An ‘Indefensible’ Rant

The New York Times  inveighs on a case before the U. S. Supreme Court here.  The case involves John Ashcroft’s detention policies dating back to the case of Abdullah Al-Kidd.  Ashcroft v. Al-Kidd from SCOTUSblog. In plain english:

Plain English Issue: Whether former Attorney General John Ashcroft is immune from a suit alleging that he used the federal material witness statute as a pretext to investigate and preventatively detain terrorism suspects in the aftermath of the attacks of September 11, 2001. (Kagan, J., recused.)

So, as I understand this:

1. Abdullah Al-Kidd was one of four seized as part of the F.B.I.’s wider “Idaho probe,” Mr. Kidd was arrested, strip-searched, shackled and jailed for 15 days — handled like a suspect, not a witness.  There was no claim that he had broken any law. Against him and others, the Justice Department used the statute, Mr. Kidd’s lawyers inferred and others must as well, “to detain and investigate suspects for whom the government lacked probable cause of wrongdoing, and not to secure testimony.”  He was seized as a witness, and treated to a strip-search, physical restraint, and jail for 15 days.

2. The Non-Detention Act says clearly: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”  The Act of Congress, apparently states that the citizen must be suspected of a crime, and there must be evidence to support the suspicion.  (that sounds pretty reasonable.)

3. Ashcroft applied to Congress for permission to treat potential witnesses as suspects.  He was denied permission (quite specifically, apparently).

4. There is a material witness statute to the effect (from the editorial): letting the government keep a witness from fleeing before testifying about an alleged crime by somebody else.

The question before SCOTUS, as I understand it is: should John Ashcroft be held personally liable for treating Abdullah Al-Kidd as a witness (and we don’t treat suspects like this, do we?), without bringing charges, against his civil rights, etc. when he was Attorney General.  Our current solicitor general says ‘No.’

Why is the solicitor general arguing this case?  The logical conclusion is that they want to leave the door open for any subsequent similar behavior.  (Hunh?)

Neal Katyal (Acting)

since 17 May 2010

I think that those in a position of power must be held to a higher standard, simply because they’re in a position to do more damage.  High office should never protect a person from responsibility for their actions.  And remember, John Ashcroft was the guy who had the exposed breast of a statue covered to protect the impressionable.



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