Court Rules Ashcroft Can Be Held Liable for Unlawful Detentions

A U.S. Circuit Court of Appeals on the west coast recently ruled that the Bush Administration’s use of material witness law to detain suspects without charge for indefinite periods of time after Sept. 11 was ''repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.'' Right on. The court ruled also that former Attorney General John Ashcroft can indeed be held responsible for creating and overseeing policies that deliberately violate the law.

The incident at issue in the case occurred in 2003, when US citizen Abdullah al-Kidd was surrounded by federal agents while waiting for a flight at Dulles airport in Washington, DC. According to the Associated Press:

The Kansas-born husband and father of two was held for two weeks before being extradited to Idaho and released to the custody of his wife by a federal judge. The government thought al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar Al-Hussayen.

No charges were ever brought against al-Kidd, however. Yet his wrongful detention had lasting effects:

In his lawsuit, al-Kidd says he still suffers from the fallout of his arrest and confinement. He says he was jailed for 16 days in high-security cells that were lit 24 hours a day, and that he was strip-searched several times.

When a court ordered that he be released, he was required to live with his wife and in-laws in Nevada, limit his travel, surrender his passport and other travel documents, report to a probation officer and submit to home visits. The confinement and supervision lasted 15 months, and by the time it ended he had separated from his wife and had been fired from his job for a government contractor because the arrest left him unable to get the necessary security clearance.

In our legal system, a material witness is a person with information thought to be significant with regard to a criminal proceeding. During John Ashcroft’s tenure as attorney general - 2001 to 2005 - he used the USA Patriot Act to justify countless investigations and detentions of US citizens and residents in the name of national security.

In the court’s decision on September 4th, Judge Milan Smith said that those who wrote the US Constitution "would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a 'material witness' under the circumstances, and for the immediate purpose alleged." Smith continues: "Sadly, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions."

While this ruling does provide good cause for hope that our court system will have the drive and power needed to restore our civil rights, the battle is far from over and the exact implications of the decision remain unclear. Unsurprisingly, Ashcroft had already asked the judge to dismiss the case on grounds that his position at the Department of Justice entitles him to absolute immunity from the lawsuit.  We may be seeing this case in the Supreme Court in days to come.

(Photo: StephenMitchell)