The New York Times weighed in yesterday with this editorial regarding Ashcroft v. Al-Kidd, a tort suit against former U.S. Attorney General John Ashcroft which the Supreme Court recently agreed to review.  The Times called Ashcroft’s conduct “outrageous” – the plaintiff accuses Ashcroft of misusing the federal material witness statute – and deemed the Obama Administration’s on-going defense of Ashcroft to be “disturbing” and “repugnant to the Constitution.”

The Times’s editorial apparently is based on a fundamental misunderstanding of the facts of the case.  As it notes, Al-Kidd complains that federal prosecutors detained him for 15 days under the material witness statute even though they (allegedly) never intended to call him as a witness in ongoing criminal investigations into terrorist activity by Muslim groups.  Even worse, Al-Kidd alleges, federal officials subjected him to inhumane treatment during his 15 days of incarceration.

What the Times fails to note is that there is no allegation that Ashcroft, as head of the Justice Department, had ever heard of Al-Kidd or had any involvement in establishing the conditions of his confinement.  Yet, Al-Kidd is seeking to hold Ashcroft personally liable for his alleged mistreatment.  The Times says that the Obama Administration is seeking dismissal on “qualified immunity” grounds, alleging that the claims against Ashcroft are not “plausible.”  Wrong.  The plausibility argument is no longer part of the case because Al-Kidd’s attorneys have admitted that they have not established a plausible basis for asserting that Ashcroft should be responsible for alleged wrongdoing by lower-level Justice Department employees.  The Times worries that expansion of the “plausibility” standard – established in a 2009 Supreme Court decision also involving Ashcroft – will make it more difficult for citizens to obtain judicial redress for alleged violations of constitutional rights.  The Times need not worry; the case now before the Court has nothing to do with the plausibility standard.

Instead, the case will turn in large measure on whether senior Executive Branch officials can be held personally liable for damages even though the rights asserted by the plaintiff were not “clearly established” at the time they acted.  Tellingly, the Times cites no case authority for its claim that the unconstitutionality of Ashcroft’s material witness policy was “clearly established” at the time of Al-Kidd’s March 2003 detention, or at any later time for that matter.  The material witness statute allows judges to order the detention of anyone whose testimony could be helpful in an ongoing criminal proceeding if prosecutors demonstrate that they otherwise might be unable to procure the testimony.  No one contests that such a showing was made in this case; indeed, Al-Kidd (a close associate of a man under indictment on terrorism charges) was arrested as he was about to fly to Saudi Arabia for an extended stay.  Al-Kidd nonetheless claims that Ashcroft encouraged “pretextual” use of the statute – i.e., the “real” reason for the arrest is that prosecutors suspect an individual of terrorism yet lack the “probable cause” of wrongdoing normally necessary before an arrest can be made.  Regardless whether such “pretextual” use of the material witness statute violates the Constitution – and the great weight of Supreme Court case law suggests that it does not – it cannot be said that Ashcroft’s policy violated any “clearly established” constitutional right.  Under those circumstances, Ashcroft is entitled to immunity from Al-Kidd’s claim for damages.

The Times accuses the Obama Administration of trying to “defend the indefensible” and of “defending the [material witness statute] as a basis for detention” – as though there were something objectionable, where necessary, to holding innocent witnesses whose presence at trial cannot otherwise be assured.  To the contrary, the material witness statute has been a valuable law enforcement tool throughout American history, and its use by Ashcroft was unexceptionable.  The Times is free to call on the Supreme Court to re-write the Constitution, but there can be no basis for requiring senior government officials to pay damages for failing to anticipate that the Supreme Court might do what the Times is asking.