Should the government be immune to civil suit when it abuses its powers?

[gpatt0n]

A simple question ... should the government be subject to a civil suit if they violate habeas corpus and hold someone as a material witness without grounds?

 

The reason to ask is that the Obama Administration has decided to defend the decision of former Attorney General John Ashcroft who authorized the detention of some seventy American citizens largely because they had Muslim sounding names. At least that is about the only justification that makes any sense even though it doesn't make much sense.

 

Anyway, one of those detained, a former University of Idaho football star who changed his name to Abdullah Kidd.

 

Obama administration lawyers appealed the case and the SCOTUS decided to hear it yesterday after the ninth circuit ruled on appeal that Kidd had a case.

 

But a federal judge in Idaho and the U.S. 9th Circuit Court of Appeals refused to dismiss the suit. Judge Milan Smith said it was "repugnant to the Constitution" for the government to say it "has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because they have committed a crime, but merely because the government wants to investigate them for possible wrongdoing."

 

Anyway, the Obama administration has taken Ashcroft's side and asserts that it would "severely damage law enforcement" if the nation's top law enforcement official could be held liable for abusing his authority.

 

The question is was Ashcroft wrong and is the Obama administration wrong to defend the them?

 

pubby

[Cathyhelms]

A simple question ... should the government be subject to a civil suit if they violate habeas corpus and hold someone as a material witness without grounds?

 

The reason to ask is that the Obama Administration has decided to defend the decision of former Attorney General John Ashcroft who authorized the detention of some seventy American citizens largely because they had Muslim sounding names. At least that is about the only justification that makes any sense even though it doesn't make much sense.

 

Anyway, one of those detained, a former University of Idaho football star who changed his name to Abdullah Kidd.

 

Obama administration lawyers appealed the case and the SCOTUS decided to hear it yesterday after the ninth circuit ruled on appeal that Kidd had a case.

 

 

 

Anyway, the Obama administration has taken Ashcroft's side and asserts that it would "severely damage law enforcement" if the nation's top law enforcement official could be held liable for abusing his authority.

 

The question is was Ashcroft wrong and is the Obama administration wrong to defend the them?

 

pubby

 

Pubby your thread title and the poll question say two different things. One says should they be liable and the other says should they be immune...........might cause some confusion in the poll answers.

[misterpolitics]

Pubby your thread title and the poll question say two different things. One says should they be liable and the other says should they be immune...........might cause some confusion in the poll answers.

 

Looks like this budding lawyer has some research to do . Anyone wish to join me on Westlaw? Naturegirl, you in?

[Cathyhelms]

Looks like this budding lawyer has some research to do . Anyone wish to join me on Westlaw? Naturegirl, you in?

 

Not a member, can't use the site for research.

[+North of the Border]

No

[kcarlsonlpn]

I don't think it's as black and white of a question as you're asking, Pubby....atleast not what the court is looking at in this case.

 

Kidd was held as nothing more than a witness for what was it, 3 weeks? But really, holding a witness I have no issue with, the thing I have issue with is the way that he was held. He was treated as a prisoner and, more specifically, almost an enemy prisoner. THAT'S why he should have a lawsuit. The whole "witness" label was a guise by the Federal Government to hold him while they figured out why he was going to Saudi Arabia.

 

I think making the Feds exempt from civil suits would be absolutely idiotic. There is already a safeguard built in whereas a judge must approve apprehension. In this case, the judge was lied to by the FBI. Had the judge been given the truth, Kidd likely would have never been taken into custody as a "witness" (who never served as a witness, btw). Also, had Kidd been put up in a hotel under protective custody while awaiting trial, he likely wouldn't have sued.

 

 

mrnn

[gpatt0n]

The government has always asserted immunity to lawsuit. They may have a poorly designed piece of road that might have taken ten lives in the past decade but the best we might expect is that the engineers will notice the design flaw and redesign the road.

 

For the most part, the government is immune but this is specific to this case.

 

Sure he wouldn't be suing if he was held as a material witness at the Waldorf ... but handcuffed to the ceiling, stripped naked and sprayed with water ... frigging torture of an American Citizen who has not violated the first law ... and you want to give this bureaucrats a bye?

 

They are immune when conducting business in a businesslike manner.

 

Is there a line over which they can go and commite an abuse of office and that ought to be subject to direct sanction?

 

Is this not a great example of exactly what we ought to hang them from yardarm for?

 

If not this, What?

 

pubby

[lotstodo]

Not being privy to the actual facts of the case, just the opinion of one judge on the most rogue district in the US and divergent views of the circumstances, I would have to say that the Supremes should review. In fact, I personally believe that any decision by the 9th district should automatically be reviewed by SCOTUS, but that's neither here or there. The question needs to be answered and the question if far more narrow than you make it out to be.

[Nitro]

I think making the Feds exempt from civil suits would be absolutely idiotic.

 

You don't have to "make" them immune, they already are.

 

The federal government cannot be sued unless one of two things occur.

 

First, the you must have the permission of the government agency that you are going to sue.

Otherwise, you can't. Sounds ridiculous, but it's true.

 

Second, the only other way you can file suit against the federal government is under the FTCA (Federal Tort Claims Act).

Then, you have to give a written claim to the agency that has caused the problem.

The agency may take up to six months to approve or deny your claim. Once denied and a period of six months have passed,

you can then file a suit in the US District Court. AND you must file within six months of the denial.

The FTCA only applies to federal government employees.

The suit is filed when the federal government has shown tortious negligence of its employees

and that negligence causes personal injury or property damage.

 

Otherwise, you can't sue the federal government.

[gpatt0n]

You don't have to "make" them immune, they already are.

 

The federal government cannot be sued unless one of two things occur.

 

First, the you must have the permission of the government agency that you are going to sue.

Otherwise, you can't. Sounds ridiculous, but it's true.

 

Second, the only other way you can file suit against the federal government is under the FTCA (Federal Tort Claims Act).

Then, you have to give a written claim to the agency that has caused the problem.

The agency may take up to six months to approve or deny your claim. Once denied and a period of six months have passed,

you can then file a suit in the US District Court. AND you must file within six months of the denial.

The FTCA only applies to federal government employees.

The suit is filed when the federal government has shown tortious negligence of its employees

and that negligence causes personal injury or property damage.

 

Otherwise, you can't sue the federal government.

 

That is patently untrue. The gay soldiers sued the Army (government) and the courts ruled Don't ask, don't tell' unconstitutional... and the Army is actively recruiting gay folks now.

 

If you couldn't sue the federal government then the state of Georgia and other states would be SOL in regard their challenges of the Obamacare.

 

Just do a google search of "v. United States" (with quotes) and you'll note some 44,000,000 entries.

 

That's a whole lot of instances where the United States is in the defendant position for there to be absolute immunity, because the immunity the government enjoys is not absolute.

 

As far as the specifics of this case, if the SC chooses to grant the government immunity is this case then any US attorney can for virtually any reason (good or bad) have someone picked up as a material witness and torture and hold them indefinitely without so much as a crime having been committed.

 

Why?

 

Well, because the person or persons in the government face no sanctions for doing so.

 

Heck, if this ruling becomes law, the criminal AG John Mitchell could have had Woodward and Bernstein picked up, tortured and held as material witnesses without charges until inauguration day 1977. BTW, that would suck.

 

pubby

[Nitro]

That is patently untrue. The gay soldiers sued the Army (government) and the courts ruled Don't ask, don't tell' unconstitutional... and the Army is actively recruiting gay folks now.

 

If you couldn't sue the federal government then the state of Georgia and other states would be SOL in regard their challenges of the Obamacare.

 

Just do a google search of "v. United States" (with quotes) and you'll note some 44,000,000 entries.

 

That's a whole lot of instances where the United States is in the defendant position for there to be absolute immunity, because the immunity the government enjoys is not absolute.

 

As far as the specifics of this case, if the SC chooses to grant the government immunity is this case then any US attorney can for virtually any reason (good or bad) have someone picked up as a material witness and torture and hold them indefinitely without so much as a crime having been committed.

 

Why?

 

Well, because the person or persons in the government face no sanctions for doing so.

 

Heck, if this ruling becomes law, the criminal AG John Mitchell could have had Woodward and Bernstein picked up, tortured and held as material witnesses without charges until inauguration day 1977. BTW, that would suck.

 

pubby

 

Sorry Pubby, what I stated is not patently wrong, it's absolute fact.

Did you not attend school? It's quite common knowledge.

 

What part of YOU can't sue the federal government doesn't make sense?

I didn't say STATES couldn't sue. States most definitely can sue.

Just to give you a piece of information, YOU are not the STATE.

 

And in the case of the gay soliders, what part of "if the government allows you too" didn't you understand?

Oh, and you do know that case has been brought to the appeals court and the ruling is currently suspended, right?

 

Nothing I stated was "patently untrue." You just chose to read something I didn't write.

If the Supreme Court, which is the FEDERAL GOVERNMENT, says they will hear the case,

they are giving you permission to sue. If they say they won't hear the case, you're SOL.

Edited October 21, 2010 by Nitro

[gpatt0n]

Sorry Pubby, what I stated is not patently wrong, it's absolute fact.

Did you not attend school? It's quite common knowledge.

 

What part of YOU can't sue the federal government doesn't make sense?

I didn't say STATES couldn't sue. States most definitely can sue.

Just to give you a piece of information, YOU are not the STATE.

 

And in the case of the gay soliders, what part of "if the government allows you too" didn't you understand?

Oh, and you do know that case has been brought to the appeals court and the ruling is currently suspended, right?

 

Nothing I stated was "patently untrue." You just chose to read something I didn't write.

If the Supreme Court, which is the FEDERAL GOVERNMENT, says they will hear the case,

they are giving you permission to sue. If they say they won't hear the case, you're SOL.

 

I think we're dancing around the same subject.

 

Even a district court can throw a case out on the basis of immunity. Indeed federal district judges as a rule (but with exceptions) do so regularly and routinely.

 

However, as you said, you can sue if they let you sue. I.e. if the federal district judge that that the case is presented to decides to hear the case, which happened to be the case here. Nothing I've said is contradictory to that notion.

 

The plain fact is that the case was filed under the federal tort claims act which does allow regular citizens - not just federal employees as you said - to bring suit.

 

"The FTCA permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. The FTCA constitutes a limited waiver of sovereign immunity.

 

Anyway, this case was heard in a court of original jurisdiction and the plaintiff asserted that the AG was committed acts on behalf of the government that if those acts were done by another would have damages and the suit is authorized under the FTCA. The government filed a motion asking the judge to dismiss the case because this was not a case covered by the FTCA and the government should retain its immunity.

 

The district judge said no, the injuries suffered by plaintiff KIDD were recoverable.

 

The government appealed that ruling to the appeals court, they said no, the civil suit can proceed under the FTCA. The government then appealed that decision to the ninth district court of appeals which again said that the suit was valid and could proceed.

 

The government - and this includes attorneys in the Obama administration - said they want immunity from suit for our acts in this case so they asked the SCOTUS to hear the case.

 

 

As there is no appeal from this court, it will decide if the lower courts applied the FTCA correctly when they said this person could sue the government in this case.

 

If the Court agrees with the government, there is no legal process available to restrain the feds from picking people up off the street on the ruse they are a material witness to something (UFO's?) anything (ghosts?). Oh, and you can even lie to a judge about why. So why not just pickup folks and hold then with impunity as a material witness. Yes, if this is the precedent, you can hold them not only indefinitely and incommunicado but can compensate those sickos you hired to stash them away by letting them torture them. Aw hell, may as well kill 'em 'cause we're immune.

 

Anyone who thinks that is a good idea is one sick mofo.

 

pubby