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U.S. Citizen Can Sue Ashcroft for Wrongful Detention

Few innocent victims of post-9/11 counter-terrorism policies have been able to sustain their claims against government officials in federal courts, although many have tried. But on Friday, a federal appeals court held that a U.S. citizen detained for more than two weeks as a “material witness” and then released under severe restrictions can sue former Attorney General John Ashcroft for the policy that led to his treatment. The court also held that the U.S. government cannot “preventively” detain or investigate suspects.

Abdullah al-Kidd, a Kansan who converted to Islam in college, was arrested in 2003 after he and his wife became targets of an FBI anti-terrorism investigation involving surveillance of Arab and Muslim men. The FBI never found any evidence against al-Kidd, but believed he might have information that would be useful to another prosecution. Although al-Kidd agreed to cooperate, the FBI detained him for the next 16 days in high-security prisons in Virginia, Oklahoma and Idaho. Strip-searched and shackled, he was kept in a cell that was lit 24 hours a day.

Al-Kidd was finally allowed to leave, but only if he promised to live at his in-laws’ home in Nevada, limit his travel to only four states, report regularly to a probation officer and consent to home visits for more than a year. Fifteen months’ later, he and his wife had separated, and al-Kidd was fired from his job after he was denied a security clearance due to his arrest, he claims. He was also denied a chance to study in Saudi Arabia on a scholarship.

Al-Kidd was never charged with any crime or called as a witness in any trial.

In March 2005, Al-Kidd sued Ashcroft for what he claims was an illegal policy of detaining Muslim men suspected of terrorism as material witnesses even though there was no evidence against them, they’d agreed to cooperate with the government and posed no security risk.

Like other former government officials sued in recent years for promulgating unlawful counter-terrorism policies, Ashcroft claimed he was immune from suit as a government official doing his job. But in this case, the court ruled against him. There was no doubt that it was unconstitutional to arrest a person without probable cause that he committed a crime under the pretext that he may be a witness to one, the court ruled.

“All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.”

Writing for the court, Judge Milan Smith continued, suggesting concerns broader than al-Kidd’s case alone:

Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. 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. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

Al-Kidd still has to prove the facts of his case, but he’s scored a significant legal victory.

“The court made it very clear today that former Attorney General Ashcroft’s use of the federal material witness law circumvented the Constitution,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt, who argued the appeal. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

That victory may not translate to many of the other cases involving victims of post-9/11 U.S. government detention policies who were not U.S. citizens, however, or who were detained in prisons abroad. Courts have generally ruled that the rights of non-citizens detained in overseas prisons were not sufficiently clear in the initial years after the September 11, 2001 terrorist attacks to warrant denying government officials immunity from lawsuits, even if the detainees were held for years without charge or trial.

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