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.

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