad cases make bad law."  This is one of those cases as some of the facts demonstrate.

Al-Kidd was arrested on a material witness warrant at Dulles Airport attempting to travel to Saudi Arabia for school.  When prosecutors need a guarantee that a material witness will testify (i.e. the witness won't flee), they can apply to a judge for issuance of a warrant to detain the witness until their testimony is concluded.  In al-Kidd's case, the FBI had secured the warrant alleging that al-Kidd was a material witness to the prosecution of an Islamic terror suspect.  Unfortunately, some key facts the FBI presented under oath to the issuing judge to get the warrant turned out to be demonstrably false.  After more than two weeks of incarceration, isolation and strip searches, al-Kidd was released without being called to testify.

Prior to al-Kidd's arrest, Ashcroft personally touted the new post-9/11 material witness detention policy his office established saying, "Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks."  Ashcroft faces immunity problems, according to the Ninth Circuit, for owning this new policy.  Internal Justice Department memos, and Congressional testimony from FBI Director Robert Mueller specifically related to al-Kidd's detention under the policy, also added weight to al-Kidd's allegations.  The combination of these things, and the conclusion that al-Kidd's arrest and detention was for investigative and not prosecutorial purposes, removed immunity as a defense for Ashcroft.

In isolation, al-Kidd's case is a small matter because it addresses a narrow legal problem.  Material witness warrants are used sparingly though wrongfully in this case according to the Ninth Circuit.  Because of that, I think the slippery slope concerns are overblown.  Although there's no telling what enterprising lawyers might try to do.

There is a real problem, however, with where you draw the line.  Immunity for government officials exists to insulate them from civil claims while carrying out their duties.  Conventional investigative tools probably won't work as well in this age of global terrorism.  And the law on investigating and prosecuting terror suspects is evolving as are the technologies and techniques being used on all sides.  The quickest way for us to lose battles in this war is to hamstring our intelligence agencies, law enforcement and prosecutors by not authorizing them to aggressively pursue terror suspects and actual material witnesses, or telling them they'll face lawsuits if they do.

At the same time, they have to do their jobs within the boundaries of the law.  Knowingly providing false material statements in an affidavit seeking a warrant never fits in the boundaries.

But, again, the law is evolving too.  What about policies approving of the use of aggressive interrogation techniques?  If interrogators used these techniques during a time when government lawyers gave written opinions justifying them, how can they be prosecuted criminally or sued civilly if the policy later changes?  That sounds like a classic ex post facto law to me.

While the Ninth Circuit opinion in al-Kidd's case--written by judges appointed by Republican presidents--makes legal sense and is supportable, it exposes fundamental problems with fighting the War on Terror.  We must have a healthy appreciation for the danger posed by our enemies.  If we can't get on the same page with what is acceptable and what isn't, and don't stop eating our own (in some cases for political purposes), then our in-fighting will continue to expose our soft underbelly to our enemies.

In the end, the al-Kidd case creates more questions than answers.  Let's start answering these questions with honest dialogue so that our federal government can do one of the few jobs it's supposed to do: protecting us from our enemies.