Judge says Ashcroft not immune in suit

BOISE – Former U.S. Attorney General John Ashcroft does not have absolute immunity from a lawsuit over the material witness policies the Justice Department used after the Sept. 11, 2001 terrorist attacks, U.S. District Judge Edward Lodge ruled Wednesday.

In his ruling, Lodge refused to dismiss the lawsuit brought by former University of Idaho football player Abdullah al-Kidd against Ashcroft, current U.S. Attorney General Alberto Gonzalez, the Department of Homeland Security and others.

The ruling leaves the federal government with essentially three choices: To appeal the ruling to the 9th U.S. Circuit Court of Appeals, to settle the lawsuit or to move forward with a trial. If the trial moves forward, Ashcroft and the other defendants could be subjected to questioning by al-Kidd’s attorneys – including representatives from the American Civil Liberties Union – about their actions and policies in the months and years after the Sept. 11 attacks.

“We are literally reviewing it at this minute and no, we have not made any decisions at this time,” Charles Miller, spokesman for the Justice Department’s civil division, said of the ruling.

Al-Kidd, who played for the Vandals under the name Lavoni Kidd, contends that in 2003 the government wrongfully arrested him as a material witness in its unsuccessful computer terrorism case against a fellow student, Sami Omar Al-Hussayen. Al-Kidd and Al-Hussayen both worked for the Islamic Assembly of North America, a Michigan-based charitable organization that federal investigators alleged funneled money to activities supporting terrorism and published material advocating suicide attacks on the United States.

A jury acquitted Al-Hussayen of using his computer skills to foster terrorism and of three immigration violations after an eight-week federal trial. But Al-Hussayen – who was only months from finishing his doctorate study at the University of Idaho – was eventually deported to Saudi Arabia.

Al-Kidd was never actually called to testify, but he spent two weeks in jail as a material witness and was later released to the custody of his wife with strict limitations on where he could travel. He sued, alleging that he was falsely imprisoned and that the government violated due process, using material witness laws to arrest, detain and investigate individuals without first proving probable cause.

Specifically, he claimed that Ashcroft was personally liable for violating his rights because after the terrorist attacks Ashcroft “created a national policy to improperly seek material witness warrants, oversaw the execution of such warrants, and failed to correct the constitutional violations of conducting such actions,” according to the ruling. Al-Kidd said the investigation and detainment not only caused him to lose a scholarship to study in Saudi Arabia, but that it cost him employment opportunities.

Ashcroft, in turn, asked the judge to dismiss the matter, saying that because his position at the Department of Justice was prosecutorial he was entitled to absolute immunity from the lawsuit.

The judge rejected that argument, saying that if al-Kidd’s claims are true, then Ashcroft’s actions did not qualify for absolute immunity.

Al-Kidd is asking the judge to declare that the federal government’s actions were unconstitutional, to order the FBI and other agencies to expunge any records relating to the unlawful detention of al-Kidd and others, and for damages in an amount to be proven at trial.