Editorial http://www.nytimes.com/2010/10/25/opinion/25mon1.html?ref=opinion
An Indefensible Defense
1It can be hard to distinguish between the Bush administration and the Obama administration when it 2comes to detainee policy. A case the Supreme Court agreed last week to hear, Ashcroft v. al-Kidd, is 3one of those occasions.
4It turns on a principle held sacrosanct since the country’s early days: the government cannot arrest you 5without evidence that you committed a crime. An exception is the material witness law, which allows 6the government to keep a witness from fleeing before testifying about an alleged crime by somebody 7else.
8These principles were horribly twisted when John Ashcroft was President George W. Bush’s attorney 9general. The Justice Department held a former college football player in brutal conditions on the 10pretext that he was a material witness in a case in which he was never called to testify and which fell 11apart at trial.
12The Bush administration’s behavior was disturbing, and so is the Obama administration’s forceful 13defense of this outrageous practice of using a statute intended for one purpose for something very 14different. Judge Milan Smith Jr. of the Ninth Circuit Court of Appeals called it “repugnant to the 15Constitution.”
16The Justice Department arrested Abdullah al-Kidd, known as Lavoni Kidd when he was a star football 17player at the University of Idaho, at Dulles airport in March 2003 before he boarded a plane to Saudi 18Arabia, where he was going to work on his doctorate in Islamic studies. For over two weeks, he was 19treated like an enemy of the state — shackled, held in high-security cells lit 24 hours a day, and 20sometimes humiliated by strip searches. When Mr. Kidd was released, he was ordered to live with his 21wife and in-laws, restrict his travels and report to a probation officer. The restrictions lasted 15 22months.
23The government said Mr. Kidd was a material witness against Sami Omar Hussayen, who was tried for 24supporting an Islamic group that the government said “sought to recruit others to engage in acts of 25violence and terrorism.” A jury acquitted Mr. Hussayen on some charges and didn’t reach a verdict on 26others. Mr. Kidd was not called to testify. Nor was he ever charged with a crime.
27Mr. Kidd sued Mr. Ashcroft personally, saying he unlawfully used the material witness statute as a 28pretext. The former attorney general asserted that he had immunity. In the ruling now being reviewed 29by the Supreme Court, the Ninth Circuit found that he did not.
30To qualify for absolute immunity, the appeals court said, Mr. Ashcroft had to be prosecuting Mr. Kidd, 31not investigating him. When the purpose is “to investigate or pre-emptively detain a suspect,” at most 32a prosecutor is entitled to qualified immunity. Mr. Ashcroft didn’t qualify even for that because Mr. 33Kidd made a plausible case that it was the attorney general’s own strategy that led to misuse of the 34material witness statute.
35The word “plausible” is key. In 2009, by a vote of 5 to 4, the Supreme Court sided with Mr. Ashcroft 36and others in a lawsuit, because the complaint against them was too vague and the allegations were 37not plausible. The government hasn’t challenged the plausibility of the core allegations in the current 38case.
39Prosecutorial immunity is intended to let prosecutors enforce the law without fear of being held 40personally liable. Protecting that legitimate aim did not require the administration to defend the 41indefensible. In forcefully defending the material witness statute on grounds that curtailing it would 42severely limit its usefulness, it is defending the law as a basis for detention. That leaves the 43disturbing impression that the administration is trying to preserve the option of abusing the statute 44again.
