Appeals Court Says Ex-Detainee Can Sue Ashcroft, Rejects Legal-Immunity Claims - washingtonpost.com

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Former Official's Bid for Immunity In Ex-Detainee's Case Is Rejected

By Carrie Johnson
Washington Post Staff Writer
Saturday, September 5, 2009

A Muslim man who was detained for weeks as a material witness in a terrorism case can sue former attorney general John D. Ashcroft, a federal appeals court in California ruled Friday as it rejected a bid for absolute legal immunity by the onetime Cabinet official.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit gave a green light to the case filed by Abdullah al-Kidd, a U.S. citizen who was taken into custody at a ticket counter at Washington Dulles International Airport in 2003, while he was on his way to Saudi Arabia to study Islamic law and Arabic.

At the heart of the lawsuit is a strategy launched by the Justice Department and the FBI after the Sept. 11, 2001, terrorist attacks. Ashcroft, the attorney general at the time, asserted that authorities would take "suspected terrorists off the street" and engage in "aggressive detention of lawbreakers and material witnesses" to disrupt possible al-Qaeda plots. FBI Director Robert S. Mueller III cited al-Kidd's detention in testimony to Congress about the bureau's success in protecting national security.

Al-Kidd and his attorneys argued that Ashcroft knew or should have known that the material witness statute was being used in a sweeping and abusive manner. Ashcroft, who is being defended by the Justice Department, maintained that the case should be dismissed because he had no personal involvement in al-Kidd's detention. He also argued that as the nation's chief law enforcement officer at the time, he enjoyed broad protection from lawsuits.

But Judges Milan D. Smith Jr. and David R. Thompson disagreed, writing that Ashcroft was not entitled to absolute legal immunity and that authorities had detained al-Kidd in part to conduct an investigation of his activities, without probable cause. Judge Carlos T. Bea wrote a partial dissent. All three judges were appointed by Republican presidents.

Al-Kidd, a Muslim convert who had been a standout running back on the University of Idaho football team, was confined in a high-security cell lit 24 hours a day, according to the opinion. He was strip-searched and transported, in shackles, across three states for 16 days before a court ordered his release. Authorities could not offer evidence of criminal wrongdoing by al-Kidd, and he never testified in a court proceeding.

For more than 15 months after his release, al-Kidd was forced to live with his parents-in-law in Nevada, curtail his travel and report to a probation officer. Al-Kidd lost his job with a government contractor after being denied a security clearance. Since his arrest, he has separated from his wife, suffered emotional trauma and been unable to hold a steady job, the judges wrote.

At the time, authorities said they wanted al-Kidd to testify in connection with a visa fraud case against Sami Omar al-Hussayen. Al-Hussayen ultimately was acquitted of charges that he provided material support to terrorists. Other charges against him were dismissed after a jury failed to reach agreement.

Justice Department spokesman Charles Miller declined to comment on the al-Kidd ruling. A spokesman for Ashcroft said, "We will review the decision."

Earlier this year, a district court judge in California allowed a detainee's lawsuit against former Justice Department lawyer John C. Yoo to go forward. The suit accused Woo of violating the detainee's constitutional rights by drafting memos that blessed harsh interrogation tactics. The case is being appealed.

The Supreme Court in May rejected a case by another detainee, Javaid Iqbal, who was part of a large-scale roundup of Muslim men on immigration charges throughout the United States after the Sept. 11. attacks. Iqbal had tried to sue Ashcroft and Mueller, alleging discrimination on the basis of race and religion, but the high court ruled that he could not produce sufficient evidence tying the government officials to the actions.

Lee Gelernt, a lawyer with the American Civil Liberties Union's Immigrants' Rights Project, said the al-Kidd ruling is "an enormous decision" that could help advocates finally understand how many Muslims were rounded up using material witness warrants.

The court's majority opinion comes as senior officials in the Obama administration and Congress debate whether terrorism suspects can be subject to preventive detentions, without criminal charges, as a national security strategy.

The opinion bemoaned that 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 . . . 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."

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