”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”
- Judge Milan D. Smith, 9th Circuit
On the heels of Padilla’s loss, we have another American taking legal action against former U.S. officials. U.S. citizen Abdullah al Kidd (formerly known as Lavoni T. Kidd) is looking to sue former Attorney General John Ashcroft. Al Kidd was detained in 2003 as a material witness in an anti-terror investigation. Al Kidd was taken into custody at an airport and then interrogated before being shipped around detention facilities in Virginia, Oklahoma and Idaho for the nest two weeks. He never ended up testifying and the suspect – about which the authorities believe Al Kidd had information - was eventually acquitted. Al Kidd is not happy. And he wants retribution.
The Bostonians Paying the Excise-Man, 1774
“Al Kidd’s attorneys contend these arrests exceeded Ashcroft’s lawful authority because they were being used, without probable cause, to detain and investigate suspects rather than compel testimony. The attorneys say this violated the Fourth Amendment’s protections against unreasonable searches and seizures.” The Ninth Circuit has agreed with him and now the Obama is attempting to overturn them at the Supreme Court.
As I have discussed before, General Washington was very careful to defer to the civilian authorities when dealing with Americans. While he could have his way with foreign nationals, Americans were a different story. But this is not to say that the civilian authorities treated the American traitors nicely, however. Loyalists were often beaten, tarred and feathered (which may seem funny but could cause disfiguring burns, blindness, infection, and even death!), and “spicketted.” Spicketting was a torture tactic in which a giant screw was driven into the Loyalist American’s foot as a crow spun him around on it. Al Kidd was kept in detention centers with the lights on day and night. That sounds awful. I guess it may have been worse if this was 1776.
So, my fellow civilians, Washington would want you to have your say: what do you think about Al Kidd’s treatment? How do you think the Supreme Court should/will rule?
You remark, “But this is not to say that the civilian authorities treated the American traitors nicely, however. Loyalists were often beaten, tarred and feathered (which may seem funny but could cause disfiguring burns, blindness, infection, and even death!), and ‘spicketted.’”
Civilian authorities might confiscate Tory estates or, in several cases, even execute Tories for treason (especially if caught recruiting or fighting for the enemy). We should distinguish action by authorities from actions by the mob.
In trying to account for harsh British policies, Rev. John Witherspoon pointed to the British getting advice from Tories, some of whom were “roughly handled by the multitude” in the early years of the conflict. If Witherspoon’s assessment is right, the rough treatment of Tories you describe at least partly contributed to British brutality during the war.
All this is beside your main point: The line between foreign nationals and US citizens has nearly disappeared in the more recent conflict, especially as the current President has included an American citizen in recent assassinations/targeted killings. This development has not raised the general concern that it probably should.