[Vision2020] Item of National and Local Interest

Tue May 31 19:45:28 PDT 2011

Courtesy of KHQ-TV (Spokane) at

http://www.khq.com/story/14754006/high-court-throws-out-lawsuit-against-ashcroft

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High court rules out damage claim against Ashcroft

WASHINGTON (AP) - The Supreme Court on Tuesday threw out damage claims
against former Attorney General John Ashcroft over an American Muslim's
arrest, but four justices said the case raises serious questions about
post-9/11 detentions under a federal law intended to make sure witnesses
testify.

The justices were unanimous, 8-0, in holding that Ashcroft cannot be
personally sued over his role in the arrest of Abdullah al-Kidd [Lavoni
Kidd] in 2003. The court sets a high bar for suing high-ranking officials,
and all the justices agreed al-Kidd did not meet it, even though he was
never charged with a crime or called to testify in the terrorism-related
trial for which he ostensibly was needed.

Al-Kidd contended that his arrest under the material witness statute had a
more sinister motive that violated his constitutional rights - federal
authorities suspected him of ties to terrorism but lacked evidence that he
committed or was planning a crime. And, he said, Ashcroft blessed the use
of the law in the days after the Sept. 11, 2001, attacks to take suspected
terrorists off the street.

A five-justice majority absolved Ashcroft of any wrongdoing. "We hold ...
that Ashcroft did not violate al-Kidd's Fourth Amendment rights," Justice
Antonin Scalia said in his majority opinion. The five justices in the
majority on this aspect of the decision are all Republican appointees.

But one of those justices, Anthony Kennedy, wrote separately to stress the
narrowness of the decision. Kennedy said the case left unresolved how
broadly the government may use the material witness statute, which has
existed in one form or another since 1789.

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor said they
would have resolved the case solely on the ground that Ashcroft could not
be sued, whether or not al-Kidd's arrest violated the Constitution.
Justice Elena Kagan did not participate in the case because she worked on
the issue when she was solicitor general.

Sotomayor said no previous case involving allegedly unlawful arrests
"involved prolonged detention of an individual without probable cause to
believe he had committed any criminal offense."

Ginsburg said al-Kidd's "ordeal is a grim reminder of the need to install
safeguards against disrespect for human dignity, constraints that will
control officialdom even in perilous times."

The opinions are no aid to al-Kidd or roughly six dozen other men, almost
all Muslims, who were arrested and held in the months and years after
Sept. 11 under the material witness statute. But federal judges asked to
issue such warrants in the future might take account of what the justices
said Tuesday.

The opinions "shine a light on the problems of the material witness
statute and make clear that federal judges must carefully scrutinize a
request for a material witness warrant," said the American Civil Liberties
Union's Lee Gelernt, al-Kidd's lawyer.

Born in Kansas, Al-Kidd is a former University of Idaho football star who
now teaches English to college students in Saudi Arabia. He was headed to
Saudi Arabia on a scholarship in 2003 when federal agents arrested him at
Washington-Dulles International Airport.

The sworn statement the FBI submitted to justify the warrant had important
errors and omissions. The $5,000 one-way, first-class seat that the agents
said al-Kidd purchased was, in reality, a coach-class, round-trip ticket.
The statement neglected to mention that al-Kidd had been cooperative or
that he was a U.S. citizen with a wife and children who also were
American.

After the arrest, he was held for 16 days, during which he was
strip-searched repeatedly, left naked in a jail cell and shower for more
than 90 minutes in view of men and women, routinely transported in
handcuffs and leg irons, and kept with people who had been convicted of
violent crimes.

Even after Tuesday's ruling, al-Kidd still has claims pending against the
FBI agents who obtained the material witness warrant used to arrest him.
Al-Kidd has separately reached settlements with Virginia, Oklahoma and
Idaho jail officials over his treatment. A federal judge in Oklahoma ruled
the strip searches al-Kidd endured at the federal jail in Oklahoma City
"were objectively unreasonable and violated the Fourth Amendment."

The lawsuit against Ashcroft, attorney general from 2001 to 2005, stemmed
from comments he made shortly after 9/11 that the government would
preventively detain people suspected of terrorist ties, even if it had no
evidence they committed a crime.

The 9th U.S. Circuit Court of Appeals in San Francisco, in allowing the
lawsuit against Ashcroft to go forward, said using the material witness
statute as a pretext to detain someone was a violation of the Fourth
Amendment. The appeals court also said Ashcroft should have known that
such detentions would violate the law.

But the high court has said that an official must be tied directly to a
violation of constitutional rights and must have clearly understood the
action crossed that line to be held liable. No attorney general has ever
been held personally liable for official actions.

Copyright 2011 The Associated Press. All rights reserved. This material
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 witnesses testify.

The justices were unanimous, 8-0, in holding that Ashcroft cannot be
personally sued over his role in the arrest of Abdullah al-Kidd in 2003.
The court sets a high bar for suing high-ranking officials, and all the
justices agreed al-Kidd did not meet it, even though he was never charged
with a crime or called to testify in the terrorism-related trial for which
he ostensibly was needed.