Sup. Court Gives Ashcroft Immunity

[n2doc]

Posted on: June 2, 2011 12:51 PM, by Ed Brayton

The Supreme Court, in an 8-0 decision with 4 separate opinions, has dismissed a lawsuit against John Ashcroft from a Muslim American citizen who was arrested, strip searched and held in harsh conditions in maximum security prisons for 16 days as a "material witness." The case is Ashcroft v al-Kidd.

Abdullah al-Kidd is an American citizen, a former college football player who converted to Islam. He was arrested in 2003 as a material witness in a terrorism case in Idaho, but he was never called as a witness and the person under trial in that case was acquitted. al-Kidd had, in fact, cooperated with the FBI and answered their questions in that case long before he was arrested. He was never even accused of doing anything wrong himself.

He filed suit, claiming that the DOJ was using the material witness statutes as a pretext for arresting Muslim men they suspected of being connected to terrorism. Why else would they arrest a witness who had cooperated with law enforcement in the case they were witness to? Justice Scalia wrote the controlling opinion in this case and he describes the facts and the conclusion:


Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness stat-ute, 18 U. S. C. §3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information "crucial" to Sami Omar al-Hussayen's prosecution would be lost if al-Kidd boarded his flight. Prosecutors never called al-Kidd as a witness, and (as he alleges) never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft's alleged policy. The District Court denied Ashcroft's motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.
Held:

1. The objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.

Now, notice what they did not rule. They did not rule that Ashcroft did not have an improper motive in this situation; they ruled that it doesn't matter whether he did or not, he still can't be challenged. So even though the material witness laws were designed for the sole purpose of keeping a witness with crucial information from leaving the country, the court says that it doesn't matter if the government arrests someone using those statutes for authority even if their use of those statutes is a pretext or a sham.

more
http://scienceblogs.com/dispatches/2011/06/sup_court_gives_ashcroft_immun.php

[dixiegrrrrl]

1. So, by extension, then Holder has immunity?

Is there ANY part of our system which is free of corruption???

[leveymg]

2. A Bivens Action is not like a normal lawsuit. Personal immunity isn't the issue.

This is a type of action brought against the head of a federal agency that has violated the Fourth Amendment right of the plaintiff by, in the Bivens case, the DEA entered a house without a warrant and arresting the occupant on drug charges that were later found to be unfounded and that wouldn't support a warrant. In the 1973 case, Justice Brennan found:

"For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of 'constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment."

The Court, in an opinion by Justice Brennan, laid down a rule that it will imply a private right of action for monetary damages where no other federal remedy is provided for the vindication of a Constitutional right, based on the principle that for every wrong, there is a remedy. The Court reasoned based upon a presumption that where there is a violation of a right, the plaintiff can recover whatever he could recover under any civil action, unless Congress has expressly curtailed that right of recovery, or there exist some "special factor counseling hesitation."

Justice Scalia and the other current Justices found that there was probable cause to detain al-Kidd as a material witness, even if the Justice Department later did nothing with his testimony to further the case against a third-party defendant. Bivens actions only apply to patently groundless detentions and searches and seizures.

This doesn't give Ashcroft immunity from all lawsuits, or even all Biven's actions. It certainly does not confer immunity to Holder, except under similar circumstances.