Today, The New York Times reported that the Ninth Circuit Court of Appeals has once again distinguished itself in the annals of politically-correct fatuousness.
A three-judge panel of the court decided that former Attorney General John Ashcroft was wrong to hold suspected terrorists as material witnesses without charging them and opined that he may be personally liable for such actions. “We find this to be repugnant to the Constitution,” thundered Judge Milan D. Smith, Jr, in the opinion, “and a painful reminder of some of the most ignominious chapters of our national history.”
Is that so?
In 2005, the ACLU helped one Abdullah al-Kidd sue Mr. Ashcroft. “Abdullah” was born Lavoni T. Kidd in Kansas but converted to Islam in college. He was arrested in 2003 at Dulles Airport on his way to Saudi Arabia. He was detained for several weeks, after which his travel was restricted for a year. “Abdullah” was never called as a witness, nor was he charged with a crime.
“Abdullah’s” lawyer, Lee Gelernt, was right to call this an “an enormous decision.” Mr. Gelernt further informs us that the real significance of the decision is that “no official, including the attorney general of the United States, can be immune if he adopts and implements an unconstitutional policy.”
Balderdash. In fact, what it really means is that the people we trust to keep this country safe will have an even harder time doing that. It is all of a piece with the Justice Department’s investigation of the CIA for rough interrogation of terrorists. It is, in short, a splendid example of anti-American sentimentality undertaken by means of judicial intimidation.
As Andy McCarthy wrote in an excellent 2005 essay,
Federal law (and the law of most states) has long provided a process to arrest and detain as “material witnesses” persons who possess information that is germane even to minor crimes. The theory behind this is straightforward. A thriving democratic society is existentially reliant on the rule of law. If there is to be rule of law, the laws must be enforced, and grand juries and courts must be entitled to each person’s evidence—even if that evidence must be compelled by the temporary deprivation of liberty.
In this, the most important investigation in the history of the United States, the Justice Department prudently and sparingly made use of this tool. Several people who were identified as having information that was relevant to the investigation, and as to whom there was reason to believe they might become unavailable if not held, were detained as material witnesses. This detention, it should be stressed, was not a judgment of complicity in the plot. It was a judgment of relevant information about the plot.
The opinion itself was more limited & less damning than media reports have suggested. The ruling stripping Ashcroft of immunity was made on motion to dismiss, assuming all the facts alleged in the complaint were true. And the opinion noted that it was not even clear that, if the plaintiff could not muster additional facts, the suit would survive a motion for summary judgment.
Go to Patterico.com for further details (if you don’t have time to read the lengthy decision.)
The author was a W nominee, joined by a Reagan nominee. No Carter or Clinton nominees anywhere. BLT.
Obviously this 3 judge pannel is hoping to pad their resume for the Supreme Court. I hope Ashcroft wins on appeal. He is on my prayer list NOW!
The ninth district should be dismantled. Seriously, they are a disgusting representation of everything that is wrong with a left wing government…
Our security, FBI, lawyers etc are being treated like we live in a banana republic. We will lose the best of the best with these type of judgments.
I would regard any person who converted to Islam and and changed his name to “Abdullah” as guilty until proven innocent (as Orwell recommended with respect to saints).
This has little to do with you being on the right wing, but everything to do with a defect in your reasoning process. Its hard to believe but you’re a bigger douchebag than your silly photo would initially suggest. Yet, its true.
By the way, this is specious reasoning which immediately validates the very ruling you seek, with your feeble reasoning skills, to critique:
“People were not arrested on the Justice Department’s whim; in each instance the arrest had to be approved by a U.S. district judge.”
And, in this case, two federal judges–respectively appointed by the Bush and Reagan administrations–found that the lawsuit could proceed. If, it is a reflexive fact that a federal judge’s ruling renders something valid, then so it does here. Otherwise, the only possible explanation for the divergent opinion on your part–that when federal judges ok the arrests of people who you admittedly dislike, they are good, and when they clear the way for lawsuits by same they are bad–is that you’re a completely unreliable tempermental child in the body of a bow-tied homunculus. I leave it to your barely literate audience to come to the conclusion.
Let’s recall that these were Republican-appointed judges. And let’s also recall what you, yourself, say:
“A thriving democratic society is existentially reliant on the rule of law.”
Given that the entire bush regime was a vast criminal conspiracy to illegally surveil, abduct, torture and launch aggressive wars, all in violation of US criminal statues and well-established international legal precedents mostly created under the leadership of the US itself (i.e., at Tokyo and Nuremburg), I’d say Ashcroft and his foul crew are getting off pretty easy with this ruling.
Balderdash is calling yourself a knuckle dragging right winger. What kind of conservative believes that the federal government should have such powers? You sir, do not understand the actual Constitution. Just because McCarthy wrote in an essay that federal law should be upheld doesn’t mean that we should let them do whatever they deem necessary. Besides, there is no such thing as a Federal Criminal Code, it is just a hodgepodge of resolutions from horrible politicians that make “trendy” laws. That is not a system I believe I want to boast. America can do better.
Doesn’t the MSM call mid-August to mid-September the ‘silly season’?
I wonder why?
We should create a “court” consisting of non attorneys called into session periodically by presidential appointed “commisions” to review the decsions of the federal courts for purposes of determining their personal liability for damages for intentional violation of our consitutional rights. This case sets the precedent. The congress could do it. Lets use it against them
I agree with many posters here: pre-emptive arrests don’t sit well with any principled person, left or right.
Don’t trash the Ninth: they have a lot of weird decisions, but civil liability is about all citizens have left to use against over reaching abuses of power, and even that has to jump big hurdles. The right was all over the FBI for the Utah mountaineer case and Waco. Justly so then and perhaps here too. Let’s not glorify over reaching by anybody.
I wonder is it possible to impeach or recall the Ninth Circuit as they are so wrong so much? ‹^› ‹(•¿•)› ‹^›
Besides being an anti-Muslim bigot, the author of the blog is also an idiot. He thinks people in power and politicians should be above the law and free to violate constitution. No wonder conservatism is dead and rightwing nuts are laughed at everywhere.
I never liked John Ashcroft. Typical Neo Con. And I dont like Cons. Donald “the duck” Rumsfeld, Condominium Rice and the rest….. etc. etc. etc. Uggggggghhhhh ! …
Did anyone actually read the article, especially McCarthy’s portion? Detaining people as material witnesses is entirely constitutional. Abdullah was detained as he was preparing to leave the country for Saudi Arabia. It would have been difficult to call him as a witness if he were out of the country. That said, the article is deficient in telling us why he was considered a material witness, but that may not be necessary, since the gist of Mr. Kimball’s point is that Ashcroft is being set up for a series of civil actions against him that could possibly impoverish him, and for what reason? The only reason is that he followed the policy of the government. People who think that’s a good idea against Bush people might want to think of the future when it could be their folks on the receiving end. As an example, why didn’t any of the Iran hostages sue Carter’s cabinet members?
Anyway, reaching for the douchebag epithet certainly doesn’t do much for public discussion, nor does calling Ashcroft a neocon when he clearly never was one.
That said, the article is deficient in telling us why he was considered a material witness, but that may not be necessary, since the gist of Mr. Kimball’s point is that Ashcroft is being set up for a series of civil actions against him that could possibly impoverish him, and for what reason? The only reason is that he followed the policy of the government.
Goebbels said something similar, I believe. Good for you, for astutely noting that when one follows the dictum of their national government–everything they do is defensible.
‘Speaking as a knuckle-dragging right-winger, I would regard any person who converted to Islam and and changed his name to “Abdullah” as guilty until proven innocent (as Orwell recommended with respect to saints).’
What a sentence! Pure Kimball! Preemptive self-deprecation at the beginning, an invocation of Orwell at the end, and in the middle, rot.
“We find this to be repugnant to the Constitution”
How dare someone else invoke the Constitution besides conservatives! How dare liberals equate justice with accountability! It’s not fair! it’s not balanced! It’s not our decision!
It is all of a piece with the Justice Department’s investigation of the CIA for rough interrogation of terrorists.
And what other pieces are there ?
Speaking of Andrew McCarthy’s lucidity, this makes entirely too much sense.
Harold Koh, transnationalism and the terrorists
“AK:
Besides being an anti-Muslim bigot, the author of the blog is also an idiot. He thinks people in power and politicians should be above the law and free to violate constitution. No wonder conservatism is dead and rightwing nuts are laughed at everywhere.”
You need to check your facts, Nancy. Recent polls show that when people are asked to identify themselves as conservative or liberal, conservatives lead in all 50 states. Liberals make up less than 20 percent of the population. Of course this has a lot to do with our current idiot circus-boy failure of a “president.”
Mr Kimball, a little more analysis of Judge Milan Smith’s take on this case would be useful — I just wiki’d his biography: interestingly, he was appointed by Bush 43 and is a practicing Mormon.
Needless to say, that is not the usual bio of a leftwing wacko judge. Whence cometh his decision? More data and analysis from you would be helpful. Thank you.
Moho,
Ah, the Nazi card, always a trump, right? Brilliant riposte sir. And typical of your mind set.
6. Moho:
“I leave it to your barely literate audience to come to the conclusion.”
Speaking of ‘barely literate’, Moho fits that description.
civility and fact based discourse is disturbing to the little mohos. original moho is just as transparently naieve today as before…let us
be gracious to the sad little people. They will soon be gone..bye bye sad little people.
The problem is that people like Moho don’t reason, they just react. Nevermind that there is legal and historical precedent for holding a person ‘on suspicion’ or as a ‘material witness’. If someone was arrested during the Bush administration, it must be evil! Even though, of course, the exact same practices are used today.
Pure BDS and standard liberal derangement. It amazes me that liberals don’t learn lessons. Why did we lose Vietnam (a Democrat war)? Because our troops were held to a higher standard than the enemy who refused to follow ‘rules of war’. Anything our troops or allies did to try to actually fight became headline news and a ‘source of shame’; useful tactics were banned; and they were held to the Geneva Convention standards against an enemy who routinely used asymmetric warfare. So were bled and bled until public opinion said “just give up”.
Now we have the same thing in the war against terrorism: people trying to do what is necessary – within the bounds of law no matter what uninformed jackasses like Moho say – and the lefties and their lapdog administration just wants to “give up”.
Liberalism is a mental disorder.
It’s not known as the Ninth Circus Court of Appeals for nothing you know.
“In 2005, the ACLU helped one Abdullah al-Kidd sue Mr. Ashcroft. “Abdullah” was born Lavoni T. Kidd in Kansas but converted to Islam in college. He was arrested in 2003 at Dulles Airport on his way to Saudi Arabia. He was detained for several weeks, after which his travel was restricted for a year. “Abdullah” was never called as a witness, nor was he charged with a crime.”
If the facts are as they’re being reported, the government apparently put the bite on the wrong guy, in this particular case.
He’s entitled to compensation.