Supreme Court: ‘Ashcroft not plainly incompetent’

John Ashcroft (Mark Wilson / Getty Images / AFP)
When Abdullah al-Kidd arrived at Washington’s Dulles Airport in 2003, he was planning on spending time in Saudi Arabia to study language and religion; a former University of Idaho football star, al-Kidd was traveling abroad on a scholarship.

­That was the plan, at least. 

Al-Kidd says that in lieu of boarding his plane, he was handcuffed, strip-searched and transported to three different jails across the US over the course of over two weeks. Iron shackles were placed on his legs and he was forced to stand nude in front of men and women—some convicted criminals—as he was shuffled between institutions for 16 days.

The “war on terror” perpetrated by George W Bush-appointed Attorney General John Ashcroft made it possible for al-Kidd, born in Wichita in 1973, to be held as a material witness. Ashcroft’s post-9/11 policy allowed for the athlete to be detained if officials thought he could have information that would be crucial to a case. Al-Kidd, however, was never charged with a crime.

Now a lawsuit filed on behalf of al-Kidd against Ashcroft has been thrown out after the Supreme Court voted to reject the case.

In 2009 the 9th Circuit Court of Appeals supported a suit against Ashcroft, which cited that the government could not under the Constitution “arrest and detain American citizens for months on end … merely because the government wishes to investigate them for possible wrongdoing." Allegedly officials told a magistrate judge that it would imperative that al-Kidd testify in a case against fellow Idaho-resident Sami Omar al-Hussayen, who had been charged with visa fraud and making false statements; al-Hussayen was never convicted of those charges and al-Kidd was never even called to speak. The Obama administration filed an appeal on behalf of Ashcroft, and this week’s Supreme Court ruling has overturned the decision made two years earlier in a California courtroom.

The federal lawsuit made claims that’s al-Kidd’s Fourth Amendment rights were violated as he became a victim of unreasonable search and seizure. This week’s decision, however, said that while the 9th Circuit found that Ashcroft could be held responsible, the Supreme Court thinks otherwise. This week’s ruling reversed the decision that had denied Ashcroft immunity from liability in the case.

Justice Anthony Scalia wrote of the case that that type of immunity tested in Ashcroft v. al-Kidd  “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.” Adds Scalia, however, “Ashcroft deserves neither label."

A separate statement from Justice Anthony Kennedy noted that, while the court found Ashcroft free of liability, the Supreme Court could not fully say whether the use of the material-witness law in this situation was justifiable. Justice Ruth Bader Ginsburg wrote that al-Kidd has claims still pending against the FBI agents who arrested him.

Adds Ginsburg, al-Kidd’s case is a “grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times."

Over 30 men, mostly Muslim like al-Kidd (who converted in the 1990s), have been detailed as material-witnesses since 9/11.