Panel Rules Against Ashcroft in Detention Case

Panel Rules Against Ashcroft in Detention Case
By JOHN SCHWARTZ
Copyright by The New York Times
Published: September 4, 2009
http://www.nytimes.com/2009/09/05/us/politics/05witness.html?th&emc=th


Former Attorney General John Ashcroft may face personal liability for the decisions that led to the detention of an American citizen as a material witness after the Sept. 11 attacks, a federal appeals court panel ruled on Friday.

In the decision, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, was sharply critical of the Bush administration’s practice of holding people it suspected of terrorism without charges, as material witnesses.

“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.

The lawsuit was brought in 2005 by Abdullah al-Kidd, who was born Lavoni T. Kidd in Kansas and converted to Islam in college. He was arrested in 2003 at Dulles 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.

Mr. Kidd, who was not called as a witness in the case in which he was detained and was never charged with a crime, sued Mr. Ashcroft and other officials in 2005, challenging his detention as unconstitutional and saying it cost him his marriage and his job. His lawyers 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.

Mr. Ashcroft, who was represented by the Justice Department, disputed Mr. Kidd’s version of the facts and claimed his position granted him immunity.

Lee Gelernt, a lawyer for the American Civil Liberties Union who represented Mr. Kidd, called it “an enormous decision” that says “no official, including the attorney general of the United States, can be immune if he adopts and implements an unconstitutional policy.”

Material witness laws, said Ronald L. Carlson, a law professor at the University of Georgia, have generally been used to hold witnesses briefly if they have crucial information but are thought to be likelier to flee than to testify. But during the Bush administration, the use of the law was expanded for use in terrorism investigations, and “the net swept pretty widely,” Professor Carlson said.

Charles S. Miller, a spokesman for the Justice Department, said, “We’re reviewing the court’s ruling.” Mark Corallo, a spokesman for Mr. Ashcroft, would say only that Mr. Ashcroft was reviewing the decision as well.

A report in 2005 by Human Rights Watch and the A.C.L.U. said that 70 people were improperly detained under the material witness law after 9/11. Although the decision could conceivably apply to those people, few, if any, of them could now sue because of the statute of limitations, Mr. Gelernt said.

Judge Smith, who was appointed by President George W. Bush, was joined in the majority opinion by Judge David R. Thompson, who was appointed by President Ronald Reagan. The third judge on the panel, Carlos T. Bea, filed an opinion that concurred in part and dissented in part. Judge Bea, who was also appointed by President Bush, argued that Mr. Ashcroft should have immunity in the case, and that the majority was wrong to allow Mr. Kidd “to seek redress from the wallet of a federal cabinet-level official.”

Unless Mr. Ashcroft appeals the decision, the case will go back to federal district court for further hearings, which could involve extensive investigation of the former administration’s antiterrorism policies.