Roger’s Rules

Another ridiculous decision from the Ninth Circuit

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.


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). I’m glad that “Abdullah” popped up on the radar screen as he was on his way to Saudi Arabia. And if he has yet to be charged with anything, I hope that the guys in the white hats continue to cast a beady eye in his direction.

Let’s remind ourselves why someone might be detained as a material witness. Mr. McCarthy explains it with his customary lucidity:

A material-witness arrest warrant is not, as has repeatedly been suggested, a legal black hole. Those who were arrested were treated with the same due process that other arrestees (including material witnesses) typically enjoy. 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. Each witness was furnished with counsel, at public expense if necessary. Each was brought promptly before the court so that the arrestee could be advised by a detached authority about the basis for the arrest, and so that the court could be informed of, and could monitor, the detention. Although there is reason to question whether arrestees in such circumstances are actually entitled to be apprised of the information presented to the court in support of the arrest warrant, counsel for these arrestees were provided with that information.

Material-witness warrants, moreover, are not a limitless license to detain. Detainees were held for a reasonable and brief period—usually just a few days—that was necessary for their information to be provided. If, in the interim, evidence that they had committed crimes developed (if, for example, it became clear that they had lied to federal agents), they were then charged publicly with those crimes—in the normal course and under the ordinary procedures applicable to arrested defendants.

Much is also made of the purportedly sinister secrecy of these material-witness proceedings, but this too is overblown. Grand-jury proceedings are secret by law. Investigations should be secret for two critical reasons. First, they are not apt to succeed if those being investigated are alerted to all their details. Second, the mere fact of an investigation, and the suspicion it suggests, can unfairly besmirch an innocent person, causing him grievous personal and professional damage. It was absolutely proper, legally and ethically, that these detentions were not publicized. Lest we forget, in the aftermath of 9/11, the Justice Department had every incentive to demonstrate to the public that it was doing something. It was primarily the interest of the witnesses that was served by discretion — as it should have been.

But how short our memories are. I believe John Ashcroft should be honored as a national hero for his stalwart and effective stewardship of the Department of Justice at a most dangerous moment. As Mr. McCarthy concludes, “The post-9/11 detentions were lawful, ethical, strategically appropriate, and involved an infinitesimal portion of the Muslim population in the United States. To have conducted the investigation in any other manner would have been grossly irresponsible.”

It is now the Ninth Circuit, in concert with the ACLU, that exhibits gross irresponsibility. I called this decision “ridiculous,” and so it is. But readers should remember the oft-forgotten fact that the ridiculous, though of productive of humor, is not a not infrequently collaborator with evil. The ridiculous and the malevolent, far from being contraries, are often brothers under the skin. That is one reason that the decisions of the Ninth Circuit are so frequently overturned: in their extravagant disregard of the interests of the United States, they are not only preposterous as instances of judicial reasoning, they are productive of moral and political evil.