US high court debates immunity of top Bush official

John Ashcroft
© AFP/Getty Images/File Alex Wong

WASHINGTON (AFP) – The US Supreme Court on Wednesday heard a complaint brought by a Muslim American, arrested and held without charge in 2003, who is challenging the immunity of John Ashcroft, the Bush-era law enforcer after the 9/11 attacks.

The court will announce in June whether or not it upholds an appellate court ruling that president George W. Bush’s attorney general Ashcroft can be sued and held personally responsible for the policy of preventively detaining or investigating suspects as Washington carried out its “war on terror.”

The case began in March 2003 when Abdullah al-Kidd, a Muslim convert born in the US state of Kansas, was arrested under the “material witness” law.

The Bush administration insisted al-Kidd was arrested and detained because his testimony was vital for a terror prosecution, and that he was a flight risk.

But Al-Kidd and civil libertarians argued the law was abused so that US authorities could hold people without probable cause as terror suspects.

Al-Kidd spent two weeks in solitary confinement at US prisons, and has said he suffered daily strip searches and was detained under harsh conditions including 24-hour illumination of his cell.

He was then placed on probation for 15 months.

He was never charged with any crime and was never called to testify at the trial for which he was arrested, which resulted in a verdict of not guilty.

Al-Kidd’s lawyer said Wednesday that US officials exceeded their authority with the material witness law by using it as a pretext for “preventive detention” in the wave of paranoia that gripped the United States in the aftermath of the September 11, 2001 attacks.

“The government, after 9/11, specifically asked Congress for preventive detention powers (in anti-terror cases) and those powers were denied,” Lee Gelernt told the court.

Arguing the case for Ashcroft was Neal Katyal, the acting solicitor general in President Barack Obama’s administration which backs immunity for senior officials.

“The attorney general and prosecutors did their job,” Katyal argued, noting that al-Kidd also separately sued prison officials for subjecting him to brutal treatment.

Shortly after the worst terror attacks on US soil, Ashcroft told reporters that the “aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”

If the court rules in favor of immunity, it would follow a principal it ruled on in a similar case two years ago, when it voted five-to-four that the FBI director and other Bush-era officials, including Ashcroft, could not be sued over alleged abuse of terror suspects.

But the justices could also move to extend that to the principle of “material witness.”

“In the al-Kidd case, DoJ (Department of Justice) wants a ruling on whether it can use the material witness statute” in order to “obtain warrants to detain citizens for national security reasons,” legal specialist Orin Kerr said on the Supreme Court-focused website SCOTUSblog.

“If the court gives the DoJ a thumbs up, DoJ doesn’t have to go back to Congress and can just use the material witness statute in the future,” Kerr said.