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A federal appeals court condemns the practice of holding terror suspects without charges.
Published Sep. 9, 2009

New York Times

Former U.S. Attorney General John Ashcroft may face personal liability for the decisions that led to the detention of a U.S. citizen as a material witness after the Sept. 11 attacks, a federal appeals court panel ruled on Friday.

In the decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, was sharply critical of the Bush administration's practice of holding people it suspected of terrorism without charges, as material witnesses.

"We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history," said the opinion, written by Judge Milan Smith Jr.

The lawsuit was brought in 2005 by Abdullah al-Kidd, who was born Lavoni T. Kidd in Kansas and converted to Islam in college. He was arrested in 2003 at Dulles Airport as he prepared to fly to Saudi Arabia for graduate work in Islamic studies, and was held for weeks under a law that allows the indefinite detention of material witnesses to a crime. After his detention, he was ordered to stay with his in-laws in Las Vegas; his travel was restricted over the next year.

Kidd, who was not called as a witness in the case in which he was detained and was never charged with a crime, sued Ashcroft and other officials in 2005, challenging his detention as unconstitutional and saying it cost him his marriage and his job.

Ashcroft, who was represented by the Justice Department, disputed Kidd's version of the facts and claimed his position granted him immunity.

Lee Gelernt, a lawyer for the American Civil Liberties Union who represented Kidd, called it "an enormous decision" that says "no official, including the attorney general of the United States, can be immune if he adopts and implements an unconstitutional policy."

Material-witness laws, said Ronald L. Carlson, a law professor at the University of Georgia, have generally been used to hold witnesses briefly if they have crucial information but are thought to be likelier to flee than to testify. But during the Bush administration, the use of the law was expanded for use in terrorism investigations, and "the net swept pretty widely," Carlson said.

Charles S. Miller, a spokesman for the Justice Department, said, "We're reviewing the court's ruling." Mark Corallo, a spokesman for Ashcroft, would say only that Ashcroft was reviewing the decision as well.

All three judges on the panel have reputations as politically conservative jurists, with two appointed by former President George W. Bush and the third a Reagan appointee.

Unless Ashcroft appeals the decision, the case will go back to federal district court for further hearings.