Former UI Football Player May Sue Former AG Ashcroft

Abdullah al-Kidd sued former U.S. Attorney General John Ashcroft and others charging that his civil rights were violated by his arrest without probable cause on a material witness warrant. Judge Lodge let the lawsuit proceed, rejecting Mr. Ashcroft's claim that he was immune to such lawsuits. The Ninth Circuit affirmed and, yesterday, the Court denied the defendant's petition for rehearing en banc.

The order makes for interesting reading. Here's a summary of the allegations:

"The facts alleged in al-Kidd’s complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government, as did many members of the Founding Generation. Al-Kidd, born Lavoni T. Kidd, is a United States citizen, born in Wichita, Kansas, and raised in Seattle, Washington. He graduated from the University of Idaho, where he was a highly regarded running back on the university’s football team. He was married and had two young children.

While at the university, al-Kidd converted to Islam and changed his name to Abdullah al-Kidd. In the spring and summer of 2002, al-Kidd became a target of FBI surveillance conducted as part of a broad anti-terrorism investigation, aimed at Arab and Muslim men. Al-Kidd cooperated with the FBI on several occasions when FBI agents asked to interview him.

Previous to this time, Ashcroft and others operating at his direction, or in concert with him, had decided to undertake a novel use of 18 U.S.C. § 3144, the material witness statute."

Al-Kidd was then arrested on a material witness warrant in the case of United States v. Sami Al-Hussayen, a case alleging, inter alia, that Sami provided material aid to terrorists. [Disclosure: My law firm represented Sami and obtained an acquittal on the terrorism charges and some of the immigration charges. The jury hung on the other immigration charge. I was not involved in the case.]

The Court continues:

"Al-Kidd was arrested more than a year before the Al-Hussayen trial began. In their interviews with al-Kidd, the FBI never suggested, let alone demanded, that al-Kidd appear as a witness in the Al-Hussayen trial. While in custody, al-Kidd was repeatedly questioned about matters unrelated to Al-Hussayen’s alleged visa violations or false statements, but was never given a Miranda warning. Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding despite his assurances that he would be willing to be a witness.

Importantly, al-Kidd was never charged with the commission of any crime, even though [FBI Director] Mueller had boasted to Congress that the government had at that point in time charged over 200 'suspected terrorists' with crimes, and named al-Kidd individually, as well as four other persons who had been criminally charged with terrorism-related offenses, as evidence of the government’s recent successes."

Here's what Judge M. Smith wrote in response to the dissent’s claim that allowing this type of claim against Ashcroft will discourage others from becoming Attorney General:

"The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as Attorney General of the United States. But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States. Mindful that some in high office can be guilty of excessive zeal, former Justice Brandeis, in his famous dissent in Olmstead v. United States, stated:

'Experience should teach us to be most on our guard
to protect liberty when the government’s purposes
are beneficent. Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but
without understanding.'

277 U.S. 438, 572-73 (1928 ) (Brandeis, J., dissenting)."

Great stuff. For more: al-Kidd v. Ashcroft, http://www.ca9.uscourts.gov/datastore/opinions/2010/03/18/06-36059.pdf