Compared with the atrocities committed at Guantanamo Bay, the Bush Administration’s secretive arrests of Arab-Americans and Muslims after 9/11 doesn’t get much airplay. But that may change after a significant court ruling on Friday opened the way for a detainee to sue the architect of that policy, Attorney-General John Ashcroft.
Only six weeks after the bombing of the twin towers on 9/11 Ashcroft announced he would use a 1984 law designed to ensure material witnesses attended court to give evidence, to detain without charge hundreds of Arab-Americans or Muslims. One of those unfortunate enough to be detained was an African-American student, Abdullah al-Kidd.
Al-Kidd was married with two children and living in Idaho in February 2003 when his nightmare began. Federal agents had obtained a warrant for his arrest on false grounds including that al-Kidd would be a material witness in a forthcoming terrorism trial. (He was never called to give evidence.) He was arrested at Dulles International Airport in Washington, while en route on a return ticket by the way to take up an Islamic studies scholarship in Saudi Arabia.
Over the next 16 days he was moved between three detention centres in Virginia, Oklahoma and Idaho. He was shackled and handcuffed about his wrists, legs, waist and allowed out of his cell only 1-2 hours per day. The light was kept on in his cell continuously and he was repeatedly strip searched. When he was released he was confined to living in Nevada, had to surrender his passport and report to probation. Since then he has lost his wife and children, his job and his scholarship.
Now al-Kidd wants to sue Ashcroft for the loss and harm he has suffered as a result of his mistreatment and wrongful detention. Ashcroft’s lawyers, in keeping with the arguments run by many Bush Administration officials, argues that their client is immune from being sued because in ordering the detention of al-Kidd he was acting as a prosecutor and because his actions were part and parcel of his national security duties he had as Attorney-General.
But Ashcroft has lucked out — a chink in the Bush Administration relatively impenetrable legal armoury has emerged. The US Court of Appeals for the 9th Circuit, based on the country’s west coast, ruled on Friday that al-Kidd can sue Ashcroft.
In this elegant passage, the court spells out why:
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint.
Sadly, however, even now … some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world.
We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.
More than 5000 Arab-Americans or Muslim Americans were detained without charge after 9/11 and many were held under the material witness law. Al-Kidd’s win last Friday may embolden others who were detained to come forward and tell their stories of how a nation that subscribes to freedom so badly failed them.
You would have that after the treatment of the Nisei (Japanese Americans) during World War 2 that the US authorities would have progressed in their handling of their citizenry – apparently not!
There’s a very good documentary that I originally saw via SBS a few years ago. It’s called ‘Unconstitutional – the US war on civil liberties’. It can be watched via http://www.freedocumentaries.org there’s a list of interesting documentaries on this site, and this is one of them. It makes the point, that the US Constitution doesn’t just mean “citizens” it says “No person” in its different pledges. It tells the horrific but true story of just one family’s (originally from a middle eastern country) experiences, but then covers the whole topic – what was done and Ashcroft’s role in it including his media releases and press conferences. It also documents the Civil Liberties Union, plus the role of local govt’s and the struggle against the alleged abuses against the Constitution. It’s an eye opener! I’m not surprised that someone is going to sue. The first of many I hope. Some of these people were removed from the US in the dead of night, without warning or time to notify other family members – they just disappeared! No arrests or charges or proof of any criminal behaviour? Appalling! It will be interesting to see if Bush and Cheney’s names are mentioned? They’re not above the Law either. If a president can be impeached for stains on a blue dress, Bush and Cheney should be impeached for this legislation plus the horrific tortures that took place – and still could be under Obama(even though he’s publicly stated his opposition?) We’ll see!
It’s the same type of abuse as the Bush Administration’s horrific practice of “renditions” . It’s been revealed, that the CIA used British airspace(among others) for the purpose of transporting detainees to detention centres(read torture jails) in Europe and other countries. Some countries have ‘tried’ CIA operatives in absentia (Italy) as leading government members (also tried)were complicit in citizens being kidnapped off the streets and locked up(finally in Guantanamo) and were innocent of any wrongdoing – some were held for several years. There was a well publicized case of a man from Canada! Of course, we all know of Mamdouh Habib’s experiences – he was sent to Egypt? Howard and Downer denied any knowledge of his whereabouts at the time, but since then information has been confirmed, that not only was he sent to Egypt, but the Howard govt knew where he was and what was going on – he alleges he was tortured! I believe him! I don’t believe Howard, Downer or Ruddock! They should go the way of Ashcroft!