Note: Ashcroft has NOT been found liable yet for anything. The court has merely rejected Ashcroft's attempt to dismiss the case on grounds of immunity.
Note2: The 9th Circuit panel that decided the case was made up of three Republicans.
Some of the underlying legal issues are interesting, but may not interest NSG posters. The underlying facts and overarching concern for protections of our liberties may be interesting, however. Here are two excerpts from the majority opinion. First, the introduction which contains some of the underlying factual allegations:
Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.
Second, the court's conclusion:
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.
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 131-32 (1765). 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.
More background on the case, including filings can be found here.