Court: Ashcroft can't be sued

WASHINGTON -- The Supreme Court threw out damage claims against former Attorney General John Ashcroft Tuesday over an American Muslim's arrest, but four justices said the case raises serious questions about post-9/11 detentions under a federal law intended to make sure witnesses testify.

The justices were unanimous, 8-0, in holding that Ashcroft cannot be personally sued over his role in the arrest of Abdullah al-Kidd in 2003. The court sets a high bar for suing high-ranking officials, and all the justices agreed al-Kidd did not meet it, though he was never charged with a crime or called to testify in the terrorism-related trial for which he ostensibly was needed.

Al-Kidd contended that his arrest under the material witness statute had a more sinister motive that violated his constitutional rights -- federal authorities suspected him of ties to terrorism but lacked evidence that he committed or was planning a crime. And, he said, Ashcroft blessed the use of the law in the days after the Sept. 11, 2001, attacks to take suspected terrorists off the street.

A five-justice majority absolved Ashcroft of any wrongdoing. "We hold . . . that Ashcroft did not violate al-Kidd's Fourth Amendment rights," Justice Antonin Scalia said in his majority opinion. The five are all Republican appointees.

But one of those justices, Anthony Kennedy, wrote separately to stress the narrowness of the decision. Kennedy said the case left unresolved how broadly the government may use the material witness statute, which has existed in one form or another since 1789.

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor said they would have resolved the case solely on the ground that Ashcroft could not be sued, whether al-Kidd's arrest violated the Constitution or not. Justice Elena Kagan did not participate in the case because she worked on the issue when she was solicitor general.

Sotomayor said no previous case involving allegedly unlawful arrests "involved prolonged detention of an individual without probable cause to believe he had committed any criminal offense." Ginsburg said al-Kidd's "ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times."

The opinions are no aid to al-Kidd or roughly six dozen other men, almost all Muslims, who were arrested and held in the months and years after Sept. 11 under the material witness statute. But federal judges asked to issue such warrants in the future might take account of what the justices said yesterday.