Lee Gelernt, a lawyer for the American Civil Liberties Union who represented Mr. Kidd, called it “an enormous decision” that says “no official, including the attorney general of the United States, can be immune if he adopts and implements an unconstitutional policy.”...
Charles S. Miller, a spokesman for the Justice Department, said, “We’re reviewing the court’s ruling.” Mark Corallo, a spokesman for Mr. Ashcroft, would say only that Mr. Ashcroft was reviewing the decision as well.
A report in 2005 by Human Rights Watch and the A.C.L.U. said that 70 people were improperly detained under the material witness law after 9/11. Although the decision could conceivably apply to those people, few, if any, of them could now sue because of the statute of limitations, Mr. Gelernt said.
Panel Rules Against Ashcroft in Detention Case
By JOHN SCHWARTZ
Former Attorney General John Ashcroft may face personal liability for the decisions that led to the detention of an American citizen as a material witness after the Sept. 11 attacks, a federal appeals court panel ruled on Friday.
In the decision, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, was sharply critical of the Bush administration’s practice of holding people it suspected of terrorism without charges, as material witnesses.
“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history,” said the opinion, written by Judge Milan D. Smith Jr.
The lawsuit was brought in 2005 by Abdullah al-Kidd, who was born Lavoni T. Kidd in Kansas and converted to Islam in college. He was arrested in 2003 at Dulles Airport as he prepared to fly to Saudi Arabia for graduate work in Islamic studies, and was held for weeks under a law that allows the indefinite detention of material witnesses to a crime. After his detention, he was ordered to stay with his in-laws in Las Vegas; his travel was restricted over the next year.
Mr. Kidd, who was not called as a witness in the case in which he was detained and was never charged with a crime, sued Mr. Ashcroft and other officials in 2005, challenging his detention as unconstitutional and saying it cost him his marriage and his job. His lawyers argued that he was held as part of a secret Bush administration policy to use the material witness statute as a tool to detain and interrogate people when there was insufficient evidence to charge them with a crime.
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Abdullah al-Kidd versus John
Abdullah al-Kidd versus John Ashcroft
Excerpt from the 9th Circuit Appeals Court Panel's decision:
“Ashcroft’s suggested approach, by contrast, would convert
the Supreme Court’s functional approach into a formalistic
taxonomy of acts that are inherently either prosecutorial or
investigative, regardless of what each act is really serving to
accomplish. Because the application for the arrest warrant had
the words “Material Witness” in the caption, Ashcroft seems
to contend, our inquiry must stop there. Our dissenting colleague
agrees, and would hold that so long as a material witness
warrant is sought pursuant to a criminal trial, the
decision to seek the material witness warrant should always
be shielded by absolute immunity, regardless of whether its
purpose was purely investigative. Dissent at 12351.
“We disagree. Many tools and tactics available to prosecutors
can serve either an investigatory or advocacy-related
function. A grand jury may be used to return an indictment
against a particular suspect, or to conduct a wide-ranging
investigation. Buckley, 509 U.S. at 274. A witness interview’s
function may be to gather evidence, or to prepare the witness
to testify at imminent trial. Genzler, 410 F.3d at 638. And the
power to arrest, even as a material witness, can be investigatory.
As cited in al-Kidd’s complaint, Michael Chertoff, then
Assistant Attorney General for the DOJ’s Criminal Division,
described the material witness statute as “an important investi-
gative tool in the war on terrorism . . . . Bear in mind that you
get not only testimony—you get fingerprints, you get hair
samples—so there’s all kinds of evidence you can get from a
witness.” Steve Fainaru & Margot Williams, Material Witness
Law Has Many in Limbo: Nearly Half Held in War On Terror
Haven’t Testified, Wash. Post, Nov. 24, 2002, at A1 (quoting
Chertoff) (emphasis added).
“Ashcroft argues that an inquiry into purpose cannot be cabined:
a prosecutor filing charges against a foot soldier in an
organized crime syndicate, for example, might hope that the
prospect of a lengthy incarceration will encourage the defendant
to turn state’s evidence, permitting investigation of those
higher in the organization. A wide-ranging investigation into
such motives would likely prove unworkable. It is for that
reason that the Supreme Court has spoken only of “immediate
purpose.” Buckley, 509 U.S. at 275 (emphasis added). As a
common law court, we can rule only on the case before us.
We believe, however, that while the prosecutor who files
charges may hope, eventually, that the petty crook will implicate
his boss, the immediate purpose of filing charges is to
begin a prosecution—the better to pressure the defendant into
providing information.”