Don’t shield Ashcroft

On Wednesday, the Supreme Court was asked to help right an egregious violation of human rights that occurred in the aftermath of 9/11. The case involved a U.S. citizen who was confined for two weeks on the pretext of securing his testimony at someone else’s trial. In fact, the government regarded him as a suspect but had no probable cause to hold him.

A majority of the court seemed unsympathetic to Abdullah Kidd’s attempt to sue former Atty. Gen. John Ashcroft for the mistreatment. But hope remains that the court will rule that it’s wrong for the government to misuse a material witness warrant to hold a suspect.

Kidd is a convert to Islam who was known as Lavoni Kidd when he played football for the University of Idaho. He was arrested in 2003 at Dulles International Airport, handcuffed and then shuttled between detention facilities, under the pretense of securing his appearance at the future trial of an associate being investigated for visa fraud and possible ties to terrorism.

During his imprisonment, Kidd maintains, he was placed in high-security wings with convicted criminals, strip-searched and routinely shackled. At the end of two weeks, Kidd was released to his wife’s custody but deprived of his passport and subjected to limitations on his travel. In 2004, a court lifted the restrictions and dismissed Kidd as a material witness. He was never called to testify at the trial at which he was supposed to be a witness.

Kidd sued Ashcroft, who, Kidd maintained, had presided over a policy of using the material witness statute to imprison suspects without the required probable cause. The existence of such a policy is confirmed by the way administration officials described Kidd. In testimony before Congress, FBI Director Robert Mueller mentioned Kidd as being among “suspected terrorists,” suggesting that he wasn’t being confined in preparation to giving testimony.

Before Kidd’s suit can go forward, however, the Supreme Court must determine whether Ashcroft possesses the immunity usually conferred on prosecutors and government officials. The U.S. 9th Circuit Court of Appeals concluded that Kidd’s complaint satisfied the requirements for overcoming that immunity. But the Supreme Court on Wednesday seemed skeptical. It also worried that allowing Ashcroft to be sued would discourage other officials from remaining in public service because of the risk of damage awards. Chief Justice John G. Roberts Jr. argued that a hypothetical official would say, “Well, I’m just not going to run the risk of, you know, having to sell the house.”

We believe the court should allow Kidd’s suit to proceed. But even if it doesn’t, it should find a way to rule on the legality of the policy attributed to Ashcroft. An ordeal like Kidd’s shouldn’t happen to anyone else.