"Ashcroft: Preventive Detention Lawsuit..."

Former AG John Ashcroft v. "Illegally Detained U.S. Citizen"

Background: A federal appeals court has ruled that Ashcroft can be sued by people who claim they were wrongfully detained as material witnesses after 9/11, and the court called the government practice "repugnant to the Constitution" with this statement from Judge Milan D. Smith, Jr., who wrote:

"We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."

Judge Milan D. Smith Jr. — he nominated to the court by President George W. Bush on February 14, 2006, and he is the brother of former GOP U.S. Sen. Gordon Smith from Oregon .

The ruling allows Abdullah al-Kidd, a U.S. citizen born in Kansas, and one who changed his name and religion to Muslim, to proceed with a lawsuit that claims his constitutional rights were violated when he was detained in 2003 as a material witness in a federal terrorism case.

The al-Kidd case in part from the complaint to the court as filed by his lawyers, reads:

"Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest."

"Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former US Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice, unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or pre-emptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled, Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court."

Glenn Greenwald at Salon.com writes a great piece about this case [click here]. This summary is for the layman — it is very easy to understand as follows:

The real significance of the Ashcroft case is that it highlights the dangers and evils of preventive detention – an issue that will be front and center when Obama shortly presents his proposal for a preventive detention scheme, something he first advocated in May.

What Ashcroft is accused of doing illegally is exactly the same thing Obama wants the legal power to do (except that Obama's powers would presumably apply to foreign nationals, not U.S. citizens): Namely, order people imprisoned as terrorist suspects – “preventively detained” – where there is insufficient evidence to prove they committed any crime. Where is the justice there – to hold someone on a hunch or whim and not cause to prosecute?

I would conclude: Wm. Blackstone would turn over in his grave witnessing what is going on now in this regard as shown by this ruling.

The Obama DOJ must reassess it's current view of "preventive detention." It is flat out wrong, totally un-American, and is not who we are, is it? (This is not a rhetorical question).