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Special feature: The case against John Ashcroft et al.

Airport travel these days is unpleasant, at best, but for a man with a bushy beard, bald head and the name Abdullah al-Kidd, it must be hell.  Every time he travels – within the U.S. or to and from Saudi Arabia, where he currently lives – security agents pull him aside and ask a litany of questions. It’s a hassle, but nothing close to the trauma he experienced on the afternoon in March 2003 when FBI agents arrested him at a ticket counter at Dulles International Airport and interrogated him for hours.

“It’s not as bad as it used to be,” he told me, “but it never stops.” I met al-Kidd on February 14, in a conference room of Morrison & Foerster’s law office in downtown Los Angeles – and he was not what I expected. He had traveled from Saudi Arabia to tell the story of what happened to him in March 2003, when he was arrested as a material witness and detained for sixteen days in harsh conditions.

The timing of his trip in February was propitious: on March 2 the U.S. Supreme Court is scheduled to hear arguments in Abdullah al-Kidd v. John Ashcroft et al.

The basic facts are well known. A U.S. citizen born Lavoni T. Kidd in Wichita, Kansas, he was a star running back on University of Idaho’s football team and converted to Islam before graduating. After the September 11 attacks, the FBI put him under surveillance as part of a broad anti-terrorism investigation that – his lawyers claim – was “allegedly aimed at Arab and Muslim men.”  Agents questioned him several times about his “activities” and association with Sami Omar al-Hussayen, a former co-worker who was eventually indicted for visa fraud and scheduled to go on trial.  Then, six months passed without any contact from the FBI, and al-Kidd figured he was no longer a target.  But on March 16, 2003, as he checked in for a flight to Saudi Arabia to continue his religious studies, FBI agents arrested him as a material witness in al-Hussayen’s case. He was transferred on Con Air flights with convicted murderers and rapists, at gunpoint and in shackles and handcuffs, to prison facilities in three states. Strip searches were routine, but guards at one prison left him sitting naked without privacy for hours. At another prison, he was forced to sleep on the cement floor of a cell, next to a clogged toilet with overpowering stench. Another cell had a light left on 24-7, another was infested with ants.

Once released, he was still not free.  Ordered to live with his in-laws in Nevada, he regularly reported to a probation officer and consented to unannounced home visits during the year he was under federal supervision. Having surrendered his passport, he couldn’t leave the country, and his travel within the U.S. was limited to Nevada and three other states. In July 2004, he was fired from his job with a Las Vegas defense contractor, when al-Kidd claims, they learned of his arrest.

In the end, al-Kidd was never charged with a crime or called to testify at al-Hussayen’s trial, which ended without a single conviction. John Ashcroft’s position is that the case should be dismissed. In legal briefs, he claims to have adhered to the Constitution in applying the material witness law; moreover, he contends that, as a government official, he is protected from prosecution by absolute immunity.  “A prosecutor’s absolute immunity,” the brief proposes, “ is based on the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.”

Given Ashcroft’s dismissive view and al-Kidd’s treatment by the U.S. government, I expected to glean traces of anger or bitterness, or at least find a man who had become politicized. Instead, he was calm and polite, at times even humble. For his U.S. visit, he abandoned his long, flowing robe, and dressed conservatively in black pants and a green shirt and tie, his bald head and bushy beard a tribute to his deeply held religious beliefs.

“I’ve never been a big political person,” he told me. “I never tried to fit into any political box.”    Still, he had to have opinions (some, I imagined, fairly strong) about the administration he contends illegally arrested and detained him.  “What are your opinions about Bush and now . . . of Obama?” I asked, but before al-Kidd could answer, his lead ACLU attorney, Lee Gelernt, who sat in on the interview, jumped in. “He’s not going to talk about any of that,” said Gelernt, “he’s just here to tell his story.”

In 2004, al-Kidd described himself to a reporter as “anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism.”

Both men seemed tired, almost beleaguered, by the long day of media interviews  – and perhaps by the case itself, which has been an uphill climb to achieve what Ashcroft v. Iqbal could not.  Coming on the heels of that case, whose facts the Court deemed insufficient and implausible to hold high-level officials personally accountable for their actions after the September 11 attacks, al-Kidd’s challenge could be daunting, but Gelernt and al-Kidd appeared confident and optimistic.

They have surmounted the “implausibility” obstacles in Iqbal, they believe. “There are two critical components to our case,” explained Gelernt.  “One is that the government is not claiming that our allegations are implausible. Anyone who reviews our case can see that it’s more than plausible that this was not simply about securing Mr. al-Kidd’s testimony for a criminal trial.  Another component is that Ashcroft adopted this extreme policy that caused Mr. al-Kidd’s arrest – and dozens of other individuals – and they haven’t challenged either as implausible. They’re simply arguing that it’s perfectly lawful for Ashcroft to have done that and in any event he should have immunity.”

The favorable ruling by the United States Court of Appeals in September 2009 further buoyed their confidence. “To use a material witness statute pretextually, in order to investigate or pre-emptively detain suspects without probable cause,” Judge Milan D. Smith Jr. wrote for the majority, “is to violate the Fourth Amendment, which bans unreasonable searches and seizures.” Judge Smith went on to explain “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, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Excerpts from my interview with Abdullah al-Kidd can be found here.

Recommended Citation: Mary A. Fischer, Special feature: The case against John Ashcroft et al., SCOTUSblog (Feb. 28, 2011, 2:07 PM),