Ashcroft to Get High Court Review of Lawsuit by Man Held as Terror Witness

The U.S. Supreme Court will consider reinforcing the legal immunity of top government officials, agreeing to decide whether a man can sue former Attorney General John Ashcroft after being detained without charge for 16 days.

The justices will review a ruling that allowed a suit filed by Abdullah al-Kidd, a Muslim U.S. citizen who was arrested in 2003 and held as a material witness in a terrorism probe. Al- Kidd says the government classified him as a material witness because it lacked enough evidence to hold him as a suspect.

Obama administration lawyers are representing Ashcroft at the Supreme Court, arguing that the lower court ruling would have dire consequences for criminal investigations.

The ruling would “threaten the ability of prosecutors to discharge their duties without fear of personal liability, severely limit the usefulness of the material witness statute and substantially chill officers in the exercise of important government functions,” acting U.S. Solicitor General Neal Katyal argued in the appeal.

Al-Kidd, an African American who converted to Islam, contends he was swept up in a broad anti-terrorism investigation aimed at Arab and Muslim men and approved by Ashcroft. He was arrested at Dulles International Airport outside Washington as he was preparing to board a flight to Saudi Arabia, where he says he planned to study at a university.

He alleges that over the next 16 days he was treated as if he were a terrorist rather than a witness. He says he was strip- searched, shackled and placed with hardened criminals. Al-Kidd also says he was interrogated without the presence of a lawyer.

Terrorism Case

Al-Kidd’s lawyers said in court papers that his case “involves a gross abuse of the government’s narrow power” under material witness law, which lets the government hold innocent persons to ensure they will be available to testify.

A judge issued a material witness warrant for al-Kidd in connection with the case of Sami Omar al-Hussayen, who had been indicted on charges including visa fraud and later was accused of supporting terrorism. An agent for the Federal Bureau of Investigation said in a sworn statement that al-Kidd had received more than $20,000 from al-Hussayen.

The agent also inaccurately said that al-Kidd was traveling on a $5,000 one-way ticket to Saudi Arabia, rather than the $1,700 round-trip ticket he was actually using.

Al-Kidd was never called to testify, and a jury acquitted al-Hussayen of the most serious charges against him and deadlocked on the other allegations.

Immunity Sought

Ashcroft served as President George W. Bush’s attorney general from 2001 to 2005. The suit seeks damages directly from Ashcroft, rather than from the government.

Ashcroft contends that two legal doctrines shield him from the suit. He says he is entitled to absolute immunity, which provides a total shield for government officials for their prosecutorial work. Ashcroft also says he has qualified immunity, which insulates all government officials from suits for damages unless they violated a clearly established constitutional right.

The 9th U.S. Circuit Court of Appeals said in a 2-1 ruling that absolute immunity didn’t apply because the government’s motive for arresting al-Kidd allegedly had nothing to do with the al-Hussayen prosecution.

The appeals court also concluded that the misuse of the material witness statute would be a clear constitutional violation.

Stop and Pause

“Qualified immunity must not allow the attorney general to carry out his national security functions wholly free from concern for his personal liability,” the panel said. “He may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States.”

Justice Elena Kagan isn’t taking part in the case. She has disqualified herself from more than 20 cases on the court’s argument calendar because she played a role in the litigation as President Barack Obama’s solicitor general. Obama appointed her to the Supreme Court this year.

The court likely will hear arguments early next year in the case and rule by July.

The justices ruled 5-4 in Ashcroft’s favor in 2009 in a case that bears similarities to that of al-Kidd. The court ruled against a Pakistani man who said he was arrested, beaten and held in solitary confinement for five months after the Sept. 11, 2001, attacks. The majority said the allegations in the complaint against Ashcroft were too conclusory to go forward.

The case is Ashcroft v. Al-Kidd, 10-98.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.

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