The Supreme Court head argument on March 2 in the case of Ashcroft v. Al-Kidd, questioning whether John Ashcroft is entitled to immunity from charges that Abdullah Al-Kidd was held under the act allowing detention of material witnesses, but was treated as a suspect and was in fact never intended to be a witness in any trial.  After September 11th, 2001, Mr. Ashcroft asked Congress for the authority to detain suspects without probably cause of to suspect wrongdoing.  He was denied, and this action is an end-run around the Constitution and expressed intentions of Congress.

Ashcroft v. Iqbal did enough to undermine the ability of those wrongfully detained by an overzealous government to challenge their detentions, and now Ashcroft asks the court to go even further.  The government in this case does not claim that Al-Kidd’s allegations are implausible, which would get them dismissed under the Iqbal standard.  The government claims that Ashcroft’s actions were lawful, and to the extent that they weren’t he should be granted absolute prosecutorial immunity.

The 9th Circuit decided for Al-Kidd and rejected this use of the material witness statute as an unlawful detention, and rejected Ashcroft’s claims of immunity.  Hopefully, the Supreme Court will be brave enough to do the same. Allowing the government to ignore constitutional and statutory requirements when detaining suspects makes those requirements null and void.  The Constitution exists exactly to protect the wrongfully accused from overreaching government actions such as these, and granting immunity would eviscerate critical constitutional protections.  The Court needs to take a strong stance that waving the flag of fighting terrorism is not a license to ignore the democratic freedoms government officials claim to be protecting.