When President Barack Obama was a candidate, the former constitutional law lecturer insisted he would uphold civil liberties even when there were conflicts between constitutional rights and the war on terror. He has not lived up to his promise. Now the administration is asking the Supreme Court to shield Bush administration Attorney General John Ashcroft from a lawsuit brought by a U.S. citizen who claims he was illegally held in preventive detention. If the high court sides with the administration, a dangerous precedent will be set that immunizes top government officials who knowingly violate the rights of Americans.
In the immediate aftermath of 9/11 and for years afterward, the Justice Department misused the federal material witness law. Until then, it had been applied sparingly to detain key witnesses in criminal trials if they would not cooperate. Under Ashcroft, the statute's use was broadened to hold people suspected of terrorist activities when there wasn't enough evidence to charge them. This type of preventive detention is illegal in the United States, yet dozens of Muslim men were likely subject to it.
Abdullah al-Kidd was one. An American citizen born in Kansas who was a star football player for the University of Idaho, al-Kidd was detained as a material witness in 2003 as he was about to leave for Saudi Arabia to work on a doctorate in Islamic studies. He spent 16 days in federal detention and was moved among three states. He was held in high-security units, shackled when he was moved, stripped naked and left for hours, and generally treated as a terrorist suspect and not a witness.
The FBI formally detained al-Kidd as a material witness in the trial of his friend Sami Omar al-Hussayen, but al-Kidd was never called as a witness and he was never charged with any crime. Al-Kidd sued Ashcroft on the grounds that the attorney general violated al-Kidd's Fourth Amendment right to be free from unreasonable seizure.
In refusing to dismiss al-Kidd's suit, a federal trial court and the 9th U.S. Circuit Court of Appeals rejected Ashcroft's claims of immunity. But on Monday, the Supreme Court agreed to review the case after it was appealed on Ashcroft's behalf by the Obama Justice Department. The justices will decide whether Ashcroft deserves absolute immunity for his work as the government's leading prosecutor, or whether he is at least entitled to qualified immunity that bars damage actions against government officials unless there has been a violation of a clearly established constitutional right.
The detention of innocent people is a violation of a clearly established constitutional right. While proving that Ashcroft himself was personally involved will be a high bar, al-Kidd should be given an opportunity to try.