Claim of Prosecutor’s Civil Immunity Denied Nation’s Chief Prosecutor by U.S. Circuit Court of Appeals –

 Sept. 4, 2009

AL-KIDD V. ASHCROFT – 06-36059  9th. Circuit Court of Appeals, Sept. 4, 2009  To read full text of this opinion go to:

 A federal appeals court said in a scathing opinion Friday, that former Atty. Gen. John Ashcroft violated the rights of U.S. citizens in the fevered wake of the Sept. 11 terrorist attacks by ordering arrests on material witness warrants when the government lacked probable cause.

The ruling that said Ashcroft could be sued for prosecutorial abuses. A three-judge panel of the U.S. 9th Circuit Court of Appeals denied the former attorney general immunity from liability for how he used the material witness warrants in national security investigations.

 Ashcroft’s claim of prosecutorial immunity from civil claims was rejected.

Members of the panel, all appointees of Republican presidents, characterized Ashcroft’s detention policy as “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Civil liberties advocates cheered the ruling in the case brought by Kansas-born Muslim convert Abdullah Kidd, saying it spotlighted excesses committed by the Bush administration in the post-9/11 scramble to thwart terrorist plots.

“The court made it very clear today that . . . Ashcroft’s use of the federal material witness law circumvented the Constitution,” said Lee Gelernt, the American Civil Liberties Union lawyer who argued Kidd’s case. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

The ruling could allow Kidd’s suit for damages to proceed to trial if the government doesn’t appeal to a larger 9th Circuit panel or seek Supreme Court review.

Constitutional law scholars applauded the 9th Circuit decision as affirmation of citizens’ rights to be free from illegal detention.

“This is really important,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “This is a federal court of appeals saying that what was done here under the material witness statute was clearly a violation of the Constitution — that it was not protected by prosecutorial absolute immunity.”

The Supreme Court has made a distinction between using material witness warrants to ensure someone’s appearance at trial and misusing them to detain someone to be investigated for suspected wrongdoing, the panel noted in its 98-page opinion.

The panel also cast the previous administration’s practice of detaining suspects without cause as behavior that the framers of the Constitution would have found abhorrent.

The judges, alluding to the George W. Bush administration, said that although “some confidently assert that the government has the power to arrest and detain” suspects without evidence of wrongdoing, the panel considered such preemptive detentions “an engine of political tyranny.”

The opinion was written by Circuit Judge Milan D. Smith Jr., an appointee of Bush’s, whose practices in the war on terrorism were at the heart of the case.

Circuit Judge Carlos T. Bea, a fellow Bush appointee, wrote a separate opinion partially concurring and partially dissenting. Smith was joined fully by Senior Circuit Judge David R. Thompson, named to the bench by President Reagan

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