Al-Kidd (formerly Lavoni T. Kidd), a former college football star at the University of Idaho, sued former Attorney General John Ashcroft for creating the policy of mass detention that Al-Kidd says resulted in his illegal arrest and detention. Al-Kidd was detained for several weeks, forced to surrender his passport and then released with the requirement that he not travel outside of a three-state radius from Nevada for a year. During that time, he was required to report to a probation officer and to submit to home visits by authorities. No criminal wrongdoing was ever found to justify Al-Kidd's detention. But he lost his job and saw his family broken by his detention and the restrictions imposed on his movements.

It's by now undisputed and documented by the Justice Department that the attorney general authorized the detention of hundreds of U.S. citizens and immigrants on negligible charges in the months after 9/11. But Ashcroft's attorneys argue that he is personally immune from suit for actions taken in his official capacity. The argument logically follows the strong tradition of prosecutorial immunity that has been the law in this country. The 9th Circuit Court of Appeals, however, recently held that Ashcroft's actions denied due process (pdf) to Al-Kidd in violation of the Fourth Amendment.

There's little disagreement among court watchers that the Supreme Court took this case for the same reason it hears most of the other petitions from the 9th Circuit: to reverse the decisions of that more moderate appeals court. Once again, illegal conduct has taken place, and yet those who gave the order may avoid responsibility.

The allegations of brutal treatment and torture here in the United States sound reminiscent of claims by detainees held in U.S. custody abroad. The problem with all of these instances of abuse is not just that they happened. That is bad enough. But the brazen, unapologetic manner in which some of those who authorized these illegalities continue to flaunt their contempt for the rule of law is even more pernicious. Respect for the rule of law requires us to look back before we look forward.

Sherrilyn A. Ifill, who teaches at the University of Maryland, writes about the law for The Root.

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