NYT editorial: Indefensible Detention

Indefensible Detention

Should a former attorney general be held personally liable for brazenly misusing the material witness statute when he was in office to hold an American man in brutal conditions on the pretext that he was a witness in a case in which he was never called to testify?

At last week’s Supreme Court argument in Ashcroft v. al-Kidd, which turns on that question, the justices’ silence suggested they are reluctant to do that — and, in addition, would prefer to avert their eyes from the misuse of the statute.

Before letting John Ashcroft, a former attorney general, off the hook and giving the Justice Department a pass to continue misusing that law, the justices should read an amicus brief in support of Abdullah al-Kidd by 31 former federal prosecutors, including former United States attorneys in New York, Illinois and California.

The brief makes clear that the argument presented to the court by the acting solicitor general, contending that Mr. Ashcroft is immune from prosecution and all but ignoring the disgraceful conduct from which he seeks immunity, is hardly Justice Department gospel.

(More here.)