Abdullah al-Kidd and the Case for Judicial Empathy

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The al-Kidd case demonstrates the need for judges who understand human suffering
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Abdullah al-Kidd can now join the many victims of grievous post-9/11 abuses whose victimizers will never be held to account. The Supreme Court has ruled that former Attorney General John Ashcroft, who authorized aggressive use of material witness statutes to detain people the government didn't like or trust, is legally immune from liability for the abuses suffered by al-Kidd. The story of his case has been told many times, and I won't delve into the details here. It is worth noting, however, that the affidavit pursuant to which al-Kidd was arrested based partly on misrepresentations and omissions of key facts, and that the criminal case that supposedly prompted his arrest, against Sami al-Hussayen, webmaster for an Islamic charity, ended in an acquittal after a trial in which al-Kidd was never called to testify.  

In other words, the government arrested and imprisoned one man (al-Hussayen) on highly questionable charges that it could not prove, and then imprisoned another man (al-Kidd) on the pretext that his testimony was required in the case against the first man. The Ninth Circuit Court of Appeals found the government's conduct in this case "repugnant to the Constitution" and held that Ashcroft could not claim immunity for authorizing it. The Supreme Court disagreed; all eight Justices hearing the case (Justice Kagan recused herself) ruled that Ashcroft enjoyed immunity, essentially because the law governing use of material witness statutes was unclear. Five Justices also held that al-Kidd could not challenge the constitutionality of his arrest by pointing to its "improper motive": the disingenuous, pretextual use of a material witness statute.

Justice Scalia wrote for the majority, reserving his disdain not for federal officials who subjected an innocent man to inhumane two-week imprisonment and a year of strictly supervised probation, but for the 9th Circuit judges who would have afforded a remedy for his wrongs. Dissenting from the Court's ruling regarding the legality of al-Kidd's arrest as a material witness, Justice Ginsberg asked, "what even arguably legitimate basis could there be for the harsh custodial treatment to which al-Kidd was subjected: Ostensibly held only to secure his testimony," he was handcuffed, shackled, subjected to numerous strip searches and body cavity inspections, and detained in "high security cells lit 24 hours a day." Scalia provided no answer, nor expressed concern about al-Kidd's treatment, just as he expressed no concern for the torturous, primitive conditions in California's grotesquely overcrowded prisons that led the Court, over his angry dissent, to uphold an injunction requiring the state to reduce its prison population.

This is what's remarkable, and remarkably chilling, about the majority's opinion: not its grant of immunity to Ashcroft, but its callous disregard for the most fundamental rights of American citizens. The Constitution protects against being imprisoned summarily and sadistically, especially when the victim has neither been charged nor convicted. Behind the Court's opinion lies a concomitant refusal to recognize the fundamental responsibility of government officials: to treat people with a modicum of decency. Some sneer at the belief that judges should harbor a little empathy. Like most of us lacking sociopathic tendencies--but, especially in these fearful, increasingly authoritarian times--I worry more about judges who sneer at human suffering.

Abdullah al-Kidd, gratuitously imprisoned under primitive conditions in 2003 as an alleged material witness can now join the many other victims of grievous post 9/11 abuses whose victimizers at the highest levels of the federal government will never be held to account. The Supreme Court has ruled that former Attorney General John Ashcroft, who authorized aggressive post 9/11 use of material witness statutes to detain people the government didn't like or trust, is legally immune from liability for the abuses suffered by al-Kidd. The story of his case has been told many times, and I won't delve into the details here, except to note that the affidavit pursuant to which al-Kidd was arrested was based partly on misrepresentations and omissions of key facts, and the criminal case that supposedly prompted his arrest as a material witness (against Sami al-Hussayen, webmaster for an Islamic charity) was quite weak and ended in an acquittal after a trial in which al-Kidd was never called to testify.  

In other words, the government arrested and imprisoned one man (al-Hussayen) on highly questionable charges that it could not prove (charges based on activity protected under the First Amendment) and then imprisoned another man (al-Kidd) on the pretext that his testimony was required in the case against the first man. The Ninth Circuit Court of Appeals found the government's conduct in this case "repugnant to the Constitution" and held that Ashcroft could not claim immunity for authorizing it. The Supreme Court disagreed; all eight Justices hearing the case (Justice Kagan recused herself) held that Ashcroft enjoyed immunity (essentially because the law governing use of material witness statutes was unclear.) Five Justices also held that al-Kidd could not challenge the constitutionality of his arrest by pointing to its "improper motive"  -- the disingenuous, pretextual use of a material witness statute.

Justice Scalia wrote for the majority, reserving his disdain not for federal officials who subjected an innocent man to a grossly inhumane and gratuitous two week imprisonment and over a year of strictly supervised probation but for the 9th Circuit judges who would have afforded him a remedy for his wrongs. Dissenting from the Court's ruling regarding the legality of al-Kidd's arrest as a material witness, Justice Ginsberg asked, "what even arguably legitimate basis could there be for the harsh custodial treatment to which al-Kidd was subjected: Ostensibly held only to secure his testimony," he was handcuffed, shackled, subjected to numerous strip searches and body cavity inspections, and detained in "high security cells lit 24 hours a day." Scalia provided no answer and expressed no concern about al-Kidd's treatment -- as he expressed no concern for the torturous, primitive conditions in California's grotesquely overcrowded prisons that led the Court, over his angry dissent, to uphold an injunction requiring the state to reduce its prison population.

This is what's remarkable, and remarkably chilling, about the majority's opinion  -- not its grant of immunity to Ashcroft but its callous disregard for the most fundamental rights of American citizens (among other human beings) not to be imprisoned summarily and sadistically, especially when they have been charged and convicted of nothing, and its concomitant refusal to recognize the fundamental responsibility of government officials to treat people with a modicum of decency. Some sneer at the belief that judges should harbor a little empathy -- like most of us lacking sociopathic tendencies -- but, especially in these fearful, increasingly authoritarian times, I worry more about judges who sneer at human suffering.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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