The federal government's reaction to the Sept. 11 terrorist attacks once again returned to the Supreme Court on Wednesday as justices considered whether former attorney general John D. Ashcroft could be held personally liable for the detention of an American Muslim.
Abdullah al-Kidd, a U.S. citizen, was arrested in 2003 and held as a material witness. But Kidd contends that he was not detained because he had information about terrorism. Instead, he says, he was detained as part of a plan approved by Ashcroft to sweep up Muslim men the government suspected but could not prove had ties to terrorism.
Justice Roberts is clearly worried about the impact of holding prosecutors accountable for their actions. But I hope that the Court will take into consideration the following: (1) police officers seem to function under qualified immunity while prosecutors and judges have absolute immunity. (2) prosecutorial misconduct is a leading reason for wrongful convictions. (3) Bar associations have failed to adequately police the behavior of prosecutors. A study of prosecutorial conduct in California reveals the rampant disregard by prosecutors for the rule of law and the consequences of illegal and unethical behavior.
What remedy do victims like Mr. al Kidd have unless absolute immunity is removed and replaced with qualified immunity? In addition, the Court should impose requirement similar to the exclusionary rule - if you cheat, the case is dismissed. But that would not resolve the problem faced by victims like Mr. al Kidd.