This week ACLU Immigrants’ Rights Project Deputy Director Lee Gelernt argued in the Supreme Court what some are calling “the most important case of the term.” In Ashcroft v. al-Kidd, we seek to hold former Attorney General John Ashcroft responsible for the detention of Abdullah al-Kidd, an innocent American citizen who was wrongfully imprisoned under the material witness statute. The material witness statute is meant only to allow the government to briefly detain a witness to make sure he or she testifies in court. But in the wake of 9/11, Ashcroft enacted a widespread policy of abusing this limited power in order to arrest, jail, and interrogate citizens and non-citizens the government deemed suspicious, but against whom they had no evidence of wrongdoing. Al-Kidd is a victim of Ashcroft’s unlawful policy.
Arrested in Dulles International Airport in 2003 and detained for more than two weeks in harsh conditions, al-Kidd was never asked to testify in the case for which his testimony was supposedly needed. Instead, he was kept under restrictive conditions for months that forced him to abandon an educational scholarship and led to the breakdown of his marriage and career. The 9th Circuit Court of Appeals found the Justice Department’s position in this case to be “repugnant to the Constitution” and a “painful reminder of some of the most ignominious chapters of our national history.” The Supreme Court, however, offered Ashcroft one more shot when it announced it would hear his appeal, and thus the ACLU appeared before the court on Wednesday.
Although the case before the Supreme Court does not specifically involve al-Kidd’s conditions of confinement, they are relevant to whether al-Kidd was genuinely viewed as a witness. Justice Ginsburg reminded the court on Wednesday that al-Kidd was kept under extremely harsh conditions during his 16-day detention. He was kept awake for hours on end, with a bright light shining in his cell 24/7. Whenever he was let out of his cell – usually only for one hour a day – he was shackled at the wrists, ankles, and waist. At one point, he was left naked for hours in plain view of other clothed prisoners and guards. According to al-Kidd, he was detained with convicts and federal inmates– who were still treated better than he was. Turning to Neal Katyal, the government attorney defending Ashcroft, Justice Ruth Bader Ginsburg said: “Now that doesn’t sound like the way one would treat someone whose testimony you want.” We don’t think so either.
While the facts of the case make obvious that al-Kidd deserves justice for the undue hardship he suffered at the hands of Ashcroft’s directive, the Supreme Court yesterday was considering the government’s argument that Ashcroft, a former attorney general, cannot even be sued. Ashcroft argues that no matter what happened, he cannot legally be held liable and he deserves full immunity from this lawsuit.
According to Ashcroft’s attorney, it apparently does not matter if our client was arrested as a witness and detained solely for the purpose of being investigated as a suspect. Nor does it matter that the government had no probable cause to believe al-Kidd was guilty of a crime. Katyal argued that the motives behind the arrest and detention of al-Kidd are irrelevant, and the courts have no business looking into an official’s intentions. “Allowing such suits to proceed would result in burdensome litigation and interfere with the ability of prosecutors to do their jobs,” Katyal said at Wednesday’s argument.
But should we let fear of “burdensome litigation” stand in the way of justice for an American citizen? Don’t we want the courts to “interfere” with government officials when they are violating the Constitution? In the case of al-Kidd, the facts make clear that an innocent citizen faced extreme hardship under an illegal government policy. But the government doesn’t have to worry about any of those facts if the court awards immunity and such atrocious treatment of a man like al-Kidd becomes justified, because the attorney general was “just doing his job.”
Immunity from being sued is an extraordinary protection; it stops a case before it even begins, before a person even has a chance to prove the allegations. If Ashcroft receives immunity for his actions against al-Kidd, officials in the future will feel free to distort the law to serve unconstitutional purposes, safe in the knowledge that there will be no consequences for doing so. To allow such an egregious misuse of the material witness statute will only reinforce the atmosphere of impunity that exists whenever a government official invokes “national security” as a justification for his or her actions.
Lee summed it up best in his argument:
The [Fourth Amendment] is fundamental to our traditions, is widely viewed as a defining feature of our country, and has been steadfastly protected by this court for more than two centuries in both good and bad times. The material witness statute represents a dramatic departure to the rule, allowing the arrest of uncharged, innocent, even cooperative people. […] What we’re talking about here is a statute that has enormous consequences […] and to say that there is going to be absolute immunity is very dangerous.
Hopefully, the court will agree.