[THS] !!! Mike Whitney: Ninth Circuit Rules: Ashcroft Is Not Above The Law

[Peter Webster]

http://www.informationclearinghouse.info/article23435.htm

Ninth Circuit Rules: "Ashcroft Is Not Above The Law"

By Mike Whitney

September 06, 2009 "Information Clearing House" --- In a critical case which could
determine the future of "preventive detention" in the U.S., the Ninth Circuit Court of
Appeals ruled that ex-Attorney General John Ashcroft can be sued for arresting
Muslims 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 maintain 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's conduct in an eloquent defense of the Constitution and basic civil liberties:

"Almost two and a half centuries ago, William Blackstone, considered by many to be
the preeminent pre-Revolutionary War authority on the common law, wrote:
'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." (WILLIAM BLACKSTONE)

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." (Judge Milan Smith; majority opinion)

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 claim of "absolute immunity" from being sued was rejected outright by all
three judges. The Attorney General is not above the law.

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 is important, because it 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 would not conform with the clearly-
articulated guidelines of the earlier rulings. He publicly stated, “Aggressive detention
of lawbreakers and material witnesses is vital to preventing, disrupting or delaying
new attacks.”

Judge Milan Smith addressed Ashcroft's defiance saying:

"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
conduct 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 as close as one gets, to
an admission of guilt.

Naturally, the loonies on the far-right have taken up Ashcroft's cause and are howling
about the liberal bias of the "out-of-control" justice system . Conservative blogger,
Roger Kimball says, "The Ninth Circuit Court of Appeals has once again distinguished
itself in the annals of politically-correct fatuousness." Kimball adds:

"Speaking as a knuckle-dragging right-winger, I would regard any person who
converted to Islam and and changed his name to “Abdullah” as guilty until proven
innocent.... I’m glad that “Abdullah” popped up on the radar screen as he was on his
way to Saudi Arabia. And if he has yet to be charged with anything, I hope that the
guys in the white hats continue to cast a beady eye in his direction....I believe John
Ashcroft should be honored as a national hero for his stalwart and effective
stewardship of the Department of Justice at a most dangerous moment. (Roger
Kimball, "Another Ridiculous Decision from the Ninth Circuit")

Kimball's spirited defense of Ashcroft provides an interesting contrast with Judge
Smith's final summation of the case:

"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," the opinion stated. "Not
because there is evidence that they have committed a crime, but merely because the
government wishes to investigate them for possible wrongdoing." (Ashcroft's
detention policy) "is repugnant to the Constitution and a painful reminder of some of
the most ignominious chapters of our national history."