SAN FRANCISCO (CN) – The 9th Circuit on Thursday said it won’t reconsider its ruling that former Attorney General John Ashcroft can be held personally responsible for arresting and detaining Arabs and Muslims as material witnesses after the Sept. 11 terrorist attacks. The court voted not to rehear its September 2009 panel ruling, despite a strong dissent by eight judges.
Abdullah al-Kidd, a U.S. citizen who converted to Islam in college, sued Ashcroft and other federal officials after he was arrested and detained following the 2001 terrorist attacks. Al-Kidd “became a target of FBI surveillance conducted as part of a broad anti-terrorism investigation, aimed at Arab and Muslim men,” according to Judge Milan Smith Jr., who voted not to rehear the case.
Al-Kidd claimed his arrest and detention as a material witness in a terrorism case against another man violated his Fourth Amendment rights. Ashcroft decided to “undertake the novel use” of a material witness statute to have al-Kidd arrested at the Dulles International Airport in Virginia before he left to study in Saudi Arabia, the majority opinion states. Authorities wanted al-Kidd to testify against Sami Omar Al-Hussayen, a fellow University of Idaho student accused of visa fraud and having ties to a jihadist organization.
Two agents “swore out an affidavit that contained multiple falsehoods to secure a material witness warrant against al-Kidd,” Judge Smith wrote in the concurring opinion.
“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,” Smith wrote.
Al-Kidd was detained in high-security units for 16 days before being released on the condition that he live with family in Nevada and limit his interstate travel. During his incarceration, he was shackled and denied visitation with his wife and two children, according to the ruling.
He was later included by FBI Director Robert Mueller in a group of five suspected terrorists that the agency told Congress it had successfully intercepted. However, al-Kidd was never charged with a crime.
The district court denied Ashcroft immunity and allowed the case to proceed, a decision the 9th Circuit panel affirmed.
Judge Diarmuid O’Scannlain and seven other judges, including Chief Judge Alex Kozinski, dissented from the refusal to rehear the case en banc. They argued that al-Kidd’s arrest was valid because he “had contacts with Al-Hussayen’s suspected jihadist organization,” and that had al-Kidd left the country, the government would not have been able to call him as a witness at trial.
“The majority strips Ashcroft of his official immunity,” holding him personally liable for violating the Constitution — a “troubling legal error,” O’Scannlain wrote.
“One shudders at the thought that this decision may deter the incumbent and future Attorney Generals from exercising the full range of their lawful authority to protect the security of the United States,” O’Scannlain added.
The majority responded to this criticism by quoting former Supreme Court Justice Louis Brandeis’ famous dissent in Olmsted v. United States:
“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.”