Constitutional law professor predicts Supreme Court will give Ashcroft absolute immunity

By David Edwards
Tuesday, October 19, 2010 11:18 EDT
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Turley: Obama administration attempt to set new precedent is ‘disgusting’

A Supreme Court ruling could grant “absolute immunity” to former US Attorney General John Ashcroft and set a dangerous precedent in a 9/11-related lawsuit, according to George Washington University constitutional law professor Jonathan Turley.

The high court agreed Tuesday to hear a case where Ashcroft can be sued for misusing federal laws to hold a US citizen without charging him.

In an aggressive response to the 9/11 terrorist attacks, Ashcroft promised that he would use material witness warrants to hold suspects without necessarily charging them with a crime. In 2003, Abdullah al-Kidd, a US citizen, was detained while boarding a plane for Saudi Arabia.

To obtain the warrant, the Justice Department incorrectly told judges that al-Kidd had purchased a one-way first class ticket.

Al-Kidd says he was treated as a terrorist during his time in detention. He maintains that he was strip-searched and interrogated without a lawyer.

The Ninth Circuit has said the suit can go forward while the Obama administration argues that officials like Ashcroft are immune from such lawsuits.

Turley told MSNBC’s Keith Olbermann Monday that the government wants to set a precedent of absolute immunity for government officials.

“They are going to have to pitch this to the hard right of the court to support one of the most abusive Attorney Generals in history and what will be left is truly frightening,” said Turley, a liberal professor who has been a frequent critic of Republicans. “This is a case as you’ve mentioned where false statements were given to a court to obtain a warrant, a person was held without access to a lawyer, held in highly abusive conditions and you also have an Attorney General who was virtually gleeful during that period about his ability to round up people.”

“This was a time as you know that the material witness rationale was being used widely and rather transparently to simply hold people.”

Turley notes that Ninth Circuit Judge Milan Smith wrote in his opinion (.pdf) that “this is what the framers fought against.”

“This is what the framers were talking about. Arbitrary detention. And, my God, you now have the Obama administration arguing that you can’t possibly hold the Attorney General libel for such an egregious and horrible act,” explained Turley.

Complicating matters is that one of the high court’s most liberal justices, Elena Kagan, has recused herself in this case.

“Is it safe to assume that the court is going to undo what all the lower courts said and did and give that absolute immunity to Ashcroft and all of the other Attorneys General?” asked Olbermann.

“I think it is, unfortunately,” agreed Turley. “The Obama administration knows that it has an excellent chance of creating this new precedent. And when you pile it up, it truly is frightening. The administration has already said it will not investigate torture. It will not prosecute torture. It has already dismissed dozens of cases including cases for victims of torture.”

“Now it is saying that even people that order abuses, that clearly should have know that there are abuses cannot be held liable,” Turley continued.

“I’ve got to tell you I find it a disgusting act to try to create this type of precedent and I promise you this precedent will bare a horrible fruit and this will be repeated because what president Obama and his administration are going to do for this court,” he concluded.

This video is from MSNBC’s Countdown, broadcast Oct. 18, 2010.

David Edwards
David Edwards
David Edwards has served as an editor at Raw Story since 2006. His work can also be found at Crooks & Liars, and he's also been published at The BRAD BLOG. He came to Raw Story after working as a network manager for the state of North Carolina and as as engineer developing enterprise resource planning software. Follow him on Twitter at @DavidEdwards.
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