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Editor’s Note: In the aftermath of 9/11, the Bush administration arrogated to itself the power to detain Muslims for long periods under fabricated claims that they were “material witnesses,” an issue that is now heading to the U.S. Supreme Court in a case seeking to prohibit penalties against then-Attorney General John Ashcroft.

Though a federal appeals court has termed the “material witness” scam “repugnant to the Constitution,” the Obama administration and the right-wing high court might join forces to protect Ashcroft and, by precedent, declare future government officials free from accountability, as Lawrence Davidson notes in this guest essay:

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.

From the beginning of his presidency, Obama decided to shield them from the consequences of their crimes. This position was initiated by the President’s "we should look forward" statement in January 2009. In this statement, he made it clear that he did not want to pursue those who had ordered or implemented (in this case) torture under the Bush administration.

When popular pressure forced the President to allow his Attorney General, Eric Holder, to open an investigation of the issue of torture, it was arranged so the inquiry would have no teeth. Publicly and up front we were told that no one would be prosecuted whatever the outcome of the probe.

That is the last anyone has heard of Holder’s investigation of torture American-style. The long and short of this is that the principle set down at Nuremberg, to wit following orders is no excuse for criminal behavior, will not be applied. Nor will giving the orders incur a penalty. The decision to defend Ashcroft’s claim of immunity is in solid accord with this position.
 
The logic of Obama’s position and its likely consequences warrant close examination. If we were to ask the President why he has decided to defend the immunity of alleged criminals who happen to be high government officials, and if he were to be perfectly candid in his reply, here is what he might say:
  
1. President Obama – It would be difficult for a president, or those who carry out his orders, to act freely and as needed if they had always to worry about litigation after the fact. This is particularly true in time of war and emergency.
 
My Reply – This assertion has been made by leaders of states from time immemorial. It is a variation on the raison d’etat argument that has historically allowed all manner of bad behavior under the guise of state interests.

On the other hand, it is true that following the law can prove inconvenient under wartime or emergency conditions. Nonetheless, in the long run, lawlessness is much worse than inconvenience. It is to be noted that, in the American case, appointed and elected high officials (particularly attorney generals!) are sworn to uphold the law, not to transgress it.
 
2. President Obama – While I have stopped the more egregious policies of the Bush administration, I am still responsible for the safety of all American citizens and, in our modern age, I have to be able to use all the methods, high tech and otherwise, to achieve this goal.

Some of these methods might very well prove unconstitutional (warrantless wiretaps, for instance) and yet I must be free to use them because another 9/11 style attack must be prevented. And, if I am to use these methods, then I cannot prosecute those who have done so before me. Otherwise I would be accused of being a hypocrite by my political foes.  
 
My Reply – This argument juxtaposes unattainable 100 percent security against the traditional freedoms that makes America the country its founders intended. Do we want to sacrifice the latter for the illusion of the former?

As James Madison once observed, "The means of defense against foreign danger historically have become instruments of tyranny at home." That is the slippery slope President Obama seems willing to take us down. It also prioritizes the President’s political interests over the Constitution. This latter point of view can be carried further.  
 
3. President Obama – You have to understand, that if I do not do all that is possible, be it constitutional or otherwise, to protect the nation I put myself in mortal political danger. I open myself to the accusation by my political rivals that I am "soft" on security or terrorism. And, if something does happen, such as another terrorist attack, then I am politically dead.
 
My Reply – Well, yes, this is so. However, what is also true is that prioritizing politics above law always leads us in the direction of corruption, or worse. By defending Ashcroft isn’t President Obama saying it is all right to break the law if you are highly placed and so lacking in imagination that you cannot figure out a legal way of dealing with an emergency?

For let us be clear, there is no evidence that after 9/11 the unconstitutional route was the only possible route to defend the country. Were the legal options and their constitutional variants ever seriously itemized and discussed? The Obama administration, like the Bush team, has never publicly addressed this question.
  
Likely Consequences
 
If Obama’s Justice Department proceeds with its plans to defend Ashcroft’s immunity claim and if, as is likely, the right-wing-dominated Supreme Court upholds that claim, we will be left with a politically based two-tier legal system.

It will set free to break the law every highly placed federal official every time he or she can claim an emergency situation. Then, after the fact, they will cite the immunity precedent. In the meantime, the fact that high federal officials are sworn to uphold the laws of the land will be rendered worthless, just another bit of political hypocrisy.
 
So what is it that we want for America? Do we want a two-tier legal system where presidents and their appointees can break the law with impunity? Do we want a legal system where it is accepted that citizens and residents can disappear into federal dungeons?

Is it all right with us that our fellow citizens, following the orders of the President, will torture, detain, shackle and otherwise abuse others without any regard for law – and they too will be immune? Because, whether they realize it or not, that is what Obama’s Justice Department is arguing for when it defends John Ashcroft.  
 
President Dwight Eisenhower once asked the question, "how far can you go without destroying from within what you are trying to defend from without?"
It is time for us to ask this question about the heinous "security" tactics of President George W. Bush as well as President Barack Obama’s unfortunate willingness to defend them.

Lawrence Davidson is a history professor at West Chester University in Pennsylvania. He is the author of Foreign Policy Inc.: Privatizing America's National Interest; America's Palestine: Popular and Offical Perceptions from Balfour to Israeli Statehood; and Islamic Fundamentalism.

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