In a stunning federal court decision with far-reaching ramifications, the US Court of Appeals for the Ninth Circuit in San Francisco last week ruled that former Attorney General John Ashcroft can be sued personally for violating the civil liberties of a Muslim American in the immediate aftermath of the 911 attacks. The man suing the former attorney general is Abdullah al-Kidd, a former star football player at the University of Idaho. Al-Kidd was arrested in 2003 at Dulles International Airport outside Washington, DC, strip-searched and shackled, transported to various detention facilities, and detained for more than two weeks. Even after his release, his ability to travel was curtailed and he lost his job.
The government never charged al-Kidd with any crime. Moreover, even though he was initially arrested and detained as a so-called “material witness,” he never testified in any court proceeding. Al-Kidd has alleged his detention and mis-treatment was the result of the Department of Justice mis-using the broad, material witness statute as nothing more than a pretext to “take suspected terrorists off the street” even though the government lacked evidence on which to properly charge them. (At least several dozen other individuals were similarly detained as “material witnesses,” according to civil liberties lawyers.)
While government officials, including the attorney general, normally enjoy broad immunity from being sued for actions undertaken in their official government capacity, the court of appeals concluded the actions by Ashcroft in this case went beyond what could be considered legitimate, official duties as the attorney general.
Interestingly, of the two appeals court judges who decided against Ashcroft, one was appointed by President George W. Bush and the other by President Ronald Reagan. The former attorney general will have a hard time arguing the court’s decision was an example of “Bush bashing.”