Supreme Court rules Ashcroft can't be sued in al Kidd case

McClatchy NewspapersMay 31, 2011 

Abdullah al-Kidd in February 2011.

AP PHOTO/DAMIAN DOVARGANES

WASHNGTON — The Supreme Court ruled unanimously Tuesday that former Attorney General John Ashcroft couldn't be sued for his role in jailing a supposed anti-terrorism witness.

In a case that united the Bush and Obama administrations, the court concluded that Ashcroft deserved immunity because he hadn't clearly violated any laws in the jailing of U.S. citizen Abdullah al Kidd. Federal authorities held al Kidd for 16 days as a potential witness before releasing him without ever calling him as a witness.

"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions," Justice Antonin Scalia wrote for the majority.

The court ruled 8-0 in support of Ashcroft's immunity, though the justices divided over broader issues left unresolved in the decision Tuesday.

"The court has unfortunately let Attorney General Ashcroft off the hook, but half of the justices who participated in today's decision expressed real questions about how the government used the material witness statute in al Kidd's case," noted American Civil Liberties Union attorney Lee Gelernt, who helped represent al Kidd.

Justice Elena Kagan, formerly President Barack Obama's solicitor general, didn't participate. Kagan's former deputy, Acting Solicitor General Neal Katyal, had argued that prosecutors and top officials needed protection from lawsuits.

"Allowing such suits to proceed would result in burdensome litigation and interfere with the ability of prosecutors to do their jobs," Katyal warned during oral argument last March.

Al Kidd was born in Kansas, under the name Lavoni T. Kidd. He changed his name and converted to Islam while attending the University of Idaho and playing on the school's football team in the mid-1990s.

Authorities had seized al Kidd in March 2003 as he was boarding a flight for Saudi Arabia, where he planned on studying religion and Arabic. Though law enforcement officials didn't charge al Kidd with a crime, they maintained his testimony might be needed in the trial of Sami Omar al Hussayen, a University of Idaho graduate student accused of visa fraud, making false statements and providing support to terrorists.

Al Hussayen ultimately agreed to be deported after a jury acquitted him on some charges and deadlocked on others.

Al Kidd, a father of two children, endured severe, high-security conditions described as "brutal" by Justice Ruth Bader Ginsburg. The cell lights were kept on 24 hours a day, ostensibly to allow authorities to monitor him. He was repeatedly strip-searched, and was shackled while being moved from jail to jail.

Even after being let out of jail, he was controlled under supervised release for another 14 months. The circumstances led to his losing a job and becoming separated from his wife, the 9th Circuit Court of Appeals had noted.

Al Kidd argued that the FBI was systematically using the material-witness law in the high-pressure months following the 9/11 terrorist attacks as a pretext for holding individuals against whom authorities lacked other evidence.

The court didn't buy this pretext-based argument.

"Efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer,' Scalia wrote.

Three conservative justices agreed with the entirety of Scalia's opinion. The remaining four agreed that Ashcroft is protected from lawsuits, but they filed multiple concurring opinions. In particular, the court's liberal wing noted that the decision in Ashcroft v. al Kidd didn't address the overall scope of the material witness statute.

"(Al Kidd's) ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times," Justice Ruth Bader Ginsburg wrote.

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