Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger

I have been concerned lately about the Constitutional attacks that we have discussed here on Prof. Turley’s blog. One case that I have noticed lately received very minimal main stream media attention and it concerns a vitally important issue. This past week the ACLU argued a case in the Supreme Court that challenges the government’s use of the Federal material witness statute to pick-up and hold in detention an American citizen named al-Kidd who was arrested by Federal authorities in 2003 and detained for over two weeks without a charge.

“Arrested in Dulles International Airport in 2003 and detained for more than two weeks in harsh conditions, al-Kidd was never asked to testify in the case for which his testimony was supposedly needed. Instead, he was kept under restrictive conditions for months that forced him to abandon an educational scholarship and led to the breakdown of his marriage and career.” ACLU   Attorney General Ashcroft starting utilizing these tactics of rounding up Middle Eastern looking people and claiming that they were just questioning them in regards to pending cases that may require their testimony. Of course, the facts in the al-Kidd case show that his testimony was never used in any trials and the Federal Government was using the material witness claims as a pretext to give them “cover” in their dragnet approach to fighting terrorism.

The case came to the Supreme Court from the 9th Circuit. “The 9th Circuit Court of Appeals found the Justice Department’s position in this case to be “repugnant to the Constitution” and a “painful reminder of some of the most ignominious chapters of our national history.”  9th Circuit Opinion   The 9th Circuit decision is an interesting one in that the court did not buy the Government’s claim that they were properly using the material witness statute and that they merely questioned al-Kidd for the purpose of determining if he could assist in pending cases. The Supreme Court accepted the case for review and the ACLU article mentions that the biggest hurdle for al-Kidd is whether the Court will even allow John Ashcroft to be sued for actions taken as the Attorney General.

One of the most interesting aspects of the oral arguments this past week is the discussion of the conditions Mr. al-Kidd was held under. “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. “   New York Times  

The New York Times article suggests that the mood of the Supreme Court seemed to indicate that the Court would be unlikely to allow Ashcroft to be sued, notwithstanding the issue of how and why Mr. al-Kidd was arrested and mistreated.  In light of my recent posting about the mistreatment of Pvt. Bradley Manning at the hands of the Government, when and how can a citizen of the United States successfully prosecute a claim or a cause of action against a Government official if the Supreme Court allows the government to misuse statutes like the Material Witness Statute and then grants the Official immunity for his allegedly intentionally illegal actions?

Indeed, Ashcroft’s attorney seemed indignant that his client would be sued for any action that he took as Attorney General. “Ashcroft argues that no matter what happened, he cannot legally be held liable and he deserves full immunity from this lawsuit. According to Ashcroft’s attorney, it apparently does not matter if our client was arrested as a witness and detained solely for the purpose of being investigated as a suspect. Nor does it matter that the government had no probable cause to believe al-Kidd was guilty of a crime. Katyal argued that the motives behind the arrest and detention of al-Kidd are irrelevant, and the courts have no business looking into an official’s intentions.”

Is this type of prosecutorial action and arrogance an abuse of the Fourth Amendment? In light of the Department of Justice’s refusal to investigate and prosecute Torture during and Bush Administration and possibly during the Obama Administration, is there any hope for the Fourth Amendment and any means for citizens to rein in public officials when the government argues that the officials who ordered the misuse of authority are immune, but the jailers who carried out the orders are liable?   Do I detect a pattern here?

Additional Sources:  Material Witness Statute

Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger