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Ashcroft can be sued over arrests, appeals court rules

A 9th Circuit panel says the ex-attorney general violated the rights of citizens held as material witnesses without cause after 9/11. Rights advocates praise the ruling in Abdullah Kidd's case.

September 05, 2009|Carol J. Williams

Then-Atty. Gen. John Ashcroft violated the rights of U.S. citizens in the fevered wake of the Sept. 11 terrorist attacks by ordering arrests on material witness warrants when the government lacked probable cause, a federal appeals court said in a scathing opinion Friday.

In a ruling that said Ashcroft could be sued for prosecutorial abuses, a three-judge panel of the U.S. 9th Circuit Court of Appeals denied the former attorney general immunity from liability for how he used the material witness warrants in national security investigations.

Members of the panel, all appointees of Republican presidents, characterized Ashcroft's detention policy as "repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."

Civil liberties advocates cheered the ruling in the case brought by Kansas-born Muslim convert Abdullah Kidd, saying it spotlighted excesses committed by the Bush administration in the post-9/11 scramble to thwart terrorist plots.

For The Record
Los Angeles Times Thursday, September 10, 2009 Home Edition Main News Part A Page 4 National Desk 10 inches; 396 words Type of Material: Correction
Ashcroft ruling: An article on Saturday's Page A1 about a federal appeals court ruling involving former Atty. Gen. John Ashcroft inaccurately described the breadth of the court's decision and mischaracterized some elements of the case. The 2-1 ruling by a panel of the U.S. 9th Circuit Court of Appeals on Friday held that Ashcroft could be sued personally for allegedly violating the constitutional rights of a Muslim man, Abdullah Kidd, who was detained after the Sept. 11 attacks. The opening paragraph of the article incorrectly said that the court held that Ashcroft had "violated the rights of U.S. citizens." The appeals court did not decide that question. Instead, the judges ruled that Ashcroft could be held personally liable if Kidd's allegations proved true. They sent the case back to a lower court for a trial to determine whether the allegations were accurate. The allegations involve Kidd's arrest under a federal law that allows officials to detain witnesses in criminal cases whose testimony is needed and who might otherwise flee before a trial. Kidd alleges that Ashcroft adopted a policy that authorized officials to deliberately misuse the material-witness law to detain people the government lacked probable cause to arrest. The court ruled that such a policy -- if it existed -- would violate the Constitution...CX: The article also compared the alleged material-witness arrests to another Bush administration anti-terrorism policy, the seizure of suspects outside the U.S., and in doing so referred to both types of arrests as "secret." Kidd's arrest and detention were not secret. The article quoted one portion of the ruling, which sharply criticized those who "confidently assert" that the government has the power to detain people on material-witness warrants, but it incorrectly attributed the quotation to "the panel," rather than to the two judges in the majority. Moreover, the article described the judges as having aimed their criticism at the Bush administration's policies. Although that was the clear implication of the judges' words, they never directly named the targets of their criticism, and the article should have made clear that the criticism of the administration was implied, not stated.Finally, the article quoted two constitutional scholars as praising the ruling, but failed to note that both of them had previously been on record as criticizing Bush administration policies in the area of civil liberties. The article should have included a broader range of reaction to the decision.

"The court made it very clear today that . . . Ashcroft's use of the federal material witness law circumvented the Constitution," said Lee Gelernt, the American Civil Liberties Union lawyer who argued Kidd's case. "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 ruling could allow Kidd's suit for damages to proceed to trial if the government doesn't appeal to a larger 9th Circuit panel or seek Supreme Court review.

A spokesman for Ashcroft, Mark Corallo, didn't return phone calls.

Department of Justice spokesman Charles Miller said: "We will review the court's decision and make a determination in the future as to what the government's next step will be."

Although the ruling denied immunity to Ashcroft, the government would probably be responsible for covering any successful damage claims brought by those found to have been wrongly arrested.

Kidd, a former University of Idaho running back whose birth name was Lavoni T. Kidd, sued Ashcroft after he was arrested at Washington Dulles International Airport en route to a Saudi scholarship program in March 2003.

He was handcuffed, strip-searched and shuttled among interrogations in Virginia, Oklahoma and Idaho before being released 16 days later and ordered to surrender his passport and live with his wife and in-laws in Nevada.

The arrest led to Kidd being denied a security clearance and losing his job with a government contractor.

In his 2005 complaint, Kidd noted that then-FBI Director Robert S. Mueller III, in an appearance before a congressional subcommittee during Kidd's detention, had pointed to his arrest and that of confessed 9/11 mastermind Khalid Shaikh Mohammed as evidence of government progress in reining in terrorists.

"To this day, the government has never explained why the director of the FBI would tell the United States Congress that the arrest of Mr. al Kidd -- supposedly a witness -- represented one of the government's noteworthy recent successes in the war on terrorism," the complaint stated.

It is unclear how many U.S. citizens were picked up on material witness warrants in the sweep conducted by national security forces after the 2001 terrorist attacks. Like the preventive detention abroad of foreign terrorism suspects and the CIA's "extraordinary rendition" program, in which suspected enemies were whisked from foreign locales to interrogation "black sites," the material witness arrests were conducted in secret.

At least two other prominent Muslim converts are known to have been arrested as supposed material witnesses.

Alleged would-be "dirty bomber" Jose Padilla was detained at Chicago O'Hare International Airport and held for 3 1/2 years without charges before his 2007 conviction in an unrelated terrorism case in Florida.

Brandon Mayfield, an Oregon attorney erroneously connected to the 2004 Madrid train bombings, was also arrested as a material witness and held for two weeks. He was never charged, and has received an apology from the U.S. government as well as a $2-million settlement.

Constitutional law scholars applauded the 9th Circuit decision as affirmation of citizens' rights to be free from illegal detention.

"This is really important," said Erwin Chemerinsky, dean of the UC Irvine School of Law. "This is a federal court of appeals saying that what was done here under the material witness statute was clearly a violation of the Constitution -- that it was not protected by prosecutorial absolute immunity."

That means that the unknown numbers of wrongfully detained suspects could sue Ashcroft for damages, claiming their rights were violated, Chemerinsky said.

Georgetown Law professor David Cole said that Ashcroft adopted an aggressive "preventive paradigm" after Sept. 11 designed "to incapacitate people who government officials thought suspicious but lacked evidence of any wrongdoing. They were locked up and then investigated, rather than the other way around."

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