Can Ashcroft Be Sued For 9/11 Policy?

WASHINGTON – Abdullah al-Kidd had an all-American background: Kansas native, then a football star in college. That’s when he converted to Islam.

John Ashcroft was the attorney general who approved a policy that led to the arrests of al-Kidd and dozens of others without evidence of crimes in the Bush administration’s aggressive response to the 9/11 attacks.

Now the Supreme Court will decide whether al-Kidd can try, through a civil lawsuit, to prove that Ashcroft should be held personally responsible for his arrest.

It is just one of several instances where Ashcroft’s push-the-envelope style during the fear-filled period that followed the Sept. 11, 2001, terror attacks has ended up spawning lawsuits.

Al-Kidd was arrested at Dulles International Airport outside Washington, D.C., in 2003, preparing to board a flight to Saudi Arabia. FBI Director Robert Mueller boasted in congressional testimony that al-Kidd’s arrest was one of five major anti-terrorism coups for the agency, including the arrest of alleged 9/11 mastermind Khalid Shaikh Mohammed.

The FBI persuaded a judge to issue a warrant for al-Kidd’s arrest by contending he had paid $5,000 for a one-way ticket and neglecting to mention that he was an American and had a wife and children in the U.S. His lawyers say the claim about the ticket was false, that he had a much cheaper, round-trip ticket.

In addition, they said, he had cooperated fully with authorities following Sept. 11. “The FBI never told him he might be needed as a witness or told him not to travel abroad,” said Lee Gelernt, an American Civil Liberties Union lawyer who is representing al-Kidd.

Instead, agents “blindsided” him at the airport, Gelernt said. Al-Kidd says he was strip-searched and shackled during his 16 days in detention and then he remained under severe restrictions for the next 14 months.

He was one of at least 70 people detained under a law aimed at ensuring that “material witnesses” would be available to appear in court and testify at trial, according to a study by civil liberties groups. Like many others, al-Kidd was never called to testify before a grand jury or in open court and was not charged with a crime.

He sued Ashcroft, asserting that his arrest stemmed from a policy announced by the then-attorney general less than two months after 9/11. At that time, Ashcroft touted the use of material witness warrants to detain suspected terrorists when the government did not have sufficient evidence to hold them on criminal charges.

The lawsuit has not gone to trial, and Ashcroft, represented by the Obama administration, says he should be shielded from suits concerning his official duties. The former attorney general should not subjected to “burdensome litigation and potential damages for the conduct of his subordinates,” acting Solicitor General Neal Katyal, the administration’s top Supreme Court lawyer, has told the court.

The details of al-Kidd’s complaint are not before the Supreme Court. When the case is argued early next year, the justices will consider only whether Ashcroft can be held liable.

Ashcroft, a former Missouri governor and senator, has been at the center of several legal fights concerning the Bush’s administration’s response to 9/11.

He publicly identified former Army scientist Steven Hatfill as “a person of interest” in the investigation of anthrax attacks in 2001. Hatfill was eventually cleared, and he collected $5.8 million in settlement of a lawsuit accusing the Justice Department of violating his privacy.

In a previous Supreme Court case, Ashcroft and Mueller prevailed over a detainee who sought to hold them liable for his confinement. In that case, the court voted 5-4 that the detainee, Javaid Iqbal of Pakistan, could not tie the high-ranking officials closely enough to his nearly six months in solitary confinement in 2002 to allow his claims against them to go forward.

In this case, however, al-Kidd is relying heavily on statements by Ashcroft and other top Justice officials to claim that his detention resulted directly from the policy Ashcroft announced.

Civil liberties lawyers say no attorney general has ever been held personally liable for official actions. Other federal officials, particularly at a lower level, have been held personally liable for their actions. It is, however, exceptionally rare.

Supreme Court rulings do allow high-ranking officials to be held liable, but they set a high bar: An official must be tied directly to a violation of constitutional rights and must have clearly understood the action crossed that line.

The federal appeals court in San Francisco held that al-Kidd’s case met the high court’s standards.

Rejecting Ashcroft’s bid for immunity, Judge Milan D. Smith Jr. strongly criticized the use of material witness warrants for national security. “We find this to be repugnant to the Constitution,” Smith said in a 2-1 decision. Smith, appointed by Bush, was joined in the majority by a Ronald Reagan appointee.

Justice Elena Kagan, who reviewed al-Kidd’s lawsuit as a top Justice Department official, is not taking part in the Supreme Court case.

The case is Ashcroft v. Al-Kidd, 10-98.