Blog on the Run: Reloaded

Thursday, September 10, 2009 8:15 pm

“Mr. Ashcroft, please place your left hand on the Bible … and, no, sir, this isn’t an oath of office.”

Somehow I missed this. It looks as if then-Attorney General John Ashcroft, who went all round-up-all-the-AyRabs after 9/11, could be successfully sued for it:

A federal appeals court delivered a stinging rebuke Friday to the Bush administration’s post-Sept. 11 detention policies, ruling that former Attorney General John Ashcroft can be held liable for people who were wrongfully detained as material witnesses after 9/11.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the government’s improper use of material witnesses after Sept. 11 was ”repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003. …

The 9th Circuit judges said al-Kidd’s claims plausibly suggest that Ashcroft purposely used the material witness statute to detain suspects whom he wished to investigate and detain preventively.

”Sadly, however, even now, more than 217 years after the 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,” Judge Milan D. Smith Jr. wrote. ”We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The three judges? Were a Reagan appointee and two Bush appointees. Just sayin’.

Now this is significant for a number of reasons. First, government officials, under a concept called “qualified immunity,” have wide-ranging legal rights with respect to how they do their jobs. It’s almost impossible to sue a government official successfully on a misconduct claim. And yet our plaintiff, al-Kidd, appears to these judges to have scaled that particular wall:

”It’s a very big ruling, because qualified immunity is ordinarily a very robust form of protection,” said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General. ”To overcome that immunity, you have to show that the defendant almost deliberately acted unconstitutionally to violate someone’s rights — no innocent mistakes.”

Another important angle is that not only can Ashcroft be sued, he also can be ordered to testify under oath, not only about what he did but perhaps also about the government’s detention plans in general, much of which, I’m sure, still hasn’t seen the light of day yet.

”The mere prospect of that causes a lot of concern for these officials, with the time and secrecy parts of that and all the publicity that this kind of thing attracts,” Seamon said. ”That’s exactly why qualified immunity exists, so these officials can be spared that.”

The judges said they also didn’t intend to dampen the ardor of prosecutors as they carried out their duties, and said they were mindful of the pressures face by the attorney general. But, they said, even qualified immunity doesn’t allow the attorney general to carry out national security functions completely free from any personal liability concerns.

The full 9th Circuit, or even the Supremes, could still overturn this, should the Justice Department continue to pursue it. But apparently it would be quite the legal stretch — dare I say “judicial activism” — for them to do so.

So, perhaps, at long last, someone who held a powerful position in government will be held accountable for blatantly unconstitutional actions. Prison is where Ashcroft belongs, but losing a bunch of money in a lawsuit would be better than nothing.

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