Eric Holder’s Defense of Ashcroft to Defend the Material Witness Statute

The NYT has a worthwhile editorial lambasting the Obama DOJ’s pursuit of SCOTUS review in Ashcroft v. al-Kidd, which will probably result in expanded immunity for government officials that abuse the law so as to abuse the rights of Americans. The editorial focuses closely on the way in which DOJ’s defense of absolute immunity amounts to a defense of using the material witness law as an improper basis for detention.

Prosecutorial immunity is intended to let prosecutors enforce the law without fear of being held personally liable. Protecting that legitimate aim did not require the administration to defend the indefensible. In forcefully defending the material witness statute on grounds that curtailing it would severely limit its usefulness, it is defending the law as a basis for detention. That leaves the disturbing impression that the administration is trying to preserve the option of abusing the statute again.

In other words, NYT argues that DOJ’s SCOTUS appeal in this case is as much about preserving the improper use of the material witness statute–to hold a person under the material witness statute so you can conduct an investigation into him–as it is about the immunity per se.

Of course it is.

After all, this is what Eric Holder (along with Janet Reno and two others) had to say about the material witness statute in 2004.

Even when there is insufficient evidence to charge a citizen with a crime, the material witness statute, 18 U.S.C. § 3144, permits the detention of a person whose testimony is “material in a criminal proceeding” if “it may become impracticable to secure the presence of the person by subpoena.” This statute is an effective counter-terrorism tool for several reasons. Because a grand jury investigation is a “criminal proceeding” for purposes of this statute, see United States v. Awadallah, 349 F.3d 42, 49-64 (2d Cir. 2003); Bacon v. United States, 449 F.2d 933, 939-41 (9th Cir. 1971), and because of the broad scope of grand jury investigations, see supra p. 11, the government can detain a suspected terrorist as a material witness before it has evidence sufficient to support a criminal arrest or indictment.

The government can obtain a material witness warrant with relative ease. For a grand jury witness, the required showing can be made by a good faith statement by a prosecutor or investigating agent that the witness has information material to the grand jury. Bacon, 449 F.2d at 943; Awadallah, 349 F.3d at 65-66. Nor would establishing that a suspected terrorist poses a flight risk be an onerous task. See 349 F.3d at 69 (bail denied in part because witness failed to come forward with material testimony concerning terrorist attack). [my emphasis]

Mind you, in its Cert Petition, the government doesn’t admit that the material statute really was used in al-Kidd’s case to hold him even though the government had insufficient evidence to do so.

First, respondent claimed that, in response to the September 11, 2001, terrorist attacks, petitioner implemented a policy of using the material witness statute as a pretextual tool to investigate and detain terrorism suspects whom the government lacked probable cause to charge criminally. Respondent alleged that he was arrested as a result of this alleged policy, which he contended violated the Fourth Amendment. [my emphasis]

So even though a document–signed by the current Attorney General at a time when al-Kidd was still subject to restricted movement–boasts about how easy it is to use of the material witness statute to hold people without sufficient evidence to do so, DOJ calls this use of the material witness statute “alleged.”

I guess if they admitted this was an intentional policy, it’d be harder to get SCOTUS to wink at its use going forward.

Update: harpie’s right. This is an editorial, not an op-ed.

  1. phred says:

    “Alleged” jumped out at me, too. The obsession with secret laws and policies is entirely inconsistent with Mr. Transparency Obama’s campaign rhetoric (big surprise there, eh? ; )

    More to the point, it should be completely unacceptable in a democracy. Either it is a policy or it is not. “Alleged” means the government has something to hide and in all likelihood it is an unconstitutional something.

  2. JohnLopresti says:

    The ninth circuit opinion disputed in the Scotus case is there.

    ACLU brief in opposition to Ashcroft petition before Scotus is there; opens with objection to claims of both absolute and qualified immunity for AG; examines defects in warrant process in the case.

    Barr, Civilletti, Meese, Mukasey, Thornburgh amici brief supporting Ashcroft; there.

    h/t T.Goldstein Akin Gump case page there; NB, most recent Scotusblog link to case page has pathname syntax error.

    Somewhat related, ruminations on rebalancing WHC and OLC; there; prof. B.Ackerman.

    My take, the Scotus case is another glimpse at the hasty pudding martial law rollout of Bush-2, term-1, over several years.

    • PeasantParty says:

      “My take, the Scotus case is another glimpse at the hasty pudding martial law rollout of Bush-2, term-1, over several years.”

      Agree with your take. It is all a Ponzi scheme everywhere with nobody responsible for anything!

      I keep hearing Condi’s standard answer for everything and know they planned it all just that way. “Nobody could have known or predicted.”

  3. demi says:

    Point On The Changes Here At The Lake. Where’s the What’s Going On Right Now? We used to talk about what we were hearing, right now. Not trying to fight with the Powers That Be Here at the Lake. I’m just saying, I like that I could come here and hear what people’s takes were at that time. PS…I’m really not caring for the layered, embedding comments thing at all. I’m seeing a lot of people saying the same thing.

  4. Bustednuckles says:

    So, into the clink you go if they even think you know something about something they haven’t charged anyone with a crime yet but is just an investigation?

    That’s what I am getting here?

  5. tammanytiger says:

    Welcome to Constitutional Law 2.0, a/k/a the “9/11 Changed Everything” version. Your civil liberties have become an unaffordable luxury.

  6. Mary says:

    Pretty much, Busted.

    I’m sure that’s how Durham will approach his torture investigation, too. Lock up Ashcroft, Rice, Hadley, Goldsmith, Yoo, ex-DAGs, Rizzo and a slew of CIAer, with Hayden to direct the choir. Surely a prosecutor can detain a suspected torture conspirator who was using torture to bilk the US out of billions to trillions for a double front war and kill, maim and mentally damage thousands of American soldiers and NGO workers in the process. Right?

    That would be the scenario it would be nice to see hit on in the briefs. What if the “suspect” was an ex-Attorney General suspected of torture conspiracies instead of a guy with a funny name, suspected of knowing a guy who knows a guy who might know a guy who is involved in credit card shenanigans that might have something to do with some other guys who are terrorists. Or not. What can a prosecutor do to suspected torture conspirators, with impunity and immunity?