The U.S. Department of Justice under President Barack Obama is helping defend former Attorney General John Ashcroft against a lawsuit that claims the Bush administration official should be held liable for misusing the law during the post-Sept. 11 hysteria. In taking Ashcroft’s side, the Obama administration appears to be hoping to shield its own officials from legal assaults for controversial decisions.

 

What is disturbing about the Obama position is that the Justice Department is not arguing that what Ashcroft did was legal, but rather that, as Attorney General, his actions should be immune from prosecution.

 

The case against Ashcroft, now before the U.S. Supreme Court, was brought by Abdullah Al-Kidd, formerly known as Lavoni Kidd during his football days at the University of Idaho. In 2003, the American citizen who had converted to Islam was arrested and shackled at Washington’s Dulles International Airport while trying to catch a flight to Saudi Arabia. Kidd had purchased a roundtrip ticket to study in the Muslim country, but Ashcroft’s office lied to a federal judge when it sought a warrant for Kidd’s arrest by claiming Kidd had purchased only a one-way ticket out of the U.S.

 

He was not detained as a suspect of a crime, but supposedly as a “material witness” in another case. Kidd wound up spending months in detention, and his attorneys with the American Civil Liberties Union have accused Ashcroft of grossly abusing his authority as attorney general.

 

Ashcroft has twice failed to have Kidd’s suit dismissed, first before a federal judge in Idaho and then in front of the 9th Circuit Court of Appeals. Judge Milan Smith said it was “repugnant to the Constitution” for the government to say it “has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because they have committed a crime, but merely because the government wants to investigate them for possible wrongdoing.”

 

The U.S. Supreme Court has agreed to take up the case early next year. Because of her earlier involvement in the case as a representative of the Obama administration, Justice Elena Kagan has announced that she will recuse herself from the decision.

 

In a similar case, Ashcroft v. Iqbal, the Supreme Court in June 2009 ruled that Ashcroft could not be held liable for the abuse of a post-9/11 prisoner, Jawaid Iqbal because Iqbal could not prove that he had been abused.

-Noel Brinkerhoff

 

John Ashcroft's Immunity (by Lawrence Davidson, Reader Supported News)

Supreme Court to Decide Civil Liberties Suit against John Ashcroft (by David Savage, Chicago Tribune)

Abdullah al-Kidd v. John Ashcroft, et al. (American Civil Liberties Union)

Appeals Court Denies Ashcroft Immunity in Arrest of Muslim American as Material Witness (by Noel Brinkerhoff and David Wallechinsky, AllGov)

U.S. Appeals Court Allows Ex-Detainee to Sue Attorney General John Ashcroft (by Noel Brinkerhoff, AllGov)