Supreme Court Will Hear ACLU Case Against Former Attorney General Ashcroft

October 18, 2010 11:19 am

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Architect Of "Material Witness" Policy Should Be Held Accountable For Wrongful Arrest And Detention Of U.S. Citizen

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WASHINGTON – The U.S. Supreme Court has agreed to hear former Attorney General John Aschcroft's appeal of a ruling that he can be held responsible for the wrongful detention of innocent American Abdullah al-Kidd. The American Civil Liberties Union brought the case against Ashcroft in 2005 on behalf of al-Kidd, who was improperly arrested in 2003 as a material witness in the terrorism trial of Sami Omar al-Hussayen and detained for 16 days under draconian conditions.

Al-Kidd was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers. Al-Kidd was subjected to these conditions for more than a year and, despite having been arrested as a material witness, was never asked to testify, or charged with a crime. Prior to 9/11, the material witness law was used sparingly to ensure witnesses would be available to testify in criminal cases. After 9/11, Ashcroft retooled the law into an investigative detention statute, allowing the government to arrest and detain individuals for whom it lacked probable cause to charge with a crime.

The U.S. Court of Appeals for the Ninth Circuit ruled in September 2009 that the federal material witness law cannot be used to detain or investigate people when there is no probable cause to bring criminal charges. The ruling also held that Ashcroft does not have immunity in the case and can be held personally liable for the wrongful detention of al-Kidd. Ashcroft appealed that ruling to the Supreme Court.

The following can be attributed to Lee Gelernt, Deputy Director of the ACLU Immigrants' Rights Project and lead attorney for al-Kidd:

"Arresting and detaining someone for an extended period without probable cause to believe he violated the law goes against the most basic principles on which our country is founded. The appeals court made it very clear that former Attorney General Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution's longstanding rule that a suspect may not be arrested without probable cause of wrongdoing. The appeals court opinion was the right one, and the Supreme Court should uphold that decision. Government architects of policies that so clearly defy the Constitution must be held accountable to the law."

More information about the case, Ashcroft v. al-Kidd, including the ACLU's complaint, the court's September 2009 ruling and other legal documents are online at:

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