Appeals Court Rebuffs Ashcroft

By William Fisher

In what is being hailed as “an unprecedented ruling,” a federal appeals court has concluded that the Bush Administration’s first attorney general, John Ashcroft, can be held personally responsible for the wrongful detention of an innocent American.

In the panic that followed the terrorist attacks of September 11, 2001, the Department of Justice rounded up several thousand “Middle Eastern-looking” men and women and detained them, frequently in harsh prison-like facilities, without charges, access to their families, or attorneys.

These round-ups continued well after 9/11, as the government continued to take exceptional measures to locate and arrest people they thought posed a threat to U.S. national security. Many of those detained were U.S. citizens; others were immigrants, whose only crime might have been overstaying a visa. Among middle-Eastern-looking men were Sikhs and others from South Asia.

Many others were arrested as “material witnesses” as Attorney General Ashcroft transformed the law into a ‘preventive’ detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

He said at the time, “These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of law-breakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”

Caught up in this environment of fear was Abdullah Al-Kidd, a U.S.-born African-American citizen who had converted to Islam. Al-Kidd was on his way to Saudi Arabia to study on a Saudi scholarship when he was detained and arrested in Washington's Dulles Airport on March 16, 2003. He was held as a “material witness in the trial of Sami Omar Al-Hussayen.”

For 15 days he was treated as if he were terrorism suspect rather than a material witness. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers.

Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

Federal authorities said al-Kidd had to be detained to provide information germane to the prosecution of fellow University of Idaho student Sami Omar Al-Hussayen on terrorism charges. But al-Kidd was never called to testify at Al-Hussayen's trial, leading al-Kidd to charge that federal authorities were more interested in investigating him than using him to build their legal case.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

A jury later acquitted Al-Hussayen of four charges and deadlocked on eight others. He was deported to Saudi Arabia.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of al-Kidd, charging that the federal material witness law cannot be used to preventively detain or investigate suspects and that then Attorney General Ashcroft can be held personally responsible for al-Kidd's wrongful detention.

The federal court’s ruling in this case places responsibility squarely on government officials who, after 9/11, championed polices clearly outside the boundaries of the law, the ACLU asserts.

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law."

Prior to 9/11, the federal material witness law had been used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests, under the statute, took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily.

The Al-Kidd ruling came after a U.S. district court in 2006 found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The district court also ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime. Former Attorney General John Ashcroft appealed the ruling and asked for complete immunity from liability.

Writing for the majority in the Appellate Court’s decision, Judge Milan D. Smith, Jr., said, "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.”

He continued: “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."

Judge Smith also noted that, “By the time al-Kidd’s confinement and supervision ended, 15 months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.”

He wrote: “Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, to investigate or preemptively detain him.”

The judge said, “Ashcroft asserts that he is entitled to absolute and qualified immunity” against al-Kidd’s claims. But in his ruling, the judge wrote, “We hold that on the facts pled Ashcroft is not protected by either form of immunity.…”

Judge Smith was joined by Judge David Thompson in ruling that Ashcroft does not enjoy prosecutorial immunity in the case. Judge Carlos Bea said qualified immunity should shield Ashcroft from the lawsuit. Judge Smith and Judge Bea were appointed to the court by President George W. Bush. Judge Thompson was nominated by President Ronald Reagan.