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Supreme Court considers former attorney general Ashcroft's liability in lawsuit

By Robert Barnes
Washington Post Staff Writer
Wednesday, March 2, 2011; 11:14 PM

The federal government's reaction to the Sept. 11 terrorist attacks once again returned to the Supreme Court on Wednesday as justices considered whether former attorney general John D. Ashcroft could be held personally liable for the detention of an American Muslim.

Abdullah al-Kidd, a U.S. citizen, was arrested in 2003 and held as a material witness. But Kidd contends that he was not detained because he had information about terrorism. Instead, he says, he was detained as part of a plan approved by Ashcroft to sweep up Muslim men the government suspected but could not prove had ties to terrorism.

Ashcroft, President George W. Bush's attorney general from 2001 to 2005, claims legal immunity from the lawsuit, and the Obama administration is defending him. Acting Solicitor General Neal Katyal told the justices Wednesday that Ashcroft cannot be subject to personal liability for actions he took while performing his job.

"The prosecutor's act of seeking the material witness warrant is integrally associated with the judicial process and entitled to absolute immunity," Katyal told the justices.

But the U.S. Court of Appeals for the 9th Circuit said the lawsuit could proceed for Kidd to try to prove his allegations. American Civil Liberties Union lawyer Lee Gelernt, representing Kidd, said his client should be allowed to prove that Ashcroft had a policy of misusing the material witness law, which is intended to ensure that witnesses are available for trial.

"If a material witness arrest is constitutional, it can only be because its purpose is to secure testimony and not to preventively detain and investigate the witness himself," Gelernt said.

Kidd is a onetime University of Idaho football star, born Lavoni T. Kidd. He converted to Islam in college. He was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study.

The government persuaded a federal judge to issue a warrant for 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. Kidd was never called to testify against Hussayen, who was acquitted of the most serious charges against him.

Kidd maintains that in his more than two weeks of detention, he was strip-searched, shackled, interrogated without an attorney present and treated as a terrorist.

Even though Wednesday's argument was limited to the question of whether Ashcroft had immunity, Justice Ruth Bader Ginsburg took note of Kidd's allegations.

"There are allegations here that this man was kept awake, the lights shining in his cell for 24 hours, kept without clothes," Ginsburg said. "Now that doesn't sound like the way one would treat someone whose testimony you want."

Chief Justice John G. Roberts Jr. focused on whether allowing prosecutors to held personally liable would cause them to shrink from their responsibilities.

"That type of burden is particularly heavy when you're talking about if they guess wrong, it comes out of their pocket," Roberts said. "And if I'm the officer in that situation, I say, 'Well, I'm just not going to run the risk of, you know, having to sell the house.' "

The case is Ashcroft v. al-Kidd .

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