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 yards in 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.
From August 2001 to April 2002, al-Kidd lived in Yemen to study Islamic law and learn Arabic. His trip, and his loose connections to some Muslim charities in the United States, flagged him as a person of interest to the FBI.
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.
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 to Boise," 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.’”
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."
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 in Las Vegas; his passport was seized; and he was restricted to travelling within four states.
Restrictions lifted, but impact permanent
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.
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 in Las Vegas caused 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 in Saudi 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
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 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 Favour
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 on March 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 the University of Idaho, 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 on Wednesday 2nd February 2011 to 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 the U.S. government.