The case of Abdullah al-Kidd: Ashcroft not immune from civil suit

The material witness statutes permit the government to detain an individual, even if that individual is not suspected of having committed or planning to commit crime, on the grounds that he or she is required as part of a prosecutorial action against someone else. If you're needed as a witness, and the government has a good faith reason to believe you're gonna skip town, they can lock you up until you've testified. In the months following September 11, John Ashcroft's justice department had an explicit policy to use the material witness statutes to detain individuals suspected of terrorist sympathies, not for the purpose of prepared prosecution, but as an end run around the arrest process. Keep in mind that conspiracy to commit terrorism and material support for terrorism are punishable crimes; the system by no means waits for an act of terrorism to actually be committed before the government is permitted to act. The material witness abuses were for those people against whom there was no actionable evidence at all - only suspicion.

Abdullah al-Kidd is a black American who had recently converted to Islam. He had a wife and two children, and a government job. He was planning to visit Saudi Arabia to study Islamic law and culture, when he was picked up by the government on a material witness warrant. He was held for two weeks in cells lit 24 hours a day, and transferred between three separate prisons in shackles on his wrists, waist, and ankles. When he was released by court order, his movements were restricted by the government, and he lost his security clearance (and therefore his job). He was never called as a witness in any prosecution, and subsequent facts have revealed that the warrant used to secure his arrest contained lies about whether he had a one-way or a round trip ticket to Saudi Arabia, and omitted details about his previous cooperation with the FBI on matters related to national security. The U.S. government has never even attempted to make a case that al-Kidd had any intention or motive to do anything wrong. Again, no evidence of either conspiracy or material support for any illicit activity at all; just someone they wanted off the streets.

al-Kidd has sued John Ashcroft for damages related to his incarceration and persecution, on the grounds that his policies to abuse the material witness statutes led directly to his life being turned upside down for no good reason. Ashcroft, of course, has claimed immunity. The Ninth Circuit, led by a judge appointed by George W. Bush, has ruled in al-Kidd's favor - John Ashcroft has no immunity.

Critics of Obama, take note. Read what happened to Abdullah al-Kidd, and consider the fact that if government officials have no liability for abusing the authority granted to them, the only thing standing between an ordinary citizen and indefinite detention is the good graces of the President. Now Ashcroft can try to make the case in court that the al-Kidd material warrant was justified, and he's personally motivated to do so.