In a powerful editorial today, the New York Times urged the Supreme Court to rule against the former Attorney General in the case of Ashcroft v. Al-Kidd.The case involves the Justice Department, at the time led by Ashcroft, and its misuse of "material witness" warrants to detain American citizens without counsel, even when the government had no intention of using as witnesses in any case. Mr. Kidd was held for more than two weeks. During his detention, he was repeatedly interrogated, and treated more like a prisoner or suspect than a witness. He was never called as a witness in any cases.
The Times editorial notes that 31 former prosecutors have also urged the Supreme Court to side with Mr. Kidd, and ignore Mr. Ashcroft's argument that he cannot be sued in this case:
The former prosecutors’ brief underscores why the justices should uphold the judgment of the United States Court of Appeals for the Ninth Circuit that Mr. Ashcroft forfeited immunity when he devised the strategy that led to the [material witness] statute’s misuse.Click here to read more on the Al-Kidd case.
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It can’t be used to detain someone because it simply doesn’t grant that power. The Non-Detention Act says clearly: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” After Sept. 11, 2001, Mr. Ashcroft asked Congress for that authority. Congress said no — and the Justice Department’s misuse of the material witness statute was a ruse to get around that rebuff.
Despite the “settled understanding” to the contrary, the department got away with that ruse until this case. The Supreme Court should say it has no power to do so.
