Justices to Hear Suit of Ashcroft Over Detention

Justices to Hear Suit of Ashcroft Over Detention
By ADAM LIPTAK
Copyright by The New York Times
Published: October 18, 2010
http://www.nytimes.com/2010/10/19/us/19scotus.html?_r=1&hp


WASHINGTON — Abdullah al-Kidd, born in Kansas and once a star running back at the University of Idaho, spent 16 days in federal detention in three states in 2003, sometimes naked and sometimes shackled hand and foot, but was never charged with a crime.

On Monday, the Supreme Court agreed to decide whether he may sue John Ashcroft, the former attorney general, for what Mr. Kidd contends was an unconstitutional use of a law meant to hold “material witnesses.” Mr. Kidd says the law was used as a pretext for detaining him because he was suspected of terrorist activities.

The material witness law is typically used to hold people who have information about crimes committed by others when there is reason to think they would otherwise not appear at trial to give testimony. Critics say the Bush administration radically reinterpreted the law after the terror attacks of Sept. 11, 2001, using it as a preventive-detention tool.

Laws allowing the preventive detention of suspected terrorists are common in Europe. The United States does not have such a law, but Mr. Kidd contends that a policy set by Mr. Ashcroft allowed federal prosecutors to use the material witness law to the same end.

Mr. Kidd, who described himself in a 2004 interview as “anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism,” was never called to testify as a witness.

The Obama administration had urged the justices to reverse a decision of the United States Court of Appeals for the Ninth Circuit, in San Francisco, that had allowed Mr. Kidd’s lawsuit to proceed. “If permitted to stand,” Acting Solicitor General Neal K. Katyal wrote, “the decision below would seriously limit the circumstances in which prosecutors could invoke the material witness statute without fear of personal liability.”

Mr. Kidd, represented by the American Civil Liberties Union, said the appeals court’s ruling was straightforward and correct. Mr. Ashcroft’s “deliberate decision to authorize the pretextual arrest of witnesses was clearly unconstitutional,” Mr. Kidd’s lawyers told the justices.

Mr. Kidd, who was known as Lavoni T. Kidd in 1995 when he led the University of Idaho football team, the Vandals, in rushing, was on his way to Saudi Arabia to work on a doctorate in Islamic studies in March 2003 when he was arrested and handcuffed at Dulles International Airport outside Washington.

Magistrate Judge Mikel H. Williams of the Federal District Court in Boise, Idaho, authorized the arrest, based on an affidavit from Special Agent Scott Mace of the F.B.I. “Kidd is scheduled to take a one-way, first-class flight (costing approximately $5,000),” the affidavit said.

That statement was false: the ticket was for a round trip, in coach, costing $1,700.

In the 2004 interview, Mr. Kidd said he did not understand why someone held as a mere witness should be subjected to harsh treatment.

“I was made to sit in a small cell for hours and hours and hours, buck naked,” he said. “I was treated worse than murderers.”

Justice Elena Kagan disqualified herself from the case because she had worked on it when she was United States solicitor general.