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Thursday, September 22, 2011

Worst Decisions, #7: Ashcroft v. al-Kidd

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #8, we talked about J. McIntyre Machinery v. Nicastro, which protected foreign corporations from accountability when their products cause harm.

Worst Decisions of the 2010-11 Corporate Court Term: #7 Ashcroft v. al-Kidd
Giving the Seal of Approval to Harsh Imprisonment of Americans under False Pretenses

The Supreme Court threw out a lawsuit brought against former Attorney General John Ashcroft by Abdullah al-Kidd, an American citizen who was detained for 16 days in harsh conditions.

Al-Kidd was accused of no crime and responded with full cooperation to several FBI requests for information.  Nonetheless, federal law enforcement, which had no intention of obtaining testimony, detained al-Kidd using a material witness warrant supported by an affidavit that included several falsehoods and omissions. As a result, al-Kidd was held in a cell that was lit 24 hours a day and was subjected to strip searches, body cavity searches, and shackling of his wrists, legs, and waist.

All eight justices who heard the case held that Ashcroft was entitled to qualified immunity because there was no “clearly established” law stating that using a material witness warrant in the way he used it was illegal.  Nonetheless, Chief Justice Roberts and Justices Scalia, Thomas, and Alito sought to go even further.  They stated conclusively that Ashcroft’s actions were lawful despite the federal government’s use of false and misleading information to obtain the warrant.  For example, law enforcement stated that al-Kidd purchased a first-class one-way ticket to Saudi Arabia instead of the coach round-trip ticket he actually purchased.  Law enforcement also did not tell the magistrate that they had no intention of asking al-Kidd to testify or that his entire family lived in the United States, where he was born and raised.

Justice Ginsburg, in an opinion concurring in the judgment that was joined by Justices Breyer and Sotomayor, described the Court’s assumption as “puzzling.”  Citing the omissions and falsehoods used to obtain the warrant, she added that “there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination (that Ashcroft acted lawfully) was neither necessary nor proper.”

Ashcroft v. al-Kidd is number seven on AFJ”s Worst Decisions of the Corporate Court Term because it denied justice to an American citizen who suffered profound harm at the hands of his government and because the leading four-person opinion needlessly approves deceptive tactics used to unfairly arrest of innocent Americans.  

1 comment:

Marcia Simpson-James said...

I was subjected to similar treatment to al-Kidd in England. This matter is being blocked by the British courts. This is because, it would throw up a number of issues over the use of deceptive techniques used by the police, the government and the secret intelligence services in the UK.