The ACLU won an unprecedented victory Friday in its legal efforts to hold Bush Administration officials accountable for their illegal activities post 9/11.  Under the ruling in the case of al-Kidd v. Ashcroft, Attorney General John Ashcroft can be held personally responsible for the wrongful detention of an innocent American, Abdullah al-Kidd. 

Unfortunately, neither Ashcroft nor the ACLU can give Mr. Al-Kidd his life back.  He lost his job working for a federal contractor, and his marriage dissolved, after a sixteen-month ordeal in which he was arrested, confined in high-security prisons in four states, and placed on harsh probationary conditions all because the government alleged he was wanted as a "material witness" to testify in another case. 

After sixteen months, the government neither called him to be a witness in the other trial nor charged him with any wrongdoing.

Glenn Greenwald of Salon.com gets it right in an important post about the case on Saturday.  This case demonstrates why giving the President the power of indefinite detention is dangerous.  No government official should have the legal authority to lock up anyone -- citizen or non-citizen -- without charge for an undefined period of time.

The Ninth Circuit quoted William Blackstone in their powerful opinion allowing the case against Ashcroft to go forward:

"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

Judge Milan D. Smith, Jr, a Bush 43 appointee, wrote for the majority:

 "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. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."

We need to repeal the material witness statute in the Patriot Act, and we need to stop the Congress from passing "indefinite detention" or "preventive detention" powers for President Obama and future Ashcrofts.