Huge Win for Detainee Against Gov't and Ashcroft Personally

This is really a big deal. A three judge panel in the 9th Circuit has ruled Abdullah al-Kidd, an American who converted to Islam during college, was illegally detained by the Bush Administration under the material witness statute, and can seek damages personally from former Attorney General John Ashcroft. The opinion is here (pdf).

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

al-Kidd was represented by the ACLU, which has released this statement: [More...]

In an unprecedented ruling that places responsibility squarely on government officials who after 9/11 championed polices clearly outside the boundaries of the law, a federal appellate court ruled today that former Attorney General John Ashcroft can be held personally responsible for the wrongful detention of an innocent American, Abdullah al-Kidd. The U.S. Court of Appeals for the Ninth Circuit also ruled that the federal material witness law cannot be used to "preventively" detain or investigate suspects. The American Civil Liberties Union represents al-Kidd in the case, al-Kidd v. Ashcroft.

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU 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."

The facts (from the NY Times article):

[al-Kidd] was arrested in 2003 at Dulles International Airport as he prepared to fly to Saudi Arabia for graduate work in Islamic studies, and was held for weeks under a law that allows the indefinite detention of material witnesses to a crime. After his detention, he was ordered to stay with his in-laws in Las Vegas; his travel was restricted over the next year.

al-Kidd says the Government's actions cost him his job and his marriage.

His attorneys argued that he was held as part of a secret Bush administration policy to use the material witness statute as a tool to detain and interrogate people when there was insufficient evidence to charge them with a crime.

More from the opinion by Judge Smith:

"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."

Of the three judge panel, one was appointed by Reagan and one by Bush.

What now?

The case will now go back to federal district court for further hearings, which could involve extensive investigation of the former administration’s antiterrorism policies.

Human Rights Watch' 2005 report on the Bush Adminstration's abuse of the material witness statute is here. More from us here and Yale Law Prof Jack Balkin here.

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    Wow. This should make (5.00 / 1) (#2)
    by oldpro on Fri Sep 04, 2009 at 07:41:01 PM EST
    the Holder Justice Dept. sit up and take notice.

    I would hope so (none / 0) (#3)
    by Zorba on Fri Sep 04, 2009 at 07:51:20 PM EST
    But I'm not optimistic.

    Well, after all, it is the Ninth..... (2.00 / 0) (#8)
    by jimakaPPJ on Fri Sep 04, 2009 at 10:20:50 PM EST

    Thanks for this post, Jeralyn (none / 0) (#1)
    by Spamlet on Fri Sep 04, 2009 at 07:40:21 PM EST
    The 9th seems to get overruled often by the SC. Is that where this is headed?

    There are so many avenues to get to the truth (none / 0) (#4)
    by ruffian on Fri Sep 04, 2009 at 07:53:54 PM EST
    Thanks to the ACLU for using all of them.  Should send a message to those who think we can just move on without finding out the truth of the past. Better to have an all out effort, like a Truth Commission, and just get it all out there.  It will all come out anyway.

    I love how the Court has required (none / 0) (#5)
    by andgarden on Fri Sep 04, 2009 at 08:19:55 PM EST
    lower courts to now spend pages trying to apply Twombly and Iqbal.

    BTW, what do people make (none / 0) (#6)
    by andgarden on Fri Sep 04, 2009 at 08:32:57 PM EST
    of this claim in the dissent:

    al-Kidd contends that even if the material witness warrant on which he was detained was objectively valid and supported by probable cause, the prosecutor's subjective intention to use the material witness warrant to accomplish other, law-enforcement objectives renders the government's conduct unconstitutional. Because al-Kidd had no constitutional right to be free from such conduct--and certainly had no clearly established constitutional right--I dissent from the majority's conclusion that Ashcroft lacks qualified immunity.

    Al-Kidd bases his claims of liberty from arrest on the Fourth Amendment. The Supreme Court has repeatedly stated that under the Fourth Amendment, an officer's subjective intentions are irrelevant so long as the officer's conduct is objectively justified. See, e.g., Maryland v. Macon, 472 U.S. 463, 470-71 (1985) ("Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken." (internal citations and quotation marks omitted));4 Scott v. United States, 436 U.S. 128, 136-37 (1978) ("Subjective intent alone, the Government contends, does not make otherwise lawful conduct illegal or unconstitutional. We think the Government's position, which also served as the basis for decision in the Court of Appeals, embodies the proper approach for evaluating compliance with the minimization requirement [relating to wiretaps].");5 United States v. Robinson, 414 U.S. 218, 236 (1973) (holding that an officer's objectively lawful search incident to arrest was lawful though officer lacked the subjective intention-- fear that the arrestee was armed--that normally attaches to such searches).

    More, in FN 13 (none / 0) (#7)
    by andgarden on Fri Sep 04, 2009 at 08:41:26 PM EST
    It is doubtful that the majority's "knowing failure to act" standard survived Iqbal. There, the Court held that Ashcroft could not be held liable for his "knowledge and acquiescence" in his subordinates' alleged unconstitu- tional discrimination against Muslim men after 9/11. Id. at 1949. The Court explained: "[P]urpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities." Id. at 1949. Here, because al-Kidd has not alleged that Ashcroft knew his subordinates were making deliberate or reckless material misrepresentations or omissions in material witness applications, much less that it was Ashcroft's purpose they do so, al- Kidd's allegations clearly fail Iqbal's requirements.

    If this case gets to the Supreme Court, I think this interpretation will hold. Al-Kidd will eventually lose


    Clarification please? (none / 0) (#9)
    by gyrfalcon on Fri Sep 04, 2009 at 10:59:55 PM EST
    Do I understand right from the Times article that he was held as a material witness to some actual (unspecified in the article) crime being investigated, and that his challenge is that although there was reason to classify him as a material witness to that crime, Ashcroft's subordinates actually had other reasons for holding him?

    I'm having a hard time getting my head around this.  Don't prosecutors do this all the time, find some reason to hold or arrest somebody unrelated to the actual reasons they want to hold him? (Probation violations and the like as an excuse to hold onto a murder suspect, etc.)

    Am I also getting this right, that he doesn't allege Ashcroft personally knew about this but that he's responsible because it was people under him who did this?

    Also, forgive my ignorance, but I thought public officials could not be personally sued for actions they took as public officials.

    (disclaimer: Not intended to imply the slightest degree of sympathy or support for either the Bush Justice Dept. or Ashcroft personally, just have a layman's lack of clarity about how the law works)

    The way I understood the article (none / 0) (#10)
    by ruffian on Fri Sep 04, 2009 at 11:26:33 PM EST
    is that there was no actual specific crime being investigated (unless you count general terrorist plots that may or may not be hatching all the time), and they were just using the material witness statute as an excuse to detain him based on who he is and where he was going.

    Just my layperson's understanding.....

    Not sure why Ashcroft himself can be sued (not that there's anything wrong with that)...unless maybe it was his stated policy that the statute be used illegally in this way.


    From the Times (none / 0) (#13)
    by gyrfalcon on Sat Sep 05, 2009 at 08:39:20 AM EST
    "Mr. Kidd, who was not called as a witness in the case in which he was detained and was never charged with a crime"

    Sez here, "the case in which he was detained."  Says to me there was an actual case.


    From Washpost (none / 0) (#14)
    by gyrfalcon on Sat Sep 05, 2009 at 08:51:16 AM EST
    "At the time, authorities said they wanted al-Kidd to testify in connection with a visa fraud case against Sami Omar al-Hussayen. Al-Hussayen ultimately was acquitted of charges that he provided material support to terrorists. Other charges against him were dismissed after a jury failed to reach agreement."

    It's worth reading the dissent (none / 0) (#11)
    by andgarden on Fri Sep 04, 2009 at 11:35:32 PM EST
    In general a federal employee (none / 0) (#12)
    by oculus on Sat Sep 05, 2009 at 02:16:46 AM EST
    Can't be sued for money damages if he was acting w/in the course and scope.  Federal agency employer is sueable.