Legal Blanket of Qualified Immunity Gives Ashcroft a Pass

06/04/11

Following the September 11 attacks, the FBI began questioning al-Kidd. Al-Kidd, born in the United States, actually converted to the Islam religion after being raised in a Christian faith. Then, in 2003, when Al-Kidd was getting ready to board a plane en route to Saudi Arabia, he was arrested, shackled and jailed under a material witness warrant.

In the May 31^st npr.org article, ''Supreme Court Throws Out Suit Against Ashcroft'', Al-Kidd was quoted as saying: ''It was probably one of the most humiliating, degrading moments of my life. I could only imagine what people were thinking about me.''

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According to the article, over the course of the next sixteen 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 released, only after agreeing that he would live with his in-laws and check in with federal authorities regularly. However, because of the experience, he suffered damage to his reputation, he lost his job, and his marriage ended. Incredibly, he was never called to testify.

Al-Kidd filed a suit against former Attorney General Ashcroft, specifically stating that following 9/11, Ashcroft had publicly stated he would aggressively use the material witness statute to ''take terrorism suspects off the street,'' per the article. The material witness law was designed so that witnesses who were deemed a flight risk would be available for trial.

Ashcroft's use of the material witness statute, al-Kidd claimed, had ''unconstitutionally transformed a statute intended to ensure that witnesses appear at trial into a statute Congress had refused to enact, authorizing preventive detention without evidence of criminal activity.''

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However, in dismissing the suit against Ashcroft, the Supreme Court noted that the former attorney general, along with other high-ranking officials, is entitled to qualified immunity, which means he can only be sued ''if he violated a constitutional or statutory right, and that right was clearly established at the time.''

Justice Antonin Scalia wrote: "Qualified immunity 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 was deemed neither because ''at the time of al-Kidd's arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional.''

Richard Samp, who wrote a friend of the court brief for several former attorneys general was quoted as saying: ''There are hundreds of former government officials who are facing damage claims based on their alleged misconduct while they were in office...they are going to be breathing a good deal more easily because their cases are likely to be thrown out of court.''

Sorry kids, I think we missed the bigger picture here. Qualified immunity aside, let's consider for a moment what could only be described as unconscionable treatment of another human being. Al-Kidd. He's the victim here. Not Ashcroft. And while the legal blanket of qualified immunity will undoubtedly keep Ashcroft warm, it's a disturbing commentary on where it appears this country's priorities and values lie.