Like many civil libertarians, I have been deeply disappointed in President Obama’s insistence on keeping many of the same disturbing, unconstitutional policies that President Bush employed during the so-called war on terror. Those policies include detaining citizens without any charge.
You’d have thought that tea-partiers would express outrage against those policies, since they advertise themselves as restorers of the constitution and advocates of individual liberties or “freedoms.” The Fourth, Firth and Sixth amendments are clear about the rights that citizens have to be free of imprisonment by the state.
In a case about to go to the U.S. Supreme Court, the Bush administration imprisoned a man, supposedly because he was a “material witness” holding valuable information about the commission of a crime. It wasn’t true and authorities never even interrogated him about any crime. From The NYT editorial page:
It can be hard to distinguish between the Bush administration and the Obama administration when it comes to detainee policy. A case the Supreme Court agreed last week to hear, Ashcroft v. al-Kidd, is one of those occasions.
It turns on a principle held sacrosanct since the country’s early days: the government cannot arrest you without evidence that you committed a crime. An exception is the material witness law, which allows the government to keep a witness from fleeing before testifying about an alleged crime by somebody else.
These principles were horribly twisted when John Ashcroft was President George W. Bush’s attorney general. The Justice Department held a former college football player in brutal conditions on the pretext that he was a material witness in a case in which he was never called to testify and which fell apart at trial.
The Bush administration’s behavior was disturbing, and so is the Obama administration’s forceful defense of this outrageous practice of using a statute intended for one purpose for something very different. Judge Milan Smith Jr. of the Ninth Circuit Court of Appeals called it “repugnant to the Constitution.”
The Justice Department arrested Abdullah al-Kidd, known as Lavoni Kidd when he was a star football player at the University of Idaho, at Dulles airport in March 2003 before he boarded a plane to Saudi Arabia, where he was going to work on his doctorate in Islamic studies. For over two weeks, he was treated like an enemy of the state — shackled, held in high-security cells lit 24 hours a day, and sometimes humiliated by strip searches. When Mr. Kidd was released, he was ordered to live with his wife and in-laws, restrict his travels and report to a probation officer. The restrictions lasted 15 months.
The government said Mr. Kidd was a material witness against Sami Omar Hussayen, who was tried for supporting an Islamic group that the government said “sought to recruit others to engage in acts of violence and terrorism.” A jury acquitted Mr. Hussayen on some charges and didn’t reach a verdict on others. Mr. Kidd was not called to testify. Nor was he ever charged with a crime.
Kidd has sued John Ashcroft, who was the attorney general at the time of his detention. Previously, courts have held that the attorney general would be immune from lawsuits. The Obama administration has supported that position. Where is the tea party?