Former US Attorney General John Ashcroft can be sued for damages for ordering Muslims jailed as material witnesses in criminal cases, allegedly as a pretext to investigate their possible links to terrorism, a federal appeals court in San Francisco ruled Friday.
The 2-1 decision by the Ninth U.S. Circuit Court of Appeals, the first of its kind in the nation, was a rebuke to the Bush administration’s post-9/11 practice of using the material-witness law to hold people as suspected terrorists without evidence that they had committed crimes.
The government lacks “the power to arrest and detain or restrict American citizens for months on end … merely because the government wishes to investigate them for possible wrongdoing,” Judge Milan Smith, an appointee of former President George W. Bush, said in the majority opinion.
“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history,” Smith wrote.
Dissenting Judge Carlos Bea, also a Bush appointee, said Ashcroft had acted as a prosecutor and can’t be sued for ordering the arrest of a potential witness, even if the arrest was a pretext for investigating the witness.
Lee Gelernt, an American Civil Liberties Union lawyer for the Nevada man who sued Ashcroft and others over arrest, said the ruling is a blow to a government policy of “preventive detention” of people who have committed no crimes.
“A policy of that nature is unconstitutional and quite dangerous,” Gelernt said.
Justice Department spokesman Charles Miller said the agency, which has defended Ashcroft, is reviewing the ruling.
Gelernt’s client, Abdullah al-Kidd, is a U.S. citizen and former football star at the University of Idaho. He was arrested in March 2003, held at jails in three states for 16 days, then monitored while living at home for the next 15 months.
A court warrant named him as a material witness in the case of Sami Omar Al-Hussayen, the alleged computer Webmaster of a radical Islamic organization. The FBI said al-Kidd had received $20,000 from Al-Hussayen and was about to fly to Saudi Arabia.
In fact, al-Kidd’s lawyers said, he had cooperated with the FBI and had repeatedly told agents he was willing to testify.
He was not called as a witness against Al-Hussayen, who was acquitted in 2004 of providing support to terrorists.
Al-Kidd said he lost his job as a result of the arrest, hasn’t found steady work since and has separated from his wife.
Under the material witness law, a person whose testimony is needed in a criminal case, and may be unavailable by subpoena, can be held for a reasonable period. Ashcroft, in an October 2001 press briefing, said that “aggressive detention of lawbreakers and material witnesses” was part of his strategy to prevent terrorist attacks.
FBI Director Robert Mueller told Congress in 2003 that al-Kidd’s arrest was one of the bureau’s “major successes” in “identifying and dismantling terrorist networks.”
But the court said the government never showed that al-Kidd was a terrorist and was not entitled to use the material witness law to hold him as a suspect.
Ashcroft’s immunity from lawsuits extends only to his decisions to prosecute cases and not to a policy of ordering purported witnesses held for investigation, the court said.
The ruling is at links.sfgate.com/ZICQ.