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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.
ABDULLAH AL: 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.
AL: 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.
AL: 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: 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.
LEE GELERNT: 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: Al-Kidd's attorney, Lee Gelernt, says the material witness warrant was nothing more than pretext.
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: Former Attorney General Michael Mukasey says motive is irrelevant when discussing the material witness law.
MICHAEL MUKASEY: 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?
MUKASEY: Even if it's a pretext.
RICHARD SAMP: 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...
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.
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: Former Attorney General Mukasey...
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.
AL: 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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