Metropolitan News-Enterprise


Tuesday, September 8, 2009


Page 1


Court Rules Man Detained as Material Witness May Sue Ashcroft


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals has ruled that former Attorney General John Ashcroft is not immune from liability to individuals wrongfully detained as material witnesses after the Sept. 11, 2001 terrorist attacks.

In its decision Friday, a divided panel concluded that Abdullah al-Kidd, a U.S. citizen and former University of Idaho athlete, could pursue his claim that government agents, operating under policies promulgated by Ashcroft, unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to arrest and detain him as a terrorist suspect.

The Kansas native was a married father of two and on his way to Saudi Arabia to study Arabic and Islamic law on a scholarship at a Saudi university when he was arrested at a Dulles International Airport ticket counter in 2003 pursuant to a material witness warrant, he said.

According to the government’s affidavit in support of the warrant, al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar Al-Hussayen.

Terrorism Link Suspected

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 deported to Saudi Arabia and al-Kidd was never charged with a crime or called as a witness.

Al-Kidd—who was born Lavoni T. Kidd and changed his name after converting to Islam—said he was detained for an aggregate of 16 days in high-security cells at various institutions in Virginia, Oklahoma and Idaho before being released to the custody of his wife by a federal court judge.

Upon his release, 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.

By the time these restrictions were lifted 15 months later, al-Kidd had separated from his wife and had been fired from his job as an employee of a government contractor, allegedly because the arrest left him unable to get the necessary security clearance.

In March 2005, al-Kidd filed suit against Ashcroft, the United States and a number of government agencies and officers seeking damages for violations of his Fourth and Fifth Amendment rights as well as violation of Sec. 3144.

Ashcroft moved to dismiss, contending that he was entitled to absolute and qualified immunity. When U.S. District Judge Edward J. Lodge of the District of Idaho was not persuaded, Ashcroft filed an interlocutory appeal.

Writing for the appellate court, Judge Milan D. Smith said Lodge was correct, explaining that that inquiry into the prosecution’s motive in seeking a material witness warrant is required because a prosecutor who uses the warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, is not entitled to absolute immunity.

Accepting al-Kidd’s allegations as true, Smith reasoned the allegation of investigatory function was “plausible,” noting that his arrest was sought a month after Al-Hussayen was indicted, and more than a year before  trial began, and was questioned on matters apparently unrelated to Al-Hussayen’s alleged crime. Smith also emphasized that al-Kidd was never called as a witness.

“All of these are objective indicia…that al-Kidd’s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness’s testimony for trial,” Smith said.

Fourth Amendment

Since the seizure of a criminal suspect requires probable cause of criminal activity, Smith reasoned that the misuse of the material witness statute in order to investigate or preemptively detain suspects without probable cause violates the Fourth Amendment.

Although Smith acknowledged that no case had squarely confronted the issue of whether such conduct was unconstitutional, he concluded that the right to be free from abuses of the material witness statute was clearly established in 2003.

“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...merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world,” Smith wrote. “We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

Smith also concluded that al-Kidd’s claim that his arrest failed to meet the statutory requirements set forth by Congress in Sec. 3144 should be allowed to proceed as well, differentiating claims from those raised by another former Sept. 11 detainee, Javaid Iqbal, in Ashcroft v. Iqbal, 129 S. Ct. 1937, which the U.S. Supreme Court rejected earlier this year because Iqbal could not link Ashcroft and FBI Director Robert Muellerto the abuses he allegedly suffered while detained.

In contrast, Smith noted that al-Kidd’s complaint included specific statements that Ashcroft himself made regarding the post-Sept. 11 use of the material witness statute as “one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street,” and statements by other justice department officials referring to Sec. 3144 as an important “investigative tool.”

At trial however, the jurist cautioned that al-Kidd “will bear a significant burden to show that the Attorney General himself was personally involved in a policy or practice of alleged violations of § 3144.”

As for al-Kidd’s claim that he was mistreated while confined as a material witness, absent any specific facts linking Ashcroft to the conditions of his confinement, Smith said the complaint’s “conclusory allegations” were insufficient to sustain this cause of action.

Senior Judge David R. Thompson joined Smith in his decision, with which Judge Carlos T. Bea agreed only in part.

Bea argued that al-Kidd, like Iqbal, failed to allege sufficient facts to establish Ashcroft’s personal liability for the alleged misuse of the material witness statute and for the unconstitutionally harsh conditions of his confinement.

He further contended that the use of the material witness statute as a pretext to pursue other investigatory agendas should not invalidate the arrest warrant and that al-Kidd had no constitutional right to be free from such pretextual use of the statute, much less a clearly established one.

“[S]o long as the ‘criminal proceeding’ for which the material witness warrant is sought is a criminal trial, rather than an investigatory proceeding, the decision to seek a material witness warrant should be shielded by absolute immunity,” he said.

Lee Gelernt of the American Civil Liberties Union represented al-Kidd while Department of Justice attorneys Robert M. Loeb and Matthew M. Collette represented Ashcroft.

Gelernt opined that the use of the material witness statute 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,” adding that as a result of Friday’s decision, “we can now begin the process of uncovering the full contours of this illegal national policy.”

Justice Department spokesman Charles Miller said that the agency is reviewing the opinion.

The case is al-Kidd v. Ashcroft, 06-36059.


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