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Tuesday, May 31, 2011 - 3:00pm

Supreme Court Throws Out Suit Against Ashcroft

The U.S. Supreme Court ruled on Tuesday that former Attorney General John Ashcroft cannot be sued for damages for the detention of an American Muslim. Abdullah al-Kidd, an American citizen, was detained as a material witness two years after the attacks of Sept. 11, 2001, even though he had cooperated with the FBI and was never charged with a crime.

Al-Kidd, a former star running back at the University of Idaho, looked like an all-American boy in his college photos. Born in the U.S. to American parents and raised in the Christian faith, he converted to Islam while in college. That was unremarkable until the aftermath of Sept. 11 when the FBI began visiting him and asking about fellow Muslims. Al-Kidd answered all the FBI's questions and by 2003 had not been contacted for some time. He was about to board a plane bound for Saudi Arabia where he was going to study language and religion, when he was arrested, shackled and taken to jail under a material witness warrant.

"It was probably one of the most humiliating, degrading moments of my life," says Al-Kidd. "I could only imagine what people were thinking about me."

Over the next 16 days, al-Kidd was held in three high-security prisons, and subjected to such harsh treatment that prison officials eventually settled out of court on his claims of mistreatment. He was ultimately released on condition that he live with his in-laws and report regularly to federal authorities. But his reputation was in tatters, he lost his job, and his marriage failed. Moreover, he was never called to testify as a witness at any trial.

The material witness law, under which al-Kidd was detained, is designed to ensure that a witness who might flee remains available for trial. A warrant authorizing al-Kidd's detention was issued by a federal magistrate judge after FBI agents presented a sworn affidavit that was false in some respects, and misleading in others. The government's affidavit, for instance, stated that al-Kidd had purchased a one-way, first-class ticket to Saudi Arabia for $5,000 a pattern similar to that of the Sept. 11 hijackers. In fact, though, the affidavit was false; the ticket was round-trip, coach and cost $1,700.

Al-Kidd subsequently sued former Attorney General Ashcroft, noting that after 9/11 the attorney general had stated publicly that he intended to use the material witness statute aggressively to take terrorism suspects off the street. Ashcroft's use of the material witness statute, al-Kidd contended, had unconstitutionally transformed a statute intended to ensure that witnesses appear at trial into a statute Congress had refused to enact, authorizing preventive detention without evidence of criminal activity.

On Tuesday, however, the Supreme Court ruled that the suit against Ashcroft must be dismissed. Writing for the eight-member Court, Justice Antonin Scalia said that Ashcroft's motives are "irrelevant." The former attorney general, like other high-ranking officials, is entitled to qualified immunity that is, he may only be sued if he violated a constitutional or statutory right, and that right was clearly established at the time.

"Qualified immunity," said Scalia, "gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law." Ashcroft, Scalia concluded, "deserves neither label" because "[a]t the time of al-Kidd's arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional."

With Justice Elena Kagan recused from the case, however, four justices half of the court wrote or joined concurring opinions that seemed to suggest a direct challenge to the material witness statute might someday succeed.

Justice Anthony Kennedy noted that the scope of the statute "is uncertain." Would it, for example, allow for the detention of a law abiding citizen who is perfectly willing to testify if asked, or if subpoenaed? The question becomes even more difficult, he opined, if authorities delay obtaining a warrant until the traveler arrives at the airport. "These possibilities," said Kennedy, "appear to resemble the facts in this case." Kennedy's opinion, joined and expanded upon by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, would seem to suggest that a separate pending lawsuit brought by al-Kidd against the FBI agents in his case, might prevail.

"The reason that this decision is unanimous is everybody wins," said constitutional law expert Tom Goldstein. "The conservatives protect the attorney general but the more liberal justices, and Justice Kennedy, hold the door open for a later decision that says, 'You can't use the material witness statute just to hold anybody you like, and if you lie to the magistrate you can get sued for that, too.' "

Goldstein says Kennedy's opinion for himself and three other justices, casts "real doubts on whether this was a legitimate use of the material witness statute." Noting that Justice Kagan, an Obama appointee, did not participate in the case, Goldstein adds that "it wouldn't be surprising if in a few years the Supreme Court got another one of these cases [and were to hold] that" it is "an abuse" of the material witness law to use it as it was used in this case.

"I think that if the statute is now interpreted as Justice Kennedy is suggesting, it will be very difficult for the government to use the statute as a preventive detention tool," says Lee Gelernt, an attorney for the American Civil Liberties Union, who argued on behalf of al-Kidd before the Supreme Court in March.

For now, though, the bigger victory belongs to Ashcroft and the Obama administration, which argued on Ashcroft's behalf in the Supreme Court.

"There are hundreds of former government officials who are facing damage claims based on their alleged misconduct while they were in office," says Richard Samp, who wrote a friend of the court brief for several former attorneys general. "Based on [Tuesday's] decision, they are going to be breathing a good deal more easily because their cases are likely to be thrown out of court."

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