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Supreme Court Throws Out Suit Against Ashcroft
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Supreme Court Throws Out Suit Against Ashcroft

Law

MICHELE NORRIS, Host:

The Supreme Court ruled today that former Attorney General John Ashcroft cannot be sued for the detention of an American Muslim.

Abdullah al-Kidd, an American citizen, was detained as a material witness in the aftermath of 9/11. That's despite the fact that he had been cooperating with the FBI and was not ultimately charged with a crime.

NPR legal affairs correspondent Nina Totenberg has the story.

NINA TOTENBERG: Al-Kidd, a former star running back at the University of Idaho, looks like an all-American boy in his college photos. Born in the U.S. to American parents and raised in a Christian faith, he converted to Islam in college which would have been unremarkable until the events of 9/11 when the FBI began visiting him and asking about fellow Muslims.

Al-Kidd answered all the FBI's questions and, by 2003, had not been contacted for some time. He was about to board a plane to study in Saudi Arabia when he was arrested, shackled and taken to jail under a material witness warrant.

ABDULLAH AL: It was probably one of the most humiliating, degrading moments of my life. I could only imagine what people were thinking about me.

TOTENBERG: Over the next 16 days, al-Kidd was held in three high- security prisons and subjected to such harsh treatment that prison officials eventually settled out of court on his claims of mistreatment. He was finally released on condition that he live with his in-laws and report regularly to authorities. But his reputation was in tatters. He lost his job and his marriage failed. He was never called to testify as a witness at any trial.

The material witness law, under which al-Kidd was detained, is designed to ensure that a witness who might flee remains available. A warrant authorizing his detention was issued by a federal magistrate after FBI agents presented a sworn affidavit that was false in some respects and misleading in others.

The affidavit, for instance, stated that al-Kidd had purchased a one-way first-class ticket to Saudi Arabia for $5,000, when in fact the ticket was roundtrip, coach and cost one-third that amount.

TOTENBERG: preventive detention, arrest without evidence of a crime.

But today, the U.S. Supreme Court ruled that the case against Ashcroft must be dismissed.

Writing for the eight-member court, Justice Antonin Scalia said that Ashcroft's motives are irrelevant. The former attorney general, like other high-ranking officials, is entitled to qualified immunity. That is, he may only be sued if he violated a constitutional or a statutory right and that right was clearly established at the time.

Qualified immunity, said Scalia, gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law. Ashcroft, he concluded, deserves neither label.

With Justice Elena Kagan recused from the case however, four justices, half the court, wrote concurring opinions that seemed to suggest a challenge the material witness statute might someday succeed.

Justice Anthony Kennedy noted that the scope of the law is uncertain. Would it, for example, allow the detention of a law-abiding citizen who's perfectly willing to testify if asked or subpoenaed? The question becomes even more difficult, he opined, if authorities delay obtaining a warrant until the traveler arrives at the airport. These possibilities, said Kennedy, appeared to resemble the facts in this case.

Kennedy's opinion, joined and expanded upon by three other justices, would seem to suggest that the pending lawsuit brought by al-Kidd against the FBI agents in his case might prevail.

Constitutional law scholar Tom Goldstein.

TOM GOLDSTEIN: The reason that this decision is unanimous is everybody wins. The conservatives protect the attorney general, but the more liberal justices and Justice Kennedy hold the door open for a later decision that says you can't use the material witness statute just to hold anybody you like. And if you lie to the magistrate, you can get sued for that too.

TOTENBERG: For now though, the bigger victory belongs to Ashcroft and the Obama administration which argued on Ashcroft's behalf in the Supreme Court.

Richard Samp, who wrote a-friend-of-the-court brief for several former attorneys general, says today's ruling will likely put an end to hundreds of lawsuits still pending against former government officials.

RICHARD SAMP: Based on today's decision, they are going to be breathing a good deal more easily because their cases are likely to be thrown out of court.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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