Repugnant to the Constitution

[Crewleader]

September 8, 2009
Ninth Circuit Court:
"Ashcroft is Not Above the Law"

Repugnant to the Constitution

By MIKE WHITNEY

"We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law."

--Judge Milan Smith U.S. Ninth Circuit Court of Appeals

In a critical case which could determine the future of "preventive detention" in the U.S., the U.S. Ninth Circuit Court of Appeals ruled that ex-Attorney General John Ashcroft can be sued for ordering Muslims jailed as material witnesses as a pretext for investigating their possible links to terrorism. The 2 to 1 ruling (all three judges were Reagan or Bush appointees) is a setback for hardliners in the Bush administration who assert that the state has the right to circumvent the 4th amendment and imprison "suspects" without establishing probable cause.

Judge Milan Smith--a George W. Bush appointee--reproached Ashcroft in an eloquent defense of basic civil liberties, quoting the pre-Revolutionary War legal authority, William Blackstone:

'To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

Smith went on,

“The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.

“We are confident that...the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint."

http://www.counterpunch.org/whitney09082009.html

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1. K& R