ASHCROFT v. AL-KIDD

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
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No. 10–98

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JOHN D. ASHCROFT, PETITIONER v. ABDULLAH

AL-KIDD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 31, 2011]

JUSTICE SCALIA delivered the opinion of the Court.

We decide whether a former Attorney General enjoys immunity from suit for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest.

I

The federal material-witness statute authorizes judges to “order the arrest of [a] person” whose testimony “is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.” 18 U. S. C. §3144. Material witnesses enjoy the same constitutional right to pretrial release as other federal detainees, and federal law requires release if their testimony “can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.” Ibid.

Because this case arises from a motion to dismiss, we accept as true the factual allegations in Abdullah al-Kidd’s complaint. The complaint alleges that, in the aftermath of the September 11th terrorist attacks, then-Attorney General John Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, because federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

It is alleged that this pretextual detention policy led to the material-witness arrest of al-Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. App. 64. Al-Kidd remained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later. Prosecutors never called him as a witness.

In March 2005, al-Kidd filed this Bivens action, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) to challenge the constitutionality of Ashcroft’s alleged policy; he also asserted several other claims not relevant here against Ashcroft and others. Ashcroft filed a motion to dismiss based on absolute and qualified immunity, which the District Court denied. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity. See 580 F. 3d 949 (2009).

Judge Bea dissented, 580 F. 3d, at 981, and eight judges dissented from the denial of rehearing en banc, see 598 F. 3d 1129, 1137, 1142 (CA9 2010). We granted certiorari, see 562 U. S. ___ (2010). II

Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). We recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first. See Pearson v. Callahan, 555 U. S. 223, 236 (2009).

Courts should think carefully before expending “scarce judicial resources” to resolve difficult and novel questions of constitutional or statutory interpretation that will “have no effect on the outcome of the case.” Id., at 236–237; see id., at 237–242. When, however, a Court of Appeals does address both prongs of qualified-immunity analysis, we have discretion to correct its errors at each step. Although not necessary to reverse an erroneous judgment, doing so ensures that courts do not insulate constitutional decisions at the frontiers of the law from our review or inadvertently undermine the values qualified immunity seeks to promote. The former occurs when the constitutionallaw question is wrongly decided; the latter when what is not clearly established is held to be so. In this case, the Court of Appeals’ analysis at both steps of the qualifiedimmunity inquiry needs correction.

A

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” An arrest, of course, qualifies as a “seizure” of a “person” under this provision, Dunaway v. New York, 442 U. S. 200, 207–208 (1979), and so must be reasonable under the circumstances. Al-Kidd does not assert that Government officials would have acted unreasonably if they had used a material-witness warrant to arrest him for the purpose of securing his testimony for trial. See Brief for Respondent 16–17; Tr. of Oral Arg. 20–22. He contests, however (and the Court of Appeals here rejected), the reasonableness of using the warrant to detain him as a suspected criminal.

Fourth Amendment reasonableness “is predominantly an objective inquiry.” Edmond, supra, at 47. We ask whether “the circumstances, viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138 (1978). If so, that action was reasonable “whatever the subjective intent” motivating the relevant officials. Whren v. United States, 517 U. S. 806, 814 (1996). This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States, 529 U. S. 334, 338, n. 2 (2000); and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford, 543 U. S. 146, 153–154 (2004).

Two “limited exception[s]” to this rule are our specialneeds and administrative-search cases, where “actual motivations” do matter. United States v. Knights, 534 U. S. 112, 122 (2001) (internal quotation marks omitted). A judicial warrant and probable cause are not needed where the search or seizure is justified by “special needs, beyond the normal need for law enforcement,” such as the need to deter drug use in public schools, Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995) (internal quotation marks omitted), or the need to assure that railroad employees engaged in train operations are not under the influence of drugs or alcohol, Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989); and where the search or seizure is in execution of an administrative warrant authorizing, for example, an inspection of firedamaged premises to determine the cause, Michigan v. Clifford, 464 U. S. 287, 294 (1984) (plurality opinion), or an inspection of residential premises to assure compliance with a housing code, Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 535–538 (1967). But those exceptions do not apply where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified. See Whren, supra, at 811–812. The Government seeks to justify the present arrest on the basis of a properly issued judicial warrant—so that the special-needs and administrative-inspection cases cannot be the basis for a purpose inquiry here.

Apart from those cases, we have almost uniformly rejected invitations to probe subjective intent. See Brigham City v. Stuart, 547 U. S. 398, 404 (2006). There is one category of exception, upon which the Court of Appeals principally relied. In Edmond, 531 U. S. 32, we held that the Fourth Amendment could not condone suspicionless vehicle checkpoints set up for the purpose of detecting illegal narcotics. Although we had previously approved vehicle checkpoints set up for the purpose of keeping off the road unlicensed drivers, Delaware v. Prouse, 440 U. S. 648, 663 (1979), or alcohol-impaired drivers, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990); and for the purpose of interdicting those who illegally cross the border, United States v. Martinez-Fuerte, 428 U. S. 543 (1976); we found the drug-detection purpose in Edmond invalidating because it was “ultimately indistinguishable from the general interest in crime control,” 531 U. S., at 44. In the Court of Appeals’ view, Edmond established that “ ‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d, at 968.

That was mistaken. It was not the absence of probable cause that triggered the invalidating-purpose inquiry in Edmond. To the contrary, Edmond explicitly said that it would approve checkpoint stops for “general crime control purposes” that were based upon merely “some quantum of individualized suspicion.” 531 U. S., at 47. Purpose was relevant in Edmond because “programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion,” id., at 45–46 (emphasis added).1

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 suspicion2 in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent. In Whren, 517 U. S., at 813, and Devenpeck, 543 U. S., at 153, we declined to probe the motives behind seizures supported by probable cause but lacking a warrant approved by a detached magistrate. Terry v. Ohio, 392 U. S. 1, 21–22 (1968), and Knights, 534 U. S., at 121–122, applied an objective standard to warrantless searches justified by a lesser showing of reasonable suspicion. We review even some suspicionless searches for objective reasonableness. See Bond, 529 U. S., at 335–336, 338, n. 2. If concerns about improper motives and pretext do not justify subjective inquiries in those less protective contexts, we see no reason to adopt that inquiry here.

Al-Kidd would read our cases more narrowly. He asserts that Whren establishes that we ignore subjective intent only when there exists “probable cause to believe that a violation of law has occurred,” 517 U. S., at 811— which was not the case here. That is a distortion of Whren. Our unanimous opinion held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive. See id., at 810, 813. In the course of our analysis, we dismissed Whren’s reliance on our inventory-search and administrativeinspection cases by explaining that those cases do not “endors[e] the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred,” id., at 811 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.

“[O]nly an undiscerning reader,” ibid., would think otherwise. We referred to probable cause to believe that a violation of law had occurred because that was the legitimating factor in the case at hand. But the analysis of our opinion swept broadly to reject inquiries into motive generally. See id., at 812–815. We remarked that our special-needs and administrative-inspection cases are unusual in their concern for pretext, and do nothing more than “explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes,” id., at 811–812. And our opinion emphasized that we had at that time (prior to Edmond) rejected every request to examine subjective intent outside the narrow context of special needs and administrative inspections. See 517 U. S., at 812. Thus, al-Kidd’s approach adds an “only” to a sentence plucked from the Whren opinion, and then elevates that sentence (as so revised) over the remainder of the opinion, and over the consistent holdings of our other cases.

Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation.3 Efficient4 and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.

B

A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U. S. 635, 640 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. See ibid.; Malley v. Briggs, 475 U. S. 335, 341 (1986). The constitutional question in this case falls far short of that threshold.

At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. A district-court opinion had suggested, in a footnoted dictum devoid of supporting citation, that using such a warrant for preventive detention of suspects “is an illegitimate use of the statute”—implying (we accept for the sake of argument) that the detention would therefore be unconstitutional. United States v. Awadallah, 202 F. Supp. 2d 55, 77, n. 28 (SDNY 2002). The Court of Appeals thought nothing could “have given John Ashcroft fair[er] warning” that his conduct violated the Fourth Amendment, because the footnoted dictum “call[ed] out Ashcroft by name”! 580 F. 3d, at 972–973 (internal quotation marks omitted; emphasis added). We will indulge the assumption (though it does not seem to us realistic) that Justice Department lawyers bring to the Attorney General’s personal attention all district judges’ footnoted speculations that boldly “call him out by name.” On that assumption, would it prove that for him (and for him only?) it became clearly established that pretextual use of the material-witness statute rendered the arrest unconstitutional? An extraordinary proposition. Even a district judge’s ipse dixit of a holding is not “controlling authority” in any jurisdiction, much less in the entire United States; and his ipse dixit of a footnoted dictum falls far short of what is necessary absent controlling authority: a robust “consensus of cases of persuasive authority.” Wilson v. Layne, 526 U. S. 603, 617 (1999).

The Court of Appeals’ other cases “clearly establishing” the constitutional violation are, of course, those we rejected as irrelevant in our discussion of whether there was any constitutional violation at all. And the Court of Appeals’ reference to those cases here makes the same error of assuming that purpose is only disregarded when there is probable cause to suspect a violation of law.

The Court of Appeals also found clearly established law lurking in the broad “history and purposes of the Fourth Amendment.” 580 F. 3d, at 971. We have repeatedly told courts—and the Ninth Circuit in particular, see Brosseau v. Haugen, 543 U. S. 194, 198–199 (2004) (per curiam)— not to define clearly established law at a high level of generality. See also, e.g., Wilson, supra, at 615; Anderson, supra, at 639–640; cf. Sawyer v. Smith, 497 U. S. 227, 236 (1990). The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established. See Saucier v. Katz, 533 U. S. 194, 201–202 (2001); Wilson, supra, at 615.

The same is true of the Court of Appeals’ broad historical assertions. The Fourth Amendment was a response to the English Crown’s use of general warrants, which often allowed royal officials to search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown. See Stanford v. Texas, 379 U. S. 476, 481–485 (1965). According to the Court of Appeals, Ashcroft should have seen that a pretextual warrant similarly “gut[s] the substantive protections of the Fourth Amendmen[t]” and allows the State “to arrest upon the executive’s mere suspicion.” 580 F. 3d, at 972.

Ashcroft must be forgiven for missing the parallel, which escapes us as well. The principal evil of the general warrant was addressed by the Fourth Amendment’s particularity requirement, Stanford, supra, at 485, which Ashcroft’s alleged policy made no effort to evade. The warrant authorizing al-Kidd’s arrest named al-Kidd and only al-Kidd. 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.

While featuring a District Court’s footnoted dictum, the Court of Appeals made no mention of this Court’s affirmation in Edmond of the “predominan[t]” rule that reasonableness is an objective inquiry, 531 U. S., at 47. Nor did it mention Whren’s and Knights’ statements that subjective intent mattered in a very limited subset of our Fourth Amendment cases; or Terry’s objective evaluation of investigatory searches premised on reasonable suspicion rather than probable cause; or Bond’s objective evaluation of a suspicionless investigatory search. The Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U. S., at 341. Ashcroft deserves neither label, not least because eight Court of Appeals judges agreed with his judgment in a case of first impression. See Wilson, supra, at 618. He deserves qualified immunity even assuming—contrafactually—that his alleged detention policy violated the Fourth Amendment.

* * *

We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

1 The Court of Appeals also relied upon Ferguson v. Charleston, 532 U. S. 67 (2001), which held unconstitutional a program of mandatory drug testing of maternity patients. Like Edmond, that case involved a general scheme of searches without individualized suspicion. 532 U. S., at 77, n. 10.

2JUSTICE 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.

3 The concerns of JUSTICES GINSBURG and SOTOMAYOR about the validity of the warrant in this case are beside the point. See post, at 1–2 (GINSBURG, J., concurring in judgment); post, at 2 (SOTOMAYOR, J., concurring in judgment). The validity of the warrant is not our “opening assumption,” post, at 2 (GINSBURG, J., concurring in judgment); it is the premise of al-Kidd’s argument. Al-Kidd does not claim that Ashcroft is liable because the FBI agents failed to obtain a valid warrant. He takes the validity of the warrant as a given, and argues that his arrest nevertheless violated the Constitution because it was motivated by an illegitimate purpose. His separate Fourth Amendment and statutory claims against the FBI agents who sought the materialwitness warrant, which are the focus of both concurrences, are not before us.

4 We may note in passing that al-Kidd alleges that the Attorney General authorized the use of material-witness warrants for detention of suspected terrorists, but not that he forbade the use of those warrants to detain material witnesses. Which means that if al-Kidd’s inquiry into actual motive is accepted, mere determination that the Attorney General promulgated the alleged policy would not alone decide the case. Al-Kidd would also have to prove that the officials who sought his material-arrest warrant were motivated by Ashcroft’s policy, not by a desire to call al-Kidd as a witness.

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–98

_________________

JOHN D. ASHCROFT, PETITIONER v. ABDULLAH

AL-KIDD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 31, 2011]

JUSTICE KENNEDY, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join as to Part I, concurring.

I join the opinion of the Court in full. In holding that the Attorney General could be liable for damages based on an unprecedented constitutional rule, the Court of Appeals for the Ninth Circuit disregarded the purposes of the doctrine of qualified immunity. This concurring opinion makes two additional observations.

I

The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. See ante, at 8 (noting that al-Kidd “does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant”). Under the statute, a Magistrate Judge may issue a warrant to arrest someone as a material witness upon a showing by affidavit that “the testimony of a person is material in a criminal proceeding” and “that it may become impracticable to secure the presence of the person by subpoena.” 18 U. S. C. §3144. 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 arrests might be consistent with statutory and constitutional requirements.

II

The fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case. Mitchell v. Forsyth, 472 U. S. 511, 525 (1985). Some federal officers perform their functions in a single jurisdiction, say within the confines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. Davis v. Scherer, 468 U. S. 183, 195 (1984); see also Anderson v. Creighton, 483 U. S. 635, 639–640 (1987). In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many jurisdictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue.

When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken. As we have explained, qualified immunity is lost when plaintiffs point either to “cases of controlling authority in their jurisdiction at the time of the incident” or to “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U. S. 603, 617 (1999); see also ante, at 9–10. These standards ensure the officer has “fair and clear warning” of what the Constitution requires. United States v. Lanier, 520 U. S. 259, 271 (1997).

A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. If national officeholders were subject to personal liability whenever they confronted disagreement among appellate courts, those officers would be deterred from full use of their legal authority. The consequences of that deterrence must counsel caution by the Judicial Branch, particularly in the area of national security. See Ashcroft v. Iqbal, 556 U. S. ___, ___ (2009) (slip op., at 21). Furthermore, too expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review.

The proceedings in this case illustrate these concerns. The Court of Appeals for the Ninth Circuit appears to have reasoned that a Federal District Court sitting in New York had authority to establish a legal rule binding on the Attorney General and, therefore, on federal lawenforcement operations conducted nationwide. See 580 F. 3d 949, 972–973 (2009). Indeed, this case involves a material witness warrant issued in Boise, Idaho, and an arrest near Washington, D. C. Of course, district court decisions are not precedential to this extent. Ante, at 9– 10. But nationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities.

GINSBURG, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–98

_________________

JOHN D. ASHCROFT, PETITIONER v. ABDULLAH

AL-KIDD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 31, 2011]

JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, concurring in the judgment.

Is a former U. S. Attorney General subject to a suit for damages on a claim that he instructed subordinates to use the Material Witness Statute, 18 U. S. C. §3144, as a pretext to detain terrorist suspects preventively? Given Whren v. United States, 517 U. S. 806 (1996), I agree with the Court that no “clearly established law” renders Ashcroft answerable in damages for the abuse of authority al-Kidd charged. Ante, at 12. But I join JUSTICE SOTOMAYOR in objecting to the Court’s disposition of alKidd’s Fourth Amendment claim on the merits; as she observes, post, at 1 (opinion concurring in judgment), that claim involves novel and trying questions that will “have no effect on the outcome of th[is] case.” Pearson v. Callahan, 555 U. S. 223, 236–237 (2009).

In addressing al-Kidd’s Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant. Ante, at 1, 12. That characterization is puzzling. See post, at 2 (opinion of SOTOMAYOR, J.).1 Is a warrant “validly obtained” when the affidavit on which it is based fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” post, at 1, and does not disclose that alKidd had cooperated with FBI agents each of the several times they had asked to interview him, App. 26?

Casting further doubt on the assumption that the warrant was validly obtained, the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.2 Given these omissions and misrepresentations, there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination was neither necessary nor proper.3 I also agree with JUSTICE KENNEDY that al-Kidd’s treatment presents serious questions, unaddressed by the Court, concerning “the [legality of] the Government’s use of the Material Witness Statute in this case.” Ante, at 1 (concurring opinion). In addition to the questions JUSTICE KENNEDY poses, and even if the initial material witness classification had been proper, what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarceration, kept in high-security cells lit 24 hours a day, stripsearched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist. App. 29–36; cf. Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979) (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.”).

However circumscribed al-Kidd’s Bivens claim against Ashcroft may have been, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); ante, at 8 (majority opinion); ante, at 1 (KENNEDY, J., concurring), his remaining claims against the FBI agents who apprehended him invite consideration of the issues JUSTICE KENNEDY identified.4 His challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.

1 Nowhere in al-Kidd’s complaint is there any concession that the warrant gained by the FBI agents was validly obtained. But cf. ante, at 8, n. 3 (majority opinion).

2 Judicial officers asked to issue material witness warrants must determine whether the affidavit supporting the application shows that “the testimony of a person is material in a criminal proceeding” and that “it may become impracticable to secure the presence of the person by subpoena.” 18 U. S. C. §3144. Even if these conditions are met, issuance of the warrant is discretionary. Ibid. (“judicial officer may order the arrest of the person” (emphasis added)). Al-Kidd’s experience illustrates the importance of vigilant exercise of this checking role by the judicial officer to whom the warrant application is presented. The affidavit used to secure al-Kidd’s detention was spare; it did not state with particularity the information al-Kidd purportedly possessed, nor did it specify how al-Kidd’s knowledge would be material to Sami Omar al-Hussayen’s prosecution. As to impracticability, the affidavit contained only this unelaborated statement: “It is believed that if AlKidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.” App. 64. Had the Magistrate Judge insisted on more concrete showings of materiality and impracticability, al-Kidd might have been spared the entire ordeal.

3 The Court thrice states that the material witness warrant for alKidd’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 wrongdoing.” See Indianapolis v. Edmond, 531 U. S. 32, 37 (2000) (emphasis added); Chandler v. Miller, 520 U. S. 305, 313 (1997) (same). See also, e.g., Brigham City v. Stuart, 547 U. S. 398, 405 (2006) (referring to “programmatic searches conducted without individualized suspicion— such as checkpoints to combat drunk driving or drug trafficking”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U. S. 822, 830 (2002) (“finding of individualized suspicion may not be necessary when a school conducts drug testing”); Whren v. United States, 517 U. S. 806, 817–818 (1996) (observed traffic violations give rise to individualized suspicion); Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 451 (1990) (“Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.”); Maryland v. Buie, 494 U. S. 325, 334–335, n. 2 (1990) (“Terry [v. Ohio, 392 U. S. 1 (1968)] requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”); Treasury Employees v. Von Raab, 489 U. S. 656, 668 (1989) (“[I]n certain limited circumstances, the Government’s need to discover . . . latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify [search that intrudes] on privacy . . . without any measure of individualized suspicion.”); O’Connor v. Ortega, 480 U. S. 709, 726 (1987) (“petitioners had an ‘individualized suspicion’ of misconduct by Dr. Ortega”); United States v. Montoya de Hernandez, 473 U. S. 531, 538 (1985) (“Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion . . .”); New Jersey v. T. L. O., 469 U. S. 325, 342, n. 8 (1985) (“the search of T. L. O.’s purse was based upon an individualized suspicion that she had violated school rules”); Michigan v. Summers, 452 U. S. 692, 699, n. 9 (1981) (“police executing a search warrant at a tavern could not . . . frisk a patron unless the officers had individualized suspicion that the patron might be armed or dangerous”). 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).

4 The District Court determined that al-Kidd’s factual allegations against FBI agents regarding their “misrepresentations and omissions in the warrant application, if true, would negate the possibility of qualified immunity [for those agents].” Memorandum Order in No. cv:05–093 (D Idaho, Sept. 27, 2006), p. 18. The agents took no appeal from this threshold denial of their qualified immunity plea.

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–98

_________________

JOHN D. ASHCROFT, PETITIONER v. ABDULLAH

AL-KIDD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 31, 2011]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring in the judgment.

I concur in the Court’s judgment reversing the Court of Appeals because I agree with the majority’s conclusion that Ashcroft did not violate clearly established law. I cannot join the majority’s opinion, however, because it unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional . . . interpretation that will ‘have no effect on the outcome of the case.’ ” Ante, at 3 (quoting Pearson v. Callahan, 555 U. S. 223, 237 (2009)).

Whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer question than the majority’s opinion suggests. Although the majority is correct that a government official’s subjective intent is generally “irrelevant in determining whether that officer’s actions violate the Fourth Amendment,” Bond v. United States, 529 U. S. 334, 338, n. 2 (2000), none of our prior cases recognizing that principle involved prolonged deten ­ tion of an individual without probable cause to believe he had committed any criminal offense. We have never considered whether an official’s subjective intent matters for purposes of the Fourth Amendment in that novel con ­ text, and we need not and should not resolve that question in this case. All Members of the Court agree that, what­ ever the merits of the underlying Fourth Amendment question, Ashcroft did not violate clearly established law.

The majority’s constitutional ruling is a narrow one pre ­ mised on the existence of a “valid material-witness war ­ ran[t],” ante, at 1—a premise that, at the very least, is questionable in light of the allegations set forth in alKidd’s complaint. Based on those allegations, it is not at all clear that it would have been “impracticable to secure [al-Kidd’s] presence . . . by subpoena” or that his testimony could not “adequately be secured by deposition.” 18 U. S. C. §3144; see First Amended Complaint in No. 05– 093–EJL, ¶55, App. 26 (“Mr. al-Kidd would have complied with a subpoena had he been issued one or agreed to a deposition”). Nor is it clear that the affidavit supporting the warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a wit ­ ness at trial may very well have rendered the affidavit deliberately false and misleading. Cf. Franks v. Delaware, 438 U. S. 154, 155–156 (1978). The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question.

I also join Part I of JUSTICE KENNEDY’s concurring opinion. As that opinion makes clear, this case does not present an occasion to address the proper scope of the material witness statute or its constitutionality as applied in this case. Indeed, nothing in the majority’s opinion today should be read as placing this Court’s imprimatur on the actions taken by the Government against al-Kidd. Ante, at 1 (KENNEDY, J., concurring) (“The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful”).

Print this transcript Transcript: 

ORAL ARGUMENT OF GENERAL NEAL KUMAR KATYAL ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next this morning in Case 10-98, Ashcroft v. Al-Kidd.

General Katyal.

Mr. Katyal: Thank you, Mr. Chief Justice, and may it please the Court:

This lawsuit seeks personal money damages against a former Attorney General of the United States for doing his job, allegedly with an improper motive, yet the Attorney General, like the Federal prosecutor in Idaho who sought the material witness warrant at issue in this case, was performing the functions of his office.

There are three reasons why the Petitioner should not be personally liable for money damages.

The first is because the prosecutor's act of seeking the material witness warrant is integrally associated with the judicial process and entitled to absolute immunity.

To view it any other way is to expose both line prosecutors and high officials to lawsuits by highly incentivized litigants based on their purportedly bad motives.

That is something this Court has manifestly resisted and for good reason, because improper motives are easy to allege and hard to disprove.

Allowing such suits to proceed would result in burdensome litigation and interfere with the ability of prosecutors to do their jobs.

The second reason is that the Fourth Amendment was not violated, and, therefore, qualified immunity applied.

There can be little doubt that the statutory requirements of section 3144 were met in this case, and, equally, there can be little doubt that the subjective motivations of Attorney General Ashcroft or the line prosecutor are thoroughly irrelevant to whether a Fourth Amendment violation exists.

This Court has repeatedly rejected subjectivity, explaining that otherwise time-consuming, vexatious, burdensome, and, indeed, destabilizing discovery and litigation would be the inexorable result.

And the third reason, and the easiest reason, is that whatever one thinks the applicable law is, what it -- it was manifestly not the law in 2003 when the warrant in this case was issued by a neutral judge in Idaho.

Justice Antonin Scalia: Can I ask whether your second reason doesn't boil down to saying that it makes very little difference whether -- whether Ashcroft is -- is held immune by absolute immunity or by qualified immunity?

Mr. Katyal: Oh, no, it--

Justice Antonin Scalia: Once -- once you say that -- that motive is not introducible with regard to the qualified immunity question, and once you say that he's using a witness subpoena, and you can't look behind it as to whether he was abusing it for some other purpose, is there any difference between absolute and qualified immunity?

Mr. Katyal: --Well, I take it there may be a difference.

We think the Court should first decide the absolute immunity question, which is the way that this Court has historically handled questions when there's an absolute immunity question and then a qualified immunity one.

I take it that the qualified immunity question in this case is one about whether motivations matter for the Fourth Amendment; whereas the motivation question in the absolute immunity sense, as Respondents see it, is -- is something broader.

It's not limited to the Fourth Amendment, per se.

Their argument is if the prosecutor is -- has bad motives essentially or a certain bad motive, an investigatory or purposeful bad motive to engage in preventive detention, that somehow pierces the veil of absolute immunity.

That is something this Court has never accepted.

Justice Antonin Scalia: Well, I thought the -- I thought the argument, rather, was that this is not as close to the core of the prosecutorial function as some of the other functions to which we have given absolute immunity, and since it's so dangerous, since there is such potential for abuse, we shouldn't confer absolute immunity on this particular conduct.

But I don't understand why if we agree with you on qualified immunity, there is any difference whatever.

Mr. Katyal: Justice Scalia, to be sure, they are now making that argument in this Court, that this doesn't fall -- this isn't intimately associated--

Justice Antonin Scalia: Right.

Mr. Katyal: --with the judicial process.

Below, of course, they said the reverse: That material witness warrants were associated with the judicial process and that the only difference is that -- that, here, they had a bad motive.

So I've talked about the bad motive point.

Now, with respect to whether this is intimately associated with the judicial process, these are material witness warrants being sought in connection with an ongoing investigation by a prosecutor.

It is quintessentially a prosecutorial function to obtain these warrants and has been for -- for hundreds of years, and it's the exercise of the prosecutor's professional judgment, which is something that this Court has looked to.

Justice Antonin Scalia: Was the prosecution already pending when this -- when this warrant was issued?

Mr. Katyal: Yes, it was.

The indictment of Mr. Al-Hussayen was in February 2003.

The prosecutors learned in March that Mr. Al-Kidd was about to board a plane and go off to Saudi Arabia for an unspecified length of time.

They then acted immediately.

They went to the court and said we need this warrant to secure this testimony.

That is, to me, essentially what prosecutors do and protected by Imbler.

To see it any other way is to expose prosecutors to lawsuits for--

Justice Ruth Bader Ginsburg: Was Mr. Al-Kidd -- was he released after -- I understand he didn't testify at the trial, and there was an acquittal, and then other charges were dropped.

Was Al-Kidd still in custody as a material witness after the trial was over?

Mr. Katyal: --Justice Ginsburg, he was in -- he was detained for only a period of 16 days total in 2003.

Is--

Justice Ruth Bader Ginsburg: But he was restrained much longer -- for 15 months.

Mr. Katyal: --He had travel restrictions placed upon him until the trial was over and until the government -- because after the resolution of Mr. Al-Hussayen's case, which was acquittal on some charges and a hung conviction -- a hung -- a hung decision on others, the government thought about retrying Mr. Al-Hussayen, took it very seriously, and 20 days after al-Hussayen's verdict by the jury, we reached an agreement with them in writing that Mr. Al-Hussayen would leave the country and -- and not come back, and in exchange we weren't going to prosecute him any further.

And so, immediately -- I think quite soon after the jury verdict, the -- the conditions placed on Mr. Al-Kidd were lifted.

And I should say that the material witness warrant statute laces into it a whole suite of safeguards to prevent against -- as, Justice Scalia, you pointed out -- the potential abuse for the -- for material witnesses by prosecutors.

I think Congress has set up several different things to prevent that.

The first is, in order to get a material witness warrant, the prosecutor needs to show both materiality and then practicability.

The second is that there are strict limits placed on the conditions of the -- on the ability of the prosecutor to detain anyone.

Section 3142 says that a detention can only be allowed by a judge if, quote,

"no condition or combination of conditions will reasonably assure the appearance of the individual. "

And then there's a formal procedure where they have a right to counsel, they have the right to cross-examine witnesses, to -- to present evidence, to proffer evidence at the hearing, and the like -- all to show that they shouldn't continue to be detained.

Justice Samuel Alito: Well, in light of these restrictions, I would like to come back to the question that I understood Justice Scalia to be asking.

If the Court were to hold that obtaining a material witness warrant does not violate the Fourth Amendment where the statutory requirements, and in particular establishing materiality, are met, why would it be necessary for the Court to decide whether there's absolute immunity when a prosecutor seeks a material witness warrant?

Mr. Katyal: For two reasons.

Number one is I think that's the way this Court has historically gone about it, probably for reasons of constitutional avoidance, to not reach constitutional questions if there's an absolute immunity question.

And the second is, here, you have a Ninth Circuit decision, Justice Alito, that says that -- that absolute immunity can be pierced by a prosecutor's bad motive.

That is something that infects not simply material witness warrant cases but, indeed, virtually any case.

As we point out and as the dissent below pointed out, that kind of argument could be run by any defendant who says you didn't intend to actually indict me, or, you didn't care about that, you really wanted to flip me to get testimony against some higher-up.

And to allow defendants to make those kinds of arguments and to expose line prosecutors and attorneys general to that form of liability is an extremely damaging proposition.

The -- with respect to the Fourth Amendment question about whether or not motive applies, I think this Court has quite clearly said in Whren that motive is not -- is not something that should be looked to, that the subjective motivations of the prosecutor are not -- are--

Justice Ruth Bader Ginsburg: But that's after there is probable cause to suspect that criminal activity has occurred.

And then you -- once you have probable cause, they're not going to look behind probable cause.

But, here, the whole reason for using this material witness statute is that there isn't probable cause to believe that al-Kidd did anything.

The violation -- there was no violation of the law.

So Whren is different.

It's a different case.

Mr. Katyal: --Justice Ginsburg, it's certainly different in -- in that respect, but I do think that difference doesn't matter, because I think what Whren and Edmond and the cases were getting at is, is there some objective, individualized determination by a neutral judge?

And, here, as I was saying earlier, there is quite clearly that laced into the 3144 statute itself; that is, the judge must find materiality and -- and impracticability of the testimony.

And that is a standard performing, I think, a long-standing government function of making sure that testimony, important testimony, is available at trial.

So it is not like a situation in which the government, just on their mere say-so, can put the -- can detain someone on the basis of them saying, well, we think this person has information.

I think there are strict standards placed on that, and, indeed, Federal Rule -- Federal Rules of Criminal Procedure 46 adds standards to it by saying that a prosecutor must report to the judge every 10 days about anyone who is detained and assure no more detention is necessary.

So that--

Justice Antonin Scalia: I don't see--

Justice Ruth Bader Ginsburg: How does that--

Justice Antonin Scalia: --I don't see how that would make any difference to the -- at least to the absolute immunity question.

You wouldn't assert that there is absolute immunity if there's a statute such as this, but there is not if there isn't.

I mean, either this is core prosecutorial function for which he can't be sued or it isn't.

So what difference does this statute make as far -- as far as absolute immunity is concerned?

Mr. Katyal: --Absolutely, Justice Scalia.

I was just answering Justice Ginsburg's question about qualified immunity.

Justice Antonin Scalia: Okay.

Mr. Katyal: I imagine one point about the statute might be that the statutes, going all the way back to 1789, do reflect that this is a prosecutorial function to the extent there is any doubt.

So, for example, the 1846 statute said that an attorney -- excuse me, an attorney of the United States must apply for a material witness warrant.

Justice Antonin Scalia: So for us to agree with you on absolute immunity, we -- we would have to believe that even if there were no such statute and if a prosecutor simply detained somebody as a material witness without any check of a -- of an independent magistrate, he would be immune?

Mr. Katyal: I think that is correct, that that is quintessentially what prosecutors do in the exercise of trying to get a trial -- a trial going.

Now--

Justice Stephen G. Breyer: Suppose -- suppose that a prosecutor reads the statute, there must be an affidavit that says this witness is material.

And there is irrefutable evidence that the prosecutor said to colleagues and others: I do not intend to try this person, ever, no matter what; I just want to ask him questions.

In that case, has the statute been violated because he is not material?

Mr. Katyal: --Well, if the -- if the -- I'm not sure I totally follow--

Justice Stephen G. Breyer: I'm not saying it's this case.

I'm saying it's a hypothetical case.

Mr. Katyal: --If the evidence shows that the evidence is not material, then the statute is violated.

Justice Stephen G. Breyer: And the reason it is not material is because the prosecutor has no intention whatsoever of ever bringing this person as a witness in any trial.

Mr. Katyal: I do think that that would generally mean that materiality would be violated.

I could imagine--

Justice Stephen G. Breyer: All right.

Mr. Katyal: --some theoretical construct--

Justice Stephen G. Breyer: If materiality is violated, does not then that -- that prosecutor -- since he had no intention of bringing him to trial or of having him as a witness at a trial, that prosecutor would not be immune?

Mr. Katyal: --Justice Breyer, let me -- let me--

Justice Stephen G. Breyer: --yes.

Mr. Katyal: --just make sure that I understand the contours of your hypothetical.

I don't think that subjective motivations of the prosecutor go to materiality.

So if--

Justice Stephen G. Breyer: Well, how does -- how does it--

Mr. Katyal: --Here's how I think it works: So I think that Congress set up the objective two-part test to decide whether or not an arrest warrant would take place, which is materiality and impracticability.

Now, that isn't subjective; that is simply, does the person have material information that can be used that -- that's relevant to the trial.

Now, if the person has a -- the prosecutor has a subjective intent that says I'm never going to use this testimony, then I think that that doesn't -- that will -- that will almost always reflect the fact that materiality just objectively hasn't been met in a given case, but theoretically I could imagine a circumstance in which the prosecutor has that subjective intent but yet is material.

With respect to that, Congress has a different safeguard at the back end, in 3144, and that is the language in 3144 that says a judge in the detention hearing is to inquire as to whether or not the detention is necessary, quote,

"if there will be a failure of justice. "

if the person is released.

Justice Antonin Scalia: And you can't look behind that, right?

You can't look behind that?

If the -- if the judge has said it's material, that's the end of it; you have absolute immunity, right?

Mr. Katyal: Well, I think that the -- the defense can litigate that and appeal that set of issues, but I don't think--

Justice Antonin Scalia: Can appeal the -- the judge's determination that -- that it's material?

Mr. Katyal: --Absolutely.

Justice Antonin Scalia: Well, then how can you have absolute immunity?

Mr. Katyal: Well, they did, because we're talking about--

Justice Antonin Scalia: Oh, you mean at the time it's issued?

Mr. Katyal: --Exactly.

Justice Antonin Scalia: I see.

Mr. Katyal: At the time itself.

But I think that's an important point, Justice Scalia.

With respect to absolute immunity, this Court has often said that it is the crucible of the trial process itself that often is a safeguard against abuse.

Justice Antonin Scalia: Well, what if you didn't have -- again, what if you didn't have this prescribed judicial process?

Mr. Katyal: I take it that the logic of this Court's precedence is that absolute immunity would still apply.

And the reason for that is that absolute immunity isn't some rule to just protect prosecutors willy-nilly; it's to protect the public.

And as this Court said most recently unanimously in the Van de Kamp case, that -- quoting Learned Hand -- that -- that there is a cost to this.

No doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties.

Justice Sonia Sotomayor: There is a difference between calling a witness at trial and arresting a person.

How is it a part of the prosecutorial or the trial function to arrest someone?

Isn't what's protected absolutely is your use of that person at trial, not your arrest or detention of them?

Mr. Katyal: No, I do think it goes quite a bit further than that.

I think it -- and I think Burns v. Reed -- and the relevant language is at page 492 -- I think is -- is relevant because it says that it's pretrial conduct, in order to secure the testimony for trial or the like is -- is what is protected as well, that it would be far too narrow to just focus on the trial itself; and that would be the contours of absolute immunity.

I think Justice Kennedy's opinion in Buckley is also instructive in this regard, because what that opinion says is that allowing only immunity for the trial would just allow individuals to constantly replead their allegations and focus only on the pretrial conduct and be an end run around absolute immunity.

And, again, absolute immunity is important not for the prosecutor for his own sake or her own sake, but because ultimately that is what -- that causing -- damage liability will -- will make prosecutors flinch the performance of their duties more generally.

Justice Sonia Sotomayor: You don't -- you don't think there's a reason to make prosecutors flinch against willy-nilly -- that's not what I'm -- I'm claiming happened here, but if you take the point that you're raising, then prosecutors can out of spite, out of pure investigative reasoning, out of whatever motive they have, just lock people up.

Mr. Katyal: Justice Sotomayor--

Justice Sonia Sotomayor: And you're -- you're basically saying--

Mr. Katyal: --making prosecutors flinch is -- is always a bad thing.

What I'm referring to is this Court's precedents that say damages liability on prosecutors is the wrong way to go about it because the costs are too high compared to the benefits, and there are other ways of dealing with that -- from professional discipline, as Malley v. Briggs and Imbler said; to -- to -- to bar actions; to the crucible of the trial process itself, which is a way of dealing with that.

Justice Antonin Scalia: Well, there are procedures set forth in the statute, I'd say you would add, which you think are not necessary, but are there in order to make them flinch in a different -- in a different--

Mr. Katyal: That is precisely correct.

We don't think those are constitutionally compelled, but we do think they provide a very important safeguard.

Justice Anthony Kennedy: What's your best authority that at -- at common law or the common law tradition, there is absolute immunity for witness -- for the issuance of witness warrants?

Mr. Katyal: I don't think it's come up with respect to public prosecutors, and so our argument here, to the extent the Court reaches that question -- and, again, it wasn't -- it wasn't raised below in the brief in opposition, but if the Court wanted to reach that question, I think it would be that the argument would derive the same way as the arguments in this Court's post-Imbler cases, which is, as long as it is intimately associated with the judicial function that the prosecutor is doing, then absolute immunity should extend to that context.

Justice Anthony Kennedy: Then a second question, quite apart from immunity, just addressing the substantive constitutional issues under the statute, suppose that the prosecutor has probable cause to indict and try the person for the crime.

Suppose also that there is good reason to show that he would be a material witness as to another participant in the crime.

Does the government have any duty to proceed with the indictment, or can they just hold the person as a material witness without indicting?

Mr. Katyal: I do think that the government -- I'm not sure if we have any policy with respect to that, but I think that -- that we -- that at least for Fourth Amendment purposes, there wouldn't be a violation if the government held the person for essentially a dual motive, and that is what I understand they have now conceded at page 31 of their brief, which is in dual motive cases, the government's action is permissible.

If there are no other questions, I'll reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, General.

Mr. Gelernt.

ORAL ARGUMENT OF LEE GELERNT ON BEHALF OF THE RESPONDENT

Mr. Gelernt: Mr. Chief Justice, and may it please the Court:

In Dunaway, this Court emphatically reaffirmed the bedrock Fourth Amendment principle that a criminal suspect may not be arrested, absent probable cause to believe there has been a law violated.

The rule is fundamental to our traditions, is widely viewed as a defining feature of our country, and has been steadfastly protected by this Court for more than 2 centuries in both good and bad times.

The material witness statute represents a dramatic departure to the rule, allowing the arrest of uncharged, innocent, even cooperative people.

If a material witness arrest is constitutional, it can only be because its purpose is to secure testimony and not to preventively detain and investigate the witness himself.

Justice Antonin Scalia: Do you acknowledge that it is then constitutional?

Your -- your opening comments make me think you don't even acknowledge that it's constitutional then?

Mr. Gelernt: Justice Scalia, we are not pressing that argument.

I would say that based on the legal historian's brief there is a strong argument to be made that it is not constitutional, with respect at least to cooperative witnesses.

The statute the Framers enacted in 1789 would not allow the arrest of any witness unless they came voluntarily before the magistrate and refused to even promise to return.

Not even a surety or a -- a surety or a bond was allowed.

So we do think there is a strong argument, but we are not pressing that argument.

Our argument is that it cannot be used for ulterior purposes.

And I just want to pick up, if I can, with Justice Breyer's hypothetical that he posed to the government, which is of course our hypothetical.

The government started out this case throughout the lower courts and in the opening brief saying purpose is wholly irrelevant.

This is Whren, even though Whren is probable cause to believe a law has been violated; this is Whren, purpose is wholly irrelevant.

We posed a hypothetical which we actually think is this case and is consistent with our factual allegations, that the sole reason this arrest was made was not to secure testimony but to preventively detain and investigate someone for whom there was no probable cause or violation of the law.

That is -- is a difficult situation I think to reconcile with Whren, I think an impossible situation to reconcile with Whren, or with the text or history of this statute.

The government has now come back and trying to have it both ways and saying, well, the statute wouldn't naturally allow that.

But if purpose is -- as Justice Breyer pointed out, if purpose is truly irrelevant why they want to make the arrest, the government should have answered

"that would be fine. "

"The only things we need to satisfy are the objective components of materiality and impracticability. "

Justice Samuel Alito: Is this a -- is this a realistic hypothetical that you've posed?

Now, in order to detain someone under the material witness statute, that person, potential witness, must have material testimony, not just relevant testimony, material testimony, testimony that would be of some importance in the criminal prosecution.

So your hypothetical is a situation in which there is a witness and this witness has important testimony that could be used in a pending criminal case, and yet the prosecution has absolutely no interest in calling that person as a witness.

How often is that going to arise?

Mr. Gelernt: Well, Justice Alito, I -- I think a few points, one is just as an initial matter.

The statute has not actually been interpreted to go beyond relevance, in the way you're posing it.

Interestingly, earlier statutes actually said the testimony needed to be necessary.

And so, that's -- that's actually an important watering down.

But putting that aside for the moment, we think that what -- it -- it did happen in this case, it happened after 9-11, I think that goes to the crux of our case here.

We are not trying to fiddle with the use of the material witness statute in the every day context, and I think that's the point the Federal prosecutor's brief is making.

What we are saying is simply that the principle has to be that if you do encounter that extreme case, this Court should not bless the situation where it literally can be used as a preventive--

Chief Justice John G. Roberts: The problem, and it's, I think, the problem that I think Whren highlighted is that the -- the allegation can so readily be made in every case under the material witness statute is that this is one of those bad intent cases, and the case has to proceed so that we can prove that.

One of the ways we prove that is by asking everybody who is involved in the process.

Why did you do this?

What was your intent?

I mean, the whole purpose of Whren is to make sure that kind of stuff doesn't happen.

Mr. Gelernt: --Yes, Mr. Chief Justice, but let me -- let me say that I think I -- as I understand Whren, I obviously don't want to tell the Court about its own cases, but is that it was drawing a conceptual line, that the first point about Whren, and I think the fundamental point, was the conceptual point that as the Whren court put it, only an undiscerning reader would conflate cases in which there was probable cause of a violation of the law with cases in which there wasn't.

So I think the Whren court is not saying we wouldn't look at purpose.

I think that's the teaching of the special needs cases.

Now, to your practical question about why would this be hard to allege?

I actually think that this is one of those unique situations which it would be very difficult to allege.

Take the government's cases, for example, that they've cited, like Daniels and Betts, the material witness cases, you have witnesses being arrested, not showing up for trial.

As the court of appeals made clear in those cases, they were the main witnesses, not showing up on the day of the trial or right before trial.

It would be virtually impossible for those witnesses to turn around and say the only reason I was arrested was for investigative purposes.

And I think that on top of the fact that this statute is used very rarely, I mean what we have pointed out is other than in immigration cases, which the person is already subject to custody, there are only a few hundred each year.

And again, I think what the Green brief is saying by the Federal prosecutors is, look, the settled understanding of this statute among line prosecutors has always been, you use it to secure testimony.

Maybe there's a windfall in the back of your mind that this person might be a suspect, but you certainly can't use it where you have no intention of using the testimony.

I think then the limitations on this statute become meaningless.

I mean, take--

Chief Justice John G. Roberts: So every time the prosecutor elects not to call one of these witnesses for a variety of reasons, you would have a claim that this wasn't designed to elicit testimony?

Mr. Gelernt: --No, no, we don't think so, Mr. Chief Justice.

I -- I think what we have -- we have said is that calling the witness or not calling the witness can't be determinative.

I think one reason is you wouldn't want to create a perverse incentive to have prosecutors simply call the witness just to cover themselves.

So I think you would have to allege much more, and I think that's what we have done.

I think there is an entire set of allegations with respect to Mr. Al-Kidd, and they fit a national pattern.

And I would importantly say in the questions presented, the government raised an Iqbal claim as to plausibility only as to a small part of this case which is no longer part of the case, which is, was Mr. Ashcroft involved in the specific statements in this specific affidavit.

They did not allege that the allegations of a pretextual policy were implausible.

So it is not before this court, it is not a question presented, and I think it is telling that the government didn't raise it.

They are sitting on all the information about what happened after 9-11 as a policy matter, and they did not claim it was implausible.

Justice Anthony Kennedy: Just a point of detail.

I -- I may not be recalling correctly.

You said this statute is rarely used.

I thought there were 4,000 material witness hearings a year.

Is that mostly because of the immigration?

Mr. Gelernt: Yes, Justice Kennedy, and I apologize if I wasn't clear.

That what the -- what the court of appeals showed and what the statistics also show is that roughly 92 percent of the cases are immigration cases, where the person is already subject to custody, and there wouldn't be any need to use it in that pretextual way.

So what we're talking about is a few hundred each year throughout the country, and again when it's used properly, it's going to be virtually impossible to allege something like this.

Justice Anthony Kennedy: Do we -- do we -- do we have statistics for the States, how many States hold -- how many people are held under State material witness statutes?

Mr. Gelernt: We have -- we have looked for those, Justice Kennedy.

We have not been able to find them.

What we do know about the States, though is that more than 30 of the States have statutes that are much more restrictive than the Federal Government, because what they do is they follow what the framers did in 1789, which is to say the witness has to be given an opportunity to comply, and that's what the framers did.

You have to ask the witness if they will continue to comply.

If they won't -- or you have to make a showing of why it's impossible to ask them.

So, I think in many States it won't be a problem.

I think actually, you know, the State issue is an important one because what the Federal Government is arguing here is, of course, well, our prosecutors are very well supervised.

Well, that -- that doesn't take into account if there is a deliberate attempt to misuse it.

But I also think what we're looking at are States, local counties, cities where there may not be the resources necessary to put checks on, and what the government's asking is for this Court to hold that as long as you can make the minimal showings of impracticability and materiality, which don't even require the evidence to be important or that the witness be uncooperative, you then can have any purpose you want.

So you could have States, cities, local counties saying every member of this gang or every member of this business must know some information about the person that's been indicted.

Justice Samuel Alito: Your argument is that the Constitution does not allow a material witness to be detained, so long as the witness says in court that he or she will show up for trial, no matter how much evidence there is that this person poses a great risk of flight?

If the person says in court, I will be there, that's the end of it, the person cannot be detained?

Mr. Gelernt: Do I think the Constitution requires that?

Justice Samuel Alito: Yes.

Mr. Gelernt: I think it probably does, but we are not taking a position on that.

I mean, what we are basically saying is that it is out of whack historically.

It wasn't until the mid 1900s where that could happen, where even if they said they would come back, you could hold them.

So I think it's out of whack historically, and there may be a real constitutional argument.

We are not pressing it.

We are simply saying that if it's used for its proper purpose, then we are going to assume it's constitutionality, which the Ninth Circuit did, but it can't be that it can be used as a preventive detention.

And I think any reasonable official -- and I want to go to the qualified immunity if I could -- would have seen that, because I think the analysis would have been the following.

You would have pulled out Dunaway, and you would have seen that you need probable cause to arrest someone, probable cause of wrongdoing.

And you would have then said, well, we don't have probable cause of wrongdoing, so you would have pulled out Whren then, because Whren talked about pretext.

What Whren would have told you is do not conflate cases in which there's probable cause of wrongdoing with cases in which the court has granted an exemption from the probable cause--

Justice Samuel Alito: You might turn out--

Chief Justice John G. Roberts: If you were writing a law review article, you might have done that.

But we're talking about an officer.

I think the first thing you would do is say, well, let me see these material witness statute cases, and what would he have found?

Mr. Gelernt: --Well, I think what he would have found, Your Honor, is that the Court has not specifically -- I grant that it has not specifically ruled on the Fourth Amendment, but what he would have found in Barry and the other cases, is that the Court repeatedly, repeatedly referred to statute as a means of securing testimony.

So I think the reasonable official would have said to themselves, well, it's clear under the Fourth Amendment that I don't have probable cause, but maybe the statute is allowing me to do it.

Now, first of all, it statute can't authorize a Fourth Amendment violation.

But putting that aside, just a--

Chief Justice John G. Roberts: But, again, you're talking about the officer, he reads the statute and then doesn't say, well, but maybe the statute's unconstitutional, so I need to do more research?

Mr. Gelernt: --Exactly, Your Honor.

And I think what the research would have been done, they would have looked at Barry and all this Court's other cases and would have specifically said it's to secure testimony, and then I think a reasonable official would have looked at the text of the statute, everything in the text of the statute is about securing testimony, including the deposition requirement, you must be released if your deposition is taken, you must have a deposition.

All of those things do not suggest -- if the government's interests could be simply we want to hold this person because for preventive detention reasons, none of the statute would make sense.

I think that a reasonable official could not have turned to this statute and said, yes, I'm looking at the statute, and it seems like I can use it for whatever reason I want.

Chief Justice John G. Roberts: So the eight -- eight judges taking the opposite position in the hearing en banc below were just being unreasonable?

It would have been unreasonable for an officer making this determination to agree with eight judges from the Ninth Circuit?

Mr. Gelernt: I think, Your Honor, the -- Mr. Chief Justice, the only way I can answer that is to say this Court has -- has never made determinant of whether there are dissents.

I mean, take the Brogue in this Court, two justices of this Court dissented on merits and yet you still found that the law was clearly established.

Chief Justice John G. Roberts: What we said in Wilson, I'm quoting, judges -- when judges disagree on a constitutional question, it is unfair to subject public employees to money damages for picking the losing side of the controversy.

Mr. Gelernt: I mean, but I think Brogue goes the other way.

Ultimately, all I can say, Mr. Chief Justice, is I think that the -- the fact that there were dissenters can't be dispositive, and ultimately this--

Chief Justice John G. Roberts: Well, I agree with -- I agree with that, of course, but at the same time, it does seem that you're imposing a very heavy burden on the officers in this area when do you have a situation where eight judges, when they conduct their research, come out the other way.

And that type of burden is particularly heavy when you're talking about if they guess wrong, it comes out of their pocket.

And if I'm the officer in that situation, I say, well, I'm just not going to run the risk of, you know, having to sell the house because I agreed with eight judges on the Court of Appeals.

Mr. Gelernt: --Well, Your Honor, I think -- you know, of course, I'm not sure it will actually come out of their pocket, but I get the crux of your point.

I do think ultimately, though, that this is a situation where a reasonable official would have had to say to themselves: I can use this as preventative detention.

Because I want to be very clear about our position and how narrow it is.

We would concede, for purposes of this argument, that if they wanted to use this for dual motives, then there would have been a real question there.

If they said, look, we want the testimony, that's what the statute talks about, but we also hope that maybe something else will come out of it, that's a closed question.

But if they would have said to themselves, which is all we're saying this case is about, is: Look, we don't want this testimony.

In Justice Breyer's hypothetical, there's clear, objective evidence.

We don't want to use this testimony, perhaps it's counterproductive in our case; we're not going to use this testimony, but we would like to hold the person.

I think that is very difficult for a reasonable official to say to themselves, this statute grants me preventive detention powers.

I mean, I think you would be looking at a statute going back to 1789 that this Court has repeatedly commented on that is only about testimony.

You would be saying to yourself, this statute allows me to engage in preventive detention even though Congress has never passed a statute like that, Congress specifically rejected preventive detention powers--

Justice Samuel Alito: --You don't think that an official reading all this Court's cases saying subjective motivation is not proper in determining the application of the Fourth Amendment would be able to think that this would apply here, too?

Subjective motivation doesn't count here; what counts is whether there's -- there are objective criteria that would permit the detention?

Mr. Gelernt: --I don't think so, Justice Alito, respectfully.

I think when you pulled out Whren, which, of course, is this Court's landmark decision on pretext -- Whren could not have been clearer.

The Court specifically said only an undiscerning reader would conflate the two.

And I think the conceptual point Whren was making is straightforward.

The Fourth Amendment says you need probable cause or a violation of the law to arrest someone.

If the government wants to walk in and ask for an exemption from that standard and says, the reason we want the exemption is because of the purpose of the arrest, then the Court in Whren said, well, then they must adhere to the purpose.

Otherwise, it's simply an end-run about the standard of probable cause.

I mean, consider two cases--

Justice Antonin Scalia: But the Fourth Amendment doesn't say you need probable cause.

There are situations where you can conduct a search without probable cause.

There's the Terry search.

There's administrative searches.

There's a lot of exceptions.

Mr. Gelernt: --Yes, Justice Scalia, but I think -- well, the Terry -- the Terry stops, I think we put to one side, because as the Court in Terry said and as this Court has interpreted Terry, those were because those were not full-scale arrests and the administrative -- sorry.

Justice Antonin Scalia: Administrative searches, automobile searches, you know.

Mr. Gelernt: Absolutely, and those all fall into the special needs category, and those were cases you, Your Honor, in Whren distinguished as conceptually different than when there's probable cause of a violation of law, because what you yourself said in Whren was: Look, the government is asking for an exemption from the traditional Fourth Amendment standard and they're saying the reason we want the exemption is because of the purpose of our search.

You said, well, then, of course we're going to hold the government to that purpose.

They can't tell us, look, we don't want to meet the Fourth Amendment standard because of the purpose of what we're doing, but then turn around and not adhere to the purpose.

And so if you had two cases, one where there's probable cause of wrongdoing and another case where there wasn't, the judge would say fine to the first one and then he would say to you, well, the second one, you don't have probable cause.

The only thing the government could say at that point was, well, that's true, but we're not trying to investigate or prosecute the person as in Dunaway.

We have a different purpose.

Maybe it's administrative.

Maybe it's to secure testimony.

Maybe it's a roadblock.

Maybe it's something else.

And then if the Court said, well, fine, then go ahead and do that search on less than probable cause, if that's your purpose, you couldn't turn around then and not -- and then not adhere to that purpose.

I mean, I think that's what we're talking about, is that--

Justice Samuel Alito: You seem to acknowledge that in -- a dual motive case would not violate the Fourth Amendment, or wouldn't necessarily violate the Fourth Amendment; isn't that right?

Mr. Gelernt: --Yes, Your Honor.

Justice Samuel Alito: Do you think that a reasonable official would appreciate, well, it's okay for me to have a dual motive, but I have to stop and think: Is my interest in investigating this individual further the but-for cause of my desire to get a material witness warrant?

Do you think that was apparent?

Mr. Gelernt: I think it actually is, Your Honor, and the reason is because I think it's -- I think it actually gives cushion to the reasonable official, because I think once you are saying we want to secure testimony, it might be very difficult, as the Chief Justice was pointing out, to say, well, how I do know if I could have ulterior motives or not?

That might be a very difficult situation.

But I think a reasonable official -- this Court's proposition that this Court would have to -- would have to bless, based on the allegations here are, the official said, look, we think we can show materiality and practicability because Mr. Al-Kidd is taking a trip, he is being cooperative, but he is taking a trip and he works for the same charity.

We do not want the testimony.

We can't use the testimony in this trial.

The only reason we want to do it is to hold him, and we don't have probable cause of a violation of the law.

I think any reasonable official would have understood that as preventive detention, and there--

Justice Anthony Kennedy: I'm not sure why that just can't be resolved under the issue of materiality.

The magistrate asks the prosecutor why he wants to do this, and he infers from what the prosecutor said that -- just what you say.

Then it's not material.

That's the end of the case.

Mr. Gelernt: --That goes to the crux of, I think, what is going on here.

We have said that both the Fourth Amendment and the materiality as well as other parts of the statute would deal with it precisely.

The government's opening brief and throughout the lower courts said, no, it doesn't matter if you're going to use the testimony or not or we have any intention.

We posed that hypothetical in our brief.

The government came back and said, well, maybe that could be done with materiality.

If the government was going to stick to their position, their conceptual position, they would have come back and said, look, the objective components of materiality and of practicability have been satisfied, because he's taking a trip and he worked for the same charity, and who cares whether -- so if the Court is prepared to put a limit on, you have to use this for its stated purpose, testimony, that's all we're asking for.

I mean, the case has changed now because of the concession that the government's made on pages bottom of 15, top of 16, where they're now saying, yeah, that is a tough situation, and maybe we can deal with that through the statute.

But that's all we're saying.

The Ninth Circuit understood this as a sole motive case.

The government understood it in their cert petition and in their brief to this Court as a sole motive case.

We have said we think the analytical test is a but-for, but we're prepared to go with sole motive, and our allegations, our factual allegations, are consistent.

In the proposition, we are simply saying, we don't think this Court can bless it.

You satisfy practicability in some objective way; you don't care whether you're going to use the testimony, you may have no use for it, but it's an end-run around locking people up.

Justice Samuel Alito: Where did you allege that the desire to detain was the sole motive for this?

Mr. Gelernt: Your Honor, I think that the clearest allegations are at 111 and 112 and 154 of our complaint, in the joint appendix.

What we said is it was not to secure testimony.

And I think the Ninth Circuit certainly understood it that way at pages -- I apologize -- 25A and 40A of the opinion.

And the government, in its cert petition and its brief, understood it that way in saying, we don't know how the Ninth Circuit would deal with a mixed motive case, clearly suggesting that the Ninth Circuit was a sole motive case; and so again, all we are saying is it cannot be that this statute be transformed into a preventive detention statute, and I think particularly so because the government after 9-11 specifically -- as the green brief notes -- specifically asked Congress for preventive detention power, and that power was denied.

What they granted was a very limited 7-day hold only for noncitizens.

And so I think what we're talking about in many respects -- at a macro level is a separation of powers case as much as a Fourth Amendment.

I think it's not -- it's not dissimilar to the dialogue this Court has been having in the Guantanamo cases with, look, you need to go beyond the Fourth Amendment; if you think you need such a fundamental change to our country's traditions, Congress is going to have to take the first step, we'll look at it and there will be a back and forth.

But here what happened was the preventive detention powers were denied and yet the government still went ahead and used the material witness statute.

And again, I can't stress enough that the government did not raise an Iqbal claim as to the plausibility of these allegations.

Only now in the reply brief where they're -- they're trying to address a sole motive situation, or a but-for, which is all we're asking this Court to address, the government has now said the allegations are implausible.

I think that in many situations -- you know, with the absolute immunity point, if I could just turn to that for a second -- the history, as you said, Justice Kennedy, the government has conceded they don't have a case on their side.

We have plenty of cases in which, as the historians' brief points out, and as our brief points out, in which there was not immunity for the arrest of a -- for the arrest of a witness, which is very different than calling a witness, Justice Sotomayor.

And what we are talking about here also is the government's burden.

So I don't think that's something we could have -- we could have waived, especially since the Ninth Circuit addressed it and put the government on notice that the government came forward with no historical evidence; and it's not inconsistent with warrants generally.

As this Court made clear in Malley, it surveyed the history of arrest warrants and said, look, arrest warrants, there's no history; we're not going to grant absolute immunity for arrest warrants.

In Burns, Justice Scalia pointed out that there is no history with respect to search warrants, and I think the history with respect to material witness warrants is even clearer.

So what we're talking about is no history; we're talking about a fairly ancillary and rarely used process to the criminal justice system, and one we're talking about where there's sort of a unique confluence of factors where you have someone who is not the defendant in the trial, who is a third party, and their liberty is being deprived; and it's the type of statute that can be abused.

I mean, I think the government's whole point is it's a dual -- it's a dual motive type statute; and so that because it can be inherently abused, there has to be some checks on it.

And this Court has never said that you would have absolute immunity for all prosecutors in all cases.

We are certainly not raising a motive case with respect to absolute immunity.

What we are simply applying is the Court's test in absolute immunity, which is the functional approach, you have to make that threshold determination about whether something is investigative or not; and I think that's the teaching of Buckley.

Take two witness interviews.

They're the same act, but the prosecutor clearly can be engaged in interviews for different reasons.

In Buckley, it happened to be on those facts the Court believed it was investigative, based on the allegations in the complaint.

But what if it were 2 days before the presentment to the grand jury?

It's likely the prosecutor would have assumed he had probable cause at that point and was prepping the witnesses.

Those are two acts, but you have to look behind them.

I think there's no way around looking behind.

The alternative, the flip side of what the government's asking, is: rigidly categorize every single act a prosecutor may undertake in this country and say it's either wholly investigatory or wholly prosecutorial.

And I think that's a very difficult test.

I think there's no reason why district courts can't make an initial determination.

I think here in particular, Judge -- was in a unique position to make the determination.

He sat at the underlying trial of Al-Hussayen, so he knew what testimony and what was going on.

He--

Justice Antonin Scalia: You're -- you're going way beyond what I thought you were arguing.

You're saying you always have to make that determination of good faith, right?

In -- in all cases, including when the prosecution is -- is accused of -- of bringing a prosecution purely for harassment purposes?

Mr. Gelernt: --No, Your Honor.

And I -- I -- Justice Scalia, I apologize if my argument was going beyond.

Justice Antonin Scalia: That's what I thought you were saying.

Mr. Gelernt: I think what's going on here is there's a unique set of factors with respect to material witness, not the least of which is the history with respect to both material witness arrests and warrants generally, and I think there's been no counter-history by the government.

I think back--

Justice Samuel Alito: We're dealing here with a Bivens action?

Mr. Gelernt: --Yes, Your Honor.

Justice Samuel Alito: Under what theory is the history of immunity at some point in the 19th century relevant to the scope of the immunity that should be available in a -- in a Bivens action?

What's the theory for that?

Mr. Gelernt: Well, Your Honor, I think -- I don't know that I have an independent first principles theory.

I think this Court has said repeatedly that you will keep the immunities coterminous and you will look to the history in both cases.

So that's the Butz case.

Justice Samuel Alito: Does that make any sense?

I can understand it with respect to 1983, on the theory that when Congress passed the predecessor of that statute it implicitly intended to adopt the immunities that were available at the time; but when this Court invented the Bivens claim -- in when -- 1971 or whatever -- that the Court -- the Court was -- committed itself to recognizing only those immunities that were available at the time when 1983 was adopted?

Mr. Gelernt: I think, you know, part of what the Court's answer is, it's a practical concern.

That it's just too difficult to have different immunities, and the Court -- so the Court has repeatedly reaffirmed that, and I think from a policy standpoint, a practical standpoint, it's felt that that's the right analysis, and there has to be some way to tether the immunity analysis; and history is ultimately, I think -- what the Court has said it's a necessary though not sufficient, and that once you sort of unmoor it from history, it becomes very difficult to keep the two.

So I think what we're talking about here is a -- a statute that has enormous consequences.

It's third parties who have been cooperative, even, who have done nothing wrong, that end up in jail, and to say that there is going to be absolute immunity is very dangerous.

This Court has repeatedly said that the thumb has to be on the scale against absolute immunity.

That's an extraordinary protection, and if there's anywhere where there needs to not be complete insulation, it would be where you have third parties, and -- who are going to jail.

The only other case, prosecutorial immunity case this Court has had where it was a third party and not the actual defendant was Mitchell, and the Court denied absolute immunity.

All the other cases, some of which you have denied absolute immunity, some of which you have granted, it's been the defendant in the full judicial process.

Here we're talking about third parties after 9-11 who repeatedly went to jail.

I think the allegations are very clear that it's at least but-for -- we think sole -- but certainly far more than dual motive.

People were held -- half the people were held more than 30 days, even though the statutory presumption is 10 days.

Many people were held for months.

They were arrested at gunpoint.

They were not immunized; half the people were never called to testify.

It went on in cities all over the country, people being held under horrendous conditions for long periods of time, interrogated about their own activities.

Chief Justice John G. Roberts: Thank you, counsel.

General, you have 10 minutes remaining.

REBUTTAL ARGUMENT OF GENERAL NEAL KUMAR KATYAL ON BEHALF OF THE PETITIONER

Mr. Katyal: Thank you.

This is a simple case.

It's not about Guantanamo, it's not about separation of powers, it's about one simple thing: should we allow damages actions against an Attorney General of the United States and ultimately AUSAs for doing their job, when they're alleged to have a bad motive?

If I could start with the Chief Justice's point about the cost of these lawsuits and allowing them to proceed.

My friend on the other side says, well, but this will be a small, rare case, an isolated example, but I don't think that's true.

I think if you allow their motivation argument to -- to -- to pierce absolute immunity, you will have this in every case or near every case.

95 to 96 percent of Federal cases are resolved by plea agreements.

So there isn't someone who is actually called at trial.

You could allege it in any of those cases.

And particularly when you lace on to that what my friend has said is a disturbing, quote, "national pattern of abuse" of the material witness statute, something which we -- with which we vigorously disagree, but if you could add the fact that someone wasn't called on in a trial to that national pattern, then you'll be having these damages actions quite a bit of the time.

Now he says don't worry, it will only be a few hundred of these lawsuits.

Well, leaving apart the fact that that excludes immigration cases and excludes the States' cases, as Justice Kennedy said, a few hundred lawsuits just at the Federal level filed against the Attorney General?

Justice Ruth Bader Ginsburg: General Katyal, there are some elements of this picture that are very disturbing, and we are talking about the Attorney General and the Attorney General's immunity.

But there are allegations here that this man was kept awake, the lights shining in his cell for 24 hours, kept without clothes.

Now that doesn't sound like the way one would treat someone whose testimony you want.

Is there a remedy that he has for that obvious mistreatment?

Mr. Katyal: Justice Ginsburg, with respect to that whole set of questions, conditions of confinement, that isn't before the Court right now.

What is before the Court is -- is exclusively Fourth Amendment concerns.

Now, Mr. Al-Kidd did sue other people, including the warden who was responsible for that, and I think that there have been other ancillary litigation with -- with respect to that, but to hold either the Attorney General or prosecutors liable is something that would, I think, ultimately open the door to, at least there are a few hundred lawsuits at the Federal level if not more.

Justice Stephen G. Breyer: I would like to go back to the statute.

If an officer fills out an affidavit for a search and says there were drugs in the house, so I want to search it, and it turns out he was lying, you would have a damages action?

Mr. Katyal: The officer--

Justice Stephen G. Breyer: Yes, yes.

Mr. Katyal: --you have -- you potentially have a damages against the officer, not against the prosecutor?

Justice Stephen G. Breyer: No, no.

I'm saying the officer, because he told a lie.

Mr. Katyal: Yes.

Justice Stephen G. Breyer: All right.

Now here it says that the person filling out the affidavit has to say he is a material witness.

So suppose that the plaintiffs were to prove that the individual who signed that was not telling the truth in saying he is a material instant -- witness because not just but for, but there was no possibility he would call this individual, none.

And that's what they have to prove.

It's really very hard burden of proof.

Now, one, would that interfere significantly with law enforcement?

And, two, how do you distinguish it from the drug case?

Mr. Katyal: Justice Breyer, I'm not sure if your hypothetical has it as the prosecutor who is filing the affidavit and lying or the agent.

If it is the agent, I don't think that is something as to which absolute immunity adheres, that's Malley v. Briggs and a whole line of cases.

Qualified immunity, of course, would, and indeed those claims are pending in this--

Justice Stephen G. Breyer: But in the case of the agent, you're prepared to say that we will allow the plaintiff to go into his motive to the extent that the plaintiff can show there is no possibility he intended to call this individual?

Mr. Katyal: --I think that at least for purposes -- I would say there is at least no absolute immunity prohibition against that.

There may be -- may be relevant under other lines of authority.

But with respect to my friend's point about your hypothetical in which he said that there -- you know, the government isn't sticking to its position or something like that, I just want to be clear.

Our position is for the Fourth Amendment, it doesn't look to subjective motivations at all.

That's Whren and Brigham City and the like, but the statute in 3144 does have safeguards, prophylactic safeguards to guard against the type of abuse that I think several justices have mentioned today.

So that you could only detain someone so long as their release wouldn't result in a failure of justice and the like.

My friend also said that -- that there's no historical precedent for this.

I would urge the Court to look at the 1846 statute, which didn't require failure to comply before a witness was brought in on a material witness warrant and it didn't -- and it had sureties in it.

I don't think what the government is doing here is any different.

Maybe I'll just make one final point, picking up on what Justice Alito said about the allegations in this very case, because I don't think if you look at the complaint that the allegations in this case prove either that the Attorney General or the line AUSA had a single motive.

This is fleshed out at pages 17 to 19 of our reply brief.

At best, they're consistent with their newly minted standard, a dual motive standard.

And given that, I think that the complaint would fall on their own terms, and indeed that law -- that line that they're proposing, a but-for causation line, would be extremely difficult to apply in practice and would ultimately lead to lawsuits filed against attorneys general and line prosecutors alike.

If there are no further questions--

Chief Justice John G. Roberts: Thank you, General.

The case is submitted.

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Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The respondent Abdullah al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General John Ashcroft, the petitioner here, authorized federal officials to detain terrorism suspects using the federal material-witness statute.

According to al-Kidd, this pretextual detention policy, holding someone that you suspect of a crime under a statute that enables you to detain material witnesses, led to his material-witness arrest in March of 2003 as he was boarding a plane to Saudi Arabia.

Two days earlier, federal officials had informed a Magistrate Judge that if al-Kidd boarded his flight they believed information "crucial" to the prosecution of Sami Omar al-Hussayen, would be lost.

Prosecutors never called al-Kidd as a witness, and he alleges they never meant -- never meant to do so.

After his release, al-Kidd filed this suit to challenge the constitutionality of Ashcroft's alleged policy.

Ashcroft filed a motion to dismiss -- oh -- and -- and by the way, if you're detained as a material witness just as if you're detained as a suspect, you're entitled to -- to be released from bond and -- and that indeed did occur after a number of days.

But after his release, al-Kidd filed this suit to challenge the constitutionality of his being held at all.

Ashcroft filed a motion to dismiss based on absolute immunity and qualified immunity which the District Court denied.

The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.

We granted certiorari.

Qualified immunity shields a government official from money damages unless two things are present.

(1) he violated a statutory or constitutional right, and (2) that right was "clearly established" at the time of the challenged conduct.

We hold in the opinion filed with the clerk this morning that Ashcroft did not violate al-Kidd's Fourth Amendment rights, and that even if he had, the wrongfulness of his conduct would not have been clearly established in 2003.

Whether a detention is reasonable under the Fourth Amendment "is predominantly an objective inquiry."

We ask whether the -- these are quotes from our cases.

We ask whether "the circumstances, viewed objectively, justify the challenged action."

This approach recognizes that efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.

Two "limited exceptions" to this rule are our special-needs and administrative-search cases, where "actual motivations" do matter.

Apart from those categories in which the present case is plainly not included, we have almost uniformly rejected invitations to probe subjective intent of the arresting officer.

The Court of Appeals nevertheless read one of our vehicle checkpoint cases, case called Edmond, to give purpose a more extensive role in Fourth Amendment analysis.

In its view, Edmond established that "programmatic purpose is relevant to Fourth Amendment analysis of programs of seizures without probable cause."

That was mistaken.

It was not the absence of probable cause that triggered Edmond's invalidating-purpose inquiry, but rather, the checkpoint's failure to be based on individualized suspicion.

Such warrantless, suspicionless intrusions are far removed from the fact here, where a neutral Magistrate Judge issued a warrant authorizing al-Kidd's arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear.

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

Even assuming -- contrarfactually -- that Ashcroft's alleged detention policy violated the Fourth Amendment, he deserves qualified immunity anyway.

A Government official's conduct violates clearly established law when, at the time of the challenged conduct, "the contours of a right are sufficiently clear" that every "reasonable official would have understood that what he is doing violates that right."

That's a quote from our cases.

The constitutional question in this case falls far short of that threshold.

At the time of al-Kidd's arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional.

The Court of Appeals made up for that shortcoming by citing a District Court's footnoted dictum suggesting that the use of material -- material-witness warrants to detain suspect "is an illegitimate use of the statute" and mentioning Ashcroft by name.

We find that reasoning extraordinary.

The footnoted dictum falls far short of what is necessary to clearly establish the law even when that dictum mentions the defendant by name.

The Court of Appeals also found clearly established law lurking in the broad "history and purposes of the Fourth Amendment," and in several prior opinions of this Court.

As to the former, we have repeatedly told courts -- and the Ninth Circuit in particular -- not to define clearly established law of such a high level of generality.

And as to the latter, the Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established while ignoring numerous statements that foreshadow today's Fourth Amendment holding.

We have held the qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."

Ashcroft deserves neither label because Ashcroft did not violate clearly established law, we need not address the more difficult question of whether he enjoys absolute immunity.

The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings.

Justice Kennedy has filed a concurring Opinion in which Justices Ginsburg, Breyer, and Sotomayor joined in part.

Justice Ginsburg has filed an opinion concurring in the judgment in which Justices Breyer, and Sotomayor joined.

Justice Sotomayor has also filed an opinion concurring in the judgment in which Justices Ginsburg, and Breyer joined.

Justice Kagan took no part in the consideration or decision of the case.