Creating a Lawless Executive Branch

One of the cases the U.S. Supreme Court will take up in its 2011 session is Ashcroft vs. al-Kidd, in which President George W. Bush’s first Attorney General, John Ashcroft, insists that he should have legal immunity for his acts while in office, including the use of material witness warrants to detain Muslims during Bush’s “war on terror.”

As Attorney General, Ashcroft appears to have knowingly violated the U.S. Constitution through his abuse of these warrants which are designed to hold people who are needed as witnesses in trials, not as a device for locking them up while they themselves are investigated.

Abdullah al-Kidd is a Muslim American citizen who Ashcroft illegally ordered detained through a material witness warrant. Al-Kidd was one of 70 detained in this manner.

Al-Kidd was picked up at Dulles International Airport after the FBI lied to a judge in order to get the warrant for his seizure. Al-Kidd was subsequently held for long periods in a security cell where the lights never went out.

 

That John Ashcroft is the criminal and al-Kidd his victim is certain. That is how the Ninth Circuit Court of Appeals sees it. That court has refused to dismiss al-Kidd’s lawsuit against Ashcroft noting that the former Attorney General can be held personally responsible for an action "repugnant to the Constitution."

The court noted that such was the case in a decision to "arrest and detain American citizens for months on end, in sometimes primitive conditions, not because they have committed a crime, but merely because the government wants to investigate them for possible wrongdoing."

Ashcroft’s lawyers avoid the question of the illegality of his actions and simply say that he is immune from lawsuits for actions he took as Attorney General. On that basis they have asked the Supreme Court to dismiss the suit. The Justices have now decided to consider Ashcroft’s request.

  

Certainly John Ashcroft is not the first high U.S. official to reveal himself as an apparent criminal. Nor is it the first time that high government officials have acted in an unconstitutional manner.

Right out of the starting gate, so to speak, the young United States created the Alien and Sedition Acts (1798) through which the Federalist party sought, quite unconstitutionally, to jail its political opponents. Andrew Jackson spit in the eye of both the Supreme Court and the Constitution by evicting the Cherokee Indians (1838).

James Polk should have been impeached for high crimes and misdemeanors for lying to the Congress in order to start the Mexican-American War (1846), Abraham Lincoln probably violated the Constitution by some of his police actions during the Civil War.

Then, there were the raids and deportations that took place as a result of the Red Scares of the 1920s, at least in part unconstitutional. You also have Watergate, Irangate and multiple potential Bushgates. Yet, few of the politicians who ordered these criminal actions, or the subordinates who carried out their orders, ever faced punishment.

 

The Obama Administration

 

What is interesting about the present case of Ashcroft vs. al-Kidd is that the Obama administration has decided to make illegality acceptable by institutionalizing the concept of immunity for highly placed men like Ashcroft. The administration will try to do this not through legislation, but through precedent – by defending Ashcroft’s claim to immunity before the Supreme Court.

At first it seems strange that a professed liberal president such as Barack Obama would do this. But unfortunately, it is quite consistent with the illiberal stance he has maintained on the question of the constitutional responsibility of his predecessors in the Bush administration.