OnIslam.net

WASHINGTON - Setting an immunity to shield officials of the George Bush administration from prosecution over their conduct in their war on terror, the US Supreme Court ruled that former Attorney General John Ashcroft cannot be held liable for the unjustified detention of American Muslims after the 9/11 attacks.

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” Justice Antonin Scalia said in the ruling posted Tuesday, May 31, on the court’s website.

Scalia was one of the eight justices who unanimously overturned a ruling that allowed Abdullah al-Kidd to proceed with his lawsuit against Ashcroft over his arrest.

Kidd complained of mistreatment during his 16-day detention under a US material witness law, Reuters reported.

Kidd, born in Kansas, attended the University of Idaho in the mid-1990s, when he converted to Islam.

He was arrested by the FBI in 2003 at Washington's Dulles International Airport before his departure to Saudi Arabia for language and religious study.

He was held as a material witness in the Idaho case of Sami al-Hussayen, who had been charged with visa fraud and making false statements.

Kidd, who had helped an Islamic charity in Idaho with Hussayen, was never asked to testify in the case.

The high court agreed with the current US administration that Ashcroft, who as Bush's first attorney general helped craft tough anti-terrorism policies after the 9/11 attacks, had immunity from such lawsuits.

“When properly applied it protects all but the plainly incompetent or those who knowingly violate the law,” Scalia said in the ruling.

“Ashcroft deserves neither label.”

At issue was a law that allows material witnesses -- those who might have key information and be crucial to a case -- to be held even though they are not suspected of wrongdoing and not charged with a crime.

Civil liberties groups have said Kidd was one of about 70 men, almost all Muslims, arrested and held under the law that compels witnesses to testify before grand juries and at trials.

Attorneys from the American Civil Liberties Union, representing Kidd, argued that the law can only be used to secure testimony, not as a pretext to detain and investigate someone who ends up never being charged with a crime.

A federal judge and a US appeals court ruled the lawsuit against Ashcroft could go forward, but the Supreme Court overturned the verdict.

It marked the second time the Supreme Court has addressed a civil lawsuit against Ashcroft for policies after the 9/11.

In 2009, the court ruled that Ashcroft and FBI Director Robert Mueller could not be held liable by a Pakistani man who said he had been abused while imprisoned for more than a year in New York after the September 11 attacks.

Off the Hook

Civil liberties groups opened fire at the ruling.

 “The court has unfortunately let Attorney General Ashcroft off the hook,” Lee Gelernt, deputy director of the American Civil Liberties Union (ACLU) Immigrants’ Rights Project, said in a statement cited by the Christian Science Monitor.

Yet, she said that the fact that four justices raised serious questions about using the material witness law to justify preventive detention in the future should give a room for further scrutiny.

“Half the justices who participated in today’s decision expressed real questions about how the government used the material witness statute in Al-Kidd’s case,” she said.

“Our hope is that those questions will lead to a serious examination moving forward of the use of the statute as a tool for preventative detention.”

The Constitution Project, a nonpartisan legal group in Washington, was also critical of the ruling.

"We are not getting a check on executive power in this area, and that is very dismaying," Sharon Bradford Franklin, a counsel for the project, told The Los Angles Times.