10/27/2010 09:36 am ET | Updated May 25, 2011

Ashcroft v. al-Kidd: Immunity for the Shameless?

In March 2003, a Kansas-born former University of Idaho football star named Abdullah al-Kidd went to Dulles Airport to board a flight to Saudi Arabia. Al-Kidd, whose birth name was Lavoni Kidd before he converted to Islam, was on his way to continue his studies in Arabic and Islamic law. But before he could get on the plane, he was snatched by American authorities under an arrest warrant that listed him as a material witness to a crime.

But, it turns out, the government didn't really want him as a witness at all. In fact, at no time was he ever called to testify in a trial, possessed no valuable information about the case for which he was ostensibly held, and gave no indication he was a flight risk, all of which are conditions required to hold someone under the material witness statute.

The truth is that Abdullah al-Kidd had been swept up in a Bush Administration policy, led by then-Attorney General John Ashcroft, to use the material witness statute as a pretext for holding terror suspects without due process. Al-Kidd had been placed under FBI surveillance as part of a broad investigation into Arab and Muslim men. The Administration's policy of twisting the material witness statute allowed them to detain people like al-Kidd for whom there was no probable cause for arrest.

It also turned out that the warrant was obtained fraudulently. The FBI told the judge that al-Kidd was traveling on a first-class one-way ticket, when, in fact it was a coach round-trip ticket. They neglected to tell the judge he was a citizen with a young family and that he had been cooperative in the past. Plainly, the government hid the true nature of al-Kidd's travels and citizenship status from the judge in order to get the sham material-witness warrant.

Al-Kidd, who was detained under false pretenses and never charged with a crime, was held for 16 days in three different locations, repeatedly strip searched, was often shackled naked to a chair, harshly interrogated without counsel, and subjected to 24-hour-a-day lights in his cell (unlike other high-security inmates). After he was released, he was placed on strict probation for 15 months with harsh conditions which led to him losing his job and his marriage.

Of course, Al-Kidd was not the only person treated this way. During the post-9/11 period, Bush Administration officials lawlessly detained hundreds, if not thousands, of individuals whose only crime was their religious and ethnic background.

So who is responsible for implementing these policies and what penalty can or should they pay for brutally violating al-Kidd's rights, abusing the Constitution, and subverting the law? Abdullah al-Kidd thinks John Ashcroft, the architect of the policy that led to his abuse, is responsible and has sued him for violating his constitutional rights. Not surprisingly, Ashcroft, the Bush Administration, and now the Obama Administration, claim absolute immunity for the former attorney general, and for any official who commits similar acts or coordinates similar policies.

Last week the Supreme Court agreed to hear the case of Ashcroft v. al-Kidd, and, regrettably, the Obama Justice Department is strongly defending the position of the Bush Administration and, implicitly, the policy of abusing the material witness statute.

It's not surprising that the government would fight to prevent high officials from being subject to "burdensome litigation and potential damages for the conduct of ... subordinates." (The burdens of being chained to a chair in bright light for 16 days are apparently of lesser concern.) The government's brief warns that this case will "threaten the ability of prosecutors to discharge their duties without fear of personal liability, limit the usefulness of the material witness statute, and substantially chill officers in the exercise of important government functions." [Emphasis added.]

Since this case is about the abuse of the material witness statute, and not its long-understood purpose, there is no way a decision for Mr. al-Kidd could threaten the lawful use of the statute, which presumably remains intact.

So what is meant by the "usefulness" of the statute? It would be troubling if the Obama Administration's language signaled comfort with the underlying Ashcroft/Bush abuse of the material witness process, a policy so egregious that the Ninth Circuit Court of Appeals called it "repugnant to the Constitution."

We hope that the Supreme Court will reaffirm the principle that high officials can be held responsible for patently illegal actions. The Administration is right that this case would have a chilling effect if Mr. al-Kidd wins. But what would be chilled is the idea that government officials can abuse people and the Constitution with impunity and without consequence. And that's a good thing.