Two New Government SCOTUS Briefs

It was a big day for the war-on-terror cases at the Supreme Court yesterday--at least if you are into government briefs. The government filed two important ones. They are: 1) Its brief in opposition to Mohammed Al Adahi's petition for a writ of certiorari. The core issue in this case is the treatment of evidence by the courts, and in particular whether the Court of Appeals was correct in using "conditional probability" in its analysis:

Petitioner repeats the error of the district court when he argues (Pet. 23) that “string[ing] together six or seven facts, each with a non-culpable inference, does not prove the important conclusion—that [petitioner] became part of al-Qaeda.” As an initial matter, the individual pieces of evidence in this case were hardly innocuous. More importantly, as the court of appeals recognized, each fact tending to establish that petitioner was part of al-Qaida—from petitioner’s close personal ties to al-Qaida’s most senior leader, to his obtaining weapons training at an al-Qaida camp and being captured in the company of wounded fighters—significantly increased the likelihood that petitioner was part of al-Qaida. In addition, the government produced “damaging and powerful” classified evidence that petitioner was part of al-Qaida. Id. at 21a. The court of appeals recognized that it would be inherently highly improbable for all of those facts to be true of an individual who was not part of al-Qaida. Thus, far from “stringing together” isolated facts, the government presented a number of facts related to al-Qaida activities, which, taken as a whole, constituted a compelling showing that petitioner was part of al-Qaida.

The D.C. Circuit opinion is here, and Judge Kessler's opinion in the district court (ruling for the petitioner) is here. Lyle Denniston has a brief summary of the government's arguments at SCOTUSblog. 2) The government also filed its merits brief in Ashcroft v. Al Kidd, a case in which the Court granted cert. in October.  The government presented the two questions for the Court as follows:

[Abdullah Al Kidd] was arrested on a material-witness warrant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution. He later filed a Bivens action against petitioner, the former Attorney General of the United States, seeking damages for his arrest. Respondent alleged that his arrest resulted from a policy implemented by the former Attorney General of using the material-witness statute as a “pretext” to investigate and preventively detain terrorism suspects. In addition, respondent alleged that the affidavit submitted in support of the warrant for his arrest contained false statements. The questions presented are: 1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim. 2. Whether the court of appeals erred in denying petitioner 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 respondent’s arrest.