Could Bush Attorney General John Ashcroft Pay For Jailing an Innocent Man After 9/11?

NEW YORK, Sep 8 (IPS) -- In what is being hailed as an unprecedented ruling, a federal appeals court has concluded that the George W. Bush administration's first attorney general, John Ashcroft, can be held personally responsible for the wrongful detention of an innocent U.S. citizen.

In the panic that followed the terrorist attacks of Sep. 11, 2001, the Justice Department rounded up several thousand "Middle Eastern-looking" men and women and detained them, frequently in harsh prison-like facilities, without charges, access to their families, or attorneys.

These round-ups continued well after 9/11, as the government continued to take exceptional measures to locate and arrest people they thought posed a threat to U.S. national security.

Many of those detained were U.S. citizens. Others were immigrants, whose only crime might have been overstaying a visa. Among them were Sikhs and others from South Asia.

Many others were arrested as "material witnesses" as Attorney General Ashcroft transformed the law into a 'preventive' detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

He said at the time, "These measures form one part of the department's strategy to prevent terrorist attacks by taking suspected terrorists off the street. ... Aggressive detention of law-breakers and material witnesses is vital to preventing, disrupting or delaying new attacks."

Caught up in this environment of fear was Abdullah Al-Kidd, a U.S.-born African-American citizen who had converted to Islam.

Al-Kidd was on his way to Saudi Arabia to study on a Saudi scholarship when he was detained and arrested in Washington's Dulles Airport on Mar. 16, 2003. He was held as a "material witness" in the trial of Sami Omar Al-Hussayen.

For 15 days he was treated as if he were terrorism suspect rather than a material witness. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers.

Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

Federal authorities said al-Kidd had to be detained to provide information germane to the prosecution of fellow University of Idaho student Sami Omar Al-Hussayen on terrorism charges.

But al-Kidd was never called to testify at Al-Hussayen's trial, leading al-Kidd to charge that federal authorities were more interested in investigating him than using him to build their legal case.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment.

For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

A jury later acquitted Al-Hussayen of four charges and deadlocked on eight others. He was deported to Saudi Arabia.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of al-Kidd, charging that the federal material witness law cannot be used to preventively detain or investigate suspects and that then Attorney General Ashcroft can be held personally responsible for al-Kidd's wrongful detention.

The federal court's ruling in this case places responsibility squarely on government officials who, after 9/11, championed polices clearly outside the boundaries of the law, the ACLU asserts.

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal.