Obama defends Ashcroft in Supreme Court terror case

McClatchy NewspapersFebruary 25, 2011 

WASHINGTON — A Kansas native and former University of Idaho student faces a tough road Wednesday when he seeks Supreme Court approval to sue former Attorney General John Ashcroft over war-on-terror tactics.

The man born as Lavoni T. Kidd and now known as Abdullah al Kidd wants recompense from Ashcroft for having been detained in 2003 as a "material witness" in another anti-terror investigation.

A lower court gave Kidd the go-ahead. The highest court probably won't.

"I think al-Kidd is going down 8-0," George Washington University law professor Orin Kerr said. "I think the result in this case is not in doubt."

But the eight Supreme Court justices who will hear Ashcroft v. al Kidd still confront some tough questions. Their answers could shrink or expand federal powers to detain people in sensitive cases.

In particular, the court could clarify whether prosecutors can use their material witness powers to incarcerate suspects for whom they otherwise lack strong evidence of wrongdoing. It's a Fourth Amendment test in a post-9/11 world, complicating efforts to predict what the court might do.

"It's quite hard to know," said Kerr, a former Supreme Court clerk. "The justices don't have a long track record on this particular issue."

Justice Elena Kagan has recused herself, having formerly served as the Obama administration's solicitor general. The Obama solicitor general's office is representing Ashcroft, contending he's immune from legal action that springs from his actions as attorney general.

"That immunity rests on important public policy considerations, including the concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties," Acting Solicitor General Neal Katyal argued in a legal brief.

Kidd is a U.S. citizen who was born in Wichita, Kan., and currently lives in Saudi Arabia.

He converted to Islam and changed his name while attending the University of Idaho as a football running back in the mid-1990s. In March 2003, FBI agents seized him at Dulles International Airport outside Washington. He said he was on his way to Saudi Arabia to further his religious and language studies.

The FBI agents, though, said they needed to talk to him about Sami al Hussayen, a former University of Idaho computer science graduate student indicted on charges relating to immigration fraud and support for terrorists.

"They handcuffed (Kidd) and walked him through the airport in front of staring onlookers," Kidd's American Civil Liberties Union attorneys noted. "They then interrogated him without counsel at an airport police station for one to two hours on a variety of topics, including his own religious beliefs, conversion to Islam and past travels."

Kidd spent the next 15 nights in a series of high-security facilities in Virginia, Oklahoma and Idaho, where the lights were kept on 24 hours a day. Ultimately released, he was never called as a witness in the trial of Hussayen. A jury acquitted Hussayen in 2004 following a six-week trial.

Kidd's arrest was part of a pattern of post-9/11 material witness arrests made while Ashcroft was attorney general. Al Kidd's attorneys contend these arrests exceeded Ashcroft's lawful authority because they were being used, without probable cause, to detain and investigate suspects rather than compel testimony. The attorneys say this violated the Fourth Amendment's protections against unreasonable searches and seizures.

First, though, Kidd's attorneys must pierce the immunity that usually protects government officials. The 9th U.S. Circuit Court of Appeals sided with Kidd.

"The framers of our 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, in al Kidd's complaint," Judge Milan D. Smith wrote for the 9th Circuit.

Smith was appointed to the court by President George W. Bush.

In seeking to overturn the 9th Circuit, the Obama administration's lawyers characterized the material witness law as a crucial law enforcement tool. Katyal noted that Oklahoma City bomber Terry Nichols was initially held as a material witness, before investigators found enough evidence tying him directly to the 1995 bombing of the city's federal building.

"The fear of personal liability may dissuade prosecutors from obtaining such a warrant when they harbor any suspicion that the subject might be involved in criminal wrongdoing but do not yet have probable cause to bring criminal charges," Katyal argued.

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McClatchy Newspapers 2011

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