[Vision2020] Al-Kidd Wins Small Measure of Empathy

[Tom Hansen]

Courtesy of today's (June 3, 2011) Spokesman-Review.

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Editorial: Al-Kidd wins small measure of empathy

Tuesday’s unanimous ruling in a Supreme Court case involving a former
University of Idaho student may have left the false impression that
tap-dancing on the Fourth Amendment is noncontroversial, at least when the
issue is terrorism.

To the contrary, the eight participating justices (Justice Elena Kagan sat
this one out) agreed on a narrow legal point: Because former Attorney
General John Ashcroft did not violate “clearly established law,” he
enjoyed qualified immunity. Fortunately, some of the justices appear
willing to provide the missing clarity.

Abdullah al-Kidd was about to board a plane for a study program in Saudi
Arabia in March 2003 when he was detained as a material witness in a case
against another UI student, Sami Omar al-Hussayen. Al-Hussayen, like
al-Kidd, had done work on behalf of a Muslim charity that federal
authorities suspected of terrorist connections. Al-Kidd was jailed for two
harsh weeks and then placed on supervised release until al-Hussayen’s
trial ended 14 months later. Al-Hussayen was acquitted but later deported.
Al-Kidd was never called to testify.

In fact, as al-Kidd claimed and the Justice Department did not dispute,
the prosecutors never intended to use him as a witness. It was just a
pretext so they could arrest and detain him despite the lack of evidence
that he’d done anything wrong.

But whether that was a violation of his civil rights, the justices never
decided. Ashcroft had qualified immunity.

Keep in mind that the legal authority for holding al-Kidd, a native-born
American citizen with a wife and family, was the ruse that he was needed
to present testimony in al-Hussayen’s case.

The judge who signed the material-witness warrant was given erroneous
information implying al-Kidd might not return to the United States, but
wasn’t told he had been cooperating with the FBI. As a result, the
prospective witness was tossed into high-security cells that were
illuminated around the clock, strip-searched and subjected to body-cavity
inspections over a period of 16 days.

If Ashcroft had a hidden motive for using an otherwise legitimate method,
Justice Antonin Scalia held in the majority opinion, that’s OK, because
“the Fourth Amendment regulates conduct rather than thoughts.”

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, while
conceding the qualified immunity question, signed separate, concurring
opinions, strongly hinting an openness to a challenge of the warrant’s
validity. Al-Kidd, though, had focused on the attorney general’s
deception.

Ginsburg’s frustrated opinion ended in an appeal to the nation’s most
deeply held values. Although al-Kidd’s challenges have been settled, “his
ordeal is a grim reminder of the need to install safeguards against
disrespect for human dignity, constraints that will control officialdom
even in perilous times.”

We concur.

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U.S. Supreme Court Opinion
Ashcroft v. Al-Kidd

http://www.supremecourt.gov/opinions/10pdf/10-98.pdf

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Seeya round town, Moscow.

Tom Hansen
Moscow, Idaho
UI '96

"The Pessimist complains about the wind, the Optimist expects it to change
and the Realist adjusts his sails."

- Author Unknown