With today’s orders list, the United States Supreme Court today accepted only one new case for review, but it is a rather significant one and a victory of sorts for WLF’s Litigation Division. Ashcroft v. Al-Kidd hails from the High Court’s “favorite” federal circuit, the Ninth Circuit. WLF’s amicus brief was one of only two briefs filed in support of Ashcroft’s petition (the other was by legal historian Wesley MacNeil Oliver of Widener University filed, according to the professor “to correct the lower court’s assumptions about the history of material witness detention”).
WLF filed its brief on behalf of a group of former Attorneys General of the United States: WLF’s Legal Policy Advisory Board Chairman Dick Thornburgh; William P. Barr; Edwin Meese III; Benjamin Civiletti; and Michael Mukasey.
As noted by a post by WLF’s Rich Samp here last week, anticipation about the case reached further than those concerned with the material witness statute or the immunity of current or former senior government officials. There was a chance that the Court would once again look at the amount and type of information required by Federal Rule of Civil Procedure 8 when filing a civil lawsuit. The Court, however, granted review to address the two questions related to qualified immunity:
(1) Whether a former government official is entitled to absolute immunity from a claim that he used the material witness statute as a “pretext” to preventatively detain terrorism suspects; and (2) whether the former government official is entitled to qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of the respondent’s arrest.
Lyle Denniston has a typically good write-up of the case here, as does Tony Mauro for law.com here. General Thornburgh also authored a Legal Opinion Letter on the case earlier this year, available here.