- The Washington Times - Saturday, September 5, 2009

BOISE, Idaho | A federal appeals court delivered a stinging rebuke Friday to the Bush administration’s post-Sept. 11 detention policies, ruling that former Attorney General John Ashcroft can be held liable for people who were wrongfully detained as material witnesses after 9/11.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the government’s improper use of material witnesses after Sept. 11, 2001, was “repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The court found that a man who was detained as a witness in a federal terrorism case can sue Mr. Ashcroft for purportedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Mr. Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

He said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Mr. Ashcroft to arrest and detain people - particularly Muslim men and those of Arab decent - as material witnesses if the government suspected them of a crime but had no evidence to charge them.

Mr. Ashcroft had asked the judge to dismiss the matter, saying that because his position at the Department of Justice was prosecutorial he was entitled to absolute immunity from the lawsuit. Justice Department spokesman Charles Miller would only say on Friday that the agency is reviewing the opinion.

The exact ramifications of the ruling were not immediately clear, but at a minimum it casts a negative spotlight on the Bush administration’s practice of detaining Muslim men earlier this decade at a time when the nation was still on edge after Sept. 11.

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, they said, even qualified immunity doesn’t allow the attorney general to carry out national security functions completely free from any personal liability concerns.

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.

Mr. al-Kidd’s attorney, Lee Gelernt of the American Civil Liberties Union, said the ruling had implications reaching far beyond the government’s actions in detaining material witnesses post-Sept. 11.

“Our hope is that we can now begin the process of uncovering the full contours of this illegal national policy,” he said.

The 9th Circuit judges said Mr. al-Kidd’s claims plausibly suggest that Mr. Ashcroft purposely used the material witness statute to detain suspects whom he wished to investigate and detain preventively.

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

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

If the case goes back to the lower court, the government will likely have to comply with Mr. 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.

The ruling is the latest development in a saga dating back to 2003, when Mr. al-Kidd was standing in Washington Dulles International Airport surrounded by federal agents.

The Kansas-born husband and father of two was held for two weeks before being extradited to Idaho and released to the custody of his wife by a federal judge. The government thought Mr. al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar al-Hussayen.

Mr. al-Kidd and Mr. al-Hussayen both worked on behalf of the Islamic Assembly of North America, a Michigan-based charitable organization that federal investigators suspected of funneling money to activities supporting terrorism and publishing material advocating suicide attacks on the United States.

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