Mark Sherman: Supreme Court Will Hear Ashcroft’s Request to Avoid Responsibility for Unlawful Arrests of Muslims
WASHINGTON — The Supreme Court will consider an appeal by former Attorney General John Ashcroft to throw out a lawsuit seeking to hold him personally responsible for improperly arresting a Muslim U.S. citizen after the 9/11 terrorist attacks.
The justices on Monday stepped into a dispute that, at its roots, concerns the Bush administration’s aggressive moves against Muslims and Arabs in the United States following the attacks of Sept. 11, 2001.
Abdullah al-Kidd was one of at least 70 people detained under a law aimed at insuring that 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 in 2003 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 suit has not gone to trial and Ashcroft, represented by the Obama administration, says he should be shielded from lawsuits concerning his official duties.
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 allow high-ranking officials to be held liable but 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.
The Kansas-born Al-Kidd is a one-time University of Idaho football star who converted to Islam while in college. He was arrested at Dulles International Airport in suburban Washington, D.C., preparing to board a flight to Saudi Arabia.
The FBI persuaded a judge to issue a warrant for al-Kidd’s arrest by claiming that he had paid $5,000 for a one-way ticket. Al-Kidd’s lawyers say that was untrue; al-Kidd had a much cheaper, round-trip ticket. In addition, they said, he had cooperated fully with authorities following Sept. 11.
The dispute over the accuracy of the information is not before the Supreme Court. When the case is argued early next year, the justices will consider just whether Ashcroft can be held liable.
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.