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Fri., June 3, 2011

Editorial: Al-Kidd wins small measure of empathy

Tuesday’s unanimous ruling in a Supreme Court case involving a former University of Idaho student may have left the false impression that tap-dancing on the Fourth Amendment is noncontroversial, at least when the issue is terrorism.

To the contrary, the eight participating justices (Justice Elena Kagan sat this one out) agreed on a narrow legal point: Because former Attorney General John Ashcroft did not violate “clearly established law,” he enjoyed qualified immunity. Fortunately, some of the justices appear willing to provide the missing clarity.

Abdullah al-Kidd was about to board a plane for a study program in Saudi Arabia in March 2003 when he was detained as a material witness in a case against another UI student, Sami Omar al-Hussayen. Al-Hussayen, like al-Kidd, had done work on behalf of a Muslim charity that federal authorities suspected of terrorist connections. Al-Kidd was jailed for two harsh weeks and then placed on supervised release until al-Hussayen’s trial ended 14 months later. Al-Hussayen was acquitted but later deported. Al-Kidd was never called to testify.

In fact, as al-Kidd claimed and the Justice Department did not dispute, the prosecutors never intended to use him as a witness. It was just a pretext so they could arrest and detain him despite the lack of evidence that he’d done anything wrong.

But whether that was a violation of his civil rights, the justices never decided. Ashcroft had qualified immunity.

Keep in mind that the legal authority for holding al-Kidd, a native-born American citizen with a wife and family, was the ruse that he was needed to present testimony in al-Hussayen’s case.

The judge who signed the material-witness warrant was given erroneous information implying al-Kidd might not return to the United States, but wasn’t told he had been cooperating with the FBI. As a result, the prospective witness was tossed into high-security cells that were illuminated around the clock, strip-searched and subjected to body-cavity inspections over a period of 16 days.

If Ashcroft had a hidden motive for using an otherwise legitimate method, Justice Antonin Scalia held in the majority opinion, that’s OK, because “the Fourth Amendment regulates conduct rather than thoughts.”

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, while conceding the qualified immunity question, signed separate, concurring opinions, strongly hinting an openness to a challenge of the warrant’s validity. Al-Kidd, though, had focused on the attorney general’s deception.

Ginsburg’s frustrated opinion ended in an appeal to the nation’s most deeply held values. Although al-Kidd’s challenges have been settled, “his ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”

We concur.

To respond to this editorial online, go to and click on Opinion under the Topics menu.

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