Compared with the atrocities committed at Guantanamo Bay, the Bush Administration’s secretive arrests of Arab-Americans and Muslims after 9/11 doesn’t get much airplay. But that may change after a significant court ruling on Friday opened the way for a detainee to sue the architect of that policy, Attorney-General John Ashcroft.
Only six weeks after the bombing of the twin towers on 9/11 Ashcroft announced he would use a 1984 law designed to ensure material witnesses attended court to give evidence, to detain without charge hundreds of Arab-Americans or Muslims. One of those unfortunate enough to be detained was an African-American student, Abdullah al-Kidd.
Al-Kidd was married with two children and living in Idaho in February 2003 when his nightmare began. Federal agents had obtained a warrant for his arrest on false grounds including that al-Kidd would be a material witness in a forthcoming terrorism trial. (He was never called to give evidence.) He was arrested at Dulles International Airport in Washington, while en route on a return ticket by the way to take up an Islamic studies scholarship in Saudi Arabia.
Over the next 16 days he was moved between three detention centres in Virginia, Oklahoma and Idaho. He was shackled and handcuffed about his wrists, legs, waist and allowed out of his cell only 1-2 hours per day. The light was kept on in his cell continuously and he was repeatedly strip searched. When he was released he was confined to living in Nevada, had to surrender his passport and report to probation. Since then he has lost his wife and children, his job and his scholarship.
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Now al-Kidd wants to sue Ashcroft for the loss and harm he has suffered as a result of his mistreatment and wrongful detention. Ashcroft’s lawyers, in keeping with the arguments run by many Bush Administration officials, argues that their client is immune from being sued because in ordering the detention of al-Kidd he was acting as a prosecutor and because his actions were part and parcel of his national security duties he had as Attorney-General.
But Ashcroft has lucked out — a chink in the Bush Administration relatively impenetrable legal armoury has emerged. The US Court of Appeals for the 9th Circuit, based on the country’s west coast, ruled on Friday that al-Kidd can sue Ashcroft.
In this elegant passage, the court spells out why:
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the 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 … 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.
More than 5000 Arab-Americans or Muslim Americans were detained without charge after 9/11 and many were held under the material witness law. Al-Kidd’s win last Friday may embolden others who were detained to come forward and tell their stories of how a nation that subscribes to freedom so badly failed them.