Orin Kerr writes:
Next week, the Supreme Court will be hearing oral argument in Ashcroft v. Al-Kidd, a case on material witness and national security detention. Al-Kidd is a rather strange Fourth Amendment case, and in this post I wanted to explain why I think it’s strange case and how that strangeness might influence what the Court will do in the case.
Full disclosure before I begin: I provided some minor advisory assistance in the case to counsel for Al-Kidd. In this post, though, all opinions are mine alone.
The Petitioner in this case is John Ashcroft, the former Attorney General, who is represented by the Department of Justice (DOJ). The Respondent is Abdullah Al-Kidd, a person who was detained under the material witness statute, who is represented by the ACLU. Al-Kidd has sued John Ashcroft under the Fourth Amendment for Ashcroft’s policy of using the material witness statute for purposes of national security detention. Ashcroft has denied that the Fourth Amendment was violated, and he has raised both qualified and absolute immunity defenses against liability. The case therefore raises two basic issues: First, whether using the material witness statue for national security reasons violates the Fourth Amendment; and Second, whether Ashcroft has immunity against liability.
Read more on SCOTUSblog.