Qualified Impunity

Preventive detention. Read the words. Repeat them aloud. Say them louder. Write them on a pad of paper. Then scrawl them on a piece of cardboard with a magic marker. Preventive detention. Holding someone on mere suspicion of who they are or what they might do. The Supreme Court now says that it is legal to do in the United States. Legal, mind you, to sweep a person off the streets and into the dark, endless night of lonely confinement.

Abdullah al-Kidd learned this truth the hard way. He was born in Kansas and named Lavoni Kidd. He played football at the University of Idaho. He converted to Islam, and changed his name. In 2003, he was about to get on an airplane for Saudi Arabia to work on a doctorate in Islamic studies. But his plans were interrupted when he was arrested and detained based on flawed and faulty information.

His crime?

There was no crime. He was detained as a material witness, under a statute that gives the government power to detain a witness to another man’s crimes if there is reason to believe the witness will flee. For 16 days, he was treated like a terrorist, confined, interrogated, warehoused. He was never called to testify against anyone. One suspects being Moslem and bound for Saudi Arabia was enough to make him a suspect.

The Supreme Court held unanimously that those government officials, including former Attorney General John Ashcroft, who authorized the detention of Mr. Kidd are immune from suit. Just how that happened is an untold story in American law. It is an example of right-wing judicial activism that no one challenges.

Ashcroft was granted qualified immunity. The doctrine has laid waste to claims of official misconduct. It is a doctrine that was created by judges to shield government officials from accountability when they break the law. This theory is nowhere in our Constitution. Indeed, Erwin Cherminsky, a leading constitutional scholar, rightly notes that sovereign immunity, a close cousin of qualified immunity, has no place in our republic. He’s right.

The court’s ruling is terrifying. No case stands for the proposition that pretext makes invalid an arrest otherwise objectively reasonable invalid, the court said. This gibberish is hard to unpack, but it comes down to the following: So long as the Government can come up with some face-saving nonsense to justify its conduct, even the worst motives won’t matter.

But was al-Kidd really a material witness? To support its claim that he was, the Government relied on an affidavit from a Federal Bureau of Investigation agent filled with incomplete and misleading information. The Supreme Court merely winked at the agent and the Government and said, in effect, what’s a little larceny among the power-elite.

Justice Anthony Kennedy’s opinion was particularly disturbing. We owe special solicitude to high government officials, he said. Kennedy’s apparently still longing for a cup of King George’s tea. When the Government turns its back on the people it was intended to protect, it deserves no solicitude. It should not be regarded as treasonous to suggest that a Government official stand before a jury of ordinary Americans to answer for making a mockery of the Constitution.

Qualified immunity is misnamed. Call it qualified impunity. It is a product of the most silent and insidious form of activism. When rights are given to the people that aren’t named in the text of the Constitution, originalists slip into a necromantic trance and wet themselves. Where is the fury when the Government and its agents are declared immune from the claims of justice?

Shame on the Court. Shame on the rest of us going like sheep into a dark night in which those who whistle "Trust and Obey" are deemed true patriots, and those bold enough to insist that we live free or die are regarded with suspicion. The al-Kidd decision betokens a revolution, all right. This is revolution of the robe-wearing caste who have arrogated unto themselves the power to decide just what juries can and cannot decide. Have you kissed a gavel lately?


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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