"But There's No Case!"

In an argument that is usually presented as a thinly-reasoned avoidance of the issues, the Washington Post argues that no suit should be permitted against John Ashcroft for his role in the detention and mistreatment of Abdullah al-Kidd because "there was no legal precedent available to Mr. Ashcroft that would have warned against such aggressive use of the material witness statute". While the existence of prior judicial guidance should be considered in borderline cases, I reject the Post's notion that anything a government actor does is presumptively in good faith unless there's existing case law explicitly prohibiting the conduct. (It's like strip-searching a child to look for an ibuprofen tablet - if nobody tells you it's a stupid thing to do, how are you ever going to figure it out for yourself, right?)

Had Ashcroft personally shot al-Kidd in the head, would even the Post find the lack of case law stating that the material witness statute didn't prohibit execution of witnesses to justify granting him immunity? Seriously, what's wrong with asking our nation's highest political leaders to apply common sense, or traditional interpretations of either the statute or the concept of "material witness"? What's wrong with observing that nothing in John Ashcroft's treatment of al-Kidd is consistent with the purpose of detaining a material witness, and asking him to explain why we should believe that he had even the slightest good faith belief that his actions were allowed under that statute?