Supreme Court takes case targeting Ashcroft

Suit challenges detention policy

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Abdullah al-Kidd had an all-American background: Kansas native, then a football star in college. That’s when he converted to Islam.

John Ashcroft was the attorney general who approved a policy that led to the arrests of Mr. al-Kidd and dozens of others without evidence of crimes in the George W. Bush administration’s aggressive early response to the 9/11 attacks.

Now the Supreme Court will decide whether Mr. al-Kidd can try, through a civil lawsuit, to prove that the nation’s former top legal officer should be held personally responsible for his arrest.

It is just one of several instances where Mr. Ashcroft’s push-the-envelope style during the fear-filled period that followed the Sept. 11, 2001, terrorist attacks have ended up spawning lawsuits.

Mr. Al-Kidd was arrested at Washington Dulles International Airport in 2003, preparing to board a flight to Saudi Arabia. FBI Director Robert S. Mueller III said in congressional testimony that Mr. al-Kidd’s arrest was one of five major anti-terrorism coups for the agency, on a par with the arrest of suspected 9/11 mastermind Khalid Shaikh Mohammed.

The FBI persuaded a judge to issue a warrant for Mr. al-Kidd’s arrest by contending he had paid $5,000 for a one-way ticket and neglecting to mention that he was an American and had a wife and children in the United States. His attorneys say the claim about the ticket was false, that he had a much cheaper, round-trip ticket.

In addition, they said, he had cooperated fully with authorities. “The FBI never told him he might be needed as a witness or told him not to travel abroad,” said Lee Gelernt, an American Civil Liberties Union lawyer who is representing Mr. al-Kidd.

Instead, agents “blindsided” him at the airport, his attorney said. Mr. al-Kidd claims he was strip-searched and shackled during his 16 days in detention and then he remained under severe restrictions for the next 14 months.

He was one of at least 70 people detained under a law aimed at ensuring that “material witnesses” would be available to appear in court and testify at trial, according to a study by civil liberties groups. Like many others, Mr. al-Kidd was never called to testify before a grand jury or in open court and was not charged with a crime.

He sued Mr. Ashcroft, asserting that his arrest stemmed from a policy announced by the attorney general less than two months after 9/11. At that time, Mr. Ashcroft touted the use of “material-witness warrants” to detain suspected terrorists when the government did not have sufficient evidence to hold them on criminal charges.

The lawsuit has not gone to trial, and Mr. Ashcroft, represented by the Obama administration, has argued he should be shielded from suits concerning his official duties. The former attorney general should not subjected to “burdensome litigation and potential damages for the conduct of his subordinates,” acting Solicitor General Neal Katyal, the administration’s top Supreme Court lawyer, has told the court.

In a previous Supreme Court case, Mr. Ashcroft and Mr. Mueller prevailed over a detainee who sought to hold them liable for his confinement. In that case, the court voted 5-4 that the detainee, Javaid Iqbal of Pakistan, could not tie the high-ranking officials closely enough to his nearly six months in solitary confinement in 2002 to allow his claims against them to go forward.

Civil liberties lawyers say no attorney general has ever been held personally liable for official actions. Other federal officials, particularly at a lower level, have been held personally liable for their actions. It is, however, exceptionally rare.

Supreme Court rulings do allow high-ranking officials to be held liable, but they set a high bar: An official must be tied directly to a violation of constitutional rights and must have clearly understood the action crossed that line.

A divided federal appeals court in San Francisco held that Mr. al-Kidd’s case met the high court’s standards.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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