Former US president George W. Bush's top law enforcer John Ashcroft could be sued and held personally responsible for the wrongful detention of a US "terror" witness, a federal appeals court said. Placing responsibility on Bush administration officials, especially Ashcroft who was attorney general at the time.
The judge at the ninth circuit court of appeals in Boise, Idaho ruled Friday in favour of Abdullah al-Kidd, an American citizen who brought the complaint. The "aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks," Ashcroft said at the time, in a statement quoted in court.
The decision came after a 2006 ruling that found material witness law could only be employed when an individual is genuinely sought as a witness and there was a flight risk, and that it could not be used as a preventive measure.
Arrested on March 16, 2003 at Washington's Dulles Airport, al-Kidd was held for 13 months in maximum security prisons. Officials wanted to use him as a witness in the trial of another suspect in the investigation on the September 11th, 2001 attacks, Sami Omar al-Hussayen.
Material witness charges against Al-Kidd were eventually dropped and he was neveer called to testify in court. His case stems from losing potential employment because of his security history and the legal complaint against Ashcroft's efforts to "preventively" detain or investigate suspects.
Judge Milan Smith said the authors of the US Constitution "would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a 'material witness' ... "Sadly," Smith wrote, "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."
In such circumstances, he wrote, such powers were used "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."
The court, said attorney Lee Gelernt, who argued the appeal, "made it very clear today that former attorney general Ashcroft's use of the federal material witness law circumvented the Constitution. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law," said Gelernt, who is with the American Civil Liberties Union (ACLU), of which he is the deputy head of their Immigrants' Rights Project.
Ashcroft served as attorney general from 2001 until 2005. He was a key supporter of the controversial USA Patriot Act, which significantly broadened the FBI's authority to investigate Americans and other US residents to protect the country against international terrorism or clandestine intelligence activities. Erwin Chemerinsky, dean of the University of California Irvine School of Law, said the ruling was a landmark. "This is a federal court of appeals saying that what was done here under the material witness statute was clearly a violation of the Constitution - that it was not protected by prosecutorial absolute immunity," Chemerinsky told The Los Angeles Times.
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