But for the non-celebrities whose mug shots and arrest records are online, it’s no fun at all. A lawsuit was just filed that seeks to change the obligations of electronic news media to take down those reports.

Lorraine Martin, a Connecticut nurse, was arrested in 2010 along with her sons when the police raided her home and found a small amount of marijuana. The charges against Martin were later dropped and the official criminal record was purged.

But Martin has since been unable to find a job, and she claims it is because when you type her name into a search engine, articles like the one entitled “Mother and Sons Charged with Drug Offenses” are still available through online news outlets.

So Martin has filed a lawsuit against the local news outlets for herself and on behalf of others like her who were arrested, but whose criminal record have since been expunged. The suit claims that the online media outlets defame them by continuing to make available content about the story.

The press is protected by the First Amendment of the Constitution, which states in pertinent part: “Congress shall make no law … abridging the freedom of speech, or of the press …”

But there are some forms of speech that are not protected by the First Amendment, notably, speech that is defamatory.

In order to be defamatory (and therefore not protected by the First Amendment), the communication must be a false statement of fact made to a third party that harms a person’s reputation or ability to earn a living.

The novel question presented in Ms. Martin’s class-action is this: Can an article written about an incident that accurately describes an event that did take place be false if the record of that event was later expunged?

In other words, does the truth change into a falsehood over time such that what happened after the fact makes the event described at the time defamatory?
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And if it does, then does the online news agency have an obligation to take down content that hurts a person’s reputation or ability to earn a living if the subsequent events make it clear that the arrest should not have happened or where the prosecutor has, by expunging the record, shown that the person who was arrested for a crime should not continue to be judged on the basis of her arrest for it?

The power of the Internet to continue to perpetuate past events makes rehabilitating one’s reputation difficult in cyberspace—and in real life. It is for this reason that states are beginning to limit online access to certain legal records.

For now, the class-action lawsuit will be an uphill battle involving the novel issue of whether truth becomes false and then defamatory. What do you think? Should newspapers or other online outlets be forced to take down descriptions of arrests, mug shots, or other reports that show a person who was arrested but whose record was later expunged? Let us know!

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

1. Miranda warnings

At the forefront is the debate about the living suspect, Dzhokhar Tsarnaev, and his Fifth Amendment right to receive a Miranda warning before questioning from federal investigators.

Constitution Daily contributor Lyle Denniston put the debate in context with his analysis for us today.

“From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices,” Denniston says.

Related Story: Constitution Check: Are there limits on questioning a bombing suspect?

The investigators are using something known as the public safety exemption to avoid, at least at the moment, reading Tsarnaev his constitutional rights in the form of a Miranda warning.

Tsarnaev was reportedly conversing with investigators in writing, since his injuries allegedly prevent him from speaking.

The Miranda debate was heated over the weekend, given that Tsarnaev is a naturalized citizen.

2. The death penalty

Another issue that came up almost immediately after Tsarnaev’s capture was if he would be eligible for the death penalty if federal prosecutors decide to seek it in the case.

Massachusetts doesn’t have the death penalty, but Tsarnaev will be tried in a federal court.

In a statement, the Justice Department said Tsarnaev will be charged with use of a weapon of mass destruction and malicious destruction of property resulting in death. The department said the death penalty is one option on the table.

In reality, the Tsarnaev case could be years away from a trial, so the death penalty debate will probably take a back seat as more facts are revealed about the case.

3. Unregistered guns

There were also reports on Monday that Tsarnaev and his brother, Tamerlan, were using unregistered guns in their fatal assault on an MIT police officer and other law enforcement members.

The brothers reportedly had a stockpile of ammunition and exchanged hundreds of rounds of fire with police officers.

Massachusetts already has one of the strictest sets of gun laws in the country—in fact, the Brady Campaign ranks the state as the fourth-strictest when it comes to gun laws in America.

4. Immigration

The Tsarnaev brothers’ immigration status is crossing over into the debate about immigration currently in Congress.

Iowa Senator Chuck Grassley is arguing the Boston Marathon case will bolster the argument for immigration reform, while Senator Marco Rubio says the incident has no bearing on the immigration debate.

Dzhokhar Tsaraev became a U.S. citizen last year. But Tamerlan Tsaraev’s citizenship, as reported in The New York Times, was delayed when Homeland Security investigators found out he had been interviewed by the FBI in 2011 at the request of the Russian government.

5. Privacy

The issue of privacy has come up in several facets of the investigation. The suspects were identified through federal and local investigators examining extensive video and still-image footage obtained from private security cameras.

Law enforcement also used thermal-imaging technology from a helicopter to see Dzhokhar Tsarnaev inside a boat parked in a driveway.

The issue of using thermal imaging devices has been before the Supreme Court in relation to drug cases, and the court has found that it is a Fourth Amendment violation to look inside a home without a warrant using a thermal-imaging device.

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The statements at issue:

“[Federal Judge Thomas F.] Hogan said it was ‘clear’ that Musa’ab Al-Madhawani was trying to affect the conditions of his confinement–a subject Congress specifically sought to put beyond the reach of the federal courts. … Hogan said lawyers for the prisoner were trying to ‘circumvent’ that aspect of the law. … He has self-manufactured his health situation at this point. He’s in bad health because of the self-endangerment of his life.

“A lawyer for Al-Madhwani, Darold Killmer, painted a dark picture of the situation at Guantanamo. … Mr. Al-Madhwani is dying. … Killmer argued that the claim was not over conditions of confinement, but over keeping his client alive so he could pursue other legal claims that he is unjustly imprisoned.”

– From a news story by Josh Gerstein, a reporter for Politico, on an April 15 federal court hearing, where Judge Hogan denied a request for a court order to require the U.S. military at Guantanamo Bay, Cuba, to provide “humanitarian and life-saving relief” to a Yemeni national who is among dozens of Guantanamo detainees now on hunger strike to protest their treatment. Judge Hogan ruled that Congress in 2006 had denied federal judges any authority to monitor “conditions of confinement” at Guantanamo.

We checked the Constitution, and…

Five years ago, the Supreme Court struck down as unconstitutional a law passed by Congress in 2006 to take away federal courts’ authority to rule on Guantanamo detainees’ claims that their indefinite imprisonment without criminal charges was illegal. Off and on since then, lawyers for the detainees and for the federal government have been jousting in court over how far that decision was meant to reach.

In the 2006 law, Congress took two steps to try to keep the federal courts from judging the legality of the detentions at Guantanamo. Those steps were intended to fulfill the goal of the federal government when it originally set up that military prison outside the U.S. in 2001: to keep individuals captured as terrorism suspects out of the reach of U.S. courts.

One step–struck down by the Supreme Court in 2008–barred the courts from hearing a plea for release by any detainee who sued on the theory that he was being held illegally. The court said the ancient writ of habeas corpus could not be constitutionally denied to those prisoners, without violating the Constitution’s guarantee that the writ would not be suspended except during “rebellion or invasion.”

The second step in that law explicitly denied the federal courts any authority “to hear or consider” any detainee’s lawsuit “relating to conditions of confinement.” In the running debate in courts in Washington, detainees’ lawyers have argued that the Supreme Court also nullified that step in 2008, while the government’s lawyers–in the Bush and Obama administrations–have contended that the Supreme Court left that step intact.

So far, the government has been winning on that point, in a series of lower court decisions–including one by Judge Hogan himself in 2008. The Supreme Court, those rulings concluded, nullified only the ban on habeas pleas, and not the separate ban on challenges to prison conditions.

With the Guantanamo facility now in its 11th year of operation, and with scores of the 166 detainees still there after having been confined most of those years, the tensions inside the military prison have been growing.

Much of the detainees’ deepening discontent, their lawyers have said, is that as many as 80 of them have been cleared for release, but there is now no prospect that they actually will be let go, or that President Obama will be able to close Guantanamo over repeated objections by Congress.

The tensions broke out in hunger strikes this year that the government now concedes have been joined by about 40 detainees, although lawyers insist the number is considerably higher. And in recent days, there was a near-riot as guards at the prison began taking action to force-feed some of the prisoners.

It was in that atmosphere that lawyers for a Yemeni national, Musa’ab Omar Al-Madhwani, one of the hunger strikers, recently filed their plea with Judge Hogan for access to drinkable water and for warming clothing. He complained that guards were denying him and others fresh water in retaliation for the hunger strike, and were also lowering the temperature of air conditioning as another form of retaliation.

In a statement filed with the court, Al-Madhwani said that “we are totally powerless to improve our situation. Because all dignity has been taken away from us, the only means that we have to express the utter hopelessness of our situation is by participating in a hunger strike.”

His lawyers sought to persuade Judge Hogan that his challenge was not aimed at the conditions at Guantanamo, but about whether the protesting prisoners would even survive to be able to continue to press legal claims, including claims seeking their release. Noting that the detainees have been guaranteed by court order that they will have the help of lawyers to pursue those claims, Al-Madhwani’s motion argued: “It is difficult to file and litigate a habeas petition without an attorney, but it is impossible to do so without a heartbeat.”

Government lawyers countered that Judge Hogan had no jurisdiction to examine conditions at Guantanamo, and that, in any event, Al-Madhwani and other prisoners were exaggerating the threats to their lives. The guards, the government argued, take most seriously the safety of the detainees.

After Judge Hogan received the plea for relief, he set a hearing on it. But then the judge changed the focus of the hearing from Al-Madhwani’s claims, to the issue of whether Congress had removed the court’s jurisdiction to hear such a plea. That was the hearing held Monday, leading to the judge’s conclusion that he lacked any authority to order any relief.

At some point, as conditions at the military prison off the U.S. shores remain as they are, or worsen, the issue of the role of courts–or the lack of any such role–appears certain to be an issue the prisoner’s lawyers will seek to take to the Supreme Court.  The justices, however, have not been willing to review a Guantanamo case since the ruling five years ago.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Amanda Knox leaves prison. Source: Wikimedia Commons.

One person who thinks so is attorney Joey Jackson, who told HLN today that Knox wouldn’t serve time twice for same crime, even if the trial is in Italy, because it would be very problematic for the U.S. to honor an extradition request from Italy for Knox. The former exchange student left Italy immediately after her 2011 acquittal.

“We have principles that are well-founded within our Constitution, one of which is double jeopardy,” Jackson said. “So as a result of that, I think it would be highly objectionable for the United States to surrender someone to another country for which justice has already been administered and meted out. So I don’t think or anticipate that that would happen.”

To be clear, the Double Jeopardy Clause of the Fifth Amendment protects people in the United States from being tried twice for the same crime.

Italy doesn’t have a ban on double jeopardy in its legal system, and Tuesday’s decision reopens the acquittal of Knox and Raffaele Sollecito in the 2007 murder of Knox’s roommate, Meredith Kercher. The acquittal came in an appeals court in 2011, after a 2009 conviction.

Knox would benefit from the language of the extradition treaty between the U.S. and Italy.

In 2010, the Congressional Research Service said in a report that “most modern extradition treaties also identify various classes of offenses for which extradition may or must be denied” and that double jeopardy was usually on the list of provisions.

“Although the U.S. Constitution’s prohibition against successive prosecutions for the same offense does not extend to prosecutions by different sovereigns, it is common for extradition treaties to contain clauses proscribing extradition when the transferee would face double punishment and/or double jeopardy (also known as non bis in idem),” the report said.

The most recent extradition treaty between the United States and Italy is from the Reagan era. Within the treaty language is a clause about double jeopardy.

“Article 6 provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense,” the document says.

But would Knox, in the opinion of the Italian legal expert, really face a second trial in the case, if she and Sollecito are back in court?

USA Today spoke with Giorgio Spangher, the head of the law school at Rome’s Sapienza University, who said that technically, the Italian court annulled Knox’s not guilty verdict, which was won in appeals court, and that Knox would be retried in the same appeals court.

Spangher said the Knox couldn’t be forced to return to Italy for another trial, but if she were found guilty in absentia, the Italian government could ask the U.S. for Knox’s extradition.

That extradition process would need to go through the Department of State and the Justice Department, via diplomatic channels. Italy could also ask for Knox’s arrest if it considers her a flight risk.

Knox, 25, is currently a college student at the University in Washington, and spent four years in jail in Italy during her initial trial and conviction.

Her attorneys said on Tuesday that it was doubtful that Knox would leave the Seattle area to go to Italy.

“No matter what happens, my family and I will face this continuing legal battle as we always have, confident in the truth and with our heads held high in the face of wrongful accusations and unreasonable adversity,” she said in a statement.

The publicity over the Knox case isn’t expected to slow down. Her version of the case in book form, Waiting to Be Heard, is coming out in April from HarperCollins.

Knox is also the subject of an exclusive interview with ABC’s Diane Sawyer to be aired on April 30.

Her latest trial in Italy, if it does happen, wouldn’t start until 2014.

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News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

1. The Constitution and… Super Tuesday

The GOP primary season reached its height on Super Tuesday, with Mitt Romney winning Ohio, Massachusetts, Idaho, Vermont, Alaska, and Virginia; Rick Santorum taking Oklahoma, Tennessee, and North Dakota; and Newt Gingrich winning Georgia. Check out this post from Constitution Daily to understand Super Tuesday’s history and relevance.

2. The Constitution and… Santorum

http://www.youtube.com/watch?v=WoYsS8QSsoA

Along the campaign trail, Rick Santorum has routinely reminded voters that he carries a copy of the Constitution in his pocket. He has also invoked the image of the Founding Fathers in defense of his views. In a recent speech, he declared:

“If you actually go back and look up the dictionary definition of happiness at the time of our founders … happiness was not going out and doing whatever you want to do to make yourself feel good. Happiness was not doing what you wanted to do but doing what you ought to do, because that’s what leads to true happiness.”

PolitiFact took Santorum at his word and looked up the dictionary definition, in dictionaries from the Founders’ time. They also spoke with several scholars, including Richard Beeman, a member of the board of trustees at the National Constitution Center. The conclusion: “As it turns out, Santorum was right in some ways — and very wrong in others.” Read the full analysis here.

3. The Constitution and… Targeted Terrorists

Attorney General Eric Holder defended the constitutionality of the Obama administration’s position on targeting terrorists. In a speech to the Northwestern University School of Law, Holder argued that the U.S. government does not need judicial oversight in its efforts to target and kill terrorist operatives abroad, even when those individuals are American citizens. Holder stated:

“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, it does not guarantee judicial process.”

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Holly Munson is Programs Coordinator at the National Constitution Center.

Photo by Yumi Kimura via Wikimedia Commons

It is the kind of evidence that can lead to a guilty verdict even if there is practically no other evidence to speak of — as was the case in the high visibility case of Troy Anthony Davis, executed last month in Georgia for a 1989 murder conviction that was based primarily upon nine eyewitnesses’ accounts of what had happened at night outside a fast-food restaurant.

Davis’s lawyers were unable to convince the courts, in 22 years of trying, that he was innocent of the murder of an off-duty Atlanta police officer.  Their main argument was that seven of the nine eyewitnesses had sworn under oath, since the trial, that they had been mistaken.  

But there will be something of an echo of that argument tomorrow morning in the U.S. Supreme Court, as a lawyer for a Nashua, N.H., man, Barion Perry, convicted of stealing stereo equipment out of the trunk of a car parked in an apartment lot, will attempt to persuade the nine Justices that mistaken identifications have reached epidemic levels in the U.S.

In legal papers filed in the case of Perry v. New Hampshire, the Court has been referred to a study done earlier this year by the Innocence Project, an advocacy group, concluding that “eyewitness mis-identifications contribute to over 75 percent of the more than 220 wrongful convictions in the United States” that were overturned on the basis of DNA analysis.

Perry’s lawyers will be relying upon a string of Supreme Court rulings in the 1960s and 1970s, declaring that it is a violation of the Constitution’s fair-trial guarantee, under the Due Process Clause, to put before a trial jury an eyewitness account if there is a strong indication that the testimony was unreliable, because the testimony was said to be the result of “suggestion” — either by police, or by circumstances at the scene.

To be clear, there is under those prior rulings no free-standing constitutional right not to be convicted based on a flawed eyewitness account.  But there is a right to a fair trial, and the Court considers such flawed evidence to be a threat to fairness.  As it remarked in a 1967 decision (U.S. v. Wade): “The dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.”

Recent studies have shown that police are not alone responsible for inducing an eyewitness to ID a suspect.  The witness’ own characteristics, those of the identified suspect, the conditions at the time on the scene — all have the capacity to leave in the memory of a witness a scene and an incident that may, in fact, be mistaken.   The number of those studies, essentially all drawing the same conclusion, has mushroomed since the Supreme Court’s last ruling on eyewitnesses and the Due Process Clause 30 years ago.

The state of New Hampshire, and the federal Justice Department, are trying to head off a new ruling that would expand those earlier precedents so that they would apply to any situation, whether or not police had orchestrated the identification.  The rights that are guaranteed to criminal suspects by the Bill of Rights, such as the right to a lawyer and the right to confront accusers, are sufficient to keep such questionable evidence out of court, they have argued.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

(Wikimedia Commons photo by World Coalition Against the Death Penalty)

In the end, Davis’s case received a lot of attention and the details were examined in depth. But now that his life has been taken and the narrative fades into yesterday’s news, perhaps it is time to focus on less visible miscarriages of justice, particularly among those without means. For every Troy Davis there are a few dozen others in jail who may have been unfairly convicted, but because they were not given a sentence of death, their story goes untold. 

In 1963, an indigent defendant named Clarence Gideon wrote a note by hand to the clerk of the Supreme Court. The note was his appeal to the Justices: hear my case as I was unjustly convicted. The charges against Gideon were relatively minor — that he had broken into a pool hall, stolen some money out of the cash register and taken a beer on his way out — but he had argued at his arraignment that he was too poor to hire an attorney and could not, therefore, be fairly defended. When he was nonetheless convicted and sentenced to prison, he wrote the Supreme Court asking the Justices to hear his appeal on the basis that the state should have provided him with legal representation.  The court receives many such in forma pauperis — literally, in the form of a pauper — pleas. But Gideon’s timing was spot-on. Chief Justice Earl Warren had long felt that the Sixth Amendment right to counsel implied that for those incapable of hiring their own attorney, the state must provide one. When the other eight Justices all joined him, siding with Gideon, it became one of the landmarks of constitutional law, one read by every law student and later glorified in a wonderful book by Anthony Lewis, “Gideon’s Trumpet.”

If it were only so easy. While Gideon is the kind of case that makes many rightly feel proud of our system, the real test of these landmark Supreme Court cases is in how the story proceeds after the principle has been established, and in the pursuit of justice for the indigent the record is not pretty.

A few years ago, I was picked to co-chair the National Right to Counsel Committee, a group created by the Constitution Project to examine the delivery of legal services to the poor. You can read our 2009 report here, but the title sums up our findings: “Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel.” The issues are insufficient funding, overburdened attorneys, a lack of standards and oversight, and inconsistencies between states. 

When the Obama administration came to Washington, Attorney General Eric Holder announced the creation of a new “access to justice” initiative within the Department of Justice. Harvard Law School professor Laurence Tribe, who counts Barack Obama, John Roberts and Elena Kagan among his former HLS students, was the first Senior Counsellor to lead the initiative. Yet even his work was underfunded. The New York Times reported last year that Tribe felt neglected in his position, “with a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington.” Earlier this year, Tribe returned to Cambridge and was replaced by Mark Childress, a former aide to Sen. Tom Daschle.

The aim of all this is simple: you should not have a better shot at justice, a better opportunity for adequate defense, depending on who arrests you in this country or where you were when you were arrested, or what court system you wind up in, or whether you can afford a competent lawyer. Competent defense is a basic constitutional right. Yet in a day and age when budgets are being examined with sharp knives, money to support the defense of the poor does not get much of a voice. Troy Davis was lucky, in a way. The attention of death penalty opponents brought out an impressive eleventh-hour legal defense team to plead his case on appeal; yet, ironically, had his defense been handled competently from the start, Davis might be alive today. Meanwhile, there are plenty of others in line behind him. The jails are filled with people who were the victims of overzealous police or prosecutors and of shoddy lawyering.

What would Gideon say?

Tim Lewis, Counsel at the law firm Schnader Harrison Segal and Lewis, is a former judge on the United States Court of Appeals for the Third Circuit and a board member of the Peter Jennings Project for Journalists and the Constitution. 

Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.

To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?

Had Breivik been subjected to the American criminal justice process, it is doubtful that the judge would have closed the hearing. The Sixth Amendment to the Constitution protects the right to a public trial, in part to ensure that corruption is not at work in the courtroom, in part so that the “people” get to simply see their criminal justice system at work. Indeed, the public nature of trial proceedings is a hallmark of the American criminal justice system. Still, the Sixth Amendment does not address the kind of issue being raised here, that the public may find a “public trial” not in its interest.

The closest the Court has come to reviewing this idea would be the potential for inflammatory ideas like those espoused by Breivik leading to a mob reaction that would prevent a public trial from being a fair trial. In Moore v. Dempsey (1923) the Court ruled, 6-2, that when a trial proceeding is too public, it can turn into a circus that prevents a fair judgement. Justice Oliver Wendell Holmes, writing for the majority in that case, declared that “if the whole proceeding is a mask – that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion…neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing the petitioners their constitutional rights.” It is easy to imagine that a trial of bin Laden or of Breivik would turn into just such a mob scene, justifying the closing of the door, and yet it is just as easy to argue that a proceeding of this magnitude demands public eyes. Few could dispute that it is of commanding interest to the public at large that those responsible for crimes like these are properly brought to justice.

There are few applicable precedents to consult. In the 1990s, the self-proclaimed “Unambomber,” Ted Kaczynski, terrorized the academic community by sending deadly mail bombs that killed three and injured 23. Kaczynski was looking for attention on his own manifesto, a 35,000 word rant against technology. He finally sent a letter to the New York Times saying that he would stop his terror campaign if the paper published his treatise and, urged on by law enforcement, the Times, in a move still criticized as rewarding violence, ultimately did. Police suspected that if the treatise was published it would result in someone recognizing Kaczynski and lead to his capture and that is precisely what happened when Kaczynski’s brother read the statement in the Times and identified him. There never was a “Unabomber” trial; Kaczynski pleaded guilty to the murders as a way of avoiding the death penalty. But thanks to the Times, his ideas had a wide public airing.

Ultimately, in America, the decision about whether to conduct a trial of this importance in public or behind closed doors would become a balancing act between the Sixth Amendment and the First Amendment. The trial would need to be conducted in a way that ensures the best chance of getting at the truth and expression, particularly political expression, would also need to be protected, no matter how odious its content. What will the Norwegians do? Breivik has asked for a public trial and his preference to attend “in uniform.” Norway’s notoriously lenient criminal law caps prison sentences at 21 years, meaning that Anders Behring Breivik, if convicted of the killings, will received just 82 days per victim. It also means that he will emerge to freedom in 2032 at age 53, still in the prime of his life.

TB

If you told a lay person, unburdened by a law degree, that government officials could—without fear of legal consequence—scoop a law-abiding citizen off the streets without an iota of suspicion that they committed a crime, toss them into a high-security cell for two weeks, and subject them to daily humiliations like shackling and body-cavity searches, I suspect most people would be shocked. So the Supreme Court’s decision last week in Ashcroft v. al-Kidd—which held that former Attorney General John Ashcroft (pictured below) could not be sued for doing precisely that—makes for an edifying read.

The facts of the case are startling. It is well-documented that in the aftermath of 9/11, the Ashcroft-run Department of Justice misused the material witness statute to round up hundreds, if not thousands, of people, mostly Muslims and people of Arab descent. The material witness statute allows the government to detain someone who isn’t suspected of committing a crime upon a showing that a) the individual has information material to a criminal proceeding, and b) it is impracticable to secure the person’s testimony through subpoena. The statute makes clear: unless a “failure of justice” would result, the government cannot detain someone as a material witness.

Abdullah al-Kidd, a Kansas-born convert to Islam, was but one of the countless victims of this practice. In early 2003, the government filed an application to detain Mr. al-Kidd on the grounds that he had information material to the prosecution of Sami Omar Al-Hussayen, who was charged with making false statements on his visa application—this despite the fact they had no intention of calling him to testify.

The application asserted that al-Kidd had information “crucial” to the prosecution. What sort of information? How did he acquire it? How was it relevant to the prosecution? The affidavit does not say. (Ironically, due to the Court’s decision in Ashcroft v. Iqbal—another decision slamming the courthouse doors in the face of victims of the post 9/11 crackdown—if a victim of torture files suit on the basis of thinly supported assertions, the courts are obligated to toss the suit. So, under the current law, the government can imprison an innocent person based on naked assertions, but a victim of torture cannot even file a lawsuit without hard facts to rely upon).

And exactly why couldn’t the government obtain this mysterious information from al-Kidd through means short of locking him up? According to the affidavit, the answer is that al-Kidd had purchased a one-way, first-class ticket to Saudi Arabia, where he couldn’t be subpoenaed. But this was a lie. Al-Kidd bought a round-trip ticket, coach-class. Perhaps more important than what the affidavit misrepresented was what it omitted: that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him.

Once al-Kidd was picked up, he was treated as a common criminal: he was kept in a high-security prison inside a cell that was lit 24-hours a day; he was shackled at the arms, waste, and legs; he was subject to strip-searches and body-cavity searches. When released, he was subject to onerous conditions like a travel ban, consent to daily home inspections, and regular reporting to a parole officer for 15 months. The FBI director mistakenly, but very publicly, identified him as a major terrorist threat. By the time his ordeal was over, he had been fired from his job, lost a scholarship to study Arabic in Saudi Arabia, and was separated from his wife.

Al-Kidd was never called to testify. (Incidentally, al-Husayen—whose case formed the pretext for Al-Kidd’s detention—was later acquitted.)

So, to recap: government officials, carrying out John Ashcroft’s orders, finagled a material witness from a magistrate judge through false pretenses; detained someone they had no intention of calling as a witness; subjected him to daily humiliations; publicly slandered him; and cost him his wife and job. The Ninth Circuit decried this miscarriage of justice as “repugnant to the Constitution” and let the suit against John Ashcroft proceed. True to form, the Supreme Court reversed the Ninth Circuit.

All eight of the Court’s voting members (Justice Kagan did not participate) agreed that Ashcroft could assert qualified immunity against al-Kidd’s claim. The doctrine of qualified immunity says that officials cannot be held liable unless they violated law that was “clearly established” at the time of the offending action. The rationale behind this doctrine is that law is constantly changing and if officials could be held liable for overstepping constitutional boundaries that were fuzzy at the time of action, officials would become spend too much time fretting over lawsuits to effectively govern. Officials, the doctrine recognizes, need breathing space.

And at the time, according to the Court, there was no “clearly established” constitutional rule that barred the Attorney General from directing his subordinates to use the material witness law as a pre-text to round up people without probable cause. Five members of the Court went further, holding that the warrant was validly obtained and concluding: “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.”

True, there was no case directly on point, but did the Attorney General need a case to understand that it is unlawful to order your subordinates to misuse existing law to skirt the requirements of the Fourth Amendment? Qualified immunity is based on notice: we don’t want officials being taken by surprise when a court finds their conduct unconstitutional. Are we really to believe that John Ashcroft would have been shocked to discover that the Constitution forbids the deliberate and systematic misuse of a law designed to secure the testimony of an uncooperative witness to arrest an individual that the government had no intention of using as a witness at all?

The Court not only answers these questions in the affirmative—it disclaimed the existence of a Fourth Amendment violation at all. To call this a “validly obtained warrant” blinks reality. The arrest warrant was issued in accordance with a law that explicitly prohibits arrest warrants where detention is unnecessary to secure testimony (and by implication, where testimony is not sought). And how did the government get this warrant? By falsely claiming that it sought al-Kidd’s testimony and by falsely overstating the difficulty of obtaining it without detention.