The Obama Tyranny

Lavoni Kidd was born in Kansas. A star athlete, he led the Idaho Vandals in rushing in 1995. By 2003, he had earned an overseas scholarship.

That’s when the Feds arrested him at Dulles Airport.

”I was made to sit in a small cell for hours and hours and hours buck naked,” he told the New York Times in 2004. ”I was treated worse than murderers.”

Kidd was held without charge for more than two weeks, through a series of high-security prisons. Even when he was released, he was ordered to live with his in-laws in Vegas, with his travel restricted to adjacent states. He was required to check in with probation officers. His passport was revoked.

Kidd would not enjoy the freedom of an American citizen again for thirteen months — when a judge granted his request to remove the remaining restrictions. By that time he was divorced, under the strain of the circumstances. And although he had never been charged with a crime, much less tried or convicted, Kidd found it hard to get a job.

Maybe being called a terrorist by the FBI director had something to do with it.

Oh, sorry, we left out something. Back in college, Lavoni Kidd had changed his name. To Abdullah al-Kidd.

That day at Dulles, the day al-Kidd was to learn that the Fourth Amendment was but a quaint relic of a bygone era, he was about to board a plane for Saudi Arabia, there to pursue his doctorate in Islamic Studies.

Al-Kidd had bought a round-trip ticket. The federal agent who asked a judge for permission to arrest al-Kidd as a “material witness” lied about that. He told the judge the ticket was one-way. The agent lied about a few other things, too. The judge granted the request.

Traditionally, the purpose of holding somebody as a “material witness” is that they have seen a crime, and pose a flight risk. Illegal immigrants will sometimes be detained, if they can give evidence against whoever led them across the border. But that’s not what the FBI told the nation about al-Kidd:

Two weeks after Mr. Kidd’s arrest, Robert S. Mueller III, the director of the Federal Bureau of Investigation, briefed Congress on the government’s recent counterterrorism successes.

”Let me give you a few recent examples,” he said. The first was the capture of Khalid Shaikh Mohammed in Pakistan. Mr. Mueller called him ”the mastermind of the September 11th attack.”

The second was the arrest of Mr. Kidd. Mr. Mueller did not mention that Mr. Kidd had not been charged with a crime.

No, that was Sami Omar al-Hussayen.

The two knew each other. Al-Hussayen, a Saudi here on a student visa, was pursuing a doctorate in computer science at Idaho. The Feds charged him with maintaining websites that raised money for Hamas. He was acquitted of six of eleven charges — including the major “terrorism” charges — while the jury deadlocked over the five remaining minor visa charges.

Al-Kidd was never called to testify.

In 2005, the ACLU filed a lawsuit against the government on al-Kidd’s behalf. Also named in the lawsuit were the wardens where he was detained — and Attorney General John Ashcroft, who after 9/11 had turned the “material witness” laws into a form of open-ended preventive detention.

Significantly, the ACLU’s lawsuit holds Ashcroft personally liable for damages caused by actions taken under his policy and authority. (Three wardens have settled for monetary damages.) The case gets into the weeds, but the Ninth Circuit Court of Appeals approved that approach last year, and the Supreme Court took up Ashcroft’s appeal of that decision Monday.

Or, to be more precise: The Supreme Court took up the Obama Administration’s appeal.

The Administration argues that — if we might summarize with extreme prejudice — Ashcroft should enjoy complete immunity for undermining the Fourth Amendment because, well, golly, he was just doing his job, and who are we to judge? If an innocent American citizen gets caught in the net, heck, that’s the price we pay for living in the greatest constitutional democracy on Earth. Or something like that.

Besides, if Attorneys General didn’t enjoy unchecked authority to lock up anybody they please, we would never have caught a real terrorist:

To take one noteworthy example, federal agents initially detained Terry Nichols pursuant to a material witness warrant just days after the 1995 Oklahoma City bombing… Although Nichols was implicated as a possible participant in the bombing because of his association with Timothy McVeigh, agents acknowledged that they lacked probable cause to hold Nichols in custody unless they arrested him as a material witness… After further investigation following his arrest pursuant to the material witness statute, the government developed sufficient evidence to obtain a new arrest warrant on a criminal complaint alleging Nichols’s direct involvement in the bombing.

That implicit comparison between an innocent man and a convicted mass murderer strikes us as just the latest insult. For if Abdullah al-Kidd was a material witness to a suspected terrorist, a witness whose life was destroyed by the tyranny of one Administration, and whose justice would be denied by the tyranny of the next, just what was the crime that demanded his unwilling sacrifice, that required his ultimately unneeded testimony?

Simple: The Feds said he knew something about the student-visa violation.

Ashcroft to Get High Court Review of Lawsuit by Man Held as Terror Witness [Bloomberg]

For Post-9/11 Material Witness, It Is a Terror of a Different Kind [NYT, August 2004]

Abdullah al-Kidd v. John Ashcroft, et al. [ACLU case history]

Supreme Court petition [SCOTUSblog, PDF]


It’s a… light tyranny.

That’s all I got… and had to dip into the Arrested Development well for it.

Memo to DOJ: Queen Tranny J. Edgar Hoover is dead.

@redmanlaw: Ever seen the movie about Roy Cohn starring James Woods? what a bunch of lunatics.

@jwmcsame: Loved it.

@Benedick: I heard a song from that show played by U2 live a couple of weeks ago. I’m a huge fan, so I loved the guitar playing, thought the melody was OK, but nothing special lyrically. I thought that show was going to be a flop from the get go. Almost no one is interested over on the boards at

U2 “Boy Falls From the Sky”

SCOTUS granting cert makes me nervous. The last time they granted cert in a 9th Circuit terrah case they wound up overturning the 9th (obviously) and in the process making horrific law about the standard used in pleadings to file the initial case, which has had a huge impact far outside of the terrorist policy litigation. See Ashcroft v. Iqbal (2009). Also, the decision by the entire 9th this spring to deny a motion for a rehearing en banc had 8 judges dissenting, and the Supremes probably will slap around the 9th for not doing an en banc hearing first.

Kagan also is going to have to recuse herself because she worked on the Administration’s appeal when she was Solicitor General. So that gets us to a 5-3 decision, unless Scalia gets a fit of libertarianism and decides to uphold the 9th Circuit, in which case it’s a 4-4 tie and the 9th Circuit decision stands.

But what I need to go check now is whether the 9th said that Ashcroft is personally liable. Normally government officials are sued in their official capacity (thus why the government attorney defends him) and the question hinges on whether or not the official has absolute or qualified immunity (and from what I’ve seen briefly on SCOTUS granting cert, that’s one of the issues they certified). Absolute v. qualified immunity is a defense in Section 1983 suits against government officials (42 USC 1983 is the Civil Rights Act that allows people to sue the government to vindicate their constitutional rights) and it gets into a fact-finding analysis as to whether there was clear settled law at the time of the rights violation that the actions violated the law. Ashcroft also can argue prosecutorial immunity. Very very rarely are government officials sued in their individual capacity, i.e. you’ve got to go hire your own attorney and if you lose they can take your house, etc. And I would imagine the ACLU wouldn’t do that because it would have given an easy out for the courts to toss the case.

So my kneejerk conclusion – expect some more bad caselaw.

/off to read the briefs

Christine O’Donnell is breathtakingly ignorant.

Jump to 7 minutes 6 seconds if you’re short on time.

@SanFranLefty: Per the 9th Circuit opinion, it was a Bivens action, not a 1983 action, against Ashcroft in his official capacity as AG. (ADD: Now that I’m caffeinated, duh, on my part, no coffee isn’t an excuse for not remembering 1983=cases against state officials and Bivens=feds).

Here’s a good explanation of immunity from the opinion:

The doctrine of qualified immunity seeks to ensure that governmental officials have “fair notice” that their specific actions violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). “It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of the defendants’ actions] was apparent in light of preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741. In fact, the absence of cases evaluating whether certain policies are constitutional “may be due more to the obviousness of the illegality than the novelty of the legal issue.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). And where the courts do not have the benefit of factually analogous case law to assist with illuminating the parameters of the constitutional right, “general statements of the law” and “general constitutional rule[s] already identified in the decisional law” can adequately furnish the required fair warning to government officials about the constitutionality of their conduct. United States v. Lanier, 520 U.S. 259, 271 (1997).

@SanFranLefty: Yeah, I was cheating the summary, which also involves pretexting. (Although the 9th spitball fight is entertaining, for those who are entertained by such things.) It’s the consequence I was emphasizing: If the 9th opinion holds (fat chance), AGs are personally liable for monetary damages.

I got a headache trying to grasp what Dear Leader was on about here but it seems to me impossible to hold a public servant personally accountable for decisions made in official capacity. There could be no government. Or is that not what this is about? In which case, never mind.

@redmanlaw: The songs aren’t really the issue. Good music helps but isn’t essential to a musical – according to Marvin Hamlish. It’s the story that counts and how that story is told. Besides, they’re aiming for the Cirque de Sogay crowd more than aging rockers.

@nojo: I have to say that I think the dissent in the 9th Circ decision is right to say that the majority is stretching to say that a government official is individually and personally responsible for monetary damages for the actions of his subordinates in swearing out a false affidavit. (However, it should be noted that this particular issue was not certified by the Supreme Court). Frankly, even if the 9th Circuit’s view that he’s personally liable for his own actions authorizing the program holds, which I’d be shocked if the 9th Circuit’s position is upheld, he’ll be indemnified by the government. It’s not like Ashcroft’s house is going to get a lien slapped on it.

I just hope that we don’t have another Iqbal situation where the holding isn’t that narrow and it fucks over people in a variety of other litigation contexts.

I realize this is only tangentially related, but I thought it was interesting:

Pilot tells his TSA-is-evil story — you like being told you’ll need a strip search, right?

@SanFranLefty: Agreed. Reading the 9th opinion — and considering that Ashcroft didn’t instruct the agent to lie to the judge about the warrant — the whole thing struck me as a stretch.

But surely the dude must have some recourse. That’s why I focused on his story instead of the case details. If the guvmint can get away with screwing him like that, something’s terribly wrong.

Yeah, I know. Film at 11.

But where does it say gummit officials are automatically “Not Guilty By Reason of Wealth & Power,” like in real life?

@Benedick: It is as you say, fear of constant lawsuits would do to to all of government what it has done to schools and other segments already. There does come a point where for practical reasons the remedy must be political and not judicial. Practicality and the greatest good for the greatest number are values that are lost on true believers.

@¡Andrew!: Public officials are, and always have been, immune for liability for policy decisions, under several different theories. They can be liable in specific instances for their own conduct, however.

@Prommie: They will go after the universities next: to suck out of them all the accrued capital.

@nojo: The dude has already had recourse against several of the wardens, the history says, and BTW, the government is the one that pays, under respondeat superior and indemnification principles.

Let me put it this way, how did you feel about the Paula Jones suit against Bill Clinton, the Scaife-funded lawsuit that resulted in his impeachment? Was that a good thing, allowing civil suits against a president in office?

If the case against Ahcroft is allowed to proceed, how many politically motivated suits will then be brought against Obama and his cabinet, funded by the Kochs and Scaifes of the world?

As I said, practicality has its place, and beware unintended consequences.

@Benedick: Now that you mention it, if I had been properly mentored and advised while at my alma mater, I would have found my true vocation in life, and would have happily prospered; what is the worth, of the decades of frustration and poverty, what could ever, really, compensate me, for a lost and wasted life, the direct result of their breach of contract and/or negligence?

@Prommie: That’s certainly what the Administration is arguing — Pandora’s Box. That’s also the excuse for not going after Cheney.

And yes, the wardens (or their employers) settled, but that’s like nailing the guards for Abu Ghraib.

An innocent dude was yanked off the street (or from the airport) specifically because a crooked agent was following the loose detention policy of Ashcroft. Ashcroft may indeed have enough deniability in the matter to be held harmless, but culpability needs to go higher than it has so far.

If seeking justice for a manifestly tyrannical crime against an American citizen has unintended consequences, then so be it. Because otherwise the next unintended consequence will come courtesy of AG Todd Palin.

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