- The Washington Times - Tuesday, May 31, 2011

FFormer Attorney General John Ashcroft cannot be sued over his role in federal agents’ post-Sept. 11 arrest of an American Muslim who was listed as a terrorism witness but was never charged with a crime, the Supreme Court ruled Tuesday.

In a 8-0 vote, the high court said Mr. Ashcroft deserved immunity against any suit because he had not broken the law in ordering that Abdullah al-Kidd be jailed, saying at the time his testimony could be necessary in the then-pending trial of terrorist suspect Sami Omar al-Hussayen.

Mr. al-Kidd was held for 16 days as a potential witness before being released and was not called to testify in the case. He sued, charging that his arrest as a witness was a mere pretext to hold him while building a different terrorism-related case.

The court’s ruling, delivered by Justice Antonin Scalia, was joined by four other justices in its entirety, including Chief Justice John G. Roberts Jr., and Justices Anthony M. Kennedy, Clarence Thomas and Samuel Anthony Alito Jr.

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor agreed with the majority conclusion that Mr. Ashcroft was protected, although they filed multiple concurring opinions. They also noted the decision did not address the overall scope of the material witness statute.

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” Justice Scalia wrote. “An 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.

“Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity,” he wrote.

Justice Elena Kagan did not participate, having been involved earlier in the case’s path through the federal courts when she was solicitor general for the Obama administration.

Mr. al-Kidd had charged that after the Sept. 11, 2001, terrorist attacks, Mr. Ashcroft authorized federal agents to detain terrorism suspects using the federal material-witness statute, which led to his material-witness arrest in March 2003 as he boarded a plane to Saudi Arabia at Washington Dulles International Airport.

To secure the warrant, federal officials told a federal judge that information “crucial” to Mr. al-Hussayen’s prosecution would be lost if Mr. al-Kidd boarded his flight.

After prosecutors in the al-Hussayen case failed to call Mr. al-Kidd, he filed a lawsuit challenging the constitutionality of Mr. Ashcroft’s detention policy.

A U.S. district court denied Mr. Ashcroft’s motion to dismiss on absolute and qualified immunity grounds and the 9th U.S. Circuit Court of Appeals agreed, holding that the law prohibits arrests in one case absent probable cause of criminal wrongdoing in another.

By ruling that an “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,” the high court reversed the judgments.

Mr. al-Hussayen was acquitted in June 2004 on charges he used his computer expertise to foster terrorism.

The case had been seen as an important test of a provision of the Patriot Act that made it a crime to provide expert advice or assistance to terrorists.

Prosecutors had claimed that his websites were used to recruit terrorists, raise money and disseminate inflammatory rhetoric. The jury reached its verdict after seven days of deliberations and a trial that lasted seven weeks.

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