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The 9th Circuit Court of Appeals just handed down its decision in the case of Al-Kidd v. Ashcroft, and smacked John Ashcroft down hard for the use of material witness rules to detain Muslims after the attacks of September 11, 2001.

All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.

The Court ruled that John Ashcroft may be held liable for people who were wrongfully detained as material witnesses after the Sept. 11 terrorist attacks.  It ruled that his claims of both absolute and qualified immunity were invalid.  And the majority opinion went to some length to describe just how outrageous this abuse was:

Almost two and a half centuries ago, William Blackstone, considered by many to be the preeminent pre-Revolutionary War authority on the common law, wrote:

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.

The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a "dangerous engine of arbitrary government" against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.  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. 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.

What makes this decision so remarkable is not merely the clarity of the sentiments expressed.  What makes it so remarkable is that it was authored by Milan D. Smith, Jr., appointed to the Ninth Circuit by George W. Bush and confirmed in 2006.  Judge Smith is a graduate of Brigham Young University, an active Mormon, and brother of former Republican Senator Gordon Smith.  In other words, a leading conservative legal voice.

This is what honest evaluation of the legality of the methods of the Bush administration looks like.  This is how obvious the violations of the most basic rights of Americans their policies were.

And this is what, to date, we have not received from our Democratic representatives at the Federal level.

Originally posted to Jay Elias on Fri Sep 04, 2009 at 03:11 PM PDT.

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