Court rules against Ashcroft in post-Sept. 11 detention policies

September 5, 2009 at 12:00a.m.

BOISE, Idaho (AP) — A federal appeals court delivered a stinging rebuke Friday to the Bush administration’s post-Sept. 11 detention policies, ruling that former Attorney General John Ashcroft can be held liable for people who were wrongfully detained as material witnesses after 9/11.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the government’s improper use of material witnesses after Sept. 11 was “repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft on allegations he violated the man’s constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

Al-Kidd said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people — particularly Muslim men and those of Arab descent — as material witnesses if the government suspected them of a crime but had no evidence to charge them.

Ashcroft had asked the judge to dismiss the matter, saying that because his position at the Department of Justice was prosecutorial, he was entitled to absolute immunity from the lawsuit.

Al-Kidd’s attorney, Lee Gelernt of the American Civil Liberties Union, said the ruling by the three-judge panel had implications reaching far beyond the government’s actions in detaining material witnesses post-Sept. 11.

“The use of the material witness statute as a post-9/11 detention tool is one of the least understood parts of the post 9/11 landscape, but it has enormous implications because it was done in secret, and the government has never renounced the policy,” Gelernt said. “Our hope is that we can now begin the process of uncovering the full contours of this illegal national policy.”