The ongoing Securities and Exchange Commission (SEC) story is basically concerned with the accountability of both institutions and individuals responsible for oversight. The underlying question concerns what can and should be done when such an institution is negligent in that oversight. Many of us see the investigation of the SEC as preparation for raising similar questions of negligence of oversight in the conduct of the Executive Branch under the Bush Administration. The 9th Circuit Court of Appeals may now have given us some guidance as to how such negligence should be investigated and prosecuted. Here is how BBC NEWS reported their decision and its context:
Abdullah al-Kidd accuses John Ashcroft, attorney general from 2001 to 2005, of violating his constitutional rights in 2003, when he was held for 16 days.
The court said detention of witnesses without charge after the 9/11 attacks was "repugnant to the constitution".
The US Department of Justice said it was reviewing the court's order.
A three-judge panel of the 9th US Circuit Court of Appeals also said the government's policy was "a painful reminder of some of the most ignominious chapters of our national history."
Mr al-Kidd was detained in 2003 because the government thought he had information in a computer terrorism case against fellow University of Idaho student Sami Omar al-Hussayen.
He was never charged with a crime, and Mr al-Hussayen was acquitted after a trial.
Mr al-Kidd filed the lawsuit against Mr Ashcroft and other officials in 2005.
He said his detention was part of an illegal government policy to arrest and detain people - particularly Muslim men and those of Arab descent - as material witnesses if the government suspected them of a crime but had no evidence to charge them.
Mr Ashcroft had asked the judge to dismiss the matter, saying that he had absolute immunity in his position.
However, the judges said even qualified immunity does not allow the attorney general to carry out national security functions completely free from any personal liability concerns.
In other words, while the government may authorize its actions, even those most constitutionally questionable, on grounds of "national security" (or any other crisis situation), those actions may still be subject to personal liability suits in the civil courts. This may be the opportunity for the camel to get its nose under the tent, for which we have all been waiting. Ashcroft may have covered his ass against criminal charges, but he may still have to pay for his actions if a civil court decides for the plaintiff. Presumably, this means he will have to pay out of his own pocket, since it is hard to imagine anyone helping him to foot the bill. We would then have our first significant lesson in unforeseen financial consequences for those who had been too preoccupied with criminal immunity. The American Civil Liberties Union (ACLU), in the person of Lee Gelernt, who defended al-Kidd, sees the scope of opportunity that now lies in the future:
Our hope is that we can now begin the process of uncovering the full contours of this illegal national policy.
Let us wish Gelernt and his ACLU colleagues well in their pursuit of this hope.