Court Says 9/11 Witnesses Can Sue Ashcroft

A federal appeals court has ruled that former Attorney General John Ashcroft may be held liable for people who were wrongfully detained as material witnesses after the Sept. 11 terrorist attacks.

In a harshly worded ruling handed down Friday, a three-judge panel of the 9th U.S. Circuit Court of Appeals called the government's use of material witnesses after Sept. 11 "repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah Al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks after 9/11.

Al-Kidd said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities.

He argued that his detention exemplified an illegal government policy, created by Ashcroft, to arrest and detain people -- particularly Muslim men and those of Arab decent -- as material witnesses if the government suspected them of a crime but had no evidence to charge them.

Al-Kidd's attorney, Lee Gelernt with the ACLU, said the ruling by the three-judge panel had implications reaching far beyond the government's actions in detaining material witnesses post-Sept. 11. The court flatly rejected Ashcroft's claims that has absolute immunity from such lawsuits because of his job, Gelernt noted.

"The use of the material witness statute as a post-9/11 detention tool is one of the least understood parts of the post 9/11 landscape, but it has enormous implications because it was done in secret and the government has never renounced the policy," Gelernt said. "Our hope is that we can now begin the process of uncovering the full contours of this illegal national policy."

The 9th Circuit judges said Al-Kidd's claims plausibly suggest that Ashcroft purposely used the material witness statute to detain suspects whom he wished to investigate and detain preventatively.

"Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world," Judge Milan D. Smith Jr., for the majority. "We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."