STEVE INSKEEP, host:
Today the U.S. Supreme Court takes up a major case stemming from the fight against terrorism. President Bush's former attorney general, John Ashcroft, is being sued. He's accused of misusing the law in arresting an American citizen under false pretenses. Ashcroft says he is entitled to immunity, and President Obama's administration is defending him.
A federal appeals court ruled that the case should proceed to trial anyway because the allegations, if true, are, quote, "repugnant to the Constitution." Now the highest court considers the case, as we hear from NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Lavoni Kidd would seem to be an all-American boy. Born in Kansas, the son of a prison guard and an IBM worker, he later became a star running back on the University of Idaho football team. But in college he left the Christian faith of his family and converted to Islam.
Mr. ABDULLAH AL-KIDD: When I got into college, I was kind of soul-searching and Islam really appealed to me.
TOTENBERG: None of this would have been particularly remarkable until 9/11, when the FBI began visiting Kidd, who by then had taken the name Abdullah al-Kidd.
Mr. AL-KIDD: Whenever they wanted to meet with me, I met with them. I answered their questions, fully cooperated with them.
TOTENBERG: The FBI's interest seemed to subside, though, and in 2003 al-Kidd won a scholarship to study language and religion in Saudi Arabia. He was about to board a flight to the Persian Gulf when he was arrested by FBI agents, shackled, and taken to jail under a material witness warrant.
Mr. AL-KIDD: And it was probably one of the most humiliating, degrading moments of my life. I could only imagine what people were thinking about me.
TOTENBERG: That was just the first of many humiliations, according to al-Kidd. Over the next 15 days he was held in three high-security prisons, housed with murderers, repeatedly strip searched, forced to sit naked while other prisoners around him were clothed. He was held in cells with 24-hour lighting and interrogated, he says, mainly about himself.
He was finally released on condition that he live with his in-laws, travel only within a four-state region, and report regularly to federal authorities. The conditions were finally lifted more than a year later, but he'd lost his job by then and his marriage fell apart.
The material witness law under which al-Kidd was seized and held is designed to ensure that a witness who might flee remains available. A warrant authorizing his detention was issued by a federal magistrate after FBI agents swore in an affidavit that al-Kidd had bought a one-way first class ticket for $5,000 to Saudi Arabia.
The affidavit was false in some respects, misleading in others. False because al-Kidd's ticket was round trip, coach class, and cost not $5,000 but 1,700. It was misleading for other reasons, says ACLU lawyer Lee Gelernt, who represents al-Kidd.
Mr. LEE GELERNT (ACLU): What they didn't tell the magistrate is that he was a native-born United States citizen, his whole family were native-born United States citizens, that he had repeatedly, repeatedly cooperated with the FBI, that he was never told he might be needed as a witness, never told not to travel, never told to alert the FBI if he intended to travel.
TOTENBERG: Indeed, says Gelernt, al-Kidd would have postponed his trip if the FBI had just made the request.
Gelernt contends that the Bush administration used the material witness statute for something Congress specifically refused to authorize: preventive detention, arrest without evidence of a crime. Al-Kidd, in fact, was never called to testify and civil liberties lawyers say they have identified 70 other similar cases.
Al-Kidd's attorney, Lee Gelernt, says the material witness warrant was nothing more than pretext.
Mr. GELERNT: They did not actually want Mr. al-Kidd's testimony. It was being used solely for the purpose of investigating and preventively detaining Mr. al-Kidd himself.
TOTENBERG: Al-Kidd sued former Attorney General Ashcroft and other Justice Department officials, contending that they had violated his constitutional rights.
It's important here to understand what this case is about at this stage. Al-Kidd's suit against three wardens for his treatment in prison was settled out of court. The suit against FBI agents is still pending.
It is the suit against Ashcroft that is before the Supreme Court, and the only question is whether it can proceed to even the pre-trial stage. The Obama administration, representing Ashcroft, maintains that the former attorney general should be completely immune from suit because the material witness statute was used appropriately.
Former Attorney General Michael Mukasey says motive is irrelevant when discussing the material witness law.
Mr. MICHAEL MUKASEY (Former Attorney General): If they, in fact, have a basis for saying they want his testimony, and he's, in fact, about to become unavailable, then they can take him into custody.
TOTENBERG: Even if it's a pretext?
Mr. MUKASEY: Even if it's a pretext.
Mr. RICHARD SAMP (Washington Legal Foundation): Mr. Al-Kidd was only held for 15 days.
TOTENBERG: Richard Samp, of the conservative Washington Legal Foundation, says that with al-Kidd about to leave the country...
Mr. SAMP: It would have been inappropriate, particularly given the anti-terrorism investigations going on at the time, not to step in and try to do something.
TOTENBERG: Samp, who submitted a brief in this case on behalf of five former attorneys general, contends that there's nothing wrong with investigating someone at the same time that you're holding him for his testimony. And Samp, like the Justice Department, argues that it is a threat to national security to have the attorney general and other high officials looking over their shoulders when they make decisions like this.
Mr. SAMP: We would like to see the court broadly read the qualified immunity doctrine so that future Cabinet members are not going to face similar suits.
TOTENBERG: Civil liberties groups have indeed tried to sue Ashcroft before, only to be foiled in the Supreme Court. In 2009, the justices blocked a lawsuit against Ashcroft because the court majority said a Pakistani detainee in the United States could not tie high Justice Department officials to his six months in solitary confinement.
In this case, however, al-Kidd is relying on statements made by Ashcroft and others that seem to suggest the Justice Department was using the material witness statute for much more than obtaining testimony.
Shortly after al-Kidd was seized at the airport, FBI Director Robert Mueller bragged in congressional testimony that al-Kidd's arrest was one of five major counterterrorism coups, including the arrest of Khalid Sheikh Mohammed, the alleged 9/11 mastermind.
And Attorney General Ashcroft made public statements indicating the department intended to use the material witness statute in an aggressive manner to take suspected terrorists off the street.
Former Attorney General Mukasey...
Mr. MUKASEY: It's important that he be able to do that without having to worry about individual liability and saying, you know, maybe I better not do this, maybe we better just let these folks slip through our fingers because one of them might sue me.
TOTENBERG: As for al-Kidd, he currently teaches English to university students in Saudi Arabia and views his trip to the Supreme Court as something of a victory. Labeled a terrorist in congressional testimony, his picture appeared in the newspapers and on TV, but he says he was always anti-al Qaida, anti-Taliban, and remains a loyal American.
Mr. AL-KIDD: You know, I grew up here in America. I believed in the system, and I believe this system is the way that I can clear my name, get vindication for this case, and hopefully through this case that other people will not have to experience what I experienced.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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