I heard this on NPR this morning. I won't recap the whole thing, it's not that long a story, but the gist of it is that an American citizen is suing the former attorney general, personally, for violating the citizen's constitutional rights by misusing the "material witness" statute. The Material Witness Statute has been around for a long time and it basically means that the feds have the authority to arrest someone whose testimony is material in a criminal case, and that a subpoena might not be enough to compel his testimony. I find this repugnant on so many levels, but since government agents and legislators seem not to care about the fact that individual rights are mere nuisances to the effective administration of the state, it should not be surprising that both major political parties seem to adore such authority (the Obama administration is appealing a decision by the federal appeals court that would have allowed the case against Ashcroft to go to trial*).
Anyway, the statute has been around for centuries, but the abuse of the authority was kicked up a bit after the attacks on 11 September 2001 and the Justice Department was headed by John Ashcroft.
Again, I don't want to rehash the whole story, but this little tidbit really struck me:
Former Attorney General Mukasey says it's important for the attorney general to be able to use the material witness law in this way "without having to worry about individual liability and saying, 'You know, maybe I better not do this. Maybe we better just let these folks slip through our fingers because one of these individuals might sue.' " (emphasis added)
This was my major complaint with the Bush administration and it is being carried on with great gusto by the Obama administration. Lost in their zeal to protect everyone is the essence of what this country was founded on. A public official granted wide authority by statute, and not by the constitution, is not to be held personally liable in a situation clearly showing disregard not only of basic (fundamental) human rights (life, liberty, property) but of the actual text of the statute itself. Mukasey worries about officials being scared into inaction by threat of lawsuit, when they should be considering, first, foremost and every time, whether the rights of the individual in question are being violated. If the answer is yes, and it clearly is in this case, then no action is to be taken against that individual. Who cares if the guy was going to Saudi Arabia? Whether his ticket was round-trip in coach or one way in first-class, he was not a criminal; not charged with any crime, not suspected of having committed any crime.
And even if he is to be detained merely for providing testimony in a potential criminal case against someone else...three maximum security facilities and frequent strip searches? Not holding the individuals responsible for these atrocities personally liable for their actions merely pushes the burden onto the taxpayer. Yes, the plaintiff will get his payday, but he, and we, will be denied justice. At least he'll get some money, we'll get the bill.
I hope (but doubt) that the Supreme Court will stand on the side of the individual. If not, we will take another step down the Road to Serfdom, accepting more the notion that the government is the master and the people the servants.
*the Obama administration talked a good game before coming to office about how bad the Bush administration was in areas of presidential authority and civil rights. In practice, it has embraced most of the policies and broadened some others. But for the life of me, I can't seem to recall the nasty articles from the New Republic condemning the practices under Obama.