Then-Atty. Gen. John Ashcroft violated the rights of U.S. citizens in the fevered wake of the Sept. 11 terrorist attacks by ordering arrests on material witness warrants when the government lacked probable cause, a federal appeals court said in a scathing opinion Friday.

In a ruling that said Ashcroft could be sued for prosecutorial abuses, a three-judge panel of the U.S. 9th Circuit Court of Appeals denied the former attorney general immunity from liability for how he used the material witness warrants in national security investigations.

Members of the panel, all appointees of Republican presidents, characterized Ashcroft’s detention policy as “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”


Civil liberties advocates cheered the ruling in the case brought by Kansas-born Muslim convert Abdullah Kidd, saying it spotlighted excesses committed by the Bush administration in the post-9/11 scramble to thwart terrorist plots.

“The court made it very clear today that . . . Ashcroft’s use of the federal material witness law circumvented the Constitution,” said Lee Gelernt, the American Civil Liberties Union lawyer who argued Kidd’s case. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

The ruling could allow Kidd’s suit for damages to proceed to trial if the government doesn’t appeal to a larger 9th Circuit panel or seek Supreme Court review.

A spokesman for Ashcroft, Mark Corallo, didn’t return phone calls.

Department of Justice spokesman Charles Miller said: “We will review the court’s decision and make a determination in the future as to what the government’s next step will be.”

Although the ruling denied immunity to Ashcroft, the government would probably be responsible for covering any successful damage claims brought by those found to have been wrongly arrested.

Kidd, a former University of Idaho running back whose birth name was Lavoni T. Kidd, sued Ashcroft after he was arrested at Washington Dulles International Airport en route to a Saudi scholarship program in March 2003.

He was handcuffed, strip-searched and shuttled among interrogations in Virginia, Oklahoma and Idaho before being released 16 days later and ordered to surrender his passport and live with his wife and in-laws in Nevada.

The arrest led to Kidd being denied a security clearance and losing his job with a government contractor.

In his 2005 complaint, Kidd noted that then-FBI Director Robert S. Mueller III, in an appearance before a congressional subcommittee during Kidd’s detention, had pointed to his arrest and that of confessed 9/11 mastermind Khalid Shaikh Mohammed as evidence of government progress in reining in terrorists.

“To this day, the government has never explained why the director of the FBI would tell the United States Congress that the arrest of Mr. al Kidd -- supposedly a witness -- represented one of the government’s noteworthy recent successes in the war on terrorism,” the complaint stated.

It is unclear how many U.S. citizens were picked up on material witness warrants in the sweep conducted by national security forces after the 2001 terrorist attacks. Like the preventive detention abroad of foreign terrorism suspects and the CIA’s “extraordinary rendition” program, in which suspected enemies were whisked from foreign locales to interrogation “black sites,” the material witness arrests were conducted in secret.

At least two other prominent Muslim converts are known to have been arrested as supposed material witnesses.

Alleged would-be “dirty bomber” Jose Padilla was detained at Chicago O’Hare International Airport and held for 3 1/2 years without charges before his 2007 conviction in an unrelated terrorism case in Florida.

Brandon Mayfield, an Oregon attorney erroneously connected to the 2004 Madrid train bombings, was also arrested as a material witness and held for two weeks. He was never charged, and has received an apology from the U.S. government as well as a $2-million settlement.

Constitutional law scholars applauded the 9th Circuit decision as affirmation of citizens’ rights to be free from illegal detention.

“This is really important,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “This is a federal court of appeals saying that what was done here under the material witness statute was clearly a violation of the Constitution -- that it was not protected by prosecutorial absolute immunity.”

That means that the unknown numbers of wrongfully detained suspects could sue Ashcroft for damages, claiming their rights were violated, Chemerinsky said.

Georgetown Law professor David Cole said that Ashcroft adopted an aggressive “preventive paradigm” after Sept. 11 designed “to incapacitate people who government officials thought suspicious but lacked evidence of any wrongdoing. They were locked up and then investigated, rather than the other way around.”

Virtually all of the targets had nothing to do with terrorism, Cole said.

The Supreme Court has made a distinction between using material witness warrants to ensure someone’s appearance at trial and misusing them to detain someone to be investigated for suspected wrongdoing, the panel noted in its 98-page opinion.

The panel also cast the previous administration’s practice of detaining suspects without cause as behavior that the framers of the Constitution would have found abhorrent.

The judges, alluding to the George W. Bush administration, said that although “some confidently assert that the government has the power to arrest and detain” suspects without evidence of wrongdoing, the panel considered such preemptive detentions “an engine of political tyranny.”

The opinion was written by Circuit Judge Milan D. Smith Jr., an appointee of Bush’s, whose practices in the war on terrorism were at the heart of the case.

Circuit Judge Carlos T. Bea, a fellow Bush appointee, wrote a separate opinion partially concurring and partially dissenting. Smith was joined fully by Senior Circuit Judge David R. Thompson, named to the bench by President Reagan.



David G. Savage in the Washington bureau contributed to this report.