Al-Kidd case defies immunity defense

In yet another recent, but little noticed case, Al-Kidd v. Ashcroft, the Federal Court of Appeals for the Ninth Circuit ruled that former Attorney General John Ashcroft could be held personally responsible for his role in promoting the Bush administration policy of misusing the “material witness� statute to arrest and “detain� a U.S. citizen without probable cause.

Abdullah al-Kidd, a U.S. citizen born in Wichita, Kan. (albeit with a “Muslim� name), and a star running back for the University of Idaho, had been previously investigated and found innocent, by the FBI, but was nevertheless arrested after a study visit to Saudi Arabia in 2003, and “detained� under the Federal Material Witness Statute (18 USC sec. 3144). Although there was in fact no real intention ever to use him, and he was never used, as a “material witness� to any other case. It was a device to “detain,� not to seek justice.

u      u      u

The court said: “We are confident that, in the light of the experience of the American colonists with the abuses of the British crown, the Framers of our Constitution would have disagreed with the arrest, detention and harsh confinement of a United States citizen as a ‘material witness.’

“Sadly, however, even now, more than 217 years after ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world.�

The court concluded: “We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters in our national history.�

u      u      u

Ashcroft claimed absolute immunity because, he said, his actions to seek a material witness were those of a government “prosecutor.� He maintained he played no personal role in the Al-Kidd detention. Ashcroft argued he should be immune under a doctrine that guards prosecutors from civil suits. Or so he thought.

The Federal Court did not agree. Ashcroft’s policy was clearly illegal, and accountability extends to those who authorize illegal policies, not just to the “foot soldiers� who carry them out. Illegal advice is a form of illegal engagement.

Ashcroft’s policy was part of a long sequence of illegal advice sought and implemented for and by key members of the Bush administration, at every level in the chain of command. For further details, see “The Torture Memos: Rationalizing the Unthinkable,� by David Cole (New Press, 2009).

The Al-Kidd decision is a clear warning to all those at every level who engaged in illegal detention and torture: Ultimately there is no immunity, institutional or personal, for egregious violations of the U.S. Constitution and U.S. and international human rights law.

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.