Scalia Invents a New Meaning for “Suspicion” while Letting Ashcroft Off the Hook

SCOTUS has just ruled unanimously that John Ashcroft can’t be sued by Abdullah al-Kidd for using a material witness warrant to incarcerate him. The 8 justices (Elena Kagan recused herself) all agree there was no law explicitly prohibiting this kind of abuse of material witness warrants, so Ashcroft has immunity from suit.

Where the decision gets interesting is in the justices’ various statements about whether material witness warrants are valid under the Fourth Amendment. The court’s swing justice, Anthony Kennedy, basically invited a constitutional challenge of the material witness warrants themselves.

The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become impracticable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2.

In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar-rests might be consistent with statutory and constitutional requirements.

Mind you, he remains coy about what he thinks about the material witness warrants, as his language makes clear: “uncertain,” “might,” “unclear,” “more difficult,” “more difficult,” “possibilities,” “might not,” “might.”  Of note, though, he neither endorses a rather crazy argument Antonin Scalia makes (joined by the usual suspects)–that witnesses to a crime may now be considered suspects of a sort–nor Ruth Bader Ginsburg’s trashing (joined by Sotomayor and Breyer but not Kennedy) of that claim.

Here’s Scalia’s assertion:

Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not only our special-needs and administrative-search cases, but of Edmond as well.

A warrant based on individualized suspicion in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent.

Here’s Ginsburg’s response:

The Court thrice states that the material witness warrant for al-Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong-doing.”

[12 cases–many of them the ones used to authorized warrantless wiretaps–cited]

The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.” App. 41 (internal quotation marks omitted).

And here’s Scalia’s retort to that:

JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

In other words, Scalia wants to broaden the Fourth Amendment to sanction searches (and arrests) of people suspected of knowing something or doing something (throwing a birthday party!), rather than just those suspected of doing something illegal.

Not only does Scalia’s novel interpretation of the word “suspicion” pre-empt future challenge to material witness warrants’ constitutionality, but it also lays a novel groundwork for sanctioning all the domestic surveillance the government has been conducting. After all, the government is wiretapping (or tracking the geolocation of) people who may or may not have committed a crime, but are suspected solely of talking to or hanging out in the vicinity of a suspected terrorist.

And because Kennedy didn’t tip his hand in either direction, that’s the kind of interpretation the government will use–no doubt in its secret interpretations of the laws–to claim it can surveill even those of us suspected of no crime.

Because suspicion doesn’t mean what it used to mean.

  1. emptywheel says:

    I don’t think I explained why this bothers me so much.

    I’m in the middle of a post on how the govt has long argued it could use FISA to collect information on people to effectively become informants. So this novel definition of “suspicion” and their apparent practice of interpreting intelligence investigations very broadly would allow for some rather scary uses of “suspicion” here.

    • marksb says:

      You are right to be bothered! This is the open door to warrantless data mining (and beyond) of everything. Think of the concept that data mining my business bank account could show if I’m laundering income–and I might be, after all I do handle cash from a wide variety of customers, including some who grow and process MJ–so it makes sense to treat me with “suspicion”. It’s not a big logic jump.

      In the telecom industry the concept of Lawful Intercept was clear: if the “authorities” demand, with a warrant, access to traffic, you have to give them access to wiretap. This lead quickly to warrantless taps, leading to grabbing raw data streams, and eventually, snooping the entire packet flow without any declared suspicion.

      It really is a slippery slope…right down all those steps in front of the Supreme Court Building, I guess. I used to think 1984 was a nightmare and thank God it’ll never happen. Now? Ouch.

      BTW, this also leads to the only sensible argument for Obama’s reelection: SCOTUS appointments.

      • PascoBill says:

        I thought immediately of 1984, too. While reading this I remembered how it used to be kind of funny or ironic how a word got misused or twisted into something unrecognizable, to support otherwise irrational conclusions (anti-abortion becomes pro-life, weapons are called “peacemakers”, restrictions to rights are now in the “Patriot Act”). Now it is getting downright scary. Thoughtcrimes and doublespeak come into play here. Both the concept of a crime being expanded to “knowing or suspecting a crime occurred” (thoughtcrime) and the word “suspicion” being expanded to mean “suspected of being suspicious of something” (similar to doublespeak). We’re going way past 1984, aren’t we?

    • JTMinIA says:

      > “I don’t think I explained why this bothers me so much.”

      That’s why it’s such a powerful post. Because I had to work a little when reading, the deeper message soaked in quite well. Scalia is moving us towards a country where the known-to-be-innocent can be detained on the grounds that they might have something that the gov’t wants.

      Totally effing terrifying.

      • emptywheel says:

        Well, the issues of what constitutes a reasonable search is at the core of three things: 1) application of FISA to those who aren’t themselves suspected terrorists but may have intelligence about one 2) the use of warrantless wiretaps, and 3) laws like FAA that allow the surveillance of people based on the govt’s representation of suspicion newly defined.

        It’s application 1 and 3 that trouble me about this: whereas before the govt has relied primarily on special needs for some of this, Scalia’s interpretation opens up the ability to surveill based on this new definition of suspicion.

      • bmaz says:

        In a word, yes. Frankly, that is the direction 4th Amendment jurisprudence has been going, as a fast clip, for a long time. Govt screws up and invades the wrong house for the wrong reason? No, problem, they meant well and get to prosecute on whatever they find no matter how exacerbated the facts. Bogus description of what they want to search for or where in the warrant application; no problem it was reasonable enough. This is a shockingly shitty extrapolation to contemplate the 4th as cover for material witness warrants. That is just a bridge too fucking far. Seriously. From the discussion though, the handwriting is being written on the wall.

        • marksb says:

          Wasn’t a case just decided about people smoking dope in the privacy of their apartment at the time the cops knocked on the wrong door? They blew the door down and searched the place, arresting the “accidental” occupants, based on the premise that they heard “movement inside that might have been flushing and getting rid of evidence”. That it wasn’t the correct house on the warrant didn’t matter, IIRC.

        • john in sacramento says:

          Like this, for instance by the Pima County Sheriff’s SWAT Team

          “Why, why did you kill him?” a traumatized Vanessa Guerena begged to know as she was interrogated in a makeshift “command center” by detectives from the same Sheriff’s Office that had just slaughtered her husband Jose. Her questioners, eager to exploit her trauma to extract information, initially refused to give her a straightforward answer.

          Jose, who had finished a graveyard shift at the Asarco copper mine, was sleeping when a SWAT team from the Pima County Sheriff’s Office laid siege to his home on the morning of May 5. Vanessa was doing laundry, and the couple’s four-year-old son Joel was watching Transformers, when the SWAT raiders pulled up in a Bear Cat armored vehicle.

          The siren sounded for less than ten seconds; just a few seconds later, the order to “breach” the door was given because, as on-scene commander Deputy Bob Krygier later explained, nobody inside the house had “submitted to our authority.”

          Vanessa initially thought that there was an emergency “somewhere in the neighborhood,” and called the police. When she saw armed intruders on her property, Vanessa screamed for her husband to wake up. Jose told Vanessa to take their younger son (whose older brother, Jose, Jr., was in school) and hide in the closet, while he went to confront the invaders.

          Seconds later, Jose was sprawled face-first in a pool of his own blood, shredded by dozens of rounds fired by the SWAT team. That’s how his four-year-old son would later find him. Joel was left alone after Vanessa, who had gone out to plead for someone to get medical help for her husband, was assaulted and brutalized by the SWAT operators and then detained for questioning. The child remained alone in the house with the body of his dead father while Krygier developed a “tactical team” to extract the child at minimal risk. That is, minimal risk to the berserkers who had just killed Joel’s dad.

          As the minutes dragged on, one of the SWAT operators – according to Krygier – grew impatient over being forbidden to enter the home.

          “Might as well finish what I started,” groused the armored assailant. I suspect he wasn’t referring to the need to render timely medical aid, unless he intended to administer “one behind the ear” as a form of Kevorkian-style treatment.


          Raw video at the link

    • OldFatGuy says:

      I don’t think I explained why this bothers me so much.

      I dunno, I read the post and am extremely bothered, so you got the message through to me at least.

      We. Are. So. Fucked.

      No way, no way POSSIBLE, anyone can honestly make an argument that the crap we’re seeing now is what our framers had in mind. These guys are so anti-American that THEY are the ones we should look at with suspicion, and consider surveillance, detention, and other methods to combat such anti-Americanism.

      • tjbs says:

        Isn’t that so true they may read your e-mail and listen in on your conversations but the reverse will never be.

    • bobschacht says:

      I’m with you on worrying about this. Suspicion, even without Scalia’s expansion, is an enormously flexible word. The most worrisome thing about it is that, almost by definition, the grounds for suspicion do not even require actual evidence. It means little more than “guess”. If we had even a half-awake Congress, they might legislate by defining suspicion, but I am afraid to even suggest that route, given the craven mewlings of Congress regarding the Patriot Act (Wyden, the Udalls, Merkley, and Rand Paul excepted.) I.e., there’s a good chance that anything Congress did would make matters worse rather than better.

      I’m thinking that we might have to endure 4 years of a Rand Paul presidency to restore the Constitutional balance of powers– except that he would probably be corrupted by power as soon as he stepped into the Oval Office, relishing the accumulated Presidential powers.

      Bob in AZ

  2. allan says:

    So, if they don’t get you for a thought crime, they’ll get you for being suspected of being suspicious?

  3. MaryCh says:

    I have a hunch suspicion that aggressive prosecutors will be interested in adding this to their toolbox for tweaking usual suspects.

    {Also, too, in addition to heap leach data mining.}

  4. JohnLopresti says:

    I think that associate justice Scalia*s postipsofacto contentions regarding attorney general Ashcroft*s predisposition toward broadening the definition of suspicion was arbitrary and capricious.

    The writing style and oral argument devices which are aj Scalia stylistic predilection, in the al-Kidd case are reminiscient of an obscure anecdote recorded by a thorough Scotus assignment writer April 2010, T. Mauro, in an unrelated, civil case, Krupski v. Costa Crociere, which Scotus heard at oral argument. For the curious, the oneParagraph description of that other case is there. Scalia in the interchange cited, attempts to argue that it is impossible, knowing the facts, to make a mistake. The dispute is classic Scalia, and issues from aj Scalia*s reflex instinct toward post-epistemological redefinition of linguistic verities.

    • mzchief says:

      OT– Commentary on US Park Police response to Medea Benjamin, Adam Kokesh and others on May 28, 2011 at the Jefferson Memorial (Link, May 30, 2011, video [unfortunately the camera doesn’t catch what attracts the police over to the individuals the officer then identifies for possible arrest])

      • bobschacht says:

        I saw that a few days ago. What I have not seen is the Park Police side of the story. As presented by the activists, the Park Police were certainly depicted as being unreasonable. I’d also like to know who the police commander was, and his defense.

        Keep in mind that we’re dealing with Code Pink here. They have a long history of testing limits. I’m glad they’re doing what they’re doing, but they are intentionally provocative.

        Bob in AZ

  5. Tominator says:

    Could you guys consider not Italicizing block quotes? It hurts readability and a double indent indicates a quote anyway so no need to use italics.

    I just don’t read these long block quotes anymore.

    • emptywheel says:

      I can see if there’s anything I can do about it. When we first went to this template it was standard but I’m not sure it is anymore.

  6. lysias says:

    Scalia shows how terrible his instincts about English usage are. I would never say “I have a suspicion that…” (as opposed to “I suspect that…”).

    • zenmouser says:

      Point 1:

      Scalia: “I have a suspicion that”

      Correct. HE is the one in ownership of the suspicion.
      Says nothing of probable cause.
      More like, proximal to the cause.

      Point 2:
      In English, this is known as semantics.
      In contracts this is known as scope creep.
      In statistics, this is known as unclear factor loading.
      In war, this is known as a battlefield with no boundaries.

      Point 3:
      [email protected]: “Scalia is moving us towards a country where the known-to-be-innocent can be detained on the grounds that they might have something that the gov’t wants.”


  7. Adam503 says:

    What are the chances of getting the terms of all Federal Judges changed to something finite. 6 or 8 years maybe?

    Founding fathers never considered the possibility of judges hanging around for 40-50 years.

    • OldFatGuy says:

      Since it would require an amendment to the Constitution, I’d say the chances are somewhere between slim and none. Much closer to none.

      • Adam503 says:

        It’s probably the best shot we got getting the Fascist Four off the Supreme Court anytime this half of the century.

        After Citizens United, we have to do something.

        We’re collectively fucked if we don’t.

  8. JamesJoyce says:

    A new definition of suspicion? Nope! Just a revamping of the Nazi mindset. Nice job Scaglia the eviscerator? Embrace them fascists……..

  9. nahant says:

    I sure hope we can get this POS Scalia Impeached he has no respect for the Constitution or individual rights.
    Is English his native language? He sure shows ignorance of the underling meaning of words and sentences… OH and of course we should include Thomas for his pandering to the rightwing ideology and blatant conflict of interest he is constantly displaying…
    And I agree it is the only reason to Vote for BO so we can at least get neutral and not extreme interpretations of the law. This Court under Roberts consistently holds for the rich and Corporations… The little people to them are just chattel to them to be used and abused so they can deny them any rights what so ever…..

    • rugger9 says:

      The parallels to the Gilded Age are striking. Another Great Depression is near, since all of the elements present in the last one have been re-created. The Federal Reserve, thanks to the unlimited blank check to the banksters [seriously, does anyone here know how much Helicopter Ben forked over? We don’t even track M2 or M1 any more] is not going to be able to stanch the bleeding. The FIDC/NCUA will not be able to keep things afloat either when the chickens come home to roost this time.

      However, as first noted by the English in 17th century, those without legal forms of redress found other ways to get justice [I’m paraphrasing, but this is the gist], and in America that skewed so wildly in the last GA, we saw general strikes, anarchists, Grange societies to combat bankers, etc., etc., along with the judicious use of tar and feathers. If the MOTUs think that their walled communities will protect them, with or without Xe or their ilk, forever is a long time.

    • Mary says:

      Scalia: “Suspcion”

      Most district courts until this decision: “Let me get this right – you want me, as an impartial magistrate, under the 4th amendment of the Constitution, to issue a warrant for police to pick up and detain your secretary and search her home and seize all party decorations found there because you are suspicious that she’s going to throw you a birthday party and use green streamers instead of your favorite purple? And if we find green streamers, then what? Oh, just keep her until someone else throws you a surprise party using purple streamers? Ok, Antonin, when’s Ashton going to pop out? I know when I’ve been punk’d.

  10. demi says:

    I want to see a [photo shopped] photo of Ashcroft sucking on that titty. Or is it tittie? Either way.
    Darkblack, where are you?
    On edit: I bet Mary Mc could do it too. Or, twolf. So much talent here.

  11. free market libertarian says:

    Interesting that on another post some people have argued that a law passed by the federal government trumps state and local laws and is legal until the supreme court system rules that it is unconstitutional. Well that leaves millions of people at the mercy of a corrupt system.

    The real historical precedent is that the states and local governments and by extension the people are sovereign and they have a right and a duty to judge whether the federal system has passed an unconstitutional law and nullify it if it has.

    • Adam503 says:

      I’m not letting any extremists waste my time re-arguing the Civil Rights Act, especially after you guys kept so silent on Bush v. Gore.

      You sure didn’t mind the USA Supreme Court ordering vote counting in Florida stopped.

      Go Away.

    • bmaz says:

      Just stop it; that is not the law and people should not be misled by you on this. If the Federal government occupies an area of the law and has federal issue jurisdiction, there is indeed preemption and what you are pitching is fantacist bunk. And this is not a difference of opinion, what you are trying to say is just flat out false.

  12. geoshmoe says:

    Here is a truly great mind at work making a simple word mean… “what so ever I wish it to mean… ” Cheshire Cat.

    “I have a suspicion he knows something about the crime,” or even
    “I have a suspicion she is throwing me a surprise birthday party.”
    How would it sound if one said in serious dead pan: “I have a suspicion she is planning a party…! ”

    One would say: “I have an idea; an inkling; a nagging sense; I’m thinking maybe… ; you know I wonder if it couldn’t be; do you suppose… ; I expect; or I suspect that… ;

    But “I have a wee suspicion,” is a bending the word for affect, to seem theatric, not even normal usage.

    He is a force for all the wrong things, obliterating language and law, a bad personage at heart. No surprise, one look and you know that. He lacks something that suggests an inborn good nature or good will. A rough swarthy scoffing good ole boy decoy… straw ediface, poseur. ( He don’t belong there.)

    That Yogi Berra schtick is ok, but if you aint mean about it…

    • marksb says:

      I have a suspicion the people on this blog are planning to undermine the election of mainstream political candidates and subvert the American political process, as well as influencing America toward socialism.

      See? Now we can be watched (even more) closely, maybe even picked up and questioned (well, maybe not the trolls.) Wouldn’t that be fun?

  13. tjbs says:

    Anybody thinks obama is going to nominate a Stevens or Marshall is smoking the outlaw stuff.

    Kennedy a tricky traitor but a traitor for his 2000 vote.

    Scumlia & thmoas goes without saying they are also traitors.

  14. 1970cs says:

    I was required for my job to have a backround check done by the Dept of Homeland Security. When the results came back, the wording was similar to this judgement by the Supreme Court, “not a threat at this time”.

  15. Mary says:

    It’s a tooth grinding decision, but it’s the kernels of truth that bugger up those teeth while they grind so damn much.

    Over and over there has been the approach taken on all of these cases, 9 i.e., rendition and illegal surveillance and illegal detentions, etc.) of trying to make the “least” argument that can be made to win, instead of digging in and making the arguments that lie at the heart of the problems and issues.

    The problem with the al-Kidd detention wasn’t Ashcroft’s impure heart – it was the friggin material witness statute itself and impurities it will create, like mold from a leaky cesspool, but its very existence.

    Everyone is afraid to strike at the hearts, thinking that this is somehow an intellectual and pondering court that is just searching for ways to find for complainants and against the Executive branch under statutes and regulations and constitutional arguments spoonfed like milquetoast.

    Going in and arguing, as al-Kidd did, that the material witness statute is hunky dory constitutionally (i.e., that it is perfectly fine to ARREST AND DETAINE someone as a “material witness” and without probable cause of criminal activity) as long as it is done with pure motives, is pretty much setting yourself up for a loss. It’s like the damn DOJ “ethics” investigations of Bybee and Yoo that focused only on intent and not on much more objective things like failure to exercise due diligence, failure to retract or reissue, etc.

    As a professional matter, it’s tough for me to get past the fact that al-Kidd conceded constitutionality of the material witness statute in general to throw that first stone at Scalia. Actually, it seems like Scalia went out of his way to indicate what would have been better pleading/argument practice with:

    It might be argued, perhaps, that when, in response to the English abuses, the Fourth Amendment said that warrants could only issue “on probable cause” it meant only probable cause to suspect a violation of law, and not probable cause to believe that the individual named in the warrant was a material witness. But that would make all arrests pursuant to material-witness warrants unconstitutional, whether pretextual or not—and that is not the position taken by al-Kidd in this case.

    That’s not to say that Scalia et al wouldn’t have smacked that argument down too (although it certainly gives a pleading tip for the FBI case which seems to be still pending) or at least allowed for qualified immunity anyway by finding that even if the attack on the constitutionality of the statute were upheld, such a holding would be newish enough to allow for immunity for prior violations, but we are way long past the point where anyone is going to win a round by throwing the most well modulated swing which might conceivably do some discernible damage.

    These cases should bewhere you collect all your pennies before you throw the punch.

    Oh well – it is what it is. I understand that they don’t want to alienate justices or the “brought to you by the lobbyists for Presidential and Congressional campaigns” media by calling out the government for the evils that always devolve from being given too much power, but they really should go read again the langauge in briefs for cases where the Constitution has been under assault – none of those cases are won without throwing the hard punches.

    But yeah, this case is another in the now long line the disappointing and disturbing. In essence, Scalia breaks things down this way – for non-warrant searches, seizures and detentions (at least, for the “special needs” and “administrative warrant” situations – and no, administrative warrants are not to my mind and never will be real warrants since they sidestep the judicial branch of government and an impartial judge completely and are wholly executive branch controlled) then you can look behind an “on its face valid” use of the exec power (look behind an administrative warrant or look behind how a ‘special needs’ search that appears to be valid under statutory or judicial signposts) to see if there is an invalid intent.

    So if he later decides that forever detentions of London chefs under qualify as a “special needs” detention under national security justifications, then the final small comfort is that someone who can get to all kinds of classified evidence and then get a court to even consider or review all kinds of classified evidence – well, golly, they could argue their detention was unsupported because of the evil intent of … two sucessive Presidents, a professional shoe shopper, an ex-first lady, and a gaggle of AGs. Oh well, good to know that’s taken care of.

    Of course, if someone wants to argue that the FISCt is really nothing more than an administrative court (which imo they definitely should, bc it pretty much is given the way it is not allowed to act as an advocacy court and only as an Executive branch adjunct) then I guess someone could challenge the motives behing the basket warrants they’ve been issuing – if, you know, anyone could get one without being titled as a traitor.

    OTOH, per Scalia, if you have a warrant from a court, any court, then you don’t get to look behind the warrant into motive for obtaining the warrant. You got your impartial judge, so that’s that. Unless, of course, you want to actually argue that the court/judge that issued the warrant was acting extra-constitutionally by issuing the warrant. And if that’s what you want to argue – well, it’s not like you’re going to get a recovery of any kind, are you? No one is going to refuse qualified immunity to the AGs and Presidents and Elmer Fudd’s evil bizarro world replicand and NSA operatives, etc. for acting under a warrant and no one is going to allow judges to have any claims made against them, so someone would have to be both able to survive standing and other procedural hurdles and willing to go on with only some kind of hollow leg futuristic “relief” to even dig in and make the argument – or rather the arguments, like – material witness warrants are unconstitutional abuses of a court’s warrant powers, which are supposed to be limited to issuane of a warrant to search, seize or detain on probable cause of criminal activity – – or the argument that FISCt warrants that allow for the search mulitple communications of multiple Americans in the US under basket authorizations lack individualized allegations and specificity and that the FISCt cannot issue warrants for national security purposes within its jurisdiction since if there is a valid special needs national security purpose it would be an invalid intrusion of the judiciary into the Exec branch’s domain, but if there is no national security “special purpose” then the courts cannot operate secretly, like star chambers, and without allowing for review of their determinations by the Supreme court and without being accountable through the advocacy process, etc.

    You have to strike at the very existence of the evil or else you’re just cutting heads off a hydra.

    Still, it was almost fun to watch Scalia tie himself into this kind of a knot trying to avoid the probable cause argument underlying the validity of issuance of a material witness warrant while at the same time making this case have some baseline appearance of following Whren and Edmonds.

    This is classic: “But to say that ulterior motives do not invalidate a search that is legitimate because of probable cause to believe a crime has occurred is not to say that it does invalidate all searches that are legitimate for other reasons.”

    Or restated, *ok, so like, probable cause to believe a crime has been committed can let law enforcement acting with evil intent off the hook, but like, dude, that’s not the same as saying that a lack of probable cause to believe a crime has been committed would like, ya know, count against a law enforcement dude acting with evil intent, as long as that law enforcement dude had him some kinda warrant – ya know, not a warrant based on probable cause to believe a crime has been committed, but any kind of individualized warrant lays out any kind of suspicion of anything, like, right, huh? Totally?*

    It reads like something that would be written by a bunch of South Park alumni who had just had a first hand experience with hog tranquilizers.

    Anyway – Scalia casts a really broad net over what he is claiming as ollie ollie oxen frees for the Exec branch engaged in all kinds of warrant supported malfeasance and has very specifically opened the door to “probable cause” now somehow including probable cause of govt to belief anything – not just just the existence of a crime or criminal activity, but even things like believing someone might have been a witness to a fender bender.

    Or how about believing that a certain Supreme Court justice might materially interfere with legitimate DOJ activities by voting against the DOJ’s position in an upcoming case? Today jail the material witness, tomorrow why not the material justice? Is one more allowed or more defensible under the constitution?

    Bc notice that the real fight Scalia picked was over the word suspicion. He left as “not before the court” the argument over the meaning of “probable cause.” Especially not when coupled with “impartial magistrate.” I’m guessing, “An impartial magistrate had determined there is probable cause to believe that you are throwing me a surprise party” doesn’t trip easily, even from Scalia’s tongue.

    Back to my real world imitation of Sisyphus. Fight the good fight.

    • bmaz says:

      If Scalia or any of the other justices had such a notion, or even more than self serving moralistic whitewash issue, with the Constitutionality of the material witness stature under the 4th, they could have sua sponte ordered the case briefed on that issue. They pulled that on Citizens United to hand a gift with a bow to the corporatists after all. So there is recent precedent for just such a thing. But, see, they don’t give a damn and would much rather leave the whole kit and kaboodle expanded grotesquely, because that is what they do.

      • Mary says:

        I agree they don’t give a damn. I agree they could have ordered the briefing. I’d even go so far as to say on such an important issue they should have ordered it. Still, if I read the footnotes correctly, this is a part of the argument that is in al-kidd’s complaints against the FBI agents who sought the warrants (contesting the staute itself) but was not in the complaint against Ashcroft. I might be misreading that, though. I’ve been a lot out of the loop.

        But more to your point, the way he sets it up, even if you do get to that point – the constitutionality of the statute – you get to it in a way that isn’t going to give you a solid claim against the guys seeking and getting the material witness warrants bc it won’t be deemed to be something they clearly knew or should have known was an improper use of the warrant powers of a court, since no other cases exist on that point, since Congress seemed to think it was proper, and since it was longstanding practice.

        So while I’m trying to stay as neutral as possible on the determinatons vis a vis the pleadings available, even from that stance it’s easy to see how the seemingly open-minded, heh, let’s wait till we get an on point case in front of us language doesn’t survive practical application to real life facts and circumstances as being anything as being anything other than lip balm prior to butt-kissing. He leaves no realistic way for someone to challenge the repeated and punitive requestgs for and issuances of other than probable cause to believe a crime has been committed” warrants. The warrant issuance process is already not advocated. And when it is combined with classifications and secrecy, it’s not realistically open to review. And if there’s no recourse for victimized because of grants of qualified immunity to the conspirators who are using the extra-constitutional process for illicit purposes, other than some kind of “almost-dicta” determination that such warrants shouldn’t be issued if there’s no probable cause to support allegations the detainee has committed a crime – but that it’s all no harm, no foul that they did issue and for such purposes – – it’s not like that’s opening the court’s doors in any realistic fashion. Rights with out remedies.

        The only one with some kind of a different shot might be Padilla in the context of his criminal appeal and the fact that his material witness warrant was used as the vehicle for direct transport to military torture, but even there, the pleadings would have to be so complex and what you’d be looking at is in the context of his criminal appeal, not his civil Yoosuit.

        Empires don’t crumble these days. They spin themselves into insubstantial froth over arguments about suspicion of birthday parties while openly embracing unrepentant torture of innocents as being in the best interests of the Republic and national security.

        • bmaz says:

          Vacuous is the word I think. Jeebus. It is just tiring. I started this caring and fighting for the 4th Amendment stuff heavy my second year in law school right after Illinois v. Gates and as just as United States v. Leon and Massachusetts v. Sheppard were being argued and then decided. Nothing but an ass whuppin since then, no matter what is done. And I have really tried at multiple levels, with multiple groups etc. Nuthin but bad. Don’t even know if it has slowed down the wreakage.

  16. workingclass says:

    We are the subjects of a full blown Fascist Police State right now. Today. It’s much too late to prevent it. We have no constitution and therefore no need of a supreme court. Scalia is not a judge. He is a thug in the employ of a Fascist Oligarchy. And I have a suspicion that he sucks donkey dicks.

  17. rugger9 says:

    As far as Scalia’s opinion, this will be another example of the Gilded Age laissez-faire operation. What’s different this time is that Europe isn’t filled with monarchies any more.

  18. NMRon says:

    You know, the first thing they tell you in government service and actual ethics training (I know, I know. Ethics on the Supreme Court? What am I thinking?) is that a ‘no specific prohibition’ rationale is bullshit. The fucking requirement is that there be ‘specific authorization’ or permission for any government action.

  19. mikeadam says:

    Scalia is a psychopath and I suspect the type of sophistic monster Orwell suspected would arise to a seat of power to interpret the law in a budding totalitarian state…There will be so much to mend after he is off the bench to restore our rights as citizens….

    • bmaz says:

      On what basis do you call Scalia a “psychopath”? I too disagree strongly with his political, and often judicial philosophy, heck am inclined to agree that he is probably a first rate jerk; but that is a hell of a long stretch from psychopath. Jeebus.