Ashcroft v. al-Kidd

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

31 thoughts on “Ashcroft v. al-Kidd”

  1. Raff-

    Too bad Toto wasn’t there to pull the curtain back. Of course, if you are innocent, you have nothing to fear. After all, this isn’t the Soviet Union. Is it?

  2. HenMan,
    maybe the blue curtain was hiding another citizen that Ashcroft pulled off the street and abused!

  3. Elaine-

    I watched (and worse) listened to Ashcroft warble.
    MY…BRAIN…HURTS!

    I notice he’s standing in front of a blue curtain. Must be some more stainless steel art deco obscene lady parts back there. Is there no end to the iniquity…the wickedness…the art deco?

  4. FYI:March 4, 2011 11:24 AM PST
    WordPress hit with second big attack in two days
    by Elinor Mills

    The popular blogging-site hoster WordPress was hit with another distributed denial-of-service attack this morning, the second in two days.

    “Unfortunately, the DDoS attack from yesterday returned in a different form this morning and affected sitewide performance,” the company said in a notice on its Automattic site, which serves as a dashboard for the service. “The good news is that we were able to mitigate it quickly and performance returned to normal around 11:15 UTC. We are continuing to monitor the situation closely.”

    Stats on Automattic.com show that the site was affected for about an hour or so starting around 3:15 a.m. PST. One day earlier, WordPress was hit with an attack that reached “multiple Gigabits per second and tens of millions of packets per second,” hampering the company’s three data centers and disrupting nearly 18 million hosted blogs and members of its VIP service, including the Financial Post and TechCrunch.

    Typically, DDoS attacks are accomplished using botnets of thousands of compromised computers that are directed to a target Web site with the motivation of overwhelming the site and taking it offline.

    WordPress did not provide many details about either attack, but founder Matt Mullenweg told CNET on Thursday that the first attack may have been politically motivated against one of the site’s non-English blogs. He did not immediately respond to an e-mail seeking comment today.
    Originally posted at InSecurity Complex
    Elinor Mills
    Full Profile E-mail Elinor Mills

    Elinor Mills covers Internet security and privacy. She joined CNET News in 2005 after working as a foreign correspondent for Reuters in Portugal and writing for The Industry Standard, the IDG News Service, and the

    Read more: http://news.cnet.com/8301-27080_3-20039385-245.html#ixzz1FwD1Ndvh

  5. Woosty,
    I agree with you. This guy was terrorized and the whole scenario was in violation of the material witness statute.
    Elaine,
    I was trying to forget about that song!
    eniobob,
    Clinton could be correct about al-Jezeera, but any non-main stream source might be more valuable than the current state of Journalism in the US.

  6. nstead, 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.”
    —————————————–
    There isn’t enuff $$$ in the entire US government to repay this person….if he decides to sue…and he should be allowed to…and he prevails, …a judgement won’t come anywhere close to making him whole again….what was stolen can not be returned. Did he lose his health as well?

  7. raff:

    “I have noticed lately received very minimal main stream media attention and it concerns a vitally important issue.”

    So you think she may have a point?

    Hillary Clinton Calls Al Jazeera ‘Real News,’ Criticizes U.S. Media (VIDEO

    Secretary of State Hillary Clinton said on Wednesday that Al Jazeera is gaining more prominence in the U.S. because it offers “real news” — something she said American media were falling far short of doing.

    http://www.huffingtonpost.com/2011/03/03/hillary-clinton-calls-al-_n_830890.html

  8. It looks like the Supremes were very interested in how they could keep Mr. Ashcroft out of a law suit. If Ashcroft can’t be sued for intentionally abusing the material witness statute over a number of years, how can any official be held responsible for his or her illegal actions?

  9. It boggles my mind that this man is allowed to still practice law as well as Yoo, Bybee, etc., etc., etc. …

  10. I am reading a book about this stuff….and I think I suffer from Righteous Indignation…. But what am I to say….

    Righteous indignation is typically a reactive emotion of anger over perceived mistreatment, insult, or malice. It is akin to what is called the sense of injustice. In some Christian doctrines, righteous indignation is considered the only form of anger which is not sinful, e.g., when Jesus drove the money lenders out of the temple.

    From Wiki….

  11. John Ashcroft’s greatest case was Ashcroft v. Stainless Steel Art Deco Statue of Justice’s Obscene Naked Lady Parts. In this famous case Rev. Ashcroft ruled that said stainless steel art deco obscene naked lady parts must be concealed behind a blue curtain (which matched the Attorney General’s blue nose), in order to save us all from sin and perdition, not to mention eternal damnation. The Attorney General was talked out of his original remedy, which was to perform a mastectomy by cutting torch on the offending stainless steel art deco lady parts.

    Perhaps he found surveillance videos of a naked man more to his taste?

  12. rafflaw – Time for bed — I’m way too tired… I see that you have a link to the ACLU article in your posting. Sorry.

  13. http://www.aclu.org/blog/national-security/whats-stake-ashcroft-v-al-kidd

    Mar 4th, 2011
    by Hannah Robbins, Immigrants’ Rights Project at 6:30pm

    Detention, Keep America Safe & Free
    What’s at Stake in Ashcroft v. al-Kidd

    excerpt:

    Although the case before the Supreme Court does not specifically involve al-Kidd’s conditions of confinement, they are relevant to whether al-Kidd was genuinely viewed as a witness. Justice Ginsburg reminded the court on Wednesday that al-Kidd was kept under extremely harsh conditions during his 16-day detention. He was kept awake for hours on end, with a bright light shining in his cell 24/7. Whenever he was let out of his cell – usually only for one hour a day – he was shackled at the wrists, ankles, and waist. At one point, he was left naked for hours in plain view of other clothed prisoners and guards. According to al-Kidd, he was detained with convicts and federal inmates– who were still treated better than he was. Turning to Neal Katyal, the government attorney defending Ashcroft, Justice Ruth Bader Ginsburg said: “Now that doesn’t sound like the way one would treat someone whose testimony you want.” We don’t think so either. (end excerpt)

  14. Nothing quite so brings out the meanness and stupidity as fear and Ashcroft is just another word for all of it.

  15. ” 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?”

    Exactly. The government has become the enemy of freedom and the citizen has no defense against such actions.

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