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A step in the direction of justice for post-9/11 abuses

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The Cat-Tribe
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A step in the direction of justice for post-9/11 abuses

Postby The Cat-Tribe » Fri Sep 04, 2009 9:33 pm

In the case of Al-Kidd v. Ashcroft, the U.S. Court of Appeals for the Ninth Circuit has ruled that former Attorney General John Ashcroft may be held liable for people who were wrongfully detained as material witnesses after the Sept. 11 terrorist attacks. In a harshly worded 91-page ruling handed down Friday, the 9th Circuit found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Here is a AP story summarizing the decision. Here is a pdf of the decision.

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:

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

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:

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.

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.
Last edited by The Cat-Tribe on Fri Sep 04, 2009 9:54 pm, edited 3 times in total.
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Re: A step in the direction of justice for post-9/11 abuses

Postby Ryadn » Fri Sep 04, 2009 9:49 pm

Bless the 9th Circuit Supreme Court. When my faith wavers in all else, they're always there to restore my hope.
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Re: A step in the direction of justice for post-9/11 abuses

Postby Jhahannam » Fri Sep 04, 2009 10:10 pm

From the news story link:

"It's a very big ruling, because qualified immunity is ordinarily a very robust form of protection," said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General. "To overcome that immunity, you have to show that the defendant almost deliberately acted unconstitutionally to violate someone's rights — no innocent mistakes."


In overcoming this immunity, what is the standard that has to be met? Are the facts presented taken in presumption to one side or the other?

I'm way way way early in my legal studies, but I've seen some kinds of standards, such as relating to summary judgement, where the facts are taken (for the purposes of that motion) as favorable to one side.

It seems from the facts in the articles, there is more than enough evidence to make a prima facie case that Ashcroft made far more than just "innocent mistakes".

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Chrobalta
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Re: A step in the direction of justice for post-9/11 abuses

Postby Chrobalta » Fri Sep 04, 2009 10:20 pm

Saw this on BBC, good to see that their may be justice for abuses carried out by the government.
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New Mitanni
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Re: A step in the direction of justice for post-9/11 abuses

Postby New Mitanni » Sat Sep 05, 2009 12:10 am

Idiocy.

Hopefully the Supreme Court will take the opportunity once again to punch the 9th Circuit in the face.

Hands off our intelligence agents and agencies! No persecutions of Bush administration members!

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Re: A step in the direction of justice for post-9/11 abuses

Postby Geniasis » Sat Sep 05, 2009 12:18 am

New Mitanni wrote:Idiocy.


I'd appreciate if you kept summing up your posts at the beginning like this, it'd save me time.
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Sgt Toomey
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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:22 am

New Mitanni wrote:Idiocy.

Hopefully the Supreme Court will take the opportunity once again to punch the 9th Circuit in the face.

Hands off our intelligence agents and agencies! No persecutions of Bush administration members!

http://www.iwillnotconvict.com


Absolutely. Some people are just above the law, and people who act in secret should be first among them.

The oath to protect the Constitution doesn't mean you have to always abide by every little thing it says.

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Lucky Bicycle Works
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Re: A step in the direction of justice for post-9/11 abuses

Postby Lucky Bicycle Works » Sat Sep 05, 2009 12:23 am

New Mitanni wrote:Idiocy.

Hopefully the Supreme Court will take the opportunity once again to punch the 9th Circuit in the face.

Hands off our intelligence agents and agencies! No persecutions of Bush administration members!

http://www.iwillnotconvict.com


My country right or wrong. If right to be kept right, and if wrong to be pretended to be right, and the flag waved, and hey look everyone there's a terrorist over there!

Or is your defence of violators of the Constitution even more partial to partisanism even than that? Are you not even a patriot?
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North Suran
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Re: A step in the direction of justice for post-9/11 abuses

Postby North Suran » Sat Sep 05, 2009 12:24 am

New Mitanni wrote:Idiocy.

Hopefully the Supreme Court will take the opportunity once again to punch the 9th Circuit in the face.

Hands off our intelligence agents and agencies! No persecutions of Bush administration members!

-snip-

You're not even trying to be a good troll anymore.
Neu Mitanni wrote:As for NS, his latest statement is grounded in ignorance and contrary to fact, much to the surprise of all NSGers.


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Lord Tothe
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Re: A step in the direction of justice for post-9/11 abuses

Postby Lord Tothe » Sat Sep 05, 2009 12:25 am

No one should be above justice, no matter what room he sits in, no matter what title he holds, and no matter what badge he wears. I generally find the 9th Circus a bit odd, but they get it definitely right if they declare that DC officials are not above the law.
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Re: A step in the direction of justice for post-9/11 abuses

Postby DaWoad » Sat Sep 05, 2009 12:25 am

Jhahannam wrote:From the news story link:

"It's a very big ruling, because qualified immunity is ordinarily a very robust form of protection," said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General. "To overcome that immunity, you have to show that the defendant almost deliberately acted unconstitutionally to violate someone's rights — no innocent mistakes."


In overcoming this immunity, what is the standard that has to be met? Are the facts presented taken in presumption to one side or the other?

I'm way way way early in my legal studies, but I've seen some kinds of standards, such as relating to summary judgement, where the facts are taken (for the purposes of that motion) as favorable to one side.

It seems from the facts in the articles, there is more than enough evidence to make a prima facie case that Ashcroft made far more than just "innocent mistakes".

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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:27 am

Lucky Bicycle Works wrote:
My country right or wrong. If right to be kept right, and if wrong to be pretended to be right, and the flag waved, and hey look everyone there's a terrorist over there!

Or is your defence of violators of the Constitution even more partial to partisanism even than that? Are you not even a patriot?


Its precisely because terrorists are not so easy to find that we needed to give the Bush Administration the impunity to violate the Constitution.

The greatest act of Patriotism is to love you country so much, you cheer as its principles are violated.

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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:28 am

DaWoad wrote:J! you're still here??????


Jhahannam is a coward who wants to be gone but doesn't have the courage. Let's not derail the thread.

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North Suran
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Re: A step in the direction of justice for post-9/11 abuses

Postby North Suran » Sat Sep 05, 2009 12:29 am

Sgt Toomey wrote:
Lucky Bicycle Works wrote:
My country right or wrong. If right to be kept right, and if wrong to be pretended to be right, and the flag waved, and hey look everyone there's a terrorist over there!

Or is your defence of violators of the Constitution even more partial to partisanism even than that? Are you not even a patriot?


Its precisely because terrorists are not so easy to find that we needed to give the Bush Administration the impunity to violate the Constitution.

The greatest act of Patriotism is to love you country so much, you cheer as its principles are violated.


"As soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil that they set out to destroy."

-Christopher Dawson
Neu Mitanni wrote:As for NS, his latest statement is grounded in ignorance and contrary to fact, much to the surprise of all NSGers.


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Re: A step in the direction of justice for post-9/11 abuses

Postby Unchecked Expansion » Sat Sep 05, 2009 12:30 am

Sgt Toomey wrote:
Lucky Bicycle Works wrote:
My country right or wrong. If right to be kept right, and if wrong to be pretended to be right, and the flag waved, and hey look everyone there's a terrorist over there!

Or is your defence of violators of the Constitution even more partial to partisanism even than that? Are you not even a patriot?


Its precisely because terrorists are not so easy to find that we needed to give the Bush Administration the impunity to violate the Constitution.

The greatest act of Patriotism is to love you country so much, you cheer as its principles are violated.

This is trolling or sarcasm? Because I would say that patriotism is holding the principles of your country higher than current convenience

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Sgt Toomey
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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:32 am

North Suran wrote:"As soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil that they set out to destroy."

-Christopher Dawson


That show went off the air for a reason, and it wasn't just Van Der Beek's bad acting.

Ashcroft is extremely distinguishable from the people he was fighting. He was a deeply religious and committed man willing to do awful things for what he believed in. That's completely different from al-Queda.

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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:34 am

Unchecked Expansion wrote:This is trolling or sarcasm? Because I would say that patriotism is holding the principles of your country higher than current convenience


Its neither; its the truth.

Ashcroft wasn't acting out of convenience; how convenient is it to hold a guy for months, having to move him around...a lot of time and resources go into keeping people in secluded custody and denying them basic due process. Calling it convenience is just naive.
Last edited by Sgt Toomey on Sat Sep 05, 2009 12:35 am, edited 1 time in total.

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North Suran
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Re: A step in the direction of justice for post-9/11 abuses

Postby North Suran » Sat Sep 05, 2009 12:38 am

Sgt Toomey wrote:Ashcroft is extremely distinguishable from the people he was fighting. He was a deeply religious and committed man willing to do awful things for what he believed in. That's completely different from al-Queda.

Okay, I've just concluded that you are a satire.
Neu Mitanni wrote:As for NS, his latest statement is grounded in ignorance and contrary to fact, much to the surprise of all NSGers.


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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:41 am

North Suran wrote:
Sgt Toomey wrote:Ashcroft is extremely distinguishable from the people he was fighting. He was a deeply religious and committed man willing to do awful things for what he believed in. That's completely different from al-Queda.

Okay, I've just concluded that you are a satire.


Are you calling me a mythological creature with the lower parts of a goat and horns on my head that prances around the forest, playing pan-pipes and lecherously pursuing the nymphs? Because that is, at best, a gross oversimplification of the truth.

In the end, New Mitanni is right. Intelligence agents should not be subject to prosecution or oversight of any kind, nor should the executive officials who direct them. The 9th Circuit does need to be figuratively punched in the face. Maybe by Jason Bourne.

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Lucky Bicycle Works
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Re: A step in the direction of justice for post-9/11 abuses

Postby Lucky Bicycle Works » Sat Sep 05, 2009 12:44 am

Unchecked Expansion wrote:
Sgt Toomey wrote:
Lucky Bicycle Works wrote:
My country right or wrong. If right to be kept right, and if wrong to be pretended to be right, and the flag waved, and hey look everyone there's a terrorist over there!

Or is your defence of violators of the Constitution even more partial to partisanism even than that? Are you not even a patriot?


Its precisely because terrorists are not so easy to find that we needed to give the Bush Administration the impunity to violate the Constitution.

The greatest act of Patriotism is to love you country so much, you cheer as its principles are violated.

This is trolling or sarcasm? Because I would say that patriotism is holding the principles of your country higher than current convenience


Toomey and I were both being ironical I think.

This is why trolling is bad. Instead of trying to address the subject at the high standard set by the OP, just about any poster is going to put the boot into the troll instead. Just so much easier.

Then, after a few of us have had a go, one of us will say something silly in opposition to the troll, which can be attacked by a real debater who has good reasons (though I can't think of any) why Ashcroft should have diplomatic immunity while doing his job. Then we'll have a debate ... but not about the subject.
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North Suran
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Re: A step in the direction of justice for post-9/11 abuses

Postby North Suran » Sat Sep 05, 2009 12:44 am

Sgt Toomey wrote:
North Suran wrote:
Sgt Toomey wrote:Ashcroft is extremely distinguishable from the people he was fighting. He was a deeply religious and committed man willing to do awful things for what he believed in. That's completely different from al-Queda.

Okay, I've just concluded that you are a satire.


Are you calling me a mythological creature with the lower parts of a goat and horns on my head that prances around the forest, playing pan-pipes and lecherously pursuing the nymphs? Because that is, at best, a gross oversimplification of the truth.

In the end, New Mitanni is right. Intelligence agents should not be subject to prosecution or oversight of any kind, nor should the executive officials who direct them. The 9th Circuit does need to be figuratively punched in the face. Maybe by Jason Bourne.

Satire as in: "A very common, almost defining feature of satire is its strong vein of irony or sarcasm, but parody, burlesque, exaggeration, juxtaposition, comparison, analogy, and double entendre are all frequently used in satirical speech and writing."
Neu Mitanni wrote:As for NS, his latest statement is grounded in ignorance and contrary to fact, much to the surprise of all NSGers.


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Kalysk
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Re: A step in the direction of justice for post-9/11 abuses

Postby Kalysk » Sat Sep 05, 2009 12:49 am

Sgt Toomey wrote:
North Suran wrote:
Sgt Toomey wrote:Ashcroft is extremely distinguishable from the people he was fighting. He was a deeply religious and committed man willing to do awful things for what he believed in. That's completely different from al-Queda.

Okay, I've just concluded that you are a satire.


Are you calling me a mythological creature with the lower parts of a goat and horns on my head that prances around the forest, playing pan-pipes and lecherously pursuing the nymphs? Because that is, at best, a gross oversimplification of the truth.

In the end, New Mitanni is right. Intelligence agents should not be subject to prosecution or oversight of any kind, nor should the executive officials who direct them. The 9th Circuit does need to be figuratively punched in the face. Maybe by Jason Bourne.

If he was calling you that, the correct term would've been Satyr.
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Sgt Toomey
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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:51 am

Lucky Bicycle Works wrote:Toomey and I were both being ironical I think.

This is why trolling is bad. Instead of trying to address the subject at the high standard set by the OP, just about any poster is going to put the boot into the troll instead. Just so much easier.

Then, after a few of us have had a go, one of us will say something silly in opposition to the troll, which can be attacked by a real debater who has good reasons (though I can't think of any) why Ashcroft should have diplomatic immunity while doing his job. Then we'll have a debate ... but not about the subject.


Then allow me to skip to the end: The Constitution is not a death pact. When a holding would result in chaos or the imperilling of the nation itself, we simply can't sacrifice the Nation itself for every instance of its ideals. If the Nation is destroyed, its principles become irrelevant. Soldiers can die so the Nation may endure, but the Nation must not die, or all is lost. Ashcroft and Bush did what they did to prevent the nation from being destroyed. Had they not, there would be no Constitution to be debated. You weep for Santiago and you curse the marines. You have that luxury. But Ashcroft did what he needed to do, for all of us.

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Lucky Bicycle Works
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Re: A step in the direction of justice for post-9/11 abuses

Postby Lucky Bicycle Works » Sat Sep 05, 2009 12:54 am

North Suran wrote:Satire as in: "A very common, almost defining feature of satire is its strong vein of irony or sarcasm, but parody, burlesque, exaggeration, juxtaposition, comparison, analogy, and double entendre are all frequently used in satirical speech and writing."


You got it. Not satire as in "satyr" ... that was just one of Toomey's puns.

I note I made a mistake in my previous post. Ashcroft did not claim "diplomatic immunity" but two kinds of immunity? Absolute and qualified immunity?

I suspect that those are legal terms, and don't just mean "because I can, and because it was my job."
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Oh, trucks and beers and memories
All spread out on the road.
Oh, my town is a leader of children,
To where Caution
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Sgt Toomey
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Re: A step in the direction of justice for post-9/11 abuses

Postby Sgt Toomey » Sat Sep 05, 2009 12:55 am

North Suran wrote:Satire as in: "A very common, almost defining feature of satire is its strong vein of irony or sarcasm, but parody, burlesque, exaggeration, juxtaposition, comparison, analogy, and double entendre are all frequently used in satirical speech and writing."


Answer me this: the ruling held that Ashcroft had neither qualified nor general immunity. Where is the burlesque in that?

That would require that his actions bespoke a broad and deep violation of the Constitution. How does the premise of depriving a person of freedom for protracted periods satisfy that?

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