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State Of The Union

Abdullah Kidd's Ordeal
at the Hands of the Government

By: Joe Ryan



The Ordeal Begins

In March 2003, as he was about to board a plane at Dulles International Airport, for a flight to Saudi Arabia, Abdullah Kidd was arrested by FBI agents and taken in handcuffs away.

Over the next 16 days, Kidd was held in one jail cell after another, subject to repeated strip searches and other demeaning governmental behaviors. During this period, FBI Director, Robert Mueller, appeared at a congressional hearing and claimed that Kidd's arrest constituted the second most important terrorist arrest since 9/11.

The Government's claimed legal basis for arresting and incarcerating Kidd, was the Material Witness Act, the purpose of which is to ensure that witnesses the Government wants to testify at trial are available. Kidd was never called to testify at a trial and was abruptly released.


Abdullah Sues The Government For Damages

The Facts

On February 13, 2003, a federal grand jury in Idaho indicted Samil Al-Hussayen for visa fraud. On March 14, the Idaho U.S. Attorney's Office submitted an application to a magistrate judge, seeking Kidd's arrest as a material witness in the Al-Hussayen trial. The application was based on a sworn affidavit signed by Scott Mace, an FBI agent, the facts of which came from his partner, Gneckow. Mace claimed that he had evidence that Al-Hussayen had given Kidd $20,000 and that Kidd associated with members of Al-Hussayen's organization allegedly in the business of "disseminating radical Islamic ideology."

Mace went on in his affidavit to state as facts the following:

"Kidd is scheduled to take a one way flight to Saudi Arabia and it is believed that, if Kidd takes the flight, the Government will be unable to secure his presence at trial via subpoena."


However, the reality was that Kidd had a round trip ticket, and Kidd, a resident and U.S. citizen, had parents, a wife and two children who were residents and U.S. citizens.

On March 31, 2003, after petitioning the Court, by writ of Habeas Corpus, Kidd was released. In July 2004, Kidd was fired from his job when he was denied a security clearance because of his arrest. He is now separated from his wife and has been unable to find steady employment. He has also lost the opportunity to study in Saudi Arabia on a scholarship.

John Ashcroft was United States Attorney General at the time of Kidd's arrest. Kidd alleges that Ashcroft developed and promulgated the policy of using the Material Witness Act as a pretext to arrest and detain persons the Government suspected, but could not prove, of being engaged in the terrorism business. Ashcroft, not the most intelligent lawyer on the block, publicly proclaimed this policy in press conferences, saying: "We are taking steps to protect the United States from terrorism attacks, one of which is to take suspected terrorists off the streets [as] material witnesses."


In March 2005, Kidd filed suit against Ashcroft, Mace, and others in U.S. District court. Ashcroft moved to dismiss. The court denied the motion and Ashcroft appealed to the Ninth Circuit Court of Appeals. Ashcroft argued that he was entitled to "absolute" immunity, and if that didn't work, then qualified immunity. Kidd rebutted Ashcroft's contention with the argument that, while absolute immunity ordinarily attaches to the decision to seek a material witness warrant, in his case Ashcroft used the statute, not to secure his testimony, but to detain, interrogate and gather evidence against him, in particular. Ashcroft countered this with the argument that his motive behind his decision to use the material witness warrant is irrelevant. The point being that, if Ashcroft was, in fact, fishing—investigating―his motive does matter; but if he was merely arresting Kidd as a material witness to the alleged crime of another it does not.

The Ninth Circuit held that,

"when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another's trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity."


Here, Kidd had "alleged ample facts to render plausible the allegations" that Ashcroft had caused the warrant to issue as a means of simply detaining Kidd so that he could be interrogated. Since Kidd alleged Ashcroft's policy of using the statute to detain witnesses for the purpose of interrogation violated his constitutional right to be free from unreasonable seizure, Ashcroft's motive in causing Kidd to be arrested is indeed relevant to the determination of Ashcroft's legal liability to Kidd for the damages the arrest caused him.

As the Ninth Circuit explained, citing Supreme Court Justice Stevens:

"'There is a valid distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has information about a third person who committed a crime a week earlier.' That is precisely the distinction at work here, and the reason we hold that Ashcroft's policy as alleged was unconstitutional."


The Court concluded its opinion, leaving Ashcroft a defendant in Kidd's case for damages, with a quotation from Blackstone written over two centuries ago:

"'To take a man's life, or confiscate his property, without accusation or trial, would be so gross an act of despotism, as must at once convey the alarm of tyranny. But confinement of a person, by secretly hurrying him to jail, where his sufferings are unknown is a less public, less striking, and therefore more dangerous engine of arbitrary government.'


 The Fourth Amendment was written and ratified in part, to deny the government of our then new nation such an engine of potential tyranny. And yet, if the facts Kidd alleges are actually true, the government has exercised such a `dangerous engine of arbitrary government' against a significant number of its citizens."



The Supreme Court's View of Things

(2011 131 S.Ct. 2074)

Justice Scalia, the  "originalist," wrote the Court's majority decision.

"Needless to say, warrantless intrusions pursuant to a general scheme are far removed from the facts of this case. A warrant issued by a neutral magistrate authorized Kidd's arrest. The affidavit gave individualized reasons to believe that he was a material witness and that he would soon disappear. . . . Because Kidd concedes that individualized suspicion supported the issuance of the warrant; and does not assert his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation." (Italics added.)


Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects `all but the plainly incompetent or those who knowingly violate the law.' Ashcroft deserves neither label. He deserves qualified immunity even assuming that his alleged detention policy violated the Fourth Amendment.


We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. The judgment of the Court of Appeal is reversed and the case remanded for further proceedings consistent with this ruling."


Justice Ginsberg, the "evolutionist" concurring in part, answers Scalia this way:

"Is Ashcroft subject to a suit for damages on a claim that he instructed subordinates to use the Material Witness Statute as a pretext to detain terrorist suspects prevently? I agree with the majority that no `clearly established law' renders Ashcroft answerable in damages for the abuse of authority Kidd charged. But I object to the disposition of Kidd's Fourth Amendment claim on the merits on the ground that the claim involves novel and trying questions that will have no effect on the outcome of this case.


The majority assumes at the outset the existence of a validly obtained warrant. That characterization is puzzling. Is a warrant validly obtained when the affidavit on which it is based fails to inform the magistrate that the Government has no intention of using Kidd as a witness at another trial, and does not disclose that Kidd had cooperated with the FBI each of the several times its agents asked to interview him? Casting further doubt on the assumption that the warrant was validly obtained, the magistrate was not told that Kidd's parents, wife, and children were all citizens and residents of the United States. In addition, the affidavit misrepresented that Kidd was about to take a one way flight when, in fact, Mace knew the flight was booked round trip. Given these omissions and misrepresentations, there is strong cause to question the majority's opening assumption.


Serious questions, unaddressed by the majority, exist concerning the legality of the Government's use of the statute. Ostensibly held only to secure his testimony, Kidd was confined in three different detention centers during his 16-day incarceration, kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist. It is hard not to think this was done to punish.


Kidd's challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times."



The U.S. District Court Proceeds to Jury Trial

After the United States Supreme Court's remand, Kidd proceeded on the basis that the defendants had breached duties owed him under the Federal Tort Claim Act, specifically that they had conspired together to falsely imprison him, abusing in the process the Material Witness Statute. On September 27, 2012, the U.S. District Court granted Kidd summary judgment on the claim of false imprisonment and held that a triable issue of fact exists as to his claim of abuse of process.

U.S. District Judge Edward J. Lodge, ruled on the parties pre-trial motions with the following remarks.

"Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would believe the individual is subject to arrest. (Thus Kidd's claim for false imprisonment is based on the issue whether probable cause actually existed to arrest him under the material witness statute.)


The False Imprisonment Claim


In this case, Agent Gneckow (Mace's associate) supplied the information contained in the warrant application. The Court does not find the agent's failure to properly investigate the facts to be the basis for finding a lack of probable cause. The telling information upon which this claim turns is the information known to Gneckow that was omitted from the warrant application even though it was clearly relevant and, more importantly, went against a finding of probable cause. Specifically the fact that Kidd is a United States citizen, had a wife and children living in the United States, had previously cooperated fully with FBI agents, and had never been told that he could not travel outside the United States. It was reckless of Gneckow not to include these facts as they would lead a reasonable person to not find probable cause. In recklessly omitting the facts, Gneckow did not act reasonably.


The Abuse of Process Claim


The Court finds that a genuine issue of material fact exists as to whether Kidd was arrested for a purpose other than to secure testimony.


Prosecutorial immunity may protect (the Department of Justice) from liability but it does not obliterate the actions (the Department) took as they may be relevant to Gneckow's conduct."


Editor's Comment

And so the perpetual struggle goes on: on the one hand the Government—really nothing more than a bureaucracy of men and women whose collective mindset is to perpetuate itself―uses arbitrary power to oppress first this minority, then that; on the other, always a few isolated voices protesting, challenging, insisting on the people controlling the Government, not the Government controlling the people. The Indians, the Africans, the Japanese, the Communists; now it's the Muslims who must strain to protect themselves.

Nine years ago, Mr. Kidd found himself being abused by the Federal Government. His wife gone, his job gone, somehow he found lawyers to take up his case, and push it through the courts until finally—at God knows how much expense―they have brought his case to the threshold of where it belongs: an American trial court where monetary damages, compensatory and punitive, might be awarded to make Kidd whole.

Abdullah Kidd and his ACLU Lawyer

Joe Ryan