Can the Attorney General of the United States and his subordinates use a pretextual “material witness” warrant to ruin an innocent man’s life, and do so with complete immunity?Â Â A divided panel of the Ninth Circuit says “No.”
Abdullah al-Kidd,Â a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist.
He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.
Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. Â§3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims.
We hold that on the facts pled Ashcroft is not protected by either form of immunity.
Dunno about you, and of course I don’t know the precedents, but on grounds of mere justice I’m with the majority, especially since the DoJ seems to have practiced deception on theÂ magistrate who issued the arrest warrant, and identified al-Kidd in as a key witness in a case where he was never called and in which the defendant was acquitted.Â Moreover, he was kept for more than two weeks in cells lighted 24 hours a day, which was hardly necessary to serve the nominal purpose of a “material witness” warrant:Â to ensure that the witness be available at trial.
The dissent puts the question squarely:
Can a prosecutor, empowered by law to arrest an individual for one declared purpose, be immune from suit when he arrests that person with another, secret purpose in mind?
Astonishingly, the dissent answers this question “Yes.”
The court quotes Blackstone:
To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.
Amen.Â Â DoJ did so much of this stuff in the days right after 9/11 that defending the suits should reduce Ashcroft to destitution.Â Â Seems about right to me asÂ punishment for setting into motion “a dangerous engine of arbitrary government.”
[More links at How Appealing.]
5 thoughts on “Accountability”
It is right and proper that Ashcroft's remaining days be vexed and his substance devoured. But, frankly, in the cast of bad actors that was the Bush administration, Ashcroft comes out looking not-too-bad (in purely relative terms, you understand). Can a way be found to destroy the lives and happiness and wealth of Cheney, Bush, Rumsfeld, Yoo, Bybee, Gonzalez et hoc genus omne as they destroyed that of Abdullah Kidd and so many others? We can start to talk about justice having been done when these men, impoverished, friendless and powerless, have had their final days comforted by the benign hand of nationwide public health care.
Should be interesting when this case reaches the supreme joke.
If they rule for the plaintiff, then Obama will have the legal authority to have every single one of the bushcheneyrovegonzalezmier gang arrested and shipped to Gitmo. I could enjoy scenes of the arrest and imprisonment of every single one of them.
If they rule for him, they are opening up a real can of worms for everyone who participated in this and all of the rest of travesty of justice during the dubya's administration. I could enjoy dubya on the defense in monetary suits that would drain the whole family of all money just for the legal expenses alone.
"Moreover, he was kept for more than two weeks in cells lighted 24 hours a day, which was hardly necessary to serve the nominal purpose of a “material witness” warrant: to ensure that the witness be available at trial."
There are really only two options here:
1) The courts look upon 'material witness' cases with the greatest possible suspicion of both the government's position, and of any treatment of the 'witness'.
2) Accept the government's ability to imprison and torture people with limited cause, no trial and total impunity.
I've seen a lot of people repeat the idea that this happened "in the days right after 9/11" — it's one of the things Ashcroft's defense tried to promote, that it was a time when everybody was just as scared as he was.
Al-Kidd was arrested March 16, 2003, less than a week before the invasion of Iraq.
Of course Ashcroft has fairly deep pockets, having gone into the judicial side of crony capitalism with a vengeance.
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