Consumer Law

Perversions of Freedom and Accountability, Sarah Palin and Supreme Court-Style

By Joe Consumer

?Are you ready to fight for your freedoms?? yelled Sarah Palin to the right-wing Orange County, California crowd on Saturday! 

Just askin', but do we really need to fight for our freedoms here in the USA?  Don?t we have a Constitution?  Was she talking about the Kansas-born doctoral student, ?once a star running back at the University of Idaho,? who was leaving to study abroad but was arrested at Washington?s Dulles airport based on fabrications, handcuffed, strip- searched, shackled (hand and feet), placed in a prison cell with hardened criminals, interrogated without the presence of a lawyer, and made to endure this, sometimes while naked, for 16 days, and never charged with a crime?? 

Doubt it.  That?s because his name is Abdullah al-Kidd.  And he?s African-American.  And he?s Muslim. He?s been fighting ever since this horrendously un-American experience happened to him.  And today, the U.S. Supreme Court said it is taking his case ? and not in a good way.

They?ve taken the case because his claims go all the way up to former Attorney General John Ashcroft.  Ashcroft is being sued for his ?unconstitutional use of a law meant to hold ?material witnesses? ? as a pretext for detaining him because he was suspected of terrorist activities.?  Specifically, Al-Kidd says that Ashcroft?s policies ?encouraged line prosecutors to misuse the material witness statute.?

As the New York Times explained, ?The material witness law is typically used to hold people who have information about crimes committed by others when there is reason to think they would otherwise not appear at trial to give testimony.  Critics say the Bush administration radically reinterpreted the law after the terror attacks of Sept. 11, 2001, using it as a preventive-detention tool.?

Al-Kidd believes ?that prosecutors never had any intention of calling him as a witness and submitted a false affidavit for the purpose of persuading a federal magistrate to issue a material witness warrant. The U.S. Court of Appeals for the Ninth Circuit rejected Ashcroft?s effort to dismiss the case on the pleadings.?

Unfortunately, this sounds faintly reminiscent of the Supreme?s disastrous 5-4 Iqbal decision, which also involved a suit against Ashcroft, and resulted in a ruling that created an "across-the-board, unprecedented increase of what ANYONE bringing ANY KIND of lawsuit must initially show in order to avoid having his/her case tossed.?

In the Al-Kidd case, ?Ashcroft contends that two legal doctrines shield him from the suit. He says he is entitled to absolute immunity, which provides a total shield for government officials for their prosecutorial work. Ashcroft also says he has qualified immunity, which insulates all government officials from suits for damages unless they violated a clearly established constitutional right.? 

Also, apparently, the Ninth Circuit got around the Iqbal pleading requirements by finding that Ashcroft must have been ?aware of allegations that the material witness statute was being abused and thus was obligated to take ?affirmative acts to supervise and correct the actions of his subordinates.?? 

Now the Supremes get to decide.  Look for a Palin amicus brief opposing policies that took away Al-Kidd?s freedom!  (Not).

Full post as published by ThePopTort on October 18, 2010 (boomark / email).