I didn't forget John Ashcroft in the list : the "soaring Eagle" was the main target yesterday. And according to US 9th Circuit Court of Appeals, former Attorney General is not only not protected by immunity and thus prosecutable (by Abdullah Kidd or any other victim), but very much likely to be sued since what happened under his watch as chief Destructor Of Justice was "repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history" :
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint.This document also tells us about the debate and dissents within the court (see "gotcha!"), but on the Judicial Richter's Scale, this is not exactly what I would call "word mincing".
Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in
sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the
outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.
(AL-KIDD v. ASHCROFT / "ABDULLAH AL-KIDD, Plaintiff-Appellee vs JOHN ASHCROFT, Defendant-Appellant" - ca9.uscourts.gov 20090904)*
Even Eric Holder and Barack Obama were less direct. They are politicians, but they don't have to speak for Justice. Here, Justice spoke, and rather loudly : this is not the crime of the century but a crime unseen for at least two centuries !
Aggravating circumstances : the crime was perpetrated by the very people in charge of promoting justice ! "It is only the misuse of the statute, resulting in the detention of a person without probable cause for purposes of criminal investigation, that is repugnant to the Fourth Amendment."
Actually, torture, Abu Ghraib, illegal abductions, and all other terrible abuses are nothing compared to this ultimate "misuse" / abuse of power.
This abuse of power has a name : TYRANNY. And the judges dared pronounce the word clear and lound : "the Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny.".**
I'm glad that these self evidences are eventually out in the open.
Coming from "not-GOP-unfriendly" judges, that's even greater news for democracy in the US.
Behold ! Change is coming !
* See also "Ashcroft can be sued over arrests, appeals court rules" (LA Times 20090905)
Memo : Al-Kidd v. Ashcrof claims :
"Al-Kidd asserts three independent claims against Ashcroft:
- First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was
impracticable to secure the witness’s testimony—in other words, in violation of the express terms of § 3144 itself—and that al-Kidd was arrested as a result of this policy (the § 3144 Claim).
- Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ would arrest individuals who may have met the facial statutory
requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim).
- Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).
Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims.
The complaint also quotes the public statements of a number of DOJ and White House officials implying or stating outright that suspects were being held under material witness warrants as an alternative means of investigative arrest or preventative
detention. In addition to this direct evidence, the complaint cites a number of press reports describing the detention of numerous Muslim individuals under material witness warrants.
The complaint further alleges that the policies designed and promulgated by Ashcroft have caused individuals to be “impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been impracticable to secure their testimony voluntarily or by subpoena,” in violation of the terms of § 3144."
** maybe as a compensation for their mention of "abuses of the British Crown", the judges summoned Sir William Blackstone, a British jurist who died in 1780 (between the US Independence and the US Constitution) : "To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
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