Court Declines to Block Suit Against Ashcroft Over Detention

Friday, March 19, 2010

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Court Declines to Block Suit Against Ashcroft Over Detention

By KENNETH OFGANG, Staff Writer

The Ninth U.S. Circuit Court of Appeals said yesterday it would not review en banc a panel ruling that allows a Muslim and former college football star to sue former Attorney General John Ashcroft personally for adopting the policies that led to the man’s detention.

Chief Judge Alex Kozinski said in a brief order that a majority of the court’s 25 unrecused active judges had voted to deny rehearing in al-Kidd v. Ashcroft, 06-36059.

Kozinski and seven other judges joined in a dissenting opinion arguing that no constitutional violation occurred, that any right that may have been violated was not clearly established at the time Abdullah al-Kidd was detained, and that Ashcroft could not, in any event, be personally liable for the actions of his subordinates.

One judge, Jay Bybee, recused himself. Bybee was an assistant attorney general under Ashcroft, who held the office from 2001 to 2005.

Al-Kidd, a U.S. citizen and onetime University of Idaho running back, converted to Islam while in college. He was detained at Dulles International Airport in Virginia in March 2003 while en route to Saudi Arabia.

In a complaint filed in the District of Idaho, al-Kidd claims that the detention was an unlawful use of the federal material witness statute, 18 U.S.C. § 3144.

He alleges that he was on his way to Saudi Arabia to study Arabic and Islamic law on a scholarship at a Saudi university when he was arrested pursuant to a material witness warrant.

Government’s Affidavit

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. Al-Hussayen was subsequently acquitted on some terrorism and immigration-related charges, with jurors deadlocking on others, and was later deported.

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.

Al-Kidd—an African American who was born Lavoni T. Kidd—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 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.

Restrictions Lifted

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.

U.S. District Judge Edward J. Lodge of the District of Idaho denied Ashcroft’s motion to dismiss on grounds of prosecutorial immunity, and 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 that he was questioned on matters apparently unrelated to al-Hussayen’s alleged crime. Smith also emphasized that al-Kidd was never called as a witness.

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.”

But Judge Diarmuid F. O’Scannlain, writing yesterday for himself, Kozinski, Judge Carlos Bea—the dissenter on the original panel—and Judges Andrew Kleinfeld, Ronald Gould, Richard Tallman, Consuelo Callahan, and Sandra Ikuta—said the panel was wrong.

O’Scannlain argued that the material witness warrant was valid, and that the panel decision “effectively declares the material witness statute unconstitutional as applied to al-Kidd.” He also insisted that holding Ashcroft responsible for the actions of the agents would inflict “gratuitous damage...upon orderly federal law enforcement.”

Judge Ronald Gould, in a separate opinion joined by all of the dissenters except Tallman, wrote:

“If an Attorney General of the United States can be held liable and subject to monetary damages primarily because of actions of law enforcement subordinates, who allegedly gained and executed a material witness warrant for contrived purposes, I fear that it will become more difficult to persuade a person of great talent and integrity to leave his or her current occupation in order to hold the nation’s highest law office. The panel majority’s decision in effect says ‘good bye’ to many talented persons who would otherwise be willing to serve as Attorney General with great distinction and attendant benefit to our country.”

Smith, in an unusual move, authored an opinion responding to the dissenters.

The jurist, an appointee of President George W. Bush and the brother of Gordon Smith, who as a Republican senator from Oregon voted to confirm Ashcroft’s appointment, said the issue was not whether Ashcroft’s subordinates violated the plaintiff’s rights, but whether the then-attorney general “created, adopted and implemented a policy of using the material witness statute for an unlawful end.”

If he did so, even with good intentions, “his motivation does not presumptively immunize the policy, or himself, the nation’s chief law enforcement officer, and others implementing and executing it, from complying with the rule of law.”

Smith went on to write:

“The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as Attorney General of the United States. But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States.”