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Supreme Court takes Ashcroft off the hook but leaves questions

Tis article first appeared in the St. Louis Beacon, June 1, 2011 - WASHINGTON - When FBI agents arrested Abdullah al-Kidd at a Washington-area airport in 2003 as he prepared to board a plane to Saudi Arabia, he was wanted as a material witness in an ongoing terrorism inquiry.

But Kidd, a U.S. citizen and former University of Idaho football player, was neither called to testify nor charged with any crime after he was held for 16 days in high-security cells, strip-searched and subjected to travel restrictions for two years after his release.

Outraged, Kidd in 2005 sued former Attorney General John D. Ashcroft -- who had left office the previous fall -- for violating his Fourth Amendment rights by allegedly authorizing the Justice Department to use the material-witness warrant as a pretext for preventive detention. A federal judge denied Ashcroft's motion to dismiss the suit and a federal appeals court affirmed that decision, saying Ashcroft could not claim immunity.

But on Tuesday, the U.S. Supreme Court ruled that Ashcroft could not be held personally liable for damages. In a majority opinion written by Justice Antonin Scalia, the court held that Ashcroft was immune because courts, at the time Kidd was arrested, had not yet "clearly established" that using a material-witness warrant as a pretext for preventive detention violated the Fourth Amendment. That amendment bars "unreasonable searches and seizures" and requires probable cause for warrants.

The ruling was widely viewed as a personal victory for Ashcroft because all eight participating justices agreed that he should be immune from money damages. But several legal experts and editorial pages asserted Wednesday that the doubts expressed in separate opinions by three other justices leave open questions about the use of the material-witness law and the question of whether it was invoked in Kidd's case in a constitutional manner.

An expert on national security law, Robert Chesney, wrote in his blog that "at first blush it seems a huge win for the government insofar as a majority of the Court [all but (Ruth Bader) Ginsburg, (Stephen) Breyer and (Sonia) Sotomayor] reject the proposition that the Fourth Amendment forbids" detaining persons for reasons other than securing their testimony. "But on closer inspection the jury remains out."

Chesney contends that Justice Anthony Kennedy's separate opinion suggests that "situations in which the government cannot really make a plausible showing of its testimonial interests . . . will be relatively risky to pursue or at least difficult to actually succeed with." He hints that federal law-enforcement officials might be more cautious in the future in using the material-witness law to detain witnesses who pose no risk of flight.

A New York Times editorial asserted that the separate opinions by Kennedy, Ginsburg and Sotomayor, all joined by Breyer, "suggest that judges must hold the government to much stricter use of the statute and that, if required to decide the question, these justices might well rule that the use of the law to detain suspects who pose no flight risk is unconstitutional."

So far, Ashcroft -- a former Missouri governor and U.S. senator -- has not commented on the decision. Asked for comment Wednesday by the Beacon, a spokesman for Ashcroft referred the inquiry to the Justice Department because "they argued the case." But a Justice spokesperson had no comment on the ruling.

In an interview in December, Ashcroft told the Beacon that he and Justice Department, which represented his position in court, felt strongly that an attorney general should not be subject to lawsuits seeking money damages. "I'd prefer not to be in court for the rest of my life. I've still got lawsuits hanging over me," he said.

"The reason why I think it's being pursued by the Justice Department is that they don't think that every Tom, Dick and Harry should be able to haul the attorney general into court," Ashcroft said.

Asked if his legal fees related to his former job are high, Ashcroft responded: "Not so bad. But I know that I had one 90-day period when I spent I think $44,000 out of my own pocket" on legal fees. "Not being defended by the government."

While lawsuits often name attorneys general, Ashcroft told the Beacon that the years after the 9/11 attack when he occupied that position presented "a unique setting and circumstances" for him. "If every time a prosecutor prosecuted somebody, and they had a chance to sue them, you wouldn't want it," Ashcroft said. "Prosecutors could be intimidated by wealthy people or others. And if they waited until the guy's out of office and a subsequent administration chose not to defend them . . ."

As for the material witness issues raised in the Kidd case, Ashcroft said: "Look at it for what it is: whether a material witness warrant issued by a federal judge was gained as a result of improper motivation."

He added: "If it is supervised by a federal judge, and issued by a federal judge, on the basis of what a federal judge makes a determination is adequate and sound -- that ought to do it."

Rob Koenig is an award-winning journalist and author. He worked at the STL Beacon until 2013.

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