What is Holder Thinking?!!?

I supported Holder’s decision to appeal over DADT, because the Attorney General in required to defend the law of the land, however disagreeable that may be.  In the case of Kidd v Ashcroft, this issue does not apply.  Holder’s decision to appeal the decision from the Ninth is thoroughly reprehensible.

The Supreme Court agreed Monday to decide whether former Attorney General John Ashcroft may be sued by an American detained for 16 days. It’s a case that a lower court judge said tests “the excesses of a powerful national government.”

The lawsuit the justices decided to hear concerns whether Ashcroft could be held personally liable for the 2005 detention of an American Islamic convert who was never charged.

Kansas native Abdullah al-Kidd was detained in 2003 at Dulles International Airport near Washington, D.C., as he headed to Saudi Arabia to embark on an Islamic studies program. Detained on a “material witness” statute, he said he was housed naked and “was treated worse than murderers.”

“The facts alleged in al-Kidd’s complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government as did many members of the Founding Generation,” Judge Milan D. Smith Jr. wrote (.pdf) in March, when the 9th U.S. Circuit Court of Appeals refused to rehear its 2009 ruling in favor of al-Kidd.

The material-witness statute, which has increasingly been invoked following the 2001 terror attacks, is designed to allow the government to hold somebody to testify at trial if the government believes the witness may flee. Al-Kidd was never called to testify.

When released from prison, al-Kidd’s travel was restricted, his passport was taken, and he was required to report to probation officers for more than a year. He sued.

Last year, the San Francisco-based appeals court ruled in favor of al-Kidd, saying the material-witness statute at issue could not be used to investigate or detain individuals without probable cause (.pdf)… [emphasis added]

Inserted from <Wired>

This case is not about defending the law of the land.  It’s about protecting a war criminal from liability for his abuse of his power against a US citizen.  In fact, Ashcroft lied to the courts to obtain the material witness warrant.  The effect of overturning the Ninth’s correct decision could be catastrophic for civil liberties, because it would give government the effective right to detain and abuse any citizen at any time, with or without cause.

The best we can hope for is a draw.  Elena Kagan must recuse herself, because had input on the case as Solicitor General.  The fascist four will goose step behind Ashcroft.  If the other four disagree the decision will be a 4-4 tie.  In that case SCOTUS would uphold the decision from the Ninth in a per curiam decision, one that sets no precedent.