Supreme Court lets Ashcroft off the hook

By Kenneth J. Theisen

On May 31, 2011 the U.S. Supreme Court allowed Attorney General John Ashcroft, one of the many top criminals in the Bush regime, to escape legal liability for the wrongful arrest and detention of a U.S. Citizen under the federal material witness statute.

The American Civil Liberties Union had filed a lawsuit against Ashcroft in 2005 on behalf of Abdullah al-Kidd, a U.S. citizen who was improperly arrested and abusively detained in 2003 as a material witness in a Visa case. The ACLU’s lawsuit charged that al-Kidd’s arrest was part of a pattern of pre-textual material witness arrests that occurred after Sept. 11, pursuant to a nationwide policy instituted by Ashcroft.

The law was used as a “legal excuse” to arrest many people who otherwise could not legally be arrested. Al-Kidd was just one of the many victims of this abuse of the law by the U.S. government under the direction of Ashcroft. The Fourth Amendment prohibits the arrest of criminal suspects without probable cause, but Ashcroft and other Bush regime officials used the material witness law to circumvent the requirement of probable cause and the Constitution.

The federal material witness statute allows U.S. law enforcement to detain a witness whose testimony prosecutors believe is material at a criminal trial if it believes that witness won’t testify voluntarily. Al-Kidd was arrested and detained ostensibly so he’d testify as a material witness in the trial of Sami Omar al-Hussayen, who attended the same university as al-Kidd and was charged with visa fraud. Yet despite never being called to testify in the case or charged with a crime, al-Kidd was detained for 16 days, moved to three separate federal detention facilities in three different states and was abused by being held naked and shackled hand-and-foot.

In the court’s decision no member of the Supreme Court held that the government’s use of the material witness statute was lawful in al-Kidd’s case. In addition four of the justices separately wrote that they had real questions about the statute’s use in his arrest and detention. Nevertheless the court held that Ashcroft who was in charge of the abusive use of the statute could not be held legally liable for his actions.

Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project stated, “The Court has unfortunately let Attorney General Ashcroft off the hook, but half of the justices who participated in today’s decision expressed real questions about how the government used the material witness statute in al-Kidd’s case. Our hope is that those questions will lead to a serious examination moving forward of the use of the statute as a tool for preventive detention.”

Don’t count on any such serious examination. Time and again the Obama administration, the courts, and Congress have not only failed to hold Bush regime officials accountable for their crimes, but in fact they have “legalized” those crimes or failed to hold any real investigation into them.  The recent passage of the extension of the PATRIOT Act is just one of the many examples of this.  The failure to close GITMO is another.  Illegal wars have been continued and expanded. Massive surveillance, extraordinary rendition, illegal and indefinite detention, torture, assassinations, etc. are all now official government policy under the Obama administration.

The abuses and crimes of the Bush regime and their continuance under Obama will not be stopped by any official action of the U.S. government. Only a massive movement of millions of people can halt these crimes and hold those responsible for them accountable. This latest court decisions is just one more example of the system continuing to “legalize” these crimes and abuses.