WASHINGTON — The Supreme Court intervened again Monday in a lawsuit against a former George W. Bush administration official, agreeing to decide whether former Attorney General John Ashcroft is entirely shielded from claims that he misused the law to arrest terrorism suspects under false pretenses.
Obama administration lawyers appealed on Ashcroft’s behalf and asserted that it would “severely damage law enforcement” if the nation’s top law enforcement official could be held liable for abusing his authority.
In the past five years, civil libertarians have tried, without much success, to sue former Bush administration officials for overstepping the law. These suits have run into a series of procedural barriers. For example, those who accused the government of wiretapping their phones without a search warrant had their cases thrown out of court on grounds they could not prove they had been wiretapped. Others who said they were wrongly arrested and tortured had their claims dismissed when the government invoked the “state secrets” privilege.
Last year, the Supreme Court shielded Ashcroft from being sued by Muslim immigrants in the New York area who said they were arrested and abused in jail after the Sept. 11, 2001, attacks, even though they had no involvement in a terrorism plot. In a 5-4 decision, the high court ruled that the suit against Ashcroft must be dismissed because the plaintiffs could not prove he ordered them to be abused.
The new case arose when Lavoni Kidd, a former football star at the University of Idaho, was arrested and shackled at Washington’s Dulles International Airport in March 2003. He was not taken into custody because he was suspected of a crime, but because he was a supposed “material witness” in another case.
Federal law permits the government in special situations to hold someone as a “material witness” in a pending case. Lawyers for the American Civil Liberties Union accused Ashcroft of a “gross abuse” of this authority. They say he misused the law to arrest innocent people, even when the government lacked the required “probable cause.”
After the Sept. 11 attacks Ashcroft announced he would use all the legal authority at his disposal to capture terrorists. Hundreds of Muslim men were arrested and held on immigration charges. That option was not available in Kidd’s case because he is a U.S. citizen.
He had converted to Islam in college and changed him name to Abdullah al-Kidd. He had cooperated with the FBI after the Sept. 11 attacks and answered questions about another Muslim man in Idaho who was under investigation in connection with his website.
Several months had elapsed since Kidd had heard from the FBI, but when he bought a round-trip ticket to travel to Saudi Arabia, where he had a study scholarship, the FBI moved to have him arrested. An FBI agent wrongly told a magistrate that Kidd had bought a one-way first-class ticket. The magistrate ordered Kidd arrested and held as a witness. A few days later, FBI Director Robert Mueller testified in Congress and mentioned Kidd’s “arrest” as one of the bureau’s recent successes.
Kidd was strip-searched repeatedly and shackled for more than two weeks in a high-security cell where the lights were kept on, according to his complaint. He was then released, but his passport was taken. In 2005, Kidd sued Ashcroft and other officials, contending they had violated his constitutional rights by arresting him without probable cause.
Ashcroft moved to dismiss the suit, arguing that as the nation’s chief prosecutor, he was absolutely immune from such claims. But a federal judge in Idaho and the U.S. 9th Circuit Court of Appeals refused to dismiss the suit. Judge Milan Smith said it was “repugnant to the Constitution” for the government to say it “has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because they have committed a crime, but merely because the government wants to investigate them for possible wrongdoing.”
This ruling, if allowed to stand, would have allowed the case against Ashcroft to proceed toward a trial.
But Acting U.S. Solicitor General Neal Katyal appealed to the high court and argued that top prosecutors should be shielded from answering such allegations. “Absolute immunity applies regardless of the prosecutor’s intent,” he said.
The justices announced they will hear the case, Ashcroft vs. al-Kidd, early next year and decide whether the doctrine of prosecutorial immunity requires that the suit be dismissed. New Justice Elena Kagan said she would stay out of the case.
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