By Robert Barnes
Monday, October 18, 2010; 6:54 PM
The Supreme Court agreed Monday to examine once again the Bush administration's aggressive response to the Sept. 11, 2001, terrorist attacks, saying it will consider whether former attorney general John D. Ashcroft can be sued by a U.S. citizen who claims he was illegally detained and treated as a terrorist.
Lower courts have said that Abdullah al-Kidd can press forward with his suit that attempts to hold Ashcroft personally liable for misusing federal laws to hold him without charging that he had broken any laws.
Al-Kidd, a onetime University of Idaho football star named Lavoni T. Kidd who converted to Islam in college, was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study.
He was held for 15 nights in three states under the federal material-witness statute, which allows prosecutors to take custody of key witnesses to ensure that they testify at trial. But al-Kidd alleges that was simply a pretext for a larger plan approved by Ashcroft to sweep up Muslim men the government could not prove had any ties to terrorism.
His attorneys say it was a "gross abuse of the government's narrow power" and part of an acknowledged administration strategy of using the material witness statute to hold suspects that officials did not have evidence to charge.
FBI Director Robert S. Mueller III told Congress at the time that al-Kidd's apprehension was one of the bureau's "success" stories, even though al-Kidd was never charged with a crime or called as a witness.
Ashcroft has claimed immunity, but the U.S. Court of Appeals for the 9th Circuit disagreed and said the lawsuit could go forward. The Obama administration is representing Ashcroft, as did the Bush administration, and asked the Supreme Court to overturn the 9th Circuit's decision.
Allowing it to stand, Acting Solicitor General Neal K. Katyal told the court in his brief, would "threaten the ability of prosecutors to discharge their duties without fear of personal liability, severely limit the usefulness of the material witness statute, and substantially chill officers in the exercise of important governmental functions."
The government had convinced a federal judge to issue a warrant for al-Kidd's arrest by saying he was necessary to the investigation of Sami Omar al-Hussayen, who was eventually indicted on charges of supporting terrorism. An FBI agent said al-Kidd had met with al-Hussayen and had received payments by him of more than $20,000. Al-Kidd's attorneys say the payments were for work he did for a charity.
The FBI agent also told the judge - incorrectly - that al-Kidd was leaving the country on a $5,000, one-way, first-class ticket and that it might be impossible to get him back from Saudi Arabia. Actually, al-Kidd was using a $1,700 round-trip ticket.
Al-Kidd maintains that in his more than two weeks of detainment, he was strip-searched, shackled, interrogated without a lawyer present and treated as a terrorist. He was never charged with a crime and never called to testify against al-Hussayen, who was acquitted of the most serious charges against him.
American Civil Liberties Union lawyers, who are representing al-Kidd, said they have found more than 70 Muslim men with similar complaints.
The government contends that officials such as Ashcroft are protected from such suits. They say he is entitled to absolute immunity for his official work as the government's top prosecutor. And failing that, they say, he deserves qualified immunity, which shields government officials from damages suits unless they have violated a clearly established constitutional right.
A panel of the 9th Circuit said neither legal doctrine protected Ashcroft from al-Kidd's allegations. The full court split over whether it should reconsider the decision, and the government brought the appeal to the Supreme Court.
The court's newest justice, Elena Kagan, was involved in the appeal when she was solicitor general and is recused from the matter in the Supreme Court.
The case is Ashcroft v. al-Kidd. The court will hear the case next year and issue its ruling before adjourning in the summer.
In 2009, the justices narrowly ruled for the former attorney general in a similar case. They dismissed allegations from a Pakistani man legally living in the United States that Ashcroft should be held responsible for his detainment after the terrorism attacks, when he says he was beaten and held in solitary confinement for five months without being charged.