Can Former Attorney General John Ashcroft Be Sued for 9/11 Policies?

March 2, 2011 -- Abdullah Al-Kidd, a U.S. citizen and former football star at the University of Idaho, was arrested by the FBI nearly eight years ago and held for 15 days because of his connections to a suspected terrorist.

Al-Kidd was never charged with a crime, arguing now that he was improperly detained and should be able to sue former Attorney General John Ashcroft, which the U.S. Supreme Court will take up today.

Like many people after the attacks of 9-11, Al-Kidd was held under the material witness statute that allows law enforcement to detain individuals if their testimony might be material to an ongoing criminal proceeding.

Al-Kidd, 37, alleges, however, that Ashcroft stretched the material witness law and used it not to detain witnesses for testimony but to hold them, without probable cause, as terrorism suspects.

A lower court ruled that the case could go forward because Ashcroft, as a former government official, does not have immunity against such suits. The Supreme Court will review the ruling today.

In court papers, Ashcroft, who, as a former government official, is being represented by the Obama administration, argues that a federal magistrate issued a warrant for Al-Kidd's arrest under the material witness statute because of Al-Kidd's ties to Sami Omar Al-Hussayen.

Al-Hussayen, a citizen of Saudi Arabia, was at the time being investigated for false-statement and visa-fraud offenses. Ashcroft argues that the FBI moved to detain Al-Kidd after learning he had immediate plans to fly to Saudi Arabia.

But Al-Kidd, a Muslim who is being represented by the American Civil Liberties Union, said he was going to Saudi Arabia to study and that his only connection to Al-Hussayen was a charitable organization where they both worked.

He says that instead of being held for his potential testimony against Al-Hussayen, he was held in a high security wing, strip searched and routinely shackled. He claims that Ashcroft improperly instituted a nation-wide policy regarding the material witness statue to use as a pretext to detain terrorism suspects for investigative purposes.

White House Defends Ashcroft

"That policy used the material witness statute to detain and investigate suspects for whom the government lacked probable cause of wrong doing, and not to secure testimony." Al-Kidd's lawyers argue in briefs.

But Acting Solicitor General Neal Katyal points out that Al-Kidd's arrest was authorized by a federal magistrate.

"Seeking and obtaining a material-witness warrant is a core prosecutorial act, and a prosecutor is absolutely immune from any claims based on that act," he said.

Katyal says that if the lower court ruling is allowed to stand, prosecutors will be reluctant to use the material witness warrant and "potentially lose an important witness in a case, out of concern that seeking such a warrant may expose him or his supervisors to suit and potentially to liability."

Five former attorneys general of the United States agree. In a brief filed in support of Ashcroft, they say if the case is allowed to go forward, Ashcroft would be subject to disruptive discovery and that other attorneys general would be fearful "from exercising the full range of their lawful authority to protect the security of the United States."

But lawyer Joseph Tringali, who filed a brief on behalf of Human Rights Watch and the National Association of Criminal Defense Lawyers in support of Al-Kidd, says the material witness statue was "consciously and deliberately abused. "

Tringali argues that after 9/11, there were numerous examples of people being detained not because they were material witnesses but because the government suspected they were involved in terrorism.

"The men didn't meet the requirements of the material witness statute nor were they treated as material witnesses," Tringali said.

The case, John Ashcroft v. Abdullah Al-Kidd, will be decided by July.