Ashcroft Can Be Held Accountable for Post-9/11 Wrongful Detention

The
American Civil Liberties Union lawsuit charging that former Attorney
General John Ashcroft is personally responsible for the wrongful
detention of an innocent American, Abdullah al-Kidd, can go forward,
the U.S. Court of Appeals for the Ninth Circuit ruled today. The ruling
denies Ashcroft's request that his appeal be heard by the entire court
and upheld the court's September 2009 decision that the federal
material witness law cannot be used to detain or investigate suspects
where no probable cause exists for criminal charges. The ruling also
held that Ashcroft does not have immunity in this case and can be held
personally liable for the wrongful detention of al-Kidd.

"In this country, we don't believe
in arresting and imprisoning people who haven't been charged with any
crime," said ACLU Immigrants' Rights Project Deputy Director Lee
Gelernt. "Former Attorney General Ashcroft deliberately distorted the
federal material witness law to allow the detention of innocent people.
As the primary architect and overseer of this policy that so clearly
circumvented the Constitution, he should be held personally liable."

Prior to 9/11, the federal material
witness law was used sparingly - especially with U.S. citizens - to
ensure that witnesses would be available to testify in criminal cases.
Arrests under the statute took place in rare cases to secure testimony
where there was hard evidence that an individual had material
information but would not testify voluntarily. After 9/11, Ashcroft
retooled the law into an investigative detention statute, allowing the
government to arrest and detain individuals for whom the government
lacked probable cause to charge with criminal violations.

Today's ruling affirms the court's
September 2009 ruling that found that the material witness law may only
be used when an individual is genuinely sought as a witness and where
there is a real risk of flight. The court ruled that the law does not
allow an end-run around the constitutional requirements for arresting
someone suspected of a crime. Ashcroft had appealed the ruling.

Al-Kidd, a U.S.-born American
citizen, was on his way to Saudi Arabia to study when he was unlawfully
detained and arrested in Washington's Dulles Airport on March 16, 2003
as a material witness in the trial of Sami Omar Al-Hussayen. For 16
days, al-Kidd was held in heightened-security units of various jails
and shackled whenever moved. He was eventually released under onerous
conditions that included confining his travel to four states,
surrendering his passport and reporting to probation officers. Al-Kidd
was held for more than 13 months under these conditions without ever
being charged with any crime or asked to testify.

At the time of his arrest, al-Kidd
had already shown that he was not a flight risk and would cooperate as
a witness. He had voluntarily met with the FBI repeatedly, never
missing a scheduled appointment. For six months prior to his arrest,
al-Kidd had not been contacted by the FBI, and he had never been told
that he was prohibited from traveling abroad to pursue his studies.

The ACLU lawsuit names Ashcroft,
the United States and several federal agents as defendants. Local,
state and federal officials in Virginia, Oklahoma and Idaho already
settled claims against these parties.

Organizations and individuals who
have submitted friend-of-the-court briefs on behalf of the ACLU in the
case include former federal prosecutors, former presidents of the
American Bar Association, the National Association of Criminal Defense
Lawyers and Human Rights Watch.

Attorneys on the case are Gelernt,
Lucas Guttentag, Farrin Anello and Tanaz Moghadam from the ACLU
Immigrants' Rights Project; Cynthia Woolley of the Law Offices of
Cynthia J. Woolley, PLLC; R. Keith Roark of the Roark Law Firm, LLP;
and Michael J. Wishnie of Yale Law School, who is cooperating counsel
for the ACLU.

The court's ruling is available online at: www.aclu.org/national-security/abdullah-al-kidd-v-john-ashcroft-et-al-order-denying-petition-rehearing-en-banc

More information about the case, al-Kidd v. Ashcroft, including the ACLU's complaint, the court's September 2009 ruling and other legal documents are online at: www.aclu.org/safefree/detention/40511res20051118.html

Witness to Abuse, the 2005 report on the misuse of the material witness statute, is online at: www.aclu.org/safefree/detention/17616prs20050627.html