The Material-Witness Charade
Last September, a federal appeals court ruled that former Attorney General John Ashcroft could be personally sued for the unjustified incarceration of innocent people as "material witnesses" in the wake of 9/11.
The case involved a former college football star -- Lavoni T. Kidd -- who converted to Islam, changed his name to Abdullah al-Kidd, and was seized at Dulles Airport as he was preparing to travel to Saudi Arabia to pursue Islamic studies. Even though the feds had no evidence that al-Kidd -- an American citizen -- had done anything wrong, they locked him away for weeks as a "material witness." The Washington Post noted,
He was detained for some two weeks, during which he was transferred to facilities in three states, subjected to multiple strip searches and held in cells that were lighted 24 hours a day. After his release, Mr. Kidd was required for more than a year to live with his wife and in-laws in Nevada while his travel was restricted to three adjacent states, and he had to report his whereabouts to a probation officer and consent to in-home visits.
The feds never charged al-Kidd or brought him forward as a witness for any trial. He sued in 2005, asserting that the detention violated his constitutional rights and that it had cost him both his marriage and his job.
The appeals court slammed the government hard:
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 find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.
Not surprisingly, the Washington establishment is vigorously opposed to permitting courts to hold high-ranking government officials liable for trampling Americans' constitutional rights. A Washington Post editorial fretted, "Officials should not have to fear personal lawsuits for performing their duties in good faith and in violation of no established legal precedent."
In reality, the Bush-Ashcroft policy on material witnesses was brazenly unconstitutional from the start, as anyone who was not hopelessly kowtowing would have recognized.
After 9/11 the Justice Department locked up many people as material witnesses for potential testimony at some future date before a grand jury. On April 30, 2002, federal judge Shira Scheindlin ruled that policy to be unconstitutional: "Since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation." Scheindlin warned that the Bush administration's interpretation of federal law could make "detention the norm and liberty the exception."
The Bush administration appealed the case and ignored the ruling. Federal Judge Michael Mukasey, whom Bush would later select as his final Attorney General, upheld the Bush administration's policy.
A Loyola of Los Angeles Law Review analysis concluded, "The government uses these [material witness] laws to round up people because of what it expects them to do, rather than what it can prove they have done." (Wasn’t “preemptive” made out to be a good thing? - EP)
A Washington Post editorial fretted, "Officials should not have to fear personal lawsuits for performing their duties in good faith and in violation of no established legal precedent." (How do you establish legal precedent without a lawsuit? Besides, I would much rather there be a fear inside of them than the other way around. They should be sued more often. - EP).
Be sure to read the rest.
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