Why Allowing a Personal Lawsuit Against John Ashcroft Should Not Stand

Saturday, September 12, 2009

IT IS TROUBLING to think that there may be no appropriate legal recourse for someone who has been harmed by another's actions. Yet this may be the case for Abdullah al-Kidd.

Mr. Kidd, a U.S. citizen who converted to Islam, was arrested at Dulles International Airport in 2003 as he prepared to travel to Saudi Arabia to study Arabic and Islamic law. The Justice Department detained Mr. Kidd under a law that allows it to hold a material witness who is believed to be a flight risk or who is unlikely to respond to a subpoena. He was detained for some two weeks, during which he was transferred to facilities in three states, subjected to multiple strip searches and held in cells that were lighted 24 hours a day. After his release, Mr. Kidd was required for more than a year to live with his wife and in-laws in Nevada while his travel was restricted to three adjacent states, and he had to report his whereabouts to a probation officer and consent to in-home visits. Mr. Kidd was never called to testify and never charged. He claims that his arrest and resulting record cost him his job as a government contractor and his marriage.

Mr. Kidd sued former attorney general John D. Ashcroft personally for allegedly misusing the material witness law as a pretext for preventive detention. Mr. Ashcroft countered that the lawsuit should be dropped because he was carrying out his duties and that his office used the material witness law appropriately in pursuit of a national security investigation. Mr. Kidd prevailed this month before a split panel of the U.S. Court of Appeals for the 9th Circuit, which concluded that his constitutional rights against unreasonable seizures and searches were violated because the former attorney general "unlawfully used the federal material witness statute to investigate or preemptively detain."

This conclusion is wrong. Mr. Ashcroft should ask the full 9th Circuit to rehear the matter or seek Supreme Court review.

An official may be stripped of legal immunity only if he violated clearly established constitutional norms. The Justice Department, in our judgment, misused the material witness statute as a means to investigate and detain suspects; it is particularly troubling that even citizens such as Mr. Kidd were subjected to such treatment. But in 2003, no federal court had determined whether the department had the right to use the law more freely in national security investigations -- a flexibility that has been blessed in other contexts. In other words, there was no legal precedent available to Mr. Ashcroft that would have warned against such aggressive use of the material witness statute. The 9th Circuit judges who ruled against Mr. Ashcroft did not address this question and limited their analyses to the use of the law in a criminal context.

The result may seem unfair. But officials should not have to fear personal lawsuits for performing their duties in good faith and in violation of no established legal precedent.

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