SUPREME COURT NOTEBOOK

Court rules out damage claim against Ashcroft

By Mark Sherman

Associated Press

WASHINGTON (AP) -- The Supreme Court on Tuesday threw out damage claims against former Attorney General John Ashcroft over an American Muslim's arrest, but four justices said the case raises serious questions about post-9/11 detentions under a federal law intended to make sure witnesses testify.

The justices were unanimous, 8-0, in holding that Ashcroft cannot be personally sued over his role in the arrest of Abdullah al-Kidd in 2003. The court sets a high bar for suing high-ranking officials, and all the justices agreed al-Kidd did not meet it, even though he was never charged with a crime or called to testify in the terrorism-related trial for which he ostensibly was needed.

Al-Kidd contended that his arrest under the material witness statute had a more sinister motive that violated his constitutional rights -- federal authorities suspected him of ties to terrorism but lacked evidence that he committed or was planning a crime. And, he said, Ashcroft blessed the use of the law in the days after the Sept. 11, 2001, attacks to take suspected terrorists off the street.

A five-justice majority absolved Ashcroft of any wrongdoing. "We hold ... that Ashcroft did not violate al-Kidd's Fourth Amendment rights," Justice Antonin Scalia said in his majority opinion. The five justices in the majority on this aspect of the decision are all Republican appointees.

But one of those justices, Anthony Kennedy, wrote separately to stress the narrowness of the decision. Kennedy said the case left unresolved how broadly the government may use the material witness statute, which has existed in one form or another since 1789.

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor said they would have resolved the case solely on the ground that Ashcroft could not be sued, whether or not al-Kidd's arrest violated the Constitution. Justice Elena Kagan did not participate in the case because she worked on the issue when she was solicitor general.

Sotomayor said no previous case involving allegedly unlawful arrests "involved prolonged detention of an individual without probable cause to believe he had committed any criminal offense."

Ginsburg said al-Kidd's "ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times."

The opinions are no aid to al-Kidd or roughly six dozen other men, almost all Muslims, who were arrested and held in the months and years after Sept. 11 under the material witness statute. But federal judges asked to issue such warrants in the future might take account of what the justices said Tuesday.

The opinions "shine a light on the problems of the material witness statute and make clear that federal judges must carefully scrutinize a request for a material witness warrant," said the American Civil Liberties Union's Lee Gelernt, al-Kidd's lawyer.

Born in Kansas, Al-Kidd is a former University of Idaho football star who now teaches English to college students in Saudi Arabia. He was headed to Saudi Arabia on a scholarship in 2003 when federal agents arrested him at Washington-Dulles International Airport.

The sworn statement the FBI submitted to justify the warrant had important errors and omissions. The $5,000 one-way, first-class seat that the agents said al-Kidd purchased was, in reality, a coach-class, round-trip ticket. The statement neglected to mention that al-Kidd had been cooperative or that he was a U.S. citizen with a wife and children who also were American.

After the arrest, he was held for 16 days, during which he was strip-searched repeatedly, left naked in a jail cell and shower for more than 90 minutes in view of men and women, routinely transported in handcuffs and leg irons, and kept with people who had been convicted of violent crimes.

Even after Tuesday's ruling, al-Kidd still has claims pending against the FBI agents who obtained the material witness warrant used to arrest him. Al-Kidd has separately reached settlements with Virginia, Oklahoma and Idaho jail officials over his treatment. A federal judge in Oklahoma ruled the strip searches al-Kidd endured at the federal jail in Oklahoma City "were objectively unreasonable and violated the Fourth Amendment."

The lawsuit against Ashcroft, attorney general from 2001 to 2005, stemmed from comments he made shortly after 9/11 that the government would preventively detain people suspected of terrorist ties, even if it had no evidence they committed a crime.

The 9th U.S. Circuit Court of Appeals in San Francisco, in allowing the lawsuit against Ashcroft to go forward, said using the material witness statute as a pretext to detain someone was a violation of the Fourth Amendment. The appeals court also said Ashcroft should have known that such detentions would violate the law.

But the high court has said that an official must be tied directly to a violation of constitutional rights and must have clearly understood the action crossed that line to be held liable. No attorney general has ever been held personally liable for official actions.

Alito owned stock, voted in case with Disney's ABC

By Mark Sherman

Associated Press

WASHINGTON (AP) -- Supreme Court Justice Samuel Alito took part in a case over curse words on television involving ABC Inc. and other networks even though he owned stock in ABC's parent, Walt Disney Co., at the time.

Alito said Tuesday that he owned around $2,000 in Disney stock when the court heard the case FCC v. Fox Television Stations in late 2008. ABC and the other networks also were parties to the case.

Alito said his participation was an oversight. He said aides who routinely check for conflicts in high court cases missed the Disney connection when they looked at the Fox case, even though ABC's brief clearly disclosed Disney's ownership.

In any event, Alito voted with the majority, against ABC's interests. The case came out 5-4, suggesting that Alito's participation directly affected the outcome in which the court threw out an appeals court ruling favorable to the networks.

The FCC's policing of the airwaves is again heading to the high court, also following a ruling for the networks. This time, Alito can take part without any worry as he sold his Disney stock last year.

The justice thinks he lost a few dollars on the deal. The issue arises now because the stock sale was disclosed in Alito's annual financial report that was released Friday.

The federal conflict of interest law for judges says they should not hear a case if they have a financial interest, however small, in a party. The statute does not provide any penalty for violation.

Stephen Gillers, an ethics expert at New York University, said simply that Alito "should not have participated."

In an interview with The Associated Press, Alito conceded as much. "It's a mistake," he said.

Alito owned the Disney shares for many years, after his mother bought $1,000 worth of stock for each of his two children. "My mother decided it would be a cool thing for them to have the actual certificates," Alito said.

The justice said he thought about selling the shares many times, but getting rid of actual stock certificates "is a pain in the neck." He finally made the sale in February 2010.

He took no part in other cases directly involving Disney before and after the curse-words dispute. He also sat out the court's consideration of the Exxon Valdez case because he owned more than $50,000 in Exxon Mobil shares.

Now that he no longer owns Disney, Alito has an apparently clear path to being involved in a sequel to the FCC case. The agency has asked the court to reinstate a policy that allows it to fine broadcasters for showing nudity and airing curse words when young children may be watching television.

The FCC appeal stems from a court ruling throwing out fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of ABC's "NYPD Blue."

Justice Breyer breaks collarbone in bike accident

WASHINGTON (AP) -- Supreme Court Justice Stephen Breyer has broken his right collarbone in a bicycle accident near his home in Cambridge, Massachusetts.

Supreme Court spokeswoman Kathy Arberg said the 72-year-old justice took a spill over the weekend.

The mishap was not preventing Breyer from speaking in New York City Tuesday evening. Breyer was not in court Tuesday morning, but Arberg said the absence was unrelated to the accident.

In 1993, Breyer suffered more serious injuries, a punctured lung and broken ribs, when he was hit by a car while riding his bike across Harvard Square.

He interviewed for a Supreme Court vacancy soon after and did not get the job. President Bill Clinton appointed Breyer, in better health at a second interview, to the high court the following year.

Home fryer maker wins patent case

WASHINGTON (AP) -- The Supreme Court has upheld a $5 million judgment to the maker of a patented deep fryer, but in a ruling that makes it harder to claim patent infringement.

The justices voted 8-1 Tuesday in favor of France-based SEB, S.A., on claims that a Hong Kong company copied features of its innovative home fryer in which the outside stays cool to the touch. A unit of Global-Tech Appliances Inc., began selling its own fryer, based upon the SEB-owned technology.

The high court upheld an appeals court ruling for SEB, but adopted a tougher standard than the appeals court used for proving the patent violation.

Computer and other technology companies argued for the higher standard. Pharmaceutical manufacturers wanted stronger patent protection.

The case is Global-Tech Appliances Inc., v. SEB, S.A., 10-6.

Justices turn down new Conrad Black appeal

WASHINGTON (AP) -- The Supreme Court has rejected an appeal from former media mogul Conrad Black challenging his two remaining convictions on fraud and obstruction of justice.

The court did not comment on the order Tuesday. Black said in a statement that he was not surprised by the ruling and vowed to continue challenging the two remaining convictions.

Last year, the justices curtailed the "honest services" laws used to convict Black of defrauding Hollinger International investors. An appeals court subsequently reversed two convictions, but left two others in place. He is scheduled to be resentenced on June 24.

The former media giant said in a statement to The Canadian Press news agency that the Supreme Court's decision "does not imply any agreement with the circuit court's resurrection of two counts," but only that it disagreed with Black's constitutional argument.

Black, who had been serving a 6 1/2-year sentence in a U.S. federal prison, has been freed since last summer while the appeals run their course.

Black is set to return to a Chicago court room on June 24 for resentencing on his two remaining fraud convictions.

The U.S. Attorney believes Black's original sentence of 6 1/2 years should be reimposed. Though Black has behaved well in prison and helped teach fellow inmates, he has refused to accept responsibility for his crimes, prosecutors said in a court filing ahead of the June sentencing hearing.

The Canadian-born businessman was freed on bail from a Florida prison last year while he appealed his conviction for defrauding investors. He had served 29 months of a 78-month sentence for the original four convictions.

Black's empire once included the Chicago Sun-Times, The Daily Telegraph of London and smaller papers across the United States and Canada.

Hold on Texan's execution lifted

WASHINGTON (AP) -- The Supreme Court has lifted its hold on the execution of a Texas man convicted in the shooting death of a woman in 2002.

The court's order Tuesday frees the state to set a new execution date for Cleve Foster, who was hours away from receiving a lethal injection in April when the high court stepped in.

Foster's appeal raised claims of innocence and poor legal help during his trial and early stages of his appeals.

He was sentenced to death for fatally shooting Nyaneur Pal, 30, in Ft. Worth in February 2002.

Published: Thu, Jun 2, 2011

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