[Ppnews] John Ashcroft's immunity defended by Obama

Political Prisoner News ppnews at freedomarchives.org
Wed Oct 27 10:21:37 EDT 2010


26. Oct, 2010
by Dr. Lawrence Davidson

Court Rules Ashcroft Can Be Held Liable For U.S. Citizen’s Post 9/11 Detention

The Situation

One of the cases the Supreme Court of the United 
States will take up in its 2011 session is 
vs. al-Kidd. John Ashcroft was the Attorney 
General under President George Bush Jr. In that 
capacity he appears to have knowingly violated 
the U.S. Constitution (as well as periodically 
forced his employees to listen to his horrendous 
singing voice). Abdullah al-Kidd is a Muslim 
American citizen who Ashcroft illegally ordered 
detained through the illicit use of a material 
witness warrant. Kidd was one of 70 detained in 
this manner. He 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 action 
to the Constitution.” That he knowingly and 
criminally acted 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 alleged 
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, 
the raids and deportations that took place as a 
result of the Red Scares of the 1920s were at 
least in part unconstitutional, then you have 
Watergate, Irangate and now multiple potential 
Bushgates. Few of the politicians who ordered 
these criminal actions, or those who carried out 
those orders, ever faced punishment. [NOT TO SPEAK OF COINTELPRO]

The Position of 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 White House. From 
the beginning of his presidency, Obama decided to 
shield them from the consequences of their 
crimes. This position was initiated by the 
“we should look forward” statement in January of 
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 
Eric Holder, to open an investigation of the 
issue of torture it was arranged so the inquiry 
would have no teeth. Publically 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 this position, and its likely 
consequences, warrants close examination. If we 
were to ask President Obama 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 
the 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 can not 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% 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 can not 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 operatives, have 
never publically addressed this question.

Likely Consequences

If the Obama Justice Department proceeds with its 
plans to defend Ashcroft’s immunity claim and if, 
as is likely, the 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 the Obama 
Justice Department is arguing for when it defends John Ashcroft.

Dwight Eisenhower once asked the question, “how 
far can 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 
Bush Jr. as well as President Barack Obama’s 
unfortunate willingness to defend them.

Lawrence Davidson
Department of History
West Chester University
West Chester, Pa 19383

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

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