As anticipated, the Obama DOJ has indeed requested that the Supreme Court grant John Ashcroft immunity from lawsuit for ostensibly abusing his power to hold people without charges or trial. Scott Horton:
The Department of Justice has persuaded the Supreme Court to take a look at Ashcroft v. Al-Kidd, in which it argues that former attorney general John Ashcroft cannot be sued for the mistreatment of an American citizen held by use of a material witness warrant under false premises. The courts below, heavily dominated by conservative Republican appointees, found that the challenge should go forward; the evidence of serious misconduct by Justice officials was sufficient to get to a trial.
You read that right; the conservative-dominated lower courts say the lawsuit should be allowed. It’s expected that Justice Kagan will recuse herself and the eight-member Court will prevent the suit from going forward, thus enshrining Ashcroft’s abuses as “the way we roll at the DOJ.” Think that new power will get used going forward?
Again, the background: It’s 2003 and Ashcroft wants to round up Muslims, and appear to do so. He announces that he will hold Muslims under the “material witness” statute, a clear abuse, since if he does, he won’t have to either accuse them or bring them to trial. In other words, indefinite summary detention under a law meant to protect witnesses.
He grabs a former Univ. of Idaho football star–turned–Muslim named Lavni Kidd (now Abdullah al-Kidd) as al-Kidd was boarding a plane to Saudi Arabia:
Justice Department officials claimed that he was needed as a material witness in a case against another University of Idaho student, Sami Omar al-Hussayen, who was charged with visa fraud. It does not appear that Kidd knew anything relevant to the visa fraud case, federal authorities never called him to testify, and the prosecution of Hussayn, which rested on a feeble evidentiary case to start with, failed before an Idaho jury.
Al-Kidd’s real crime appears to be his new religion and his opposition to the invasion of Iraq.
The DOJ is arguing that even though lower courts think al-Kidd’s suit against Ashcroft has plenty of evidence indicating it should go forward (there’s more evidence in the Horton story), Ashcroft should be free from lawsuit “because of the doctrine of prosecutorial immunity, even though Kidd was not being prosecuted and the Justice Department concedes it never had any basis for a prosecution”.
Your Holder DOJ at work.
Two points. First, here’s what was done to this “material witness” during his confinement:
Kidd was moved to three separate detention facilities in three different states. He was treated brutally, according to procedures that the Justice Department approved for use on terrorism suspects. He was subjected to a withering interrogation by FBI agents who demanded to know why he had converted to Islam. He was stripped naked, subjected to body cavity searches, shackled hand and foot, and incarcerated with violent convicts.
Would you call that abuse of the material witness statute? Simple common sense says Yes.
Second, we need to separate three entities — the Obama administration, AG Eric Holder, and the Bush-embeds in the Justice Dept. In theory, Obama should not be directing the activities of the Attorney General. Though the political arm of the Republicans under Bush II owned the DOJ, this is relatively new. Holder makes a judgment as a lawyer under the Constitution, not as an employee of the political party in charge.
In addition, sadly, it may be true that even if Obama is not personally in charge of the DOJ, Mr. Holder may not be in complete control as well. There are plenty of Republican lifers in that department, doing what they always do. To what degree is Holder reining them in? I wouldn’t assume we know that answer.
This stunning case, for example — in which the two-year-long internal criminal probe into the U.S. attorney’s scandal ended in a “whitewash” — has at its core, Nora Dennehy, a serial Republican appointee assigned to the probe by AG Mukasey. The “whitewash” report was issued in 2010, under Holder. Your Bush II–embeds at work.