Constitutional Law

Former AG John Ashcroft Can Be Sued By Material Witness Detainee, 9th Circuit Says

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An individual allegedly unconstitutionally detained as a material witness under a post-Sept. 11, 2001 anti-terrorism policy implemented by ex-U.S. Attorney General John Ashcroft can sue the nation’s former top law enforcement official for damages, a three-judge appeals court panel ruled today.

Deciding an interlocutory appeal in a case brought by Abdullah al-Kidd, a U.S. citizen who was held for a little over two weeks in 2003 but never charged, the San Francisco-based 9th U.S. Circuit Court of Appeals majority held that Ashcroft did not have either absolute prosecutorial immunity or qualified immunity from being named as an individual defendant in such civil litigation, according to Bloomberg.

However, in a separate opinion concurring in part and dissenting in part, one of the three appellate judges said the panel had wrongly focused on Ashcroft’s state of mind in stripping him of the immunity that ordinarily protects prosecutors from being held personally liable for any mistakes they make.

In addition to being jailed, shackled and repeatedly strip-searched, al-Kidd also was required to submit to probation-like conditions that continued for more than a year after his release, recounts the panel’s written opinion (PDF). Eventually, al-Kidd says, he lost his job because he could not obtain a security clearance.

Although the detention policy implemented by Ashcroft was under the color of a federal statute concerning material witnesses, it was not sufficient to shield the former AG from potential personal liability, the appeals court held, ruling that the former attorney general’s motion to dismiss al-Kidd’s case was properly denied by the trial court.

Al-Kidd contends in his suit both that the federal statute was unconstitutional and that, as the law was applied in his case, there was no probable cause to arrest him as a material witness. While the 9th Circuit did not decide the merits of his case, only that al-Kidd can proceed with his lawsuit against Ashcroft, the majority appeared to take a dim view of the material witness policy:

‘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,” writes Judge Milan Smith Jr. for the majority. ”We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

He and the other two judges on the panel have the reputation of being conservative, and were appointed by Republican presidents, reports the Associated Press.

Judge David Thompson sided with Smith, while Judge Carlos Bea wrote a separate opinion concurring in part and dissenting in part.

Although the U.S. Supreme Court has repeatedly instructed the courts not to inquire into an official’s subjective intent when making immunity determinations, the majority incorrectly did so in Ashcroft’s case, Bea contends:

“Today, the majority permits plaintiff Abdullah al-Kidd to seek redress from the wallet of a federal cabinet-level official for injuries al-Kidd alleges he suffered when he was detained—pursuant to a warrant signed and issued by a neutral federal magistrate judge … ,” Bea writes. This stripping of Ashcroft’s immunity, he says, was for “the sole reason” that, “although he and his subordinates had sufficient evidence to arrest al-Kidd as a material witness in the prosecution of a suspected terrorist under the applicable statute, they acted with a forbidden state of mind: they really arrested him not to testify against the indicted terror suspect, but to investigate al-Kidd himself.”

Spokesmen for Ashcroft and the U.S. Department of Justice say they are reviewing the 9th Circuit ruling and declined to comment at this time, reports Bloomberg.

Attorney Lee Gelernt of the American Civil Liberties Union represented al-Kidd and said the 9th Circuit decision has far-reaching implications, the AP reports.

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

Additional coverage:

CNN: “Ashcroft subject to lawsuit by man who cites Justice policies”

New York Times: “Panel Rules Against Ashcroft in Detention Case”

Washington Post: “Court Allows Lawsuit Against Ashcroft”

Last updated at 8:30 p.m. to link to additional coverage.

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