The court has long protected government officials from personal liability for their official actions unless it can be shown that they have violated a person’s constitutional rights and that the right was “clearly established” at the time of the conduct.
Justice Antonin Scalia said that was not the case when Ashcroft and the Justice Department used the federal “material witness” statute to detain Abdullah al-Kidd, a U.S. citizen, in a terrorism investigation. Kidd neither testified in a trial nor was charged with a crime, but he was treated as a criminal suspect during his more than two weeks of detention.
“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” Scalia wrote. “When properly applied it protects all but the plainly incompetent or those who knowingly violate the law.
“Ashcroft deserves neither label.”
All eight justices hearing the case agreed that Kidd’s suit against Ashcroft could not go forward; it was the second time in recent years that the court has shielded Ashcroft from lawsuits arising from his role in the fight against terrorism as attorney general from 2001 to 2005. (Justice Elena Kagan sat out the case because she had worked on Ashcroft’s behalf as President Obama’s solicitor general.)
But four of the eight raised questions about the government’s use of the material-witness statute and complained about the treatment of Kidd, who was, in the words of Justice Ruth Bader Ginsburg, “kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs and waist.”
Justice Anthony M. Kennedy, who joined Scalia’s opinion in full, nonetheless wrote separately to say that the decision “leaves unresolved whether the government’s use of the Material Witness Statute in this case was lawful.”
Kidd, a onetime University of Idaho football star, was born Lavoni T. Kidd. He converted to Islam in college. He was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study and where he currently teaches.
The government persuaded a federal judge to issue a warrant for Kidd’s arrest by saying he was necessary to the investigation of Sami Omar al-Hussayen, who was eventually indicted on charges of supporting terrorism. Kidd was never called to testify against Hussayen, who was acquitted of the most serious charges.
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