No Comment — October 25, 2010, 2:53 pm

Standing Tall for Tyranny

The Department of Justice has persuaded the Supreme Court to take a look at Ashcroft v. Al-Kidd, in which it argues that former attorney general John Ashcroft cannot be sued for the mistreatment of an American citizen held by use of a material witness warrant under false premises. The courts below, heavily dominated by conservative Republican appointees, found that the challenge should go forward; the evidence of serious misconduct by Justice officials was sufficient to get to a trial.

The case involves Lavni Kidd, a star football player at the University of Idaho who converted to Islam and changed his name to Abdullah al-Kidd. He was seized as he boarded a flight to pursue religious education in Saudi Arabia in 2003. Justice Department officials claimed that he was needed as a material witness in a case against another University of Idaho student, Sami Omar al-Hussayen, who was charged with visa fraud. It does not appear that Kidd knew anything relevant to the visa fraud case, federal authorities never called him to testify, and the prosecution of Hussayn, which rested on a feeble evidentiary case to start with, failed before an Idaho jury. The claim appears now to have been a shabby pretext for arresting Kidd, whose offense apparently consisted of converting to Islam and espousing views critical of the Bush Administration and its plans to invade Iraq under false pretenses.

Over a period of 16 days, Kidd was moved to three separate detention facilities in three different states. He was treated brutally, according to procedures that the Justice Department approved for use on terrorism suspects. He was subjected to a withering interrogation by FBI agents who demanded to know why he had converted to Islam. He was stripped naked, subjected to body cavity searches, shackled hand and foot, and incarcerated with violent convicts.

To secure Kidd’s detention as a material witness, the Justice Department made a series of false statements to the magistrate who issued a warrant—claiming that he had purchased a one-way, first-class ticket to Saudi Arabia, when in fact the Justice Department knew he had purchased a return economy class ticket, for instance. It also withheld such information as the fact that Kidd was a U.S. citizen who had cooperated with authorities. The record strongly suggests actual malice and bigotry. These facts no doubt played a strong role in persuading judges at the district court in Idaho and on the appeals court in California of the merits of the case. They therefore denied the Justice Department’s vigorously argued efforts to have it dismissed.

This striking example of abuse of power was cited by FBI Director Robert Mueller in 2003 testimony before Congress as a “success” story for the Department.

In successfully pressing for review of the case, Acting Solicitor General Neal Katyal states (PDF) that the suit must be dismissed because of the doctrine of prosecutorial immunity, even though Kidd was not being prosecuted and the Justice Department concedes it never had any basis for a prosecution. Katyal also argues that Ashcroft cannot be held accountable for false statements made to courts by prosecutors or acts of official cruelty by jailors and interrogators. But Katyal’s claims may well turn out to rest on misrepresentations almost as serious as those made to the original court that authorized Kidd’s seizure. In fact the abusive treatment of Kidd followed policies which were authorized by the Department at the highest level; speeches given by Ashcroft and Mueller’s Congressional testimony show direct cognizance of the case and approval of abusive practices used in it.

In an editorial published today, the New York Times focuses on just these points:

Mr. Kidd made a plausible case that it was the attorney general’s own strategy that led to misuse of the material witness statute. The word “plausible” is key. In 2009, by a vote of 5 to 4, the Supreme Court sided with Mr. Ashcroft and others in a lawsuit, because the complaint against them was too vague and the allegations were not plausible. The government hasn’t challenged the plausibility of the core allegations in the current case.

Prosecutorial immunity is intended to let prosecutors enforce the law without fear of being held personally liable. Protecting that legitimate aim did not require the administration to defend the indefensible. In forcefully defending the material witness statute on grounds that curtailing it would severely limit its usefulness, it is defending the law as a basis for detention. That leaves the disturbing impression that the administration is trying to preserve the option of abusing the statute again.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2016

Fighting Chance

= Subscribers only.
Sign in here.
Subscribe here.

Front Runner

= Subscribers only.
Sign in here.
Subscribe here.

The Habits of Highly Cynical People

= Subscribers only.
Sign in here.
Subscribe here.

Unhackable

= Subscribers only.
Sign in here.
Subscribe here.

American Imperium

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Elisabeth Zerofsky on Marine Le Pen, Paul Wachter on the quest for an unhackable email, Rebecca Solnit on cynical people, Andrew J. Bacevich on truth and fiction in the age of war, Samuel James photographs E.P.L. soccer, a story by Vince Passaro, and more

I sat in a taxi with Emma and her son, Stak, all three bodies muscled into the rear seat, and the boy checked the driver’s I.D. and immediately began to speak to the man in an unrecognizable language.

I conferred quietly with Emma, who said he was studying Pashto, privately, in his spare time. Afghani, she said, to enlighten me further.

Illustration by Taylor Callery
Article
Front Runner·

= Subscribers only.
Sign in here.
Subscribe here.

"The F.N. asked to be sent to an institution whose legitimacy it did not accept, and French voters rewarded the party with first place in the election."
Illustration (detail) by Matthew Richardson
Memoir
I Am Your Conscious, I Am Love·

= Subscribers only.
Sign in here.
Subscribe here.

A paean 2 Prince
"And one thinks, Looking into Prince's eyes must be like looking at the world."
Photo ©© PeterTea
Article
Stop Hillary!·

= Subscribers only.
Sign in here.
Subscribe here.

"As wacky as it sometimes appears on the surface, American politics has an amazing stability and continuity about it."
Article
Plexiglass·

= Subscribers only.
Sign in here.
Subscribe here.

I sat in a taxi with Emma and her son, Stak, all three bodies muscled into the rear seat, and the boy checked the driver’s I.D. and immediately began to speak to the man in an unrecognizable language.

I conferred quietly with Emma, who said he was studying Pashto, privately, in his spare time. Afghani, she said, to enlighten me further.

Photograph (detail) by Karine Laval

Amount of cash inmates compete to grab from between a bull’s horns each year at the Oklahoma State Prison Rodeo:

$100

There were new reports of cannibalism in North Korea.

The Finnish postal service announced it will begin mowing lawns on Tuesdays.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today