Image: John Ashcroft
J. Scott Applewhite  /  AP
John Ashcroft, President George W. Bush's attorney general in the years after the Sept. 11 attacks, argued his job was prosecutorial and thus he was entitled to immunity from lawsuits.
updated 9/5/2009 12:17:51 AM ET 2009-09-05T04:17:51

A federal appeals court delivered a stinging rebuke Friday to the Bush administration’s post-Sept. 11 detention policies, ruling that former Attorney General John Ashcroft can be held liable for people who were wrongfully detained as material witnesses after 9/11.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the government’s improper use of material witnesses after Sept. 11 was “repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

Claims he lost employment opportunities
Al-Kidd said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people — particularly Muslim men and those of Arab decent — as material witnesses if the government suspected them of a crime but had no evidence to charge them.

Ashcroft had asked the judge to dismiss the matter, saying that because his position at the Department of Justice was prosecutorial he was entitled to absolute immunity from the lawsuit.

Al-Kidd’s attorney, Lee Gelernt of the American Civil Liberties Union, said the ruling by the three-judge panel had implications reaching far beyond the government’s actions in detaining material witnesses post-Sept. 11.

“The use of the material witness statute as a post-9/11 detention tool is one of the least understood parts of the post 9/11 landscape, but it has enormous implications because it was done in secret and the government has never renounced the policy,” Gelernt said. “Our hope is that we can now begin the process of uncovering the full contours of this illegal national policy.”

Phone messages left at Ashcroft's Washington D.C. lobbying and law firms were not immediately returned Friday afternoon.

The exact ramifications of the ruling were not immediately clear, but at a minimum it casts a negative spotlight on the Bush administration's practice of detaining Muslim men earlier this decade at a time when the nation was still on edge after Sept. 11.

"It's a very big ruling, because qualified immunity is ordinarily a very robust form of protection," said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General. "To overcome that immunity, you have to show that the defendant almost deliberately acted unconstitutionally to violate someone's rights — no innocent mistakes."

If the ruling stands, Ashcroft could be forced to submit to a deposition, Seamon said.

"The mere prospect of that causes a lot of concern for these officials, with the time and secrecy parts of that and all the publicity that this kind of thing attracts," Seamon said. "That's exactly why qualified immunity exists, so these officials can be spared that."

'Repugnant' policy, judge writes
The 9th Circuit judges said al-Kidd’s claims plausibly suggest that Ashcroft purposely used the material witness statute to detain suspects whom he wished to investigate and detain preventively.

“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,” Judge Milan Smith Jr., for the majority. “We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The Department of Justice may now ask the full 9th U.S. Circuit Court of Appeals to reconsider the ruling by the three-judge panel, may appeal to the U.S. Supreme Court, or it could allow the lawsuit to revert back to Boise’s U.S. District Court.

If the case goes back to the lower court, the government will likely have to comply with al-Kidd’s discovery requests — releasing documents and files that it has previously maintained were highly confidential and that could pose a threat to national security.

Al-Kidd was held for two weeks
The ruling was the latest legal development in a saga dating back to 2003, when al-Kidd was standing in the Dulles International Airport and surrounded by federal agents as he prepared to study in Saudi Arabia on a scholarship.

The Kansas-born husband and father of two was held for two weeks before being extradited to Idaho and released to the custody of his wife by a federal court judge. The government thought al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar Al-Hussayen.

Al-Kidd and Al-Hussayen both worked on behalf of the Islamic Assembly of North America, a Michigan-based charitable organization that federal investigators alleged funneled money to activities supporting terrorism and published material advocating suicide attacks on the United States.

A jury eventually acquitted Al-Hussayen of using his computer skills to foster terrorism and of three immigration violations after an eight-week federal trial. Al-Hussayen was eventually deported to Saudi Arabia.

Al-Kidd, who had played football for the University of Idaho under the name Lavoni Kidd, was never charged with a crime.

Says he was strip searched
In his lawsuit, al-Kidd says he still suffers from the fallout of his arrest and confinement. He says he was jailed for 16 days in high-security cells that were lit 24 hours a day, and that he was strip searched several times.

When a court ordered that he be released, he was required to live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his passport and other travel documents, report to a probation officer and submit to home visits. The confinement and supervision lasted 15 months, and by the time it ended he had separated from his wife and had been fired from his job as an employee of a government contractor because the arrest left him unable to get the necessary security clearance.

Earlier this year, the U.S. Supreme Court ruled that another former Sept. 11 detainee, Javaid Iqbal, couldn’t sue Ashcroft and FBI Director Robert Mueller for abuse he suffered while detained because Iqbal couldn’t show there was anything linking the top government officials to the abuses.

The 9th U.S. Circuit judges said al-Kidd’s case was different, however, because he was able to offer as evidence specific statements that Ashcroft himself made regarding the post-Sept. 11 use of the material witness statute.

Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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