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Repugnant to the Constitution

“We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.”

–Judge Milan Smith U.S. Ninth Circuit Court of Appeals

In a critical case which could determine the future of “preventive detention” in the U.S., the U.S. Ninth Circuit Court of Appeals ruled that ex-Attorney General John Ashcroft can be sued for ordering Muslims jailed as material witnesses as a pretext for investigating their possible links to terrorism. The 2 to 1 ruling (all three judges were Reagan or Bush appointees) is a setback for hardliners in the Bush administration who assert that the state has the right to circumvent the 4th amendment and imprison “suspects” without establishing probable cause.

Judge Milan Smith–a George W. Bush appointee–reproached Ashcroft in an eloquent defense of basic civil liberties, quoting  the  pre-Revolutionary War legal authority, William Blackstone:

‘To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”

Smith went on,

 “The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.

“We are confident that…the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint.”

Abdullah al-Kidd was arrested in March 2003, was held at jails in three states for 16 days and then monitored while living at home for 15 months. Ashcroft named him as a material witness in the case of Sami Omar Al-Hussayen, who was allegedly connected to a radical Islamic organization. Al-Kidd is an American citizen, but was never formally charged with a crime. He was simply swept up in the DOJ’s post-9-11 dragnet-hysteria wherein Muslims were targeted as likely terrorists because of their religion.

Ashcroft’s claims of “absolute immunity” from being sued were rejected outright by all three judges.

In 2002–in another high-profile case which cited Ashcroft by name–the court ruled that the material witness statute “should not be abused as an investigatory anti-terrorism tool.” This proves that Ashcroft was aware that what he was doing was illegal, but persisted with the policy anyway. In fact, Ashcroft made public statements to the effect that he had no intention of complying with the earlier rulings. He said, “Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”

Judge Milan Smith noted Ashcroft’s defiance in his summary statement:

“Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute. If there is probable cause to believe an individual has committed a crime or is conspiring to commit a crime, then the government may lawfully arrest that person, but only upon such a showing.

We therefore hold that al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003….the Supreme Court has aptly noted, qualified immunity must not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: ‘Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate . . . .’ This is as true in matters of national security as in other fields of governmental action.

“We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law. Al-Kidd’s arrest failed to meet the statutory requirements set forth by Congress, and was therefore unlawful.”

The court’s decision is quite narrow and merely allows al-Kidd to pursue his case in a higher court. Even so, the court’s revulsion to Ashcroft’s behavior is striking and, no doubt, worrisome for the former head of the D.O.J. Judge Smith notes that Ashcroft’s behavior suggests that he knew the limits of the law, and yet, “purposely instructed his subordinates to bypass the plain reading of the statute.” In other words, Ashcroft deliberately broke the law.

In fact, the Justice Department has already issued apologies to 10 people who were illegally arrested as who were as material witnesses, which is more-or-less an admission of guilt.

Naturally, the loonies on the far-right have taken up Ashcroft’s cause and are decrying the liberal bias of an “out-of-control” justice system . The nutball right’s defense of Ashcroft provides an interesting contrast to the erudite Judge Smith’s final comments:

“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…Not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing.”

MIKE WHITNEY lives in Washington state. He can be reached at fergiewhitney@msn.com