On March 16, 2003, al-Kidd was arrested at Dulles International Airport. Several days earlier, a judge had issued a material witness arrest warrant, and required his testimony in an upcoming trial; the FBI claimed (incorrectly) that al-Kidd had a one-way ticket to Saudi Arabia, and that since no extradition treaty existed between the US and Saudi Arabia, once he left he would not return.

Abdullah al-Kidd (given name Lavoni T. Kidd) was born in Wichita, Kansas, and raised near Seattle. He attended Lindbergh High school, where he joined the football team and became its star player; al-Kidd even “rushed for a school record of 225 yardsin one game.” Later that year, he enrolled at the University of Iowa on a football scholarship. He stayed mostly in the background in his first years with the Vandals, but led the team in 1995 by rushing with 621 yards.While in university, al-Kidd also converted to Islam and became very active with the local student Muslim association.

The government’s interest in al-Kidd appears to have stemmed from a trip he made to Yemen after 9/11 and his ties to a man the Justice Department prosecuted on computer terrorism charges. That defendant, Sami Omar al-Hussayen, was a graduate student at the Universityof Idaho, where al-Kidd played running back for the college football team in the 1990s.

From August 2001 to April 2002, al-Kidd lived inYemento study Islamic law and learn Arabic. His trip, and his loose connections to some Muslim charities in theUnited States, flagged him as a person of interest to the FBI.

Arrest

The purpose of material witness warrants is to force important witnesses into custody, in order to ensure their later testimony.  According to the government’s account of al-Kidd’s arrest, his testimony was required for the trial of Sami Omar al-Hussayen, and the investigation of two organizations al-Hussayen supported, the Islamic Assembly of North America and Help the Needy. The organizations were suspected of providing “material support” to terrorism.

Al-Kidd said he met with FBI agents several times and answered all their questions. He said he was never told he might be called as a witness, never told not to travel or asked to voluntarily turn over his passport, as the FBI did with another potential witness in the same investigation.

Early in 2003, he was planning to go to Saudi Arabia on a scholarship to study Arabic and Islamic law. Days before he left – some six months after his last contact with federal authorities – the FBI persuaded a judge in Idaho to sign a material witness warrant authorizing his arrest. Agents picked him up at Dulles two days later.

But the sworn statement the FBI submitted to justify the warrant had important errors and omissions. The $5,000 one-way, first-class seat that the agents said al-Kidd purchased was, in reality, a coach-class, round-trip ticket. The statement neglected to mention that al-Kidd had been cooperative or that he was a U.S. citizen with a wife and children who also were American.

The police and FBI made no effort to contact al-Kidd to tell him about the arrest warrant, or to ask him to turn himself in. Instead, al-Kidd suffered the embarrassment of a public arrest at the airport:

“If they would’ve just given me a call, I would’ve taken a flight toBoise,” he said. “But they didn’t.”… “Everybody was looking at me like they just captured a terrorist right there in Dulles airport,” he said. “I mean, here I am, dressed in Muslim garb and I have my beard…”

Al-Kidd was first held for three days at a detention center in Alexandria,Virginia. He had the dubious honor of being held in “the fishbowl”, the same cell occupied by Zacarias Moussaoui and John Walker Lindh.

After a hearing, al-Kidd was flown to Idaho, via Oklahoma, Arizona and Wyoming. As one reporter commented:

“[While in the plane] he was surrounded by people accused and convicted of serious felonies, his hands shackled to his waist and his feet shackled together. ‘Con Air,’ [al-Kidd] said, ‘’just like the movie.’”

Detention

The memories of his two weeks in custody in Virginia,Oklahoma and Idaho remain vivid, he said. He slept on the floor, his head next to a toilet. He was shackled, strip-searched and made to sit naked and shivering in a holding area while male and female guards looked on. He was taunted and called a terrorist by other prisoners.

In accounts of his ordeal, al-Kidd is shocked at the treatment he received:

”It was the most horrible, disgraceful, degrading moment in my life… I was made to sit in a small cell for hours and hours and hours buck naked… I was treated worse than murderers.”

While in prison, al-Kidd strenuously denied the legitimacy of the charges, and stressed his ties to the States:

“Basically, don’t believe the hype… I’m not a terrorist. I’m as American as apple pie.”

Over the next 16 days he would be strip-searched repeatedly, left naked in a jail cell and shower for more than 90 minutes in view of other men and women, routinely transported in handcuffs and leg irons, and kept with people who had been convicted of violent crimes. On a long trip between jails, a federal marshal refused to unlock al-Kidd’s chains so he could use the bathroom.

Regarding his treatment he said:

“I’m a material witness, but these guys are convicts, federal inmates, and they’re being treated better than me, there was only one other guy who had similar treatment as me. That was in Ada County (Idaho) He was in the Aryan Nation. He was on death row.”

In the midst of al-Kidd’s detention, FBI Director Robert Mueller testified to Congress about recent major successes against terrorism. Number one on Mueller’s list was the capture of professed 9/11 mastermind Khalid Sheikh Mohammed. Number two was the arrest of al-Kidd, a Kansas-born convert to Islam who was not charged with a crime – either then or later.

In his testimony to a House subcommittee on March 27, 2003, Mr. Mueller said that Mr. Kidd was “a U.S.native and former University of Idaho football player.” Mr. Mueller added that Mr. Kidd “was arrested by the FBI at Dulles International Airport en route to Saudi Arabia.” But he failed to say that Mr. Kidd was not arrested on criminal charges but as a material witness. By the time Mr. Mueller testified, Mr. Kidd had been in custody for 11 days in three states under harsh conditions.

‘Release’ & Restrictions

Sixteen days later, on March 31, al-Kidd was released. The judge in al-Hussayen’s case had already agreed to release him under house arrest, leaving no room to justify al-Kidd’s continued imprisonment. However, al-Kidd still had some extreme restrictions placed on his release: he had to live with his wife and his in-laws inLas Vegas; his passport was seized; and he was restricted to traveling within four states.

Recently married for a second time, and only allowed to travel in four Western states and required to live with his new in-laws in Las Vegas. “It was pretty stressful,” he said. “In their defense, they probably want the best for their daughter, and even if this guy didn’t do anything wrong, he’s damaged goods at this point.” His marriage quickly deteriorated and relations were so tense at home that the court allowed him to find his own place.

It wasn’t until over a year later, on June 22, 2004, that a judge finally lifted restrictions on al-Kidd’s travel and returned his passport to him. This followed al-Hussayen’s unanimous acquittal on June 10th. al-Kidd never even testified in al-Hussayen’s trial. Even after al-Hussayen was acquitted on the most serious charges, the government took no action to end restrictions on al-Kidd, nor was he informed that the trial was over. But he was eventually  able to persuad a judge to end them.

The impact of the arrest and travel restrictions on al-Kidd’s life cannot be underestimated. First, being forced to live with his in-laws inLas Vegascaused severe strains to his marriage. In one interview, al-Kidd lamented,

”this ordeal has dissolved our relationship… I lost a good wife. I’m not with my daughter anymore. How painful is that?”

Al-Kidd’s professional aspirations were also destroyed. He lost his scholarship to study inSaudi Arabia, and his name is now irrevocably tied to criminality, even though he was never indicted or charged for a crime. As he said:

”Here I am now, 31, and that dream is shrinking and shrinking… My reputation is destroyed… I keep getting ‘no’s’ from jobs as if I’m an ex-felon.”

Suit brought by al-Kidd

Al-Kidd, now 38, was one of about 70 men, almost all Muslims, who were arrested and held in the months and years after 9/11 under a federal law intended to compel reluctant witnesses to testify to grand juries and at criminal trials.

The material witness law has existed in some form since 1789. But after Sept. 11, al-Kidd argues in his lawsuit, federal authorities began using it to take someone suspected of ties to terrorism off the streets even when they had insufficient evidence to believe he had committed a crime.

With his life permanently impacted by his arrest – despite the fact that he was never formally accused of a crime – al-Kidd decided to bring a lawsuit in March 2005 against John Ashcroft, individual FBI agents, and the wardens in the prisons in which al-Kidd was held. Lawyers for the ACLU took on his case, and maintained that his detention was both unconstitutional and inhumane.

About 18 months after the suit was first filed, in March 2008, al-Kidd settled with the warden of the Oklahoma federal jail for monetary relief. Later that year, in August, the action against the Virginia warden was also settled, in exchange for monetary relief and institutional reforms.

A federal judge in Oklahoma ruled the strip searches al-Kidd endured at the federal jail in Oklahoma City “were objectively unreasonable and violated the Fourth Amendment.” A federal judge also ruled that John Ashcroft could be named on the case, and potentially held responsible for the wrongful detention of al-Kidd if the suit was successful. Lawyers for the government officials appealed the ruling, and the 9th Circuit Court of Appeals agreed to hear the case.

According to Lee Gelernt, his lawyer at the ACLU:

“It is clear that the material witness statute was used as a tool for preventive detention and investigation, resulting in abuse and significant human hardship…The question now is whether lower-level officials will be forced to take all of the blame for following a policy adopted at the highest levels of the Justice Department.”

The court ordered both sides to engage in settlement talks, but in March 2008, they reported that talks between the government and al-Kidd had failed.

Ninth Circuit Rules in al-Kidd’s Favor

While the government argues that Mr. Ashcroft is entitled to a qualified immunity that can be overcome only with proof that he violated a clearly established constitutional right. The Ninth Circuit rejected that argument. Several months later, in September 2009, the 9th Circuit Court of Appeals issued a ruling in al-Kidd’s favor.

First, it held that “that the federal material witness law cannot be used to ‘preventively’ detain or investigate suspects.” In other words, material witness warrants cannot be used to hold suspects when the government is scrambling for evidence to indict them on other charges. Second, the Court ruled that Ashcroft could be held individually responsible for the way that material witness warrants were twisted and utilized for a different purpose.

In the majority decision, Judge Milan D. Smith wrote:

“Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a material witness’ under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently 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, 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.”

In October 2009, Ashcroft asks the 9th Circuit Court of Appeals to reconsider its ruling; in March 2010, however, the Court refused to do so.

Supreme Court Agrees to Hear Suit

Just a few months ago, in October 2010, the Supreme Court agreed to hear Ashcroft’s appeal on whether to throw out the lawsuit. The case will be heard onMarch 2, 2011.

“The key question in the case before the justices is whether the attorney general can be held responsible for a policy that might violate constitutional protections.”

Indeed, the case will address whether Ashcroft can be sued for damages, if al-Kidd can establish that he:

“authorized the detention of criminal suspects without probable cause by misusing the material witness statute.”

Greater Fourth Amendment Issue at Play

At its core, this case addresses the way the Fourth Amendment has been ignored and dismissed in the Islamophobic climate of post-9/11 America. As ACLU outlines in its summary of the case:

“The Fourth Amendment prohibits the arrest of criminal suspects without probable cause. In this case we allege that our client, a former football player at theUniversityofIdaho, was arrested on a material witness warrant pursuant to a policy implemented by John Ashcroft after 9/11 to use the material witness statute as a means of detaining individuals for investigative purposes without probable cause to believe that they’d committed a crime. In September 2006, the U.S. District Court in Idado denied the defendants’ motions to dismiss the charges, allowing nearly all the charges – includes those against Ashcroft – could go forward.”

Abdullah al-Kidd is seeking Supreme Court approval onWednesday 2nd February 2011to sue former Attorney General John Ashcroft over his treatment in 2003.

Regardless of whether or not al-Kidd committed a crime, it violated his Fourth Amendment rights to be held on a material witness warrant, if the government merely wanted to investigate him but lacked probable cause. As the U.S. Attorney General at the time of al-Kidd’s arrest, John Ashcroft should be held ultimately responsible for the unconstitutional and inhumane treatment he received at the hands of theU.S.government.