Should the Supreme Court Grant Ashcroft Immunity?

The Obama administration defends Bush's attorney general

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The Supreme Court has announced that it will evaluate whether Bush-era Attorney General John Ashcroft can be sued for alleged abuses in response to Sept. 11, 2001. The initial suit, brought by American citizen Abdullah al-Kidd, who says he was illegally detained for two weeks without warrant or being charged, names Ashcroft for his involvement in setting detention policy. Both the Bush and Obama administrations have provided Ashcroft's legal defense, arguing that he has immunity. However, the Ninth Circuit Court sided with al-Kidd, saying that Ashcroft can legally be sued for policies he approved. Will the Supreme Court side with Ashcroft and with the Obama administration, or will it side with the circuit court judges and al-Kidd?

  • Government Authority vs. Personal Rights  Wired's David Kravets summarizes, "It's a case that a lower court judge said tests 'the excesses of a powerful national government.' ... Detained on a 'material witness' statute, [Kidd] said he was housed naked and 'was treated worse than murderers.' ... The material-witness statute, which has increasingly been invoked following the 2001 terror attacks, is designed to allow the government to hold somebody to testify at trial if the government believes the witness may flee. Al-Kidd was never called to testify. ... The San Francisco-based appeals court also said Ashcroft could be personally liable in the case, a decision the government told the Supreme Court 'would seriously limit the circumstances in which prosecutors could invoke the material-witness statute without fear of personal liability.'"
  • The 2003 Arrest Behind the Lawsuit  The Washington Post Robert Barnes recounts, "The government had convinced a federal judge to issue a warrant for al-Kidd's arrest [in 2003] by saying he was necessary to the investigation of Sami Omar al-Hussayen, who was eventually indicted on charges of supporting terrorism. An FBI agent said al-Kidd had met with al-Hussayen and had received payments by him of more than $20,000. Al-Kidd's attorneys say the payments were for work he did for a charity. The FBI agent also told the judge - incorrectly - that al-Kidd was leaving the country on a $5,000, one-way, first-class ticket and that it might be impossible to get him back from Saudi Arabia. Actually, al-Kidd was using a $1,700 round-trip ticket. Al-Kidd maintains that in his more than two weeks of detainment, he was strip-searched, shackled, interrogated without a lawyer present and treated as a terrorist. He was never charged with a crime and never called to testify against al-Hussayen, who was acquitted of the most serious charges against him."
  • The Constitutional Question at the Heart of the Case  Conservative law blogger Orin Kerr asks, "What is the Fourth Amendment standard for national security detention? The Supreme Court may answer that question in Ashcroft v. ... My guess is that they’ll use the standard that lower courts have unanimously approved in the civil commitment setting. In civil commitment cases, the question is what standard the Fourth Amendment requires to detain someone because he is dangerous to others or himself. Lower courts have held that probable cause to believe the person poses a danger to himself or others satisfies the Fourth Amendment."
  • Why It's Likely Court Will Grant Ashcroft Immunity  Liberal national security blogger Marcy Wheeler sighs, "This is worrisome, not just because it’s another example of how Elena Kagan’s recusal on all these cases give the court an inherent conservative bias (even assuming Kagan will be better on executive power issues than I think she will be), but because by taking the case SCOTUS seems to suggest the 9th Circuit decision deserves more scrutiny. ... Presumably, immunity for Ashcroft here will extend to other Administration officials who trample rights in the guise of fighting terrorism."
  • Why Obama Admin Taking Ashcroft's Side  The National Interest's Jacob Heilbrunn writes, "Slippery slopes are something of a truism. But some slopes really are slippery, and their slipperiness can be a bad thing. Lawsuits against government officials are a case in point. ... If Ashcroft can be targeted, then almost any government official could come under the legal gunsights of a host of liberal or conservative organizations, eager to cow them into submission. The case of Henry Kissinger is an object lesson in the overreach of international law. There is no reason that the Supreme Court should countenance it on home territory, either. The odds are that it won't."
This article is from the archive of our partner The Wire.