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Ninth circuit court rules that Ashcroft can be sued personally

In Law Scoop

5:57 am on Tue, 09.08.09

Former Attorney General John D. Ashcroft can be sued personally for allegedly abusing the material witness law in the wake of 9/11 by locking up a Muslim-American who never was accused of a crime or called as a witness. The 9th U.S. Circuit Court of Appeals likened the misuse of the material witness law to preventive detention. (Read the Washington Post story on the case.)

At first glance, the 9th Circuit's decision seemed to conflict with the U.S. Supreme Court's decision earlier this year that a Muslim Pakistani could not sue Ashcroft for the policy of locking up Muslim men from the Middle East in the days after 9/11. In that 5-4 decision, the Supreme Court ruled Javaid Iqbal had not presented enough facts to make a plausible case that Ashcroft was responsible for the policy.

In last Friday's 9th Circuit decision, two Republican appointees, Judges Milan D. Smith Jr. and David R. Thompson, concluded that Ashcroft was not entitled to immunity from suit because Abdullah al-Kidd had presented enough evidence to make a plausible case that Ashcroft had misused the material witness law and violated al-Kidd's rights.

The difference was that al-Kidd's lawsuit cited statements that Ashcroft and FBI Director Robert Mueller had made singling out the al-Kidd case as an example of how they had used the material witness law to hold people suspected of having connections to alleged terrorists. Iqbal had presented no such evidence.

Al-Kidd was born Lavoni T. Kidd in Wichita, Ks. before attending college at the University of Idaho, where he was a top running back on the football team. The African-American converted to Islam, married and had two children. He was arrested March 16, 2003 when he was about to fly out of Dulles Airport on a trip to study in Saudi Arabia. Over the next 16 days, al-Kidd was repeatedly strip-searched and held in isolation cells with the lights on day and night.

The FBI affidavit that led to al-Kidd's detention as a material witness contained a number of false claims. It said he was about to take a one-way trip to Saudi Arabia for a cost of $5,000. Actually, he had a round-trip ticket costing $1,700. The FBI maintained that al-Kidd had information relevant to the prosecution of Sami Omar Al-Hussayen, an Idaho man who was accused of terrorism and immigration violations related to running a Muslim group's website. Al-Hussayen was acquitted of the terrorism charges in 2004 but later deported. Al-Kidd was not called as a witness.

The 9th Circuit panel decided that al-Kidd's case was different from Iqbal's because al-Kidd was able to cite statements from Ashcroft and Mueller. In October, 2001, Ashcroft said at a press conference:

"Today, I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department's strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks."

Later, in congressional testimony, Mueller cited the al-Kidd arrest as one of five successes in the war on terrorism.

An internal Justice Department investigation cited by al-Kidd included public statements of Justice Department and White House officials stating that material witness warrants were being used to hold suspects in a kind of preventive detention.

One significance of the 9th Circuit decision is its disapproval of preventive detention at a time when the Obama administration is considering its use in holding terrorism suspects under some circumstances. The judges concluded their opinion with a strong statement on preventive detention:

"We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a 'material witness' under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."


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