Former attorney general John D. Ashcroft cannot be sued for his role in detaining an American Muslim, even though the government did not charge the man with a crime or bring him as a witness in a terrorism investigation, the Supreme Court ruled Tuesday.

By a 5-3 vote Tuesday, the court said Ashcroft did not violate the constitutional rights of Abdullah al-Kidd, who was arrested in 2003 under a federal law intended to make sure witnesses testify in criminal proceedings.
Justice Antonin Scalia said using the federal “material witness” statute to detain but not charge Abdullah al-Kidd in a terrorism investigation does not give al-Kidd a right to sue, because no court precedent had said such a use of the law was unlawful.

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” Scalia wrote. “When properly applied it protects all but the plainly incompetent or those who knowingly violate the law.

“Ashcroft deserves neither label.”

Kidd has reached a settlement with the government for his treatment in detention. Ginsburg noted that the use of falsehoods and misrepresentations could negate any claim of immunity on the part of the federal agents, whom Kidd has sued in a separate case.

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