A federal appeals court ruled in San Francisco today that a U.S. citizen who alleges he was wrongly imprisoned in an anti-terrorism program in 2003 can go ahead with a lawsuit seeking to hold former Attorney General John Ashcroft personally responsible.
A panel of the 9th U.S. Circuit Court of Appeals said by a 2-1 vote that the government’s alleged misuse of a federal material witness law “is repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”
Judge Milan Smith wrote, “Framers of our Constitution would have disapproved of the arrest, detention and harsh confinement of a United States citizen under the circumstances” alleged in the lawsuit by Abdullah al-Kidd.
Al-Kidd, a former University of Idaho football player who converted to Islam, was arrested at Dulles International Airport in Virginia in 2003 while on his way to study in Saudi Arabia on a scholarship.
He was held for 16 days in three different states in high-security cells that were lit 24 hours a day, shackled when transferred, strip-searched frequently, and then released but kept under court supervision for 13 months, according to the lawsuit.
Al-Kidd was arrested under the material witness law, which allows prosecutors to detain important witnesses who might flee from testifying in a trial. He was never called to testify in a trial and never charged with a crime.
Al-Kidd’s lawsuit, filed in federal court in Idaho, alleged that Ashcroft violated his constitutional rights by misusing the law to detain terrorism suspects for whom there was not enough evidence to file criminal charges.
Ashcroft announced in the wake of the terrorist attacks of Sept. 11, 2001, that the Justice Department would seek to take “suspected terrorists off the street” through “aggressive detention of lawbreakers and material witnesses.”
Today’s appeals court ruling upheld a 2006 decision in which a federal district judge in Idaho said the witness law could not be used for preventive detention of terrorism suspects without evidence of a crime.
The appeals panel sent the case back to the district court for further proceedings and a possible trial.
The decision could be appealed to an expanded 11-judge panel of the appeals court or to the U.S. Supreme Court.
Justice Department spokesman Charles Miller said, “We are reviewing the court’s ruling.”
American Civil Liberties Union attorney Lee Gelernt, who represented al-Kidd in the case, said, “The court made it very clear today that former Attorney General Ashcroft’s use of the federal material witness law circumvented the Constitution.”
Gelernt said, “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”