Supreme Court to decide whether Ashcroft can be sued by detained citizen
By Robert Barnes
Washington Post Staff Writer
Monday, October 18, 2010; 11:50 AM
The Supreme Court will again examine the government's response to the Sept. 11, 2001, terrorist attacks, agreeing Monday to consider whether former attorney general John D. Ashcroft can be sued by a U.S. citizen who claims he was detained and treated as a terrorist.
The court will review a ruling that said that Abdullah al-Kidd can press forward with his suit against Ashcroft. Al-Kidd, a one-time University of Idaho football star who converted to Islam, was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study.
He was held for 15 nights as a material witness in a broader terrorism probe. But he claims that was simply a pretext for a larger plan approved by Ashcroft to sweep up Muslim men it could not prove had any ties to terrorism.
His attorneys say it was a "gross abuse of the government's narrow power" under the material witness statute, which allows prosecutors to hold citizens without charging them to ensure that they are available to testify against others.
The U.S. Court of Appeals for the 9th Circuit said that Ashcroft did not have immunity for the actions al-Kidd challenges and that the case should go forward to see whether al-Kidd can prove his case.
The Obama administration is representing Ashcroft, as did the Bush administration, and asked the Supreme Court to overturn the 9th Circuit's decision.
Allowing it to stand, Acting Solicitor General Neal K. Katyal told the court in his brief, would "threaten the ability of prosecutors to discharge their duties without fear of personal liability, severely limit the usefulness of the material witness statute, and substantially chill officers in the exercise of important governmental functions."
The government had gotten a warrant for al-Kidd's arrest by saying he was necessary to the investigation of Sami Omar al-Hussayen, who was eventually indicted on charges of supporting terrorism. An FBI agent said al-Kidd had met with al-Hussayen and had received a payment from him of more than $20,000.
He also told the judge - incorrectly - that al-Kidd was leaving the country on a $5,000, one-way, first-class ticket. Instead, he was using a $1,700 round-trip ticket.
Al-Kidd maintains that in his more than two weeks of detainment, he was strip-searched, interrogated without a lawyer present and treated as a terrorist. He was never charged and never called to testify against al-Hussayen, who was acquitted of the most serious charges against him.
American Civil Liberties Union lawyers, who are representing al-Kidd, said they have found more than 70 Muslim men with similar complaints.
The government contends that officials such as Ashcroft are protected from such suits. They say he is entitled to absolute immunity for his official work as the government's top prosecutor. And, failing that, they say he deserved qualified immunity, which shields government officials from damages suits unless they have violated a clearly established constitutional right.
A panel of the 9th Circuit said neither legal doctrine protected Ashcroft from al-Kidd's allegations. The full court split over whether it should reconsider the decision, and the government brought the appeal to the Supreme Court.
New Justice Elena Kagan was involved in the appeal when she was solicitor general and is recused from the matter in the Supreme Court.
The case is Ashcroft v. al-Kidd. The court will hear the case next year and issue its ruling before adjourning in the summer.
In 2009, the justices narrowly ruled for the former attorney general in a similar case. They dismissed allegations from a Pakistani man legally living in the United States that Ashcroft should be held responsible for his detainment after the terrorism attacks, when he says he was beaten and held in solitary confinement for five months without being charged.
Washington Post Staff Writer
Monday, October 18, 2010; 11:50 AM
The Supreme Court will again examine the government's response to the Sept. 11, 2001, terrorist attacks, agreeing Monday to consider whether former attorney general John D. Ashcroft can be sued by a U.S. citizen who claims he was detained and treated as a terrorist.
The court will review a ruling that said that Abdullah al-Kidd can press forward with his suit against Ashcroft. Al-Kidd, a one-time University of Idaho football star who converted to Islam, was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study.
He was held for 15 nights as a material witness in a broader terrorism probe. But he claims that was simply a pretext for a larger plan approved by Ashcroft to sweep up Muslim men it could not prove had any ties to terrorism.
His attorneys say it was a "gross abuse of the government's narrow power" under the material witness statute, which allows prosecutors to hold citizens without charging them to ensure that they are available to testify against others.
The U.S. Court of Appeals for the 9th Circuit said that Ashcroft did not have immunity for the actions al-Kidd challenges and that the case should go forward to see whether al-Kidd can prove his case.
The Obama administration is representing Ashcroft, as did the Bush administration, and asked the Supreme Court to overturn the 9th Circuit's decision.
Allowing it to stand, Acting Solicitor General Neal K. Katyal told the court in his brief, would "threaten the ability of prosecutors to discharge their duties without fear of personal liability, severely limit the usefulness of the material witness statute, and substantially chill officers in the exercise of important governmental functions."
The government had gotten a warrant for al-Kidd's arrest by saying he was necessary to the investigation of Sami Omar al-Hussayen, who was eventually indicted on charges of supporting terrorism. An FBI agent said al-Kidd had met with al-Hussayen and had received a payment from him of more than $20,000.
He also told the judge - incorrectly - that al-Kidd was leaving the country on a $5,000, one-way, first-class ticket. Instead, he was using a $1,700 round-trip ticket.
Al-Kidd maintains that in his more than two weeks of detainment, he was strip-searched, interrogated without a lawyer present and treated as a terrorist. He was never charged and never called to testify against al-Hussayen, who was acquitted of the most serious charges against him.
American Civil Liberties Union lawyers, who are representing al-Kidd, said they have found more than 70 Muslim men with similar complaints.
The government contends that officials such as Ashcroft are protected from such suits. They say he is entitled to absolute immunity for his official work as the government's top prosecutor. And, failing that, they say he deserved qualified immunity, which shields government officials from damages suits unless they have violated a clearly established constitutional right.
A panel of the 9th Circuit said neither legal doctrine protected Ashcroft from al-Kidd's allegations. The full court split over whether it should reconsider the decision, and the government brought the appeal to the Supreme Court.
New Justice Elena Kagan was involved in the appeal when she was solicitor general and is recused from the matter in the Supreme Court.
The case is Ashcroft v. al-Kidd. The court will hear the case next year and issue its ruling before adjourning in the summer.
In 2009, the justices narrowly ruled for the former attorney general in a similar case. They dismissed allegations from a Pakistani man legally living in the United States that Ashcroft should be held responsible for his detainment after the terrorism attacks, when he says he was beaten and held in solitary confinement for five months without being charged.
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