The Ashcroft appeal

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Granting a request by the Obama administration, the Supreme Court has agreed to decide whether former Atty. Gen. John Aschroft can be sued by a U.S. citizen who says he was wrongly arrested as a material witness. Rather than reflexively protecting a former government official, the justices should pay close attention to an appeals court opinion explaining why Ashcroft isn’t entitled to immunity.

The case concerns Abdullah Kidd, a convert to Islam who was known as Lavoni Kidd when he played football for the University of Idaho. According to Kidd, in 2003 he was arrested at Dulles International Airport and then shuttled between detention facilities, under the pretense of securing his appearance as a witness at someone else’s trial on visa fraud charges. Kidd’s arrest was predicated on a false FBI report that Kidd had purchased a one-way ticket to Saudi Arabia.

After two weeks of confinement, Kidd was released to his wife’s custody but deprived of his passport and subjected to limitations on his travel. In 2004, a court lifted the restrictions and dismissed Kidd as a material witness. He was never called to testify at the trial at which he was supposed to be a witness.


Kidd argues that Ashcroft adopted and implemented a policy of using material-witness warrants to detain suspected terrorists when probable cause of their wrongdoing was lacking — a policy that led to his arrest on the basis of a false statement. The U.S. 9th Circuit Court of Appeals ruled that if Kidd’s allegations were correct, the former attorney general forfeited the usual immunity enjoyed by prosecutors because he engaged in investigative rather than prosecutorial activity by directing a pretextual use of the material-witness statute. The court also concluded that it was clearly established at the time that such misuse of material-witness warrants violated the 4th Amendment’s guarantee against unreasonable seizures.

It was “repugnant to the Constitution,” Judge Milan D. Smith Jr. wrote for the appeals court, to assert that the government “has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime but merely because the government wishes to investigate them for possible wrongdoing.”

The Supreme Court is not being asked to render a final judgment on Ashcroft’s culpability. The questions before the court are whether Kidd’s allegations are plausible enough to justify a trial and whether Ashcroft, who was a government official at the time of the detention, is entitled to immunity.

The legal issues in this case are complicated, but the appeals court makes a compelling argument for giving Kidd his day in court. The Supreme Court shouldn’t stand in the way.