A More Circumspect Take on Justice Scalia and National Security

Steve Vladeck
Wednesday, February 17, 2016, 5:28 PM

In my view, at least, Justice Scalia's public statements on national security issues and his one majority(-ish) opinion in a "canonical" national security case (in Ashcroft v. al-Kidd) could lead folks reasonably to question just how faithful Justice Scalia was to his first principles where national security was involved. That doesn’t in any way diminish the late Justice’s track record (or Adam’s elegant reflection upon it); it just suggests that, as is so often the case, adding national security-specific considerations to the mix tends to complicate matters.

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In a moving tribute, Adam Klein describes Justice Scalia's modest legacy in national security cases as the epitome of everything that we (rightly) celebrate about his jurisprudential legacy--"an animating motive of textualism and originalism . . . to prevent judges from usurping by 'interpretation' authority properly reserved to the other branches" reflected in both an "adherence to his bedrock jurisprudential principles regardless of his policy preferences" and a near-absolute "preference for clear rules over malleable—and thus manipulable—standards." Foremost in this legacy is Justice Scalia's surprising dissent in Hamdi, which, Adam suggests, is the archetype for how his principled approach to judging was reflected in the few national security controversies that reached him on the Supreme Court (with his fiery dissents in Hamdan and Boumediene (and I’d add Rasul) close behind.

As careful readers may already know, I share both Adam's admiration for, and substantive skepticism of, Justice Scalia's Hamdi dissent (I'm more partial to the Souter/Ginsburg concurrence, myself.) And I don't think it will come as a surprise to anyone that I have significant objections to both the reasoning and rhetoric of Justice Scalia's dissents in the three Guantánamo cases. But rather than rehashing old debates, I wanted to supplement Adam’s deeply stirring reflection with a few additional data points for those seeking to evaluate Justice Scalia's national security legacy—episodes that lend themselves to a somewhat more circumspect story. In my view, at least, Justice Scalia's public statements on national security issues and his one majority(-ish) opinion in a "canonical" national security case (in Ashcroft v. al-Kidd) could lead folks reasonably to question just how faithful Justice Scalia was to his first principles where national security was involved. That doesn’t in any way diminish the late Justice’s track record (or Adam’s elegant reflection upon it); it just suggests that, as is so often the case, adding national security-specific considerations to the mix tends to complicate matters.

I. Justice Scalia's Public Statements

Unlike some of his colleagues, Justice Scalia was never shy about sharing his views on the issues of the day with public audiences. And in the context of national security-related issues, his comments in numerous contexts appeared to bespeak a committment as much to a fundamental policy judgment (that, where terrorism is concerned, courts ought not to impose meaningful constraints on the government's ability to act) as to a particular set of textual principles.

For example, Justice Scalia got into a bit of hot water in 2006, in the run-up to oral argument in the Hamdan case, when, in response to a question about proposals to try terrorism suspects like Hamdan in civilian courts, he said "Give me a break. If he was captured by my army on the battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy." When the questioner followed up by asking about the relevance of the Geneva Conventions, Scalia replied "“What do they mean? . . . They mean almost anything." Based on those comments (which were made three weeks before the oral argument in Hamdan), a group of retired military flag officers sought his recusal--a request that was ignored.

Leaving aside the recusal question, Justice Scalia's comments don't in that context seem based upon a particularly originalist construction of the Constitution so much as they appear to reflect a particular view of the policy wisdom of military commissions vs. civilian trials (a subject on which, obviously, the Constitution is silent). Nor does his assertion that the Geneva Conventions--four complex international treaties--"mean almost anything" seem easily squared to me with his commitment to textualism, and its core tenet that meaning can be divined, in most cases, from the text of positive laws (like treaties).

Justice Scalia also made a series of public comments over the years on his views of torture. Thus, at a conference in Ottawa in 2007, when a panelist was thankful that "security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?,’" Scalia thundered back: “Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives. Are you going to convict Jack Bauer? Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so,” Scalia reportedly answered himself. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

Scalia returned to the torture issue in 2014, giving an interview on Swiss National Radio in which he provided a more nuanced legal defense of torture, suggesting that torture was unconstitutional when inflicted as punishment against a convicted criminal (by dint of the Eighth Amendment), but not necessarily in other contexts:

We have never held that that’s contrary to the Constitution. And I don’t know what provision of the Constitution that would, that would contravene. Listen, I think it is very facile for people to say, ‘Oh, torture is terrible.’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person? I don’t think that’s so clear at all.

Putting aside the myriad problems with the ticking-bomb hypothetical, the Court has suggested that, even outside the Eighth Amendment's narrow ban on cruel and unusual punishment, the Fifth Amendment's Due Process Clause also constrains the government's ability to torture detainees. To be sure, a common response in the context of the war on terrorism is that non-citizens held outside the United States lack rights under either provision, but in neither set of comments did Justice Scalia seem to be limiting his focus to such suspects. Instead, his appeared to be an argument for how a (dubious) moral imperative could justify government conduct--even against its own citizenry--that the Supreme Court had (and has) repeatedly held to be unconstitutional.

Contrast these statements with what Adam's post cogently identified as Justice Scalia's first principles--"adherence to his bedrock jurisprudential principles regardless of his policy preferences" and a near-absolute "preference for clear rules over malleable—and thus manipulable—standards." The ticking-bomb hypothetical is the epitome of a malleable--and thus manipulable--standard for torture, and it sure seems as if, at least through the lens of these statements, policy preferences were driving his legal interpretations, rather than the other way ‘round.

Of course, one response might be that it's unfair to hold Justice Scalia's public statements up against his jurisprudential tenets, since they were given in non-judicial contexts. To that, I have two replies: First, I don't see all that much daylight between these statements and, among other things, Justice Scalia's dissents in Hamdan and Boumediene. Indeed, in the latter case, Justice Scalia went out of his way to emphasize that, “Contrary to my usual practice . . . I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.” Second, and more importantly, in the one "canonical" national security case in which Justice Scalia did write for the Court, one could find some evidence of a lack of fealty to these same principles.

II. The al-Kidd Case

At issue in al-Kidd was the government's controversial use of the material witness statute as an (allegedly) pretextual basis for detaining terrorism suspects against whom it did not have sufficient evidence to bring criminal charges. The Ninth Circuit had ruled that Attorney General Ashcroft was not entitled to qualified immunity because al-Kidd's pretextual detention violated both the material witness statute and the Fourth Amendment, and, in Part I of his opinion for the Court reversing the Court of Appeals, Justice Scalia held that such analysis was erroneous--with the Court unanimously concluding (with Justice Kagan recused) that, at the time of al-Kidd's detention, there was no "clearly established" law providing that pretextual material witness arrests were unconstitutional. So far, so good.

But rather than stop there (as the Court's 2009 decision in Pearson v. Callahan suggested he should, since such a conclusion was dispositive of the claims against the Petitioners), Justice Scalia also decided the "merits" of the Fourth Amendment question, and whether, going forward, pretextual material witness arrests would be unconstitutional. In a nutshell, he answered that question in the negative, based upon (1) the analogy between material witness warrants and criminal warrants (where, under Whren, pretext is irrelevant); (2) al-Kidd's "concession" that the material witness warrant in his case was "objectively valid," and thus based upon "individualized suspicion"; and (3) the Court's (and Justice Scalia's) distaste for introducing subjective considerations into Fourth Amendment analysis.

Justice Scalia's analysis of the merits of the Fourth Amendment issue provoked three separate opinions--including a four-Justice concurrence by Justice Kennedy (joined in its relevant parts by Justices Ginsburg, Breyer, and Sotomayor), and concurrences in the judgment from both Justice Ginsburg and Justice Sotomayor. As Justice Kennedy explained for half of the al-Kidd Court, Justice Scalia's analysis failed to consider the possibility that material witness warrants aren't "warrants" for purposes of the Fourth Amendment's Warrant Clause (which would thus defeat the analogy to Whren), relying instead on al-Kidd's supposed "concession" that the warrant in his case was supported by "individualized suspicion." (In fact, as Justice Ginsburg explained, al-Kidd hadn't conceded anything of the sort--and certainly not that the arrest was based upon any "suspicion.") And as both Justices Ginsburg and Sotomayor argued, the facts of the case seemed rather decidedly to the contrary. In the former's words:

Casting further doubt on the assumption that the warrant was validly obtained, the Magistrate Judge was not told that al-Kidd's parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700. Given these omissions and misrepresentations, there is strong cause to question the Court's opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination was neither necessary nor proper.

In other words, Justice Scalia (1) unnecessarily resolved the merits of a novel and complex Fourth Amendment question; by relying upon (2) a flawed analogy to ordinary arrest warrants; and (3) a contrived (and likely incorrect) version of the facts.

Of course, none of these objections make Justice Scalia wrong in al-Kidd; Justice Kennedy nevertheless provided a fifth vote on the merits of the Fourth Amendment question, and none of the Justices concurring in the judgment suggested they would have answered the merits question differently (as opposed to simply not answering it). Rather, my point is far more modest: I don't know how one looks at Justice Scalia's opinion in al-Kidd as emblematic of either his "adherence to his bedrock jurisprudential principles regardless of his policy preferences" or his near-absolute "preference for clear rules over malleable—and thus manipulable—standards." Frankly, what I see is a contorted effort (just look at the fight over the meaning of "suspicion" in footnotes 2 to both his opinion and Ginsburg's concurrence) to shoehorn into settled Fourth Amendment principles a novel, national security-based fact pattern--and to do so in a case in which such a maneuver wasn't remotely necessary (unless it was important, for policy reasons, to cement the government's authority to engage in such questionable conduct going forward).

III. Conclusion

Lest the above be taken as speaking ill of the dead, let me stress, to the contrary, how much I admired Justice Scalia, and admire his jurisprudence. His style, his panache, his wisdom, and his wit were a breath of fresh air into a relatively staid institution, and, even if I seldom agreed with his bottom line, I can't deny just how monumental an impact he had not just on the Court and the Constitution, but on the art and craft of lawyering. I teach both my constitutional law and federal courts classes differently because of him.

Nor do I mean to critique Adam’s moving and heartfelt tribute to his former boss. We should all be so lucky as to have mentors who leave that kind of impression upon their mentees—and there’s so much of Adam’s post with which I agree, including the suggestion that his Hamdi dissent was Justice Scalia at his very best.

Instead, this post is meant to underscore the complexity of assessing his legacy in the specific context of national security. Reasonable minds can and will surely disagree on the substantive constitutional questions at the heart of these cases, including the extent to which the Constitution does and should protect non-citizens outside the territorial United States and the extent to which the government should be allowed to manipulate the material witness statute in the manner in which it allegedly did in al-Kidd. But in both his public statements on torture and military detention and trials, and in his majority opinion in al-Kidd, Justice Scalia did more than simply advance a particular, normatively defensible legal interpretation of how the Constitution applies to terrorism cases; rather, he at least opened himself up to the charge that he pursued particular results to vindicate his own policy preferences. Many of our readers may share Justice Scalia's policy preferences in these cases, and that's all well and good. But we ought not to confuse those preferences with the kind of principled, consistent methodological approach to constitutional and statutory interpretation (and judicial decisionmaking, more generally) that defined so much of his best work.

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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