Coming this week before the US Supreme Court is the case of Al-kidd v. Ashcroft. Abdullah Al-kidd is a Kansas-born American citizen who was arrested in Dulles airport in 2003, and over the next weeks would be repeatedly strip searched, transported in handcuffs and leg irons, and otherwise treated in a “repugnant” manner (in the words of the ninth circuit court). “The facts alleged in al-Kidd’s complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government as did many members of the Founding Generation,” according to judge Milan D. Smith of the ninth circuit court.
Al-kidd was arrested not because he’d committed a crime, not because he was suspected of committing a crime, but rather he was rounded up under a 2001 policy implemented by then attorney general John Ashcroft. The policy sought to use a centuries-old law that allows the government to arrest material witnesses to ensure they are present to testify. Ashcroft explained in 2001 that “aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks.” Roughly half of those detained under this law were never called to testify in any criminal case.
Before al-Kidd’s arrest, a graduate student in computer science named Sami al-Hussayen had volunteered as a webmaster for a legal Islamic charity. Sami was imprisoned for making false statements on his immigration form, and was eventually indicted on terrorism charges (he would be later acquitted after a jury trial in federal district court in Idaho). Al-kidd and al-Hussayen both attended the University of Idaho. Al-kidd was arrested as a material witness in al-Hussayen’s case (although it is unclear to me that anyone had any reason to believe Al-kidd knew anything helpful, especially because he had previously cooperated with prosecutors when they questioned him about al-Hussayen).
To recap: the government arrested and imprisoned one man (al-Hussayen) on highly questionable charges that they later failed to prove (charges of activities civil rights lawyer Wendy Kaminer points out were protected under the First Amendment). The government then arrested and detained Al-Kidd under the pretext that he was somehow a material witness against the first man and was about to flee the US. To make things even stickier (as the Ninth Circuit has found), Al-kidd’s warrant was based on falsehoods: federal agents claimed that he was about to fly to Saudi Arabia on a one-way, first-class ticket; in fact, he had a round-trip coach ticket. Agents also failed to mention that al-Kidd was an American citizen, as were his parents, his wife, and their two children. Furthermore, he had previously cooperated with the FBI when its agents wanted to interview him. So Al-kidd was arrested, harshly detained for weeks, then released to more than a year of probation that required him to live with his in-laws, restrict his movement to four western states. He lost his marriage, his job, and he now lives abroad teaching English. The Obama administration argues the arrest was constitutional.
What makes this case somewhat special is that Al-kidd, represented by the ACLU, is suing John Ashcroft personally, for his actions as attorney general (although Ashcroft is represented by the department of justice). It’s unclear how it will end — many former attorneys general are siding with the Obama administration in its defense of Ashcroft’s immunity, yet many federal prosecutors and scholars have sided with Al-kidd, saying that the material witness law was intentionally misused — although the ninth circuit court has upheld his right to sue Ashcroft and the case will appear before the US Supreme Court.
I’m not a lawyer, but my suspicion is that Ashcroft’s immunity will be upheld (reversing the ninth court’s decision), and the second part of the matter (the violation of Al-kidd’s fourth amendment rights) could go either way. To my mind, it is quite clear that his rights were violated. Agents of the government lied to a court, he was arrested based on these falsehoods and held using a law that in no way applied to him, and his life and wellbeing have been irreparably harmed. Structural violence is a tricky beast, it often manifests itself in ways that are difficult to visualize: that persons of color might score lower on aptitude tests, or that women might be less likely to ask for raises. But sometimes it manifests in quite obviously and more ‘traditionally violent’ ways — the illegal imprisonment and mistreatment of muslims, for instance.
The persecution of one or more classes of people in order to ‘ensure the safety’ of other classes will never be morally defensible. As far as being legally defensible, Law professor Sherrilyn Ifill notes that “no one in the upper command structure or cabinet of the Bush administration has been criminally or civilly punished,” that, “this is what impunity looks like,” and in the case of al-Kidd, “once again, illegal conduct has taken place, and yet those who gave the order may avoid responsibility.” In 2001, FBI Director Robert Mueller testified to Congress about major successes against terrorism; second on his list of five successes was the arrest of al-Kidd. If that’s our second greatest success, what do our failures look like?