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John Ashcroft Can Be Sued For Illegal Material Witness Detentions: Court

Former Attorney General John Ashcroft just had his Labor Day weekend ruined. A federal appeals court has ruled that he can be held personally liable for wrongfully detaining people as material witnesses after the 9/11 attacks.

John Ashcroft.

Former Attorney General John Ashcroft can be personally sued for post 9/11 material-witness detentions, the 9th Circuit Appeals Court decided. Susan Walsh/AP Photo hide caption

itoggle caption Susan Walsh/AP Photo

An excerpt from the Associated Press:

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the government's improper use of material witnesses after Sept. 11 was "repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

Al-Kidd said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people - particularly Muslim men and those of Arab decent - as material witnesses if the government suspected them of a crime but had no evidence to charge them.

Here's the decision by the 9th Circuit Court of Appeals three-judge panel.

If the ruling stands, it would conceivably open Ashcroft up to scores of lawsuits from people who were detained for weeks and months on end after 9/11 as the Bush Administration hustled to prevent follow-on attacks.

More than 1,200 people were detained, mostly prevented from contact with the outside world. Virtually all were released without any charges being filed against them.

For its part, the administration rounded them up out of concern about sleeper cells that might have been poised to launch new terrorist operations.

But civil libertarians at the time asserted that the detentions were illegal since there was little to no evidence with most of the detentions that the individuals being held were linked to al Qaeda or had any information useful in preventing more attacks.

The American Civil Liberties Union welcomed today's decision by the 9th Circuit Court of Appeals.

An excerpt from the ACLU's release:

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law."

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 so-called "preventive" detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

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