The ninth circuit federal court of appeals in San Francisco has held that former Attorney General John Ashcroft is personally liable for illegally detaining American citizens after 9-11. The court’s decision represents a stunning victory for the principle that no one is above the law.
The ninth circuit’s opinion arose out of a case brought by an American citizen born in Wichita, Kansas, to parents of U.S. citizenship. His given name was Lavoni Kidd. He was a football star at the University of Idaho. Sometime in college he decided to convert to Islam and changed his name to Abdullah al-Kidd. In 2003 al-Kidd received a scholarship to study Arabic and Islamic law at a university in Saudi Arabia. On his way to Saudi Arabia al-Kidd was approached by federal agents at Dulles Airport and arrested. He was not charged with any crime. The government claimed that al-Kidd was a material witness in the criminal trial of another Islamic man he knew at the university, who was being prosecuted for visa fraud. The government claimed that al-Kidd was fleeing the jurisdiction and that he had a one-way $5,000 business class ticket on him. In fact, al-Kidd was travelling on a $1700 roundtrip coach class ticket, and he had left his wife and children behind in Nevada.
It turned out that the government never had any reason to call al-Kidd as a material witness. It was merely a pretext for detaining him. He was detained for more than two weeks, subjected repeatedly to humiliating body searches, kept in a brightly lit high-security prison cell 23-hours per day, and handcuffed and shackled whenever he was moved. For fifteen months after his release from federal prison the government required him to remain at home in Nevada, limit his movements out of the house, surrender his passport, and report regularly to a probation officer.
Al-Kidd sued Attorney General Ashcroft with the help of the American Civil Liberties Union (ACLU), alleging that as a consequence of his detention, he lost his job, his opportunity for study abroad, and his marriage.
As attorney general John Ashcroft authorized the use of the federal material witness statute to detain Islamic men whom the Justice Department thought might possibly be terrorists. But the material witness statute was not intended for preventative detention, which is generally prohibited by the Constitution. The federal statute only allows the government to detain a person who is a material witness in a criminal trial for a temporary period if the government reasonably believes that there is a likelihood that the witness might otherwise disappear while a trial is pending. The men detained by Ashcroft were not necessarily material witnesses to any pending criminal trials.
In the law suit Ashcroft made the extravagant claim that as attorney general he was absolutely immune from civil liability. The Supreme Court has said that federal prosecutors may have absolute immunity from a narrow class of claims arising out of a prosecutor’s actions in court. But the Supreme Court has made it clear that this is a very limited exception and that prosecutors are not immune for illegal actions or decisions that take place outside of a courtroom.
In its decision in al-Kidd v. Ashcroft, the ninth circuit reaffirmed this traditional limitation on the absolute immunity of prosecutors. In this case it’s clear that Ashcroft made a policy decision to use the federal material witness statute as a license for preventative detention of Islamic and Arab men. It had nothing to do with prosecuting crime in court; it was merely a tool for waging the war on terror.
The Framers of our Constitution did not permit arbitrary or preventative detention, even of persons who might be thought dangerous. The generation that fought the American Revolution was not naïve about foreign risks to our domestic security. They certainly understood the vulnerability of a democratic society to spies and saboteurs, as my book UNLIKELY ALLIES attests. But the Framers preferred to err on the side of personal liberty rather than to create a police state that might be safer, but stultifying.
In this regard the Framers of our Constitution were choosing to protect liberties that were not necessarily protected by the British Constitution. Britain was much more inclined to sacrifice the rights of British citizens to serve the cause of state security. In UNLIKELY ALLIES the French Foreign Minister Vergennes wryly observed that “only a government as free as England’s would be so suspicious of its own subjects.” That was precisely what the Framers did not want to happen in America.
Our Founding Fathers revolted against arbitrary rule and fought for the proposition that even the king’s representatives in the colonies should be held accountable for their actions. The ninth circuit has struck a blow against arbitrary government. In doing so it has opened up the possibility of more claims being brought against other former government officials who established or implemented anti-terrorism policies that were exceeded the limits of our Constitution. The full scope of the Bush Administration’s chilling excesses in the war on terror is carefully chronicled in Jane Mayer’s excellent book, THE DARK SIDE. After reading Mayer’s well-balanced account, I am more grateful to our Framers than ever that under our Constitution, our leaders will be held to account for their abuses of power.