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Appeals court rules against Ashcroft in 9/11 case

Sunday, September 6, 2009 | 8:08 p.m. CDT

BOISE, Idaho — A federal appeals court has ruled that former Attorney General John Ashcroft can be sued by people who claim they were wrongfully detained as material witnesses after 9/11, and called the government practice "repugnant to the Constitution."

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Friday that the claims of a former University of Idaho student plausibly suggest Ashcroft purposely used the material witness statute to detain suspects whom he wished to investigate and detain preventively.

"We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history," Judge Milan D. Smith Jr. wrote.

The ruling allows Abdullah al-Kidd, a U.S. citizen, to proceed with a lawsuit that claims his constitutional rights were violated when he was detained in 2003 as a material witness in a federal terrorism case.

Phone messages left at Ashcroft's Washington D.C. lobbying and law firms were not returned Friday.

Ashcroft had asked that the matter be dismissed, saying he was entitled to absolute immunity from the lawsuit because his position at the Department of Justice was prosecutorial.

Justice Department spokesman Charles Miller would only say Friday that the agency was reviewing the opinion.

If the ruling stands, Ashcroft could be forced to submit to a deposition, said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General.

"The mere prospect of that causes a lot of concern for these officials, with the time and secrecy parts of that and all the publicity that this kind of thing attracts," Seamon said. "That's exactly why qualified immunity exists, so these officials can be spared that."

The judges noted that as the case moves forward, al-Kidd will have a significant burden to show that Ashcroft himself was personally involved in an illegal policy.

All three judges on the panel have reputations as politically conservative jurists, with two appointed by former President George W. Bush and the third a Reagan appointee.

The judges said they didn't intend to dampen the ardor of prosecutors as they carried out their duties, and said they were mindful of the pressures faced by the attorney general. But even qualified immunity doesn't allow the attorney general to carry out national security functions completely free from any personal liability concerns, they said.

The Department of Justice may now ask the full 9th U.S. Circuit Court of Appeals to reconsider the ruling by the panel, may appeal to the U.S. Supreme Court, or it could allow the lawsuit to revert back to Boise's U.S. District Court.

If the case goes back to the lower court, the government will likely have to comply with al-Kidd's discovery requests — releasing documents and files that it has previously maintained were highly confidential and that could pose a threat to national security.

In 2003, al-Kidd was arrested by federal agents at Dulles International Airport in Washington.

He said he was jailed 16 days in high-security cells that were lit 24 hours a day. He also was strip-searched several times, he said, before he was extradited to Idaho and released to the custody of his wife by a federal judge.

Al-Kidd, a Kansas-born father of two, said the ordeal caused him to lose a scholarship to study in Saudi Arabia and caused his marriage to fall apart.

In his lawsuit, al-Kidd said he still suffered from the fallout of his arrest and confinement.

The government thought al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar Al-Hussayen.

Al-Kidd and Al-Hussayen both worked on behalf of the Islamic Assembly of North America, a Michigan-based charitable organization that federal investigators alleged funneled money to activities supporting terrorism and published material advocating suicide attacks on the U.S.

A jury eventually acquitted Al-Hussayen of using his computer skills to foster terrorism and of three immigration violations after an eight-week trial. Al-Kidd was never charged with a crime.

When a court ordered that he be released, he was required to live with his wife and in-laws in Nevada, limit his travel, surrender his passport and other travel documents, report to a probation officer and submit to home visits.

The confinement and supervision lasted 15 months, and by the time it ended he had separated from his wife and had been fired from his job for a government contractor because the arrest left him unable to get the necessary security clearance.

Earlier this year, the U.S. Supreme Court ruled that another former Sept. 11 detainee, Javaid Iqbal, couldn't sue Ashcroft and FBI Director Robert Mueller for abuse he suffered while detained because Iqbal couldn't show there was anything linking the top government officials to the abuses.

The 9th U.S. Circuit judges said al-Kidd's case was different, however, because he was able to offer as evidence specific statements that Ashcroft himself made regarding the post-Sept. 11 use of the material witness statute.

Ashcroft said that the use of the material witness statute and other enhanced tactics "form one part of the department's concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street," the ruling said.


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