ACLU Argues That Ashcroft Can Be Held Accountable For Wrongful Detention

April 8, 2008 12:00 am

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Government Cannot Use Material Witness Statute To Detain People As Suspects, Says ACLU

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SEATTLE – The American Civil Liberties Union is arguing today in the United States Court of Appeals for the Ninth Circuit that former Attorney General John Ashcroft can be held personally responsible for the wrongful detention of an innocent American, Abdullah al-Kidd. The ACLU is also arguing that the federal material witness law cannot be used to preventively detain or investigate suspects without sufficient evidence that they have actually committed crimes.

“Former Attorney General Ashcroft championed the use of the federal material witness law to circumvent the American traditions of fairness and due process,” said ACLU Immigrants’ Rights Project senior staff attorney Lee Gelernt. “He shouldn’t escape liability after personally creating and overseeing the policy of deliberately misusing the statute.”

Prior to 9/11, the federal material witness law was used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests, under the statute, took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily. After 9/11, Ashcroft distorted the law into a preventative detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

The appellate court hearing in al-Kidd v. Ashcroft comes after a U.S. district court in 2006 found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The court also ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime.

Former Attorney General John Ashcroft appealed the ruling and has asked for immunity from liability.

Al-Kidd is a U.S.-born American citizen who was unlawfully arrested and detained on March 16, 2003. Al-Kidd was on his way to Saudi Arabia to study when he was arrested in Washington’s Dulles Airport as a material witness in the trial of Sami Omar Al-Hussayen. For 16 days, al-Kidd was held in heightened-security units of various jails and shackled whenever moved. Eventually al-Kidd was released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers. He was held for more than 13 months under these conditions without ever being asked to testify or being charged with any crime.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al- Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

The ACLU lawsuit names former Attorney General John Ashcroft, the United States, several federal agents and local officials in Virginia, Oklahoma and Idaho.

Organizations and individuals who have submitted friend-of-the-court briefs in the case include former federal prosecutors, former presidents of the American Bar Association, the National Association of Criminal Defense Lawyers and Human Rights Watch.

Attorneys on the case are Gelernt, Robin Goldfaden and Lucas Guttentag from the ACLU Immigrants’ Rights Project; Jack Van Valkenburgh from the ACLU of Idaho; Cynthia Woolley from the Law Offices of Cynthia J. Woolley, PLLC; R. Keith Roark from the Roark Law Firm, LLP; Kathleen Elliot from Hampton & Elliott; and Michael J. Wishnie from Yale Law School who is cooperating counsel for the ACLU.

Witness to Abuse, the 2005 report on the misuse of the material witness statute, is online at:

The district court’s September 27 ruling is online at:

The district court’s September 18 ruling is online at:

The ACLU’s complaint is online at:

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