Later On

We assume that, as citizens, our rights are defined by the Constitution and laws and are protected by the government. But when it is the government that wants to remove those rights, what defense do we have? We’ve already seen quite clearly and repeatedly that foreign nationals have no rights whatsoever: not only does the government show itself perfectly willing to illegally kidnap and torture them and, even when they are clearly shown to be innocent, to refuse to allow them any redress at all—that’s bad enough—but we also routinely kill them and do little more than issue perfunctory apologies, although sometimes (as did Gen. Petraeus) we accuse them of killing and burning their own children to make us look bad.

So foreign nationals do not fare well under the new US approach to human rights. But, as it happens, neither do US citizens when the government decides to ignore their rights. The Obama Administration is vigorously defending the government against any legal repercussions for its misdeeds, however egregious, and (given the current Supreme Court) I would say that they are likely to be successful.

Dahlia Lithwick in Slate has an excellent summary of arguments in a trial now underway:

When it comes to getting the old fur ruffled, there is a lot of action these days at the Supreme Court. Justice Samuel Alito wrote a scorching dissent, joined by no one, in today’s ruling that the Phelps Family Roadshow of Bilious Bigotry has a First Amendment right to protest at funerals. In Alito’s view, sticks and stones may break your bones, but words can punch your face in. Meanwhile, Justice Clarence Thomas has been thundering away (in private gatherings) about ominous-yet-existential threats to Liberty. Justice Antonin Scalia evidenced some Grade-A chest-thumpage in this morning’s oral argument about the right to confront witnesses against you. And as we all learned Tuesday, don’t even try to get on the wrong side of Chief Justice John Roberts and his Webster’s American English Dictionary.

But there is very little ruffled fur or uppity dander at this morning’s argument in a case about an American citizen held under brutally abusive conditions for over two weeks as a material witness—even though he was willing to testify and was never charged with anything. The party line here regarding Sept. 11 seems to be this: Mistakes were made. Knit. Purl.

Abdullah al-Kidd was born Lavoni Kidd, a U.S. citizen and former football star at the University of Idaho. He converted to Islam after college. In 2003, he was detained under the federal material witness statute , then spent 16 days in federal detention, sometimes naked and sometimes shackled, often freezing and in cells lit for 24 hours a day. Nobody suspected him of wrongdoing. He was simply an acquaintance of Sami Omar al-Hussayen, who was being investigated for ties to terrorism. Even though al-Kidd had cooperated with the FBI previously, the agency sought a material witness warrant based on the (inaccurate) claim that he was about to flee to Saudi Arabia with a first-class one way-ticket worth $5,000. (In fact, he had a round-trip coach-class ticket that he paid about $1,700 for. He was going to study for a doctorate in religion.) Although the authorities claimed they needed to detain al-Kidd so he would testify against al-Hussayen, he was never called to testify, and al-Hussayen was not convicted.

Al-Kidd sued many. This appeal concerns his suit against then-Attorney General John Ashcroft. As Adam Liptak pointed out, this detention was widely hyped at the time. “When the director of the Federal Bureau of Investigation, Robert S. Mueller III, gave Congress a progress report in early 2003 on the agency’s success in ‘identifying and dismantling terrorist networks,’ his first example was the capture of Khalid Shaikh Mohammed, the mastermind of the Sept. 11 attacks. His second was the arrest of Abdullah al-Kidd.”

Al-Kidd’s claim is that Ashcroft created a policy that allowed the FBI to distort the material witness statute—a law aimed at preventing witnesses from fleeing before trial—as a pretext for long-term preventive detention for suspects they never intended to call to testify. . .

Continue reading. The government’s position seems to be that prosecutors must never face scrutiny for their actions because that might make them consider whether their actions are legal or not, and we want prosecutors to feel free to take whatever course of action comes to mind, without regard to the law or to the rights of the citizens. I don’t agree with that.