An indefensible defense
1. It can be hard to distinguish between the Bush administration
2. and the Obama administration when it comes to detainee policy.
3. A case the Supreme Court agreed last week to hear,
4. Ashcroft v. al-Kidd, is one of those occasions. It turns on a
5. principle held sacrosanct since the country’s early days: the
6. government cannot arrest you without evidence that you
7. committed a crime. An exception is the material witness law,
8. which allows the government to keep a witness from fleeing
9. before testifying about an alleged crime by somebody else.
2. and the Obama administration when it comes to detainee policy.
3. A case the Supreme Court agreed last week to hear,
4. Ashcroft v. al-Kidd, is one of those occasions. It turns on a
5. principle held sacrosanct since the country’s early days: the
6. government cannot arrest you without evidence that you
7. committed a crime. An exception is the material witness law,
8. which allows the government to keep a witness from fleeing
9. before testifying about an alleged crime by somebody else.
10. These principles were horribly twisted when John Ashcroft
11. was President George W. Bush’s attorney general.
12. The Justice Department held a former college football
13. player in brutal conditions on the pretext that he was a
14. material witness in a case in which he was never called
15. to testify and which fell apart at trial. The Bush
16. administration’s behavior was disturbing, and so is the
17. Obama administration’s forceful defense of this
18. outrageous practice of using a statute intended for one
19. purpose for something very different. Judge Milan Smith Jr.
20. of the Ninth Circuit Court of Appeals called it
21. “repugnant to the Constitution.” The Justice Department
22. arrested Abdullah al-Kidd, known as Lavoni Kidd when
23. he was a star football player at the University of Idaho,
24. at Dulles airport in March 2003 before he boarded a plane
25. to Saudi Arabia, where he was going to work on his doctorate
26. in Islamic studies. For over two weeks, he was treated
27. like an enemy of the state — shackled, held in high-security
28. cells lit 24 hours a day, and sometimes humiliated by strip
29. searches. When Mr. Kidd was released, he was ordered
30. to live with his wife and in-laws, restrict his travels and report
31. to a probation officer. The restrictions lasted 15 months.
11. was President George W. Bush’s attorney general.
12. The Justice Department held a former college football
13. player in brutal conditions on the pretext that he was a
14. material witness in a case in which he was never called
15. to testify and which fell apart at trial. The Bush
16. administration’s behavior was disturbing, and so is the
17. Obama administration’s forceful defense of this
18. outrageous practice of using a statute intended for one
19. purpose for something very different. Judge Milan Smith Jr.
20. of the Ninth Circuit Court of Appeals called it
21. “repugnant to the Constitution.” The Justice Department
22. arrested Abdullah al-Kidd, known as Lavoni Kidd when
23. he was a star football player at the University of Idaho,
24. at Dulles airport in March 2003 before he boarded a plane
25. to Saudi Arabia, where he was going to work on his doctorate
26. in Islamic studies. For over two weeks, he was treated
27. like an enemy of the state — shackled, held in high-security
28. cells lit 24 hours a day, and sometimes humiliated by strip
29. searches. When Mr. Kidd was released, he was ordered
30. to live with his wife and in-laws, restrict his travels and report
31. to a probation officer. The restrictions lasted 15 months.
32. The government said Mr. Kidd was a material witness against
33. Sami Omar Hussayen, who was tried for supporting an Islamic
34. group that the government said “sought to recruit others
35. to engage in acts of violence and terrorism.” A jury acquitted
36. Mr. Hussayen on some charges and didn’t reach a verdict
37. on others. Mr. Kidd was not called to testify. Nor was he ever
38. charged with a crime. Mr. Kidd sued Mr. Ashcroft personally,
39. saying he unlawfully used the material witness statute as a
40. pretext. The former attorney general asserted that he had
41. immunity. In the ruling now being reviewed by the
42. Supreme Court, the Ninth Circuit found that he did not.
43. To qualify for absolute immunity, the appeals court said,
44. Mr. Ashcroft had to be prosecuting Mr. Kidd, not
45. investigating him. When the purpose is “to investigate or
46. pre-emptively detain a suspect,” at most a prosecutor is
47. entitled to qualified immunity. Mr. Ashcroft didn’t qualify
48. even for that because Mr. Kidd made a plausible case that it
33. Sami Omar Hussayen, who was tried for supporting an Islamic
34. group that the government said “sought to recruit others
35. to engage in acts of violence and terrorism.” A jury acquitted
36. Mr. Hussayen on some charges and didn’t reach a verdict
37. on others. Mr. Kidd was not called to testify. Nor was he ever
38. charged with a crime. Mr. Kidd sued Mr. Ashcroft personally,
39. saying he unlawfully used the material witness statute as a
40. pretext. The former attorney general asserted that he had
41. immunity. In the ruling now being reviewed by the
42. Supreme Court, the Ninth Circuit found that he did not.
43. To qualify for absolute immunity, the appeals court said,
44. Mr. Ashcroft had to be prosecuting Mr. Kidd, not
45. investigating him. When the purpose is “to investigate or
46. pre-emptively detain a suspect,” at most a prosecutor is
47. entitled to qualified immunity. Mr. Ashcroft didn’t qualify
48. even for that because Mr. Kidd made a plausible case that it
49. was the attorney general’s own strategy that led to misuse
50. of the material witness statute. The word “plausible” is key.
51. In 2009, by a vote of 5 to 4, the Supreme Court sided with
50. of the material witness statute. The word “plausible” is key.
51. In 2009, by a vote of 5 to 4, the Supreme Court sided with
52. Mr. Ashcroft and others in a lawsuit, because the complaint
53. against them was too vague and the allegations were not
54. plausible.The government hasn’t challenged the plausibility
55. of the core allegations in the current case. Prosecutorial
56. immunity is intended to let prosecutors enforce the law
57. without fear of being held personally liable. Protecting
58. that legitimate aim did not require the administration
59. to defend the indefensible. In forcefully defending the
60. material witness statute on grounds that curtailing it would
61. severely limit its usefulness, it is defending the law as a basis
62. for detention. That leaves the disturbing impression that
63. the administration is trying to preserve the option of abusing
64. the statute again.
Source: http://www.nytimes.com/2010/10/25/opinion/25mon1.html?hp
53. against them was too vague and the allegations were not
54. plausible.The government hasn’t challenged the plausibility
55. of the core allegations in the current case. Prosecutorial
56. immunity is intended to let prosecutors enforce the law
57. without fear of being held personally liable. Protecting
58. that legitimate aim did not require the administration
59. to defend the indefensible. In forcefully defending the
60. material witness statute on grounds that curtailing it would
61. severely limit its usefulness, it is defending the law as a basis
62. for detention. That leaves the disturbing impression that
63. the administration is trying to preserve the option of abusing
64. the statute again.
Source: http://www.nytimes.com/2010/10/25/opinion/25mon1.html?hp
