A Penigma - a mystery, under a pseudonym

In the spring and summer of 2002, Abdullah al-Kidd, a native-born American citizen and his then wife were the subject of surveillance by the FBI allegedly aimed at Arab and Muslim men. Although Muslim, al-Kidd is African American and not of Arab descent. No evidence of criminal wrong-doing was ever discovered, and al-Kidd was never charged with any crime.

In 2003, a United States Grand Jury in Idaho handed up an indictment against Sami Omar Al-Hussayen for visa fraud and making false statements to federal officials. On March 14, 2003, the US Attorney's office in Idaho filed an application for a material witness warrant pursuant to 18 USC 3144. 18 USC 3144 states "If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure." The problem with this is that al-Kidd was not listed as a witness against Al-Hussayen nor was he ever called as a witness at Al-Hussayen's trial.

Al-Kidd was arrested and held for 16 days in maximum security fascilities in Virginia, Oklahoma and Idaho. During this time, he was repeatedly subjected to interrogation by the FBI and unspecified others. Eventually, a court ordered him arrested but confiscated his travel documents and ordered him to not travel more than a few miles from his home in Nevada. This de-facto house arrest lasted for fifteen more months, until the end of Al-Hussayen's trial. Al-Kidd was never on the government's witness list, nor was he ever called as a witness at Al-Hussayen's trial. During this time, Al-Kidd's wife, who was never a suspect nor was she ever arrested, filed for divorce and left him. As a result of the arrest, Al-Kidd, who had once enjoyed a security clearance, was unable to find a job when his security clearance was rescinded.

In 2002, John Ashcroft, as Attorney General of the United States under President George Bush, promulgated a policy which included the aggressive use of Material Witness warrants to arrest and detain men of Muslim and Arab descent. This included Al-Kidd.

Al-Kidd filed a lawsuit in US District Court in the District of Idaho in March, 2005 against former Attorney General Ashcroft. He also named as defendants a number of FBI agents who had allegedly made false allegations against him in the original application for the arrest warrant.

Mr. Ashcroft filed a motion to dismiss the lawsuit claiming absolute immunity from suit and qualified immunity from suit. Mr. Ashcroft's claims were heard by the US District Judge who ruled that Mr. Ashcroft was not immune from suit because his actions were not a prosecutorial function when he approved the use of material witness warrants, but instead, since the warrants were not used for the securing of witnesses to a prosecution, but were instead used to attempt to develop criminal information from and about the arrested party, they were police functions and therefore not subject to immunity. The district court also rejected qualified immunity against the Mr. Ashcroft and the FBI agents because they knew or should have known that their actions were an unconstitutional violation of Al-Kidd's rights. Mr. Ashcroft is an attorney, which means that at a minimum, he has had training in constitutional law. Many FBI Special Agents have advanced degrees, and law is often the advanced degree of choice. Whether or not the FBI special agents in this matter have a law degree is not clear, but the district and appellate courts were not ruling on any appeal from those agents.

Mr. Ashcroft appealed to the US Circuit Court of appeals. On September 4, 2009 a panel of 9th Circuit Court of Appeals upheld the refusal of the district court to dismiss on the grounds of immunity. The full text of the opinion is available here.

The next stage of the proceedings will be to conduct discovery. Discovery in this case could be potentially damaging and embarrassing to the government, and may very well shed more light on an era in which many politicians, of both political persuasions, allowed fear to overtake any sort of judgment they might have had, and allowed a certain hysteria to set in not unlike the "red scare" in the 1950's. Just as the "red scare" of the 1950's was overblown, the hysteria that set in with many politicians, both Democratic and Republican following the 9/11 attacks was and is unworthy of the great country that they serve.

The next months or year will be interesting. The plaintiff has a long row to go, as its clear that the defense will put up every road block that they can to uncovering additional information. However, the preliminary damage is done. The next question will be what information will come out during discovery. During the discovery process, documents can and will be demanded both from the defendants and can be subpoenaed from government sources. I think it likely that these documents will show that Mr. Ashcroft did not act alone, and that the systematic violation of fundamental American civil liberties came with the blessing and forethought of the highest levels of the executive branch. The next suspense will be whether Mr. Ashcroft decides to take the fall alone, or if he decides to take down with him those higher up the food chain. Time will indeed tell.