By William Fisher
The U.S. Supreme Court has agreed to hear former Attorney General John Ashcroft's appeal of a lower court decision, which ruled that he could be held responsible for the wrongful detention of an American citizen.
The American Civil Liberties Union (ACLU) brought the case against Ashcroft in 2005 on behalf of Abdullah al-Kidd, who they say was improperly arrested in 2003 as a material witness in the terrorism trial of Same Omar al-Hussein and detained for 16 days under prison-like conditions.
Al-Kidd was eventually released under restrictions that included confining his travel to four states, surrendering his passport and reporting to probation officers.
Al-Kidd was subjected to these conditions for more than a year and, despite having been arrested as a material witness, was never asked to testify, or charged with a crime.
A material witness in U.S. law is a person with information alleged to be material concerning a criminal proceeding. Prior to 9/11, the material witness law was used sparingly to ensure witnesses would be available to testify in criminal cases.
After 9/11, the ACLU charges that Ashcroft “retooled the law into an investigative detention statute, allowing the government to arrest and detain individuals for whom it lacked probable cause to charge with a crime.”
The U.S. Court of Appeals for the Ninth Circuit ruled in September 2009 that the federal material witness law couldn’t be used to detain or investigate people when there is no probable cause to bring criminal charges. The ruling also held that Ashcroft does not have immunity in the case and can be held personally liable for the wrongful detention of al-Kidd. Ashcroft appealed that ruling to the Supreme Court, which today decided to review the case.
Jonathan Hafetz, a law professor at Seton Hall Law School, told IPS, “The Bush administration clearly misused the material witness statute as a pretext to detain people without charging them with a crime, rather as the law was intended -- as a necessary means to obtain witness testimony. This violated the Constitution’s prohibition on imprisonment without probable cause and helped lead to the prolonged detention of individuals who had no connection to terrorism or other criminal activity.”
He added, “Thus far, the Obama administration has sought to derail every attempt at accountability, arguing in one case after another against judicial involvement in cases of illegal detention, torture, and other mistreatment. The fact that the human rights abuses and constitutional violations did not occur on its watch does not excuse their effort to deny victims their day in court. Real justice must look both forward and backward.”
His view was echoed by Joanne Mariner, head of HRW’s Terrorism and Counterterrorism Program. She told IPS, “We’re very disappointed that the Obama administration urged the Supreme Court to hear Ashcroft’s appeal of the Al-Kidd decision. In our view, the decision of the Court of Appeals for the Ninth Circuit was absolutely correct. The ruling reaffirmed basic constitutional protections against detention without charge.”
The government has “attempted to get around bedrock requirements of the criminal justice system by relying on the material witness statute. Without any evidence that men like al-Kidd had committed a crime, the government held them in indefinite detention by claiming, pretextually, that they may have had information about other cases,” she said.
And Col. Morris Davis, former chief prosecutor for Guantánamo's military commissions, told IPS, "The material witness statute got used and abused by the Bush administration and their 'anything goes' approach to things that could be connected to national security by way of some fanciful argument."
Civil liberties advocates, including the ACLU, charge that the material witness law “has been twisted beyond recognition.”
They say that since the terrorist attacks of September 11, 2001, the U.S. has used the material witness statute to detain suspects without charge for indefinite periods of time, often under the rubric of securing grand-jury testimony.
At least seventy men living in the United States -- all Muslim but one – “have been thrust into a Kafkaesque world of indefinite detention without charges, secret evidence, and baseless accusations of terrorist links. They have found themselves not at Guantánamo Bay or Abu Ghraib but in America’s own federal prison system, victims of the misuse of the federal material witness law in the U.S. government’s fight against terrorism,” these groups charge.
After at least a year of joint research, the ACLU and Human Rights Watch (HRW) report that the Ashcroft Justice Department “claimed each of the post-September 11 material witnesses had information relevant to grand jury terrorism investigations or to the trials of defendants alleged to support terrorist organizations. Yet at least thirty witnesses we know about were never brought before a grand jury or court to testify.”
Only seven were ever arrested on terrorism-related charges.
The material witness law has been twisted beyond recognition. Procedures designed for the temporary detention of witnesses who might otherwise skip town have been misused to hold men who were in fact criminal suspects. Holding as “witnesses” people who are in fact suspects sets a disturbing precedent for future use of this extraordinary government power to deprive citizens and others of their liberty. The rule of law itself suffers when a law is used as a pretext to sidestep longstanding checks on the arbitrary exercise of executive power.
Many of the seventy material witnesses identified by the ACLU and HRW suffered imprisonment because federal investigators and attorneys relied on false, flimsy, or irrelevant information and jumped to the wrong conclusions. “Their judgment about evidence also appears to have been colored by ignorance about and perhaps even prejudice. Not only were almost all the witnesses Muslim, sixty-four of the seventy were of Middle Eastern or South Asian descent,” their report says.
Consistent with the Justice Department’s suspicions that the witnesses were dangerous men linked to terrorists, the witnesses were often arrested at gunpoint in front of families and neighbors and transported to jail in handcuffs. They typically were held around-the-clock in solitary confinement and subjected to the harsh and degrading high-security conditions typically reserved for prisoners accused or convicted of the most dangerous crimes. They were taken to court in shackles and chains. In at least one case, a material witness was made to testify in shackles.
In some cases, the harsh treatment of material witnesses included verbal and even physical abuse by prison staff. The Department of Justice’s Inspector General issued a report detailing the abuse of material witnesses as well as other detainees in federal detention facilities.
Abdullah al-Kidd, born in Kansas and once a star running back at the University of Idaho, spent 16 days in federal detention in three states in 2003, sometimes naked and sometimes shackled hand and foot, but was never charged with a crime.
Once known as Lavoni T. Kidd, in 1995 when he led the University of Idaho football team, the Vandals, in rushing, Kidd was on his way to Saudi Arabia to work on a doctorate in Islamic studies in March 2003 when he was arrested and handcuffed at Dulles Airport in Washington.
Kidd, who described himself in a 2004 interview as “anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism,” was never called to testify as a witness.
Justice Elena Kagan will recuse herself from this case because, as Obama’s Solicitor General, she took a position on it. Should her absence result in a 4-4- tie among the other Justices, the opinion of the Appeals Court would prevail.