Will SCOTUS Give Ashcroft Immunity in Ashcroft v. al-Kidd?

SCOTUS decided today to take John Ashcroft’s appeal of a 9th Circuit decision finding that he did not have immunity from suit in using the material witness statute to illegally hold someone without probable cause.

The Supreme Court, finishing its first sitting of the new Term, agreed on Monday to hear a single new case, a plea by former U.S. Attorney General John Ashcroft for immunity to a lawsuit claiming he misused a federal anti-terrorism law.   The Court, among denied cases, refused to hear a new challenge to the denial of voting rights to individuals when they are serving time in prison.

The Court limited its review of the new terrorism case (Ashcroft v. Al-Kidd, 10-98) to two issues: whether Ashcroft is entitled to absolute immunity in a case involving a detention under the federal “material witness” law, and whether he is entitled at least to qualified immunity to a Fourth Amendment claim.  The Court did not grant review of a third issue, involving the former Justice Department chief’s liability for false statements by a federal agent — apparently because the challenger has dropped that claim.  Justice Elena Kagan did not take part in the Court’s action, presumably because she had some prior role in the case as U.S. Solicitor General.

This is worrisome, not just because it’s another example of how Elena Kagan’s recusal on all these cases give the court an inherent conservative bias (even assuming Kagan will be better on executive power issues than I think she will be), but because by taking the case SCOTUS seems to suggest the 9th Circuit decision deserves more scrutiny.

The case concerns the arrest and detention for 16 days of Abdullah al-Kidd. After he was released, he was held on what amounts to probation for over a year, though he never did testify.

ACLU’s lead attorney on the case, Lee Gelernt, seems to have the same worry: Gelernt is pushing to have the 9th Circuit decision upheld.

Arresting and detaining someone for an extended period without probable cause to believe he violated the law goes against the most basic principles on which our country is founded. The appeals court made it very clear that former Attorney General Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution’s longstanding rule that a suspect may not be arrested without probable cause of wrongdoing. The appeals court opinion was the right one, and the Supreme Court should uphold that decision. Government architects of policies that so clearly defy the Constitution must be held accountable to the law.

Presumably, immunity for Ashcroft here will extend to other Administration officials who trample rights in the guise of fighting terrorism.

  1. bmaz says:

    Let us be honest, unlike the namby pamby SCOTUS blog report, about what is going on with the cert grant in al-Kidd. The Supremes are taking this case, and are doing so gladly, because they want to give Ashcroft, and by extension the Federal government, immunity. That is exactly what they are going to do. And Kagan not participating does not mean a damn thing, because if she was, she would just be another vote with the conservative majority to grant immunity.

    And one other point must be made, it is the Obama Administration again going to every length imaginable to grant immunity, stop investigation, preclude litigants from seeking redress in court, and otherwise creating an imperial Executive Branch that cannot under any circumstances ever be held accountable for their actions no matter how craven the conduct.

    • redX says:

      And one other point must be made, it is the Obama Administration again going to every length imaginable to grant immunity, stop investigation, preclude litigants from seeking redress in court, and otherwise creating an imperial Executive Branch that cannot under any circumstances ever be held accountable for their actions no matter how craven the conduct.

      Don’t forget just not giving a shit and not starting investigations. Not like Bush team had lots of investigations going.

      Hell Dems have sucked so bad Libs have not even had much time to complain about this issue with all the other AllBark Obama shock-and-awe.

  2. Mary says:

    SCOTUS granting immunity to Ashcroft on this also takes another step towards implementing the “forever detention of non-combatants with funny names” which is ironically becoming the Obama doctrine. Or not so ironically.

  3. emptywheel says:

    Well, it’ll only be ironic after John Roberts presides over Obama’s impeachment. That’s when Barack Hussein Obama might start thinking twice about this.

  4. phred says:

    So what happens if SCOTUS splits 4-4? No decision? No precedent? Does the SCOTUS have any tie-breaker mechanisms?

    • BayStateLibrul says:

      I’m not a lawyer, but according to Balkinazation?(sp)

      “The Supreme Court can function perfectly well with eight Justices on a case. The only effect of a 4-4 outcome is that the lower court decision stands. That can’t be a problem because it’s the result that occurs in the hundreds of cases the Court declines to hear each term. And it’s the result in the millions of cases that the Court is not even asked to review.

      Sure, a 4-4 decision wastes some resources: lawyers brief and argue the case, the Justices review the filings and participate in the argument, columnists speculate about the outcome, and spectators line up in the cold. But as far as government waste goes, the resources a 4-4 case squanders are not terribly high.

  5. onitgoes says:

    Thanks v. much for the post, and also to good responding commentary. Not surprising; more of the same old. Yes, there may be a sense of schadenfreuda when John Roberts hands Barack Hussein Obama his walking papers, as it were.

    Kagan would’ve dived in and voted with the conservatives, so her recusal is essentially meaningless in this case. She would’ve supported what they did.

  6. gannonguckert says:

    Ya know, ol’ John Roberts and crew could save a lot of time and money if they’d just go ahead and issue the ruling. They know and we know what it’s going to be.

  7. Jo Fish says:

    Goddamnit, Marcy. We have to look forward not backward… or is forward not forward or backward not forward? Or is it just whatever BHO thinks will win him the most/least republican enmity in any particular instance of anything?

    Besides, now that Kagan has recused herself, someone will have to wake up Clarence fucking Thomas, the largest waste of skin to ever sit on the Supreme Court. Oh, wait, his clerks will just cut and paste Scalito’s decision and append his name to it. No need for actual consciousness. My bad.

  8. carlgordon says:

    Tranquility? Serenity? Why dost thou evade me? As I settle taut and tidy ‘neath the banyan tree, ochre striped macaques and red-assed baboons cavort with frantic abandon ‘bove me head. And still, chaos reigns throughout the land, the “internets”, and of course, within me noggin’, wi’ out unnecessary floggin’. There, I rule the roost, with only chicken shit below me. But out there, me thinks I espied too many chicken shits, none that say “pull”, eh, but quite a few that answer to “press”. I know, I know, it takes a little patience and perhaps a wee dram to penetrate my clever iambic pentameter, as I am given to waxy poetry, rhymed and sloshed with 15 year old liquidity. Such is me lot. But these baggers and press, such a thick bunch and given to all things stupid, lock, stock and barrel. The maiden’s head and the weasel’s tail, and telling a tale told with much alack and alacrity; truth stressed and stretched on the gerund, or alas, lost in the gravy.

    My only solace is perhaps that intellect win out over balderdash, or maybe just a vision of a tender lass, whose summer thin shift allows the setting sun to shine through the woof and warp of a poorly woven sheer fabric, as she stands on the hill, giving me gaze in a coveted lustful manner; her thighs inscribed with the graphic eloquence of an illuminated script of Medieval gospel or bronze age fairy tale. They’re out there talking polls, I’m seeing visions of Joanna as I try in vain to satisfy the Greek chorus with my plaintive bleating, as they toss the rotten vegetables of their own failed schemes at me every night on the evening “news”. They sure got a lot of gall! These visions of Joanna kept me up past the dawn (Sorry Bob). Somebody please tell me what salvation is like after a while. Jeez, I can’t find my knees.

  9. redX says:

    They managed to cover up those boobs (see picture for thread), then the crimes, and now they will finish off making them legal.

    As Turley said on MSNBC… Obama wonders why people are “upset” with them. And that its beyond upset – he thinks its “disgusting” and “mark my words” this will happen again and lead to worse things.

    Every time the R’s do something drop dead stupid and the Dems get my vote by default – they pull more of this shit.

  10. redX says:

    Oh, and since it may have been missed here, on in this specific thread. The decision would set the precident that the AG is above the law. Guess it makes sense if you think the POTUS is above the law. Its the Bush-Yoo-Obama position.

  11. TheOracle says:

    My God, what the hell is happening to the Obama administration?

    Defending criminal Republicans from the Bush/Cheney administration who committed “high crimes and misdemeanors,” a defense spearheaded by a former professor of constitutional law, President Obama.

    I don’t get it. I do, however, get the impression that President Obama, if he’d been in the Senate or House as the Watergate scandal and illegal CREEP activities blew up in Nixon’s face, he’d have been saying let’s look forward, not backward, giving the criminal Republicans back then a “get out of jail free” card just like his administration is giving all the criminal Republicans from the previous Bush/Cheney administration a “get out of jail free” card now.

    Ptui, so much for his being a constitutional law scholar. Just as I’m beginning to wonder if he’s a Democrat in reality (more DINO than Democrat, more Republican than Democrat).

    And yet, I’m still voting straight Democratic Party ticket this election. Come 2012, though, I do hope a more liberal progressive Democratic Party candidate challenges President Obama in the primaries. I didn’t expect Obama’s idea of “change” to mean expanding Bush’s and Cheney’s police state policies instead of changing these criminal Bush/Cheney policies in the other direction, shrinking this conservative totalitarian overreach, standing up for the rule of law and the U.S. Constitution, as I believed any constitutional law scholar would (you know, like Jonathan Turley would if he were president).