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Fed appeals court won’t rehear Ashcroft lawsuit

Thu., March 18, 2010, 11:20 a.m.

BOISE — A federal appellate court says it won’t reconsider its ruling that former Attorney General John Ashcroft can be held personally responsible for misuse of the material witness statute after the Sept. 11 attacks.

In a ruling published Thursday, the full 9th U.S. Circuit Court of Appeals voted to deny Ashcroft’s request amid bitter dissent by eight of its judges.

Abdullah al-Kidd, a U.S. citizen, sued Ashcroft and other federal officials after he was arrested and jailed as a material witness in a terrorism case against another man. He said his arrest and detention were just a ruse to give the government time to investigate him for any potential wrongdoing. He was never called to testify at trial.

The dissenting judges, led by Diarmuid O’Scannlain, said the ruling was contrary to logic and law, and would frighten people from being willing to serve as attorney general in the future.

“Because of the gratuitous damage this decision inflicts upon orderly federal law enforcement, I must respectfully dissent from our refusal to rehear this case en banc,” O’Scannlain wrote in his dissent, joined by Chief Judge Alex Kozinski and Judges Andrew Kleinfeld, Ronald Gould, Richard Tallman, Consuelo Callahan, Carlos Bea and Sandra Ikuta.

Ashcroft’s request for a rehearing came after a three-judge panel ruled Sept. 4 that he can be sued by people who claim he created an illegal policy of using the material witness statute to arrest suspects whom he wished to detain and investigate.

In that ruling, Judge Milan D. Smith Jr. had said the practice was “repugnant to the Constitution.”

Ashcroft had asked the panel to dismiss the lawsuit, saying he was entitled to absolute immunity because his position at the Department of Justice was prosecutorial. After the ruling, he asked for the full 9th Circuit court to reconsider the matter, but a majority of the judges voted against his request.

That sparked strong words from O’Scannlain, who said the panel’s decision essentially declared the 200-year-old material witness statute unconstitutional and “distorts the bedrock Fourth Amendment principle that an official’s subjective reasons for making an arrest are constitutionally irrelevant.”

“One shudders at the thought that this decision might deter the incumbent and future Attorneys General from exercising the full range of their lawful authority to protect the security of the United States,” O’Scannlain wrote.

Smith responded to the judges’ dissent, saying his earlier ruling didn’t declare the material witness statute unconstitutional. Instead, Smith said, the panel found that the statute doesn’t authorize arrests like the one used to detain al-Kidd.

Al-Kidd’s claim isn’t based on allegations that Ashcroft knew or should have known what his agents were doing, Smith wrote — his claim is based on allegations that Ashcroft himself committed misconduct by creating a national policy that systematically authorized the misuse of the statute.

Smith also rebuffed the dissenting judges’ concerns that future attorneys general would be too scared to serve.

“The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as attorney general of the United States,” Smith wrote. “But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the constitution of the United States.

Al-Kidd’s attorney, Lee Gelernt with the American Civil Liberties Union, said they were “extremely pleased and hope that we can now resolve this case expeditiously.”

Charles Miller, spokesman for the U.S. Department of Justice, said the department was reviewing the court’s decision.

The Department of Justice may now appeal to the U.S. Supreme Court or allow the lawsuit to revert back to Boise’s U.S. District Court. If the case goes back to the lower court, the government will likely have to comply with al-Kidd’s discovery requests, releasing documents and files that it has previously maintained were highly confidential and that could pose a threat to national security.

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