High court to decide detentions case against former attorney general


The Supreme Court intervened again Monday in a lawsuit against a former George W. Bush administration official, agreeing to decide whether former Atty. Gen. John Ashcroft is entirely shielded from claims that he misused the law to arrest terrorism suspects under false pretenses.

Obama administration lawyers appealed on Ashcroft’s behalf and asserted that it would “severely damage law enforcement” if the nation’s top law enforcement official could be held liable for abusing his authority.

In the last five years, civil libertarians have tried — without much success — to sue former Bush administration officials for overstepping the law. Last year, the Supreme Court shielded Ashcroft from being sued by Muslim immigrants in the New York area who said they were arrested and abused in jail after the Sept. 11, 2001, attacks, even though they had no involvement in a terrorism plot.


The current case arose when Abdullah Kidd, previously known as Lavoni Kidd, a former football star at the University of Idaho, was arrested and shackled at Dulles International Airport outside Washington in March 2003. He was taken into custody not because he was suspected of a crime but because he was a supposed material witness in another case.

Federal law permits the government in special situations to hold someone as a material witness in a pending case.

Lawyers for the American Civil Liberties Union accused Ashcroft of a “gross abuse” of this authority. They say he misused the law to arrest innocent people, even when the government lacked the required probable cause.

After the Sept. 11 attacks, Ashcroft announced he would use all of his legal authority to capture terrorists. Hundreds of Muslim men were arrested and held on immigration charges. That option was not available in Kidd’s case because he is a U.S. citizen.

Kidd had converted to Islam in college and changed his name to Abdullah Kidd. He had cooperated with the FBI after the Sept. 11 attacks and answered questions about another Muslim man in Idaho who was under investigation in connection with his website.

Several months had elapsed since Kidd had heard from the FBI, but when he bought a round-trip ticket to travel to Saudi Arabia, where he had a scholarship to study, the FBI moved to have him arrested.


An FBI agent wrongly told a magistrate that Kidd had bought a one-way, first-class ticket. The magistrate ordered Kidd arrested and held as a witness. A few days later, FBI Director Robert S. Mueller III testified in Congress and mentioned Kidd’s arrest as one of the bureau’s successes.

Kidd was repeatedly strip-searched and shackled for more than two weeks in a high-security cell where the lights were kept on, according to his complaint. He was then released, but his passport was taken.

In 2005, Kidd sued Ashcroft and other officials, contending they had violated his constitutional rights by arresting him without probable cause. Ashcroft moved to dismiss the suit, arguing that as the nation’s chief prosecutor, he was absolutely immune from such claims.

But a federal judge in Idaho and the U.S. 9th Circuit Court of Appeals refused to dismiss the suit. Judge Milan Smith said it was “repugnant to the Constitution” for the government to say it “has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because they have committed a crime, but merely because the government wants to investigate them for possible wrongdoing.”

The justices announced they would hear the case of Ashcroft vs. Kidd early next year and decide whether the doctrine of prosecutorial immunity required that the suit be dismissed. Justice Elena Kagan is staying out of the case because of her involvement in it as a top Justice Department official.