Pretext, the Rule of Law, and the Good Official

Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission,

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

By pretext, I mean the use of legal authority for a purpose clearly and substantially different than the original reason for which the power was granted.  Pretextual use of laws will often be covert or unacknowledged.  That is, officials may feign to exercise their authority under the law’s original purpose or seek refuge in a double purpose.  But I do not mean to include the lawful use of subterfuge or deceit (such as when police conduct a sting or lie to a suspect during consensual questioning).  Those tactics may raise serious issues, but not pretext as I define it.  Nor do I mean to include prosecution for a lesser offense, such as convicting Al Capone for tax evasion.  Officials certainly wished they had the evidence to convict Capone of much more, but their tax prosecution was squarely within the intended use of that provision of the criminal code.  Michael Whren was never tried for violating the traffic code; it was a means to a different end that was used to avoid the Fourth Amendment’s restriction of the police.  Capone was indicted, tried, and convicted, for doing precisely what the law forbid.  Eliot Ness and his Untouchables didn’t use this law to evade some other restriction on their conduct.  The prosecution was the point.

Abel v. United States (1960)

KGB Colonel Rudolf Ivanovich Abel

Consider the case of Rudolf Abel, the master KGB spy whose seizure, conviction, and exchange for U-2 pilot Francis Gary Powers I examine in a recent article.  Abel’s arrest was a classic instance of pretext.  The Fourth Amendment required FBI agents to obtain a warrant before they could seize Abel and search his room.  My research into the case convinced me that a warrant could have been obtained had one been sought.  But the men who pushed into Abel’s room early one morning, warrantless, knew that an arrest warrant carried undesirable consequences.  Such an arrest would lead to an arraignment in open court, the appointment of counsel, and all the attendant publicity such a hearing would entail.  That would ruin any hope of turning Abel into a double agent in an existential fight against the Soviet Union.

When Colonel Abel was rousted from his bed, he was therefore awakened on a pretext.  The FBI asked the INS to seize Abel under the pretext of enforcing the country’s immigration regulations while the FBI directed the operation from the doorway.  At the time, the INS could seize Abel without a warrant, acting only on the basis of an internal departmental order. 

The tale then takes a turn that might seem to have come from today’s headlines.  Abel was secretly flown from New York to McAllen, Texas, where he was interrogated without a lawyer and kept virtually incommunicado for almost seven weeks.  Following this unsuccessful effort to break him, the Justice Department then used the evidence obtained during their raid to convict him of espionage.  The use of this immigration authority for the unintended purpose of counterespionage neatly skirted the constitutional protection against unreasonable searches and seizures, not to mention official disappearances.  On a purely formalistic level, the officials complied with the requirements of this immigration law.  On another level, the pretextual use of this statute produced results hard to justify as lawful.  When his lawyer argued pretext in an effort to exclude the (damning) evidence, the Supreme Court sustained his conviction.  The vote was close, 5-4, and Justice Douglas mockingly noted the real reason why a warrant was never sought for this arrest: “If the FBI agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized.’  How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment!  What a hindrance it is to work laboriously through constitutional procedures!  How much easier to go to another official in the same department!  The administrative officer can give a warrant good for unlimited search.  No more showing of probable cause to a magistrate!  No more limitations on what may be searched and when!”

Ashcroft v. Abdullah al-Kidd (2011)

Former Attorney General John Ashcroft

Fast foward fifty years.  Abdullah al-Kidd (a U.S. citizen and former University of Idaho football star) was cooperating with the FBI in a counterterrorism investigation.  The FBI alleged (how truthfully is sharply disputed) that al-Kidd was about to flee the country.  A criminal warrant for his arrest could not be sought because there was no probable cause to believe that al-Kidd had broken any law.  So the FBI obtained a material witness warrant, which may be had from a judge on grounds substantially easier to meet.  The material witness statute, 18 U.S.C. § 3144, was originally intended to secure “the testimony of a person [that] is material in a criminal proceeding” when it is impracticable to do so by other means, such as a subpoena or deposition.

Al-Kidd alleged that he was then held for sixteen days in high-security prisons in three states, housed with convicted criminals, subjected to frequent strip-searches, routinely shackled, and forced to sleep without clothes when he was not kept awake by bright lights in his cell.  He was interrogated without counsel.  He was then subject to severe restraints on his travel for fifteen more months. 

Al-Kidd claimed that the material witness statute was used pretextually, to interrogate him as a suspect in his own right, not as a witness to someone else’s wrongdoing.  His lawyers observed that his arrest was mentioned in congressional testimony by FBI Director Robert Mueller as an example of success in the Government’s counterrorism operations ( a strange statement if made about a witness, but not if made about a suspect).  In any event, al-Kidd was never called to testify at the trial, which ended in an acquittal on some counts and a hung jury on others.  So the Government never used the testimony that it claimed was material enough to justify his lengthy detention. 

Al-Kidd filed a Bivens action, alleging that his arrest was part of a nationwide policy to use the material witness statute pretextually.  When Acting Solicitor General Neal Katyal began his argument for the United States last March, he started as you would expect a defense of pretextualism under the favorable Whren precedent to start: “This lawsuit seeks personal money damages against a former Attorney General of the United States for doing his job, allegedly with an improper motive …”  It was the right rhetorical focus.  Justice Scalia, delivering the opinion of the Court, noted that the Whren opinion “swept broadly to reject inquiries into motive generally” and “only an undiscerning reader” would disagree.  On the strength of the Whren analysis, the Court held that the material witness warrant “cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.” 

But it turns out that the case wasn’t quite as easy for the Supreme Court to decide as Whren had been fifteen years earlier.  The opinion was announced on the last day in May, with concurring opinions by Justices Kennedy, Ginsburg, and Sotomayor (Justice Kagan took no part in the case).  Although no one dissented, the latter two opinions concurred only in the judgment reversing and remanding the lower court decision that had allowed the action to proceed.  Justice Kennedy (who, like Justice Ginsburg, had joined the Whren opinion) had more trouble.  He insisted that the opinion he joined left “unresolved whether the Government’s use of the Material Witness Statute in this case was lawful.”  Justice Ginsburg seemed to wonder, given al-Kidd’s allegations, whether the material witness warrant had been validly obtained in the first place.  In addition, Justice Ginsburg wondered at the alleged conditions of his confinement, especially since he was “[o]stensibly held only to secure his testimony[.]”  And Justice Sotomayor, also questioning the validity of the warrant, refused to join the majority’s opinion because “it unnecessarily resolves a difficult and novel question” of constitutional law.  For the newest justice participating in the case (and the one with far and away the most prosecutorial experience), “[w]hether 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 qusetion than the majority’s opinion suggests.”

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