The Fourth Amendment and National Security Detention

Over at Prawfs, Steve Vladeck has an extended response to my recent post, The Strange Case of Ashcroft v. Al-Kidd. In my post, I argued that it was strange that DOJ is not making arguments based on national security interests to justify Al-Kidd’s detention. In Steve’s response, An Al-Kidd Reality Check: The Myth of Non-Statutory “National Security” Detention, Steve argues that this absence is natural because federal statutory law prohibits national security detention. In this post, I want to explain my perspective more fully and then give Steve the opportunity to explain where he thinks I go wrong.

As I understand the Al-Kidd case, Al-Kidd is only making a Fourth Amendment argument. He is arguing that his detention occurred in violation of his Fourth Amendment rights against unreasonable seizures. Al-Kidd’s detention was unquestionably a seizure of his person, so the only real Fourth Amendment issue is whether his seizure was constitutionally “reasonable.” Under existing Fourth Amendment doctrine, whether statutory law forbids or authorizes a search or seizure is generally irrelevant to whether the search or seizure is reasonable. See, e.g., Virginia v. Moore, 553 U.S. 164 (2008). There are a few discrete situations where that is not the case, but the general rule is that statutes exist independently of the constitutional command. Instead, to determine the reasonableness of a seizure, a court “must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372 (2007).

This doctrinal framework has two very significant implications. First, the material witness statute is essentially irrelevant to the Fourth Amendment claim Al-Kidd is making. The only relevance of the statute is that it required a certain kind of probable cause showing, which might in theory influence the reasonableness of the resulting seizures. See, e.g., United States v. United States District Court, 407 U.S. 297, 321-24 (1972). Beyond that, what the statute permits or forbids is irrelevant to the reasonableness of the seizure. Second, the reasonableness of the seizure depends on the “importance of the governmental interests alleged to justify” the seizure. Different government interests can be alleged to justify Fourth Amendment searches and seizures — interests in enforcing criminal law, interests in protecting national security, even interests to enforce health and safety laws. See, e.g., United States v. United States District Court, 407 U.S. 297, 321-24 (1972) (national security); Camara v. Municipal Court, 387 U. S. 523, 534-535 (1967) (health and safety inspection). Whether a particular search or seizure is constitutionally reasonable therefore depends on what kind of government interest the government is claiming that the search or seizure can advance.

Now let’s return to the briefing in the Al-Kidd case. The strange part about DOJ’s argument is that it is not invoking the genuine government interest in the case, protecting national security, as the justification for the reasonableness of the seizure. Instead, DOJ’s argument relies entirely on a fictional government interest in enforcing criminal laws. DOJ is saying that the rule allowing pretextual seizures in the usual criminal law setting allows the government to use fictionalized government interests in assessing the reasonableness of a seizure. That is, DOJ is saying that it can pretend that it cares about Al-Kidd for a criminal case, even when it doesn’t, and that the reasonableness of his seizure should be evaluated based on a fictional government interest instead of the real one. I find that argument quite strange. It seems to me that the reasonableness of the seizure should be assessed based on whether it advances the genuine government interest in the seizure, not a fake interest in the seizure. And that’s why I find it puzzling that DOJ is not making any national-security arguments in the case.

As for the role of statutory authorities that Steve discusses, I see them as irrelevant to the Fourth Amendment question. It be that a particular national security detention violates a statutory law while complying with the Fourth Amendment, and that the detention is illegal as a result. But Al-Kidd is not basing his claim on a statutory violation: he is only making a Fourth Amendment claim. As a result, the only question is whether the detention violated Al-Kidd’s Fourth Amendment rights. That’s my understanding, at least. If I’m mistaken, I would greatly appreciate the correction.