In an unprecedented ruling that places responsibility squarely on government officials who after 9/11 championed polices clearly outside the boundaries of the law, a federal appellate court ruled today that former Attorney General John Ashcroft can be held personally responsible for the wrongful detention of an innocent American, Abdullah al-Kidd. The U.S. Court of Appeals for the Ninth Circuit also ruled that the federal material witness law cannot be used to "preventively" detain or investigate suspects. The American Civil Liberties Union represents al-Kidd in the case, al-Kidd v. Ashcroft.
"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law."
The facts (from the NY Times article):
[al-Kidd] was arrested in 2003 at Dulles International 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.
al-Kidd says the Government's actions cost him his job and his marriage.
His attorneys 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.
More from the opinion by Judge Smith:
"Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a ‘material witness' under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint. 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 for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely 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 to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."
Of the three judge panel, one was appointed by Reagan and one by Bush.
What now?
The case will now go back to federal district court for further hearings, which could involve extensive investigation of the former administration’s antiterrorism policies.
Human Rights Watch' 2005 report on the Bush Adminstration's abuse of the material witness statute is here. More from us here and Yale Law Prof Jack Balkin here.
