The justices’ lack of engagement at the argument probably signaled a victory for the government.
Neal K. Katyal, the acting United States solicitor general, talked uninterrupted for extended stretches and ended his main presentation 10 minutes early. Several of the questions he received from the justices seemed to seek guidance about which route the court should take in ruling for Mr. Katyal’s client, John Ashcroft, who was President George W. Bush’s first attorney general.
The case was brought by Abdullah al-Kidd, a United States citizen who contends that policies set by Mr. Ashcroft after the attacks of Sept. 11, 2001, resulted in the misuse of the material witness law to detain him. The law is meant to allow prosecutors to hold witnesses with evidence of others’ crimes for fear they will not appear to testify at trial.
Mr. Kidd contends that the law was improperly used to detain him as a suspect in a terrorism case. He was held in harsh conditions in three states for more than two weeks and was never called to testify against anyone else.
The question for the Supreme Court was whether Mr. Ashcroft is immune from Mr. Kidd’s suit either because what Mr. Ashcroft was accused of doing was at the core of a prosecutor’s duties or because he did not violate a clearly established constitutional right. Much of the limited questioning concerned which sort of immunity was more appropriate.
Mr. Katyal argued that lawsuits seeking money from public officials were not the right way to deter the conduct Mr. Kidd complained about.
“Improper motives are easy to allege and hard to disprove,” he said. “Allowing such suits to proceed would result in burdensome litigation and interfere with the ability of prosecutors to do their jobs.”
“No doubt that certain individuals will be harmed,” he added, “but the cost of rooting out the bad apples through damages lawsuits is far worse” in that “it causes prosecutors to flinch in the performance of their duties.”
Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents Mr. Kidd, said that if the United States is to have a law authorizing preventive detention it should be enacted by Congress and not cobbled together by prosecutors.
He added that the misuse of the material witness law after the Sept. 11 attacks resulted in abuses in Mr. Kidd’s case and others.
“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,” he said.
Only Justice Ruth Bader Ginsburg seemed troubled by the conditions in which Mr. Kidd had been held.
“There are allegations here that this man was kept awake, the lights shining in his cell for 24 hours, kept without clothes,” she said to Mr. Katyal.
“Now that doesn’t sound like the way one would treat someone whose testimony you want,” she said. “Is there a remedy that he has for that obvious mistreatment?”
Mr. Katyal said that suits against Mr. Kidd’s jailers may be possible but that suits against prosecutors were improper.
“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,” he said.
Mr. Gelernt said Mr. Kidd should be allowed to try to prove that he would not have been arrested but for an improper motive.
The problem with that theory, Chief Justice John G. Roberts Jr. responded, is that “the allegation can so readily be made in every case under the material witness statute.”