Al-kidd v. Ashcroft

• Decision Date: 18 March 2010
• Docket Number: No. 06-36059.,06-36059.
• Parties: Abdullah AL-KIDD, Plaintiff-Appellee, v. John ASHCROFT, Attorney General, Boise, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

598 F.3d 1129

Abdullah AL-KIDD, Plaintiff-Appellee, v. John ASHCROFT, Attorney General, Boise, Defendant-Appellant.

No. 06-36059.

United States Court of Appeals

Ninth Circuit.

Decided: March 18, 2010.

Lee P. Gelernt, American Civil Liberties Union Foundation, New York, NY, Robin Lisa Goldfaden, American Civil Liberties Union Foundation, San Francisco, CA, R Keith Roark, Esquire, Hailey, ID, Cynthia J. Woolley, The Law Offices of Cynthia J Woolley, PLLC, Ketchum, ID, for Plaintiff-Appellee.

Matthew M. Collette, Robert Loeb, U.S Department of Justice, Washington, DC for Defendant-Appellant.

Before: DAVID R. THOMPSON, CARLOS T. BEA and MILAN D. SMITH, JR., Circuit Judges.

Concurrence by Judge MILAN D. SMITH, JR.; Dissent by Judge O'SCANNLAIN; Dissent by Judge GOULD.

ORDER

Judge M. Smith voted to deny the petition for rehearing en banc, and Judge Thompson so recommended. Judge Bea voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. Judge Bybee was recused in this matter.

The petition for rehearing en banc is DENIED.

M. SMITH, Circuit Judge, concurring in the denial of rehearing en banc:

I concur in the court's decision not to rehear this case en banc, and write to respond to the dissents from that decision.

In March 2005, al-Kidd brought suit in the District of Idaho against former United States Attorney General John Ashcroft the United States, two FBI agents, and a number of other government agencies and officers in their official capacities. The suit sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of al-Kidd's rights under the Fourth and Fifth Amendments to the Constitution, and for a direct violation of 18 U.S.C. § 3144. Each of the defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over the parties in Idaho. Next, the district court denied the 12(b)(6) motion, rejecting the defendants' claims of absolute and qualified immunity. Only Ashcroft appealed the district court's rulings on the motions. In ruling on Ashcroft's interlocutory appeal of the district court's 12(b)(6) ruling, we are required to accept all allegations of material fact contained in al-Kidd's complaint as true and to construe those allegations in the light most favorable to al-Kidd. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). "Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden...." al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir.2009).

All the parties to this action have approached it as a pure law enforcement matter. Ashcroft has not raised issues of national security or other exigencies at any point in this litigation. Id. at 973.

The facts alleged in al-Kidd's complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government, as did many members of the Founding Generation. Al-Kidd, born Lavoni T. Kidd, is a United States citizen, born in Wichita, Kansas, and raised in Seattle, Washington. He graduated from the University of Idaho, where he was a highly regarded running back on the university's football team. He was married and had two young children.

While at the university, al-Kidd converted to Islam and changed his name to Abdullah al-Kidd. In the spring and summer of 2002, al-Kidd became a target of FBI surveillance conducted as part of a broadanti-terrorism investigation, aimed at Arab and Muslim men.¹ Al-Kidd cooperated with the FBI on several occasions when FBI agents asked to interview him.

Previous to this time, Ashcroft and others operating at his direction, or in concert with him, had decided to undertake a novel use of 18 U.S.C. § 3144, the material witness statute. Specifically,

1. At a press briefing, Ashcroft stated that the government was taking steps "to enhance fits] ability to protect the United States from the threat of terrorist aliens" and that "[ajggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks."

2. In DOJ memoranda, Ashcroft stressed the need "to use... aggressive arrest and detention tactics in the war on terror" and to use "every available law enforcement tool" to arrest persons who "participate in, or lend support to, terrorist activities."

3. A DOJ document entitled "Maintaining Custody of Terrorism Suspects " stated that "[ijf a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant"

4. Michael Chertoff, who was head of the DOJ's Criminal Division in the years immediately following the 9/11 attacks, stated of the material witness statute, "[i]t's an important investigative tool in the war on terrorism.... Bear in mind that you get not only testimony—you get fingerprints, you get hair samples—so there's all kinds of evidence you can get from a witness."

5. Then White House Counsel, Alberto Gonzales, stated that: "In any case where it appears that a U.S. citizen captured within the United States may be an al Qaeda operative and thus may qualify as an enemy combatant, information on the individual is developed and numerous options are considered by the various relative agencies (the Department of Defense, CIA and DOJ), including the potential for a criminal prosecution, detention as a material witness, and detention as an enemy combatant."

(emphasis added).

What apparently interested the FBI in al-Kidd was his friendship with one Sami Omar Al-Hussayen, a Saudi national and a computer science student at the university, who was the webmaster of an Islamic proselyting website dedicated to, among other things, "[s]pread[ing] the correct knowledge of Islam; [and][w]iden[ing] the horizons and understanding... among Muslims concerning different Islamic contemporary issues."

In the spring of 2003, al-Kidd planned to fly to Saudi Arabia to study Arabic and Islamic law on a scholarship at a Saudi university. Knowing of his travel plans from their interviews with al-Kidd, and apparently implementing Ashcroft's plan to aggressively use the material witness statute to detain "material witnesses, " two FBI agents swore out an affidavit that contained multiple falsehoods to secure a material witness warrant against al-Kidd, allegedly so he would be available to testify against Al-Hussayen (who had been indicted one month previously for visa fraud and making false statements to U.S. officials).

On March 16, 2003, al-Kidd, bearing a round-trip ticket to Saudi Arabia, arrived at Dulles International Airport in Virginia. While al-Kidd was at the ticket counter, FBI agents handcuffed him, perp-walked him through the airport, and drove him to a police station, where he was placed in a holding cell. After being detained and questioned there for hours, al-Kidd was transferred to a detention center in Alexandria, Virginia.

For the next sixteen days, al-Kidd was detained in three different detention centers, one in Alexandria, one in Oklahoma, and one in Idaho. He was housed in highsecurity units within these facilities, which were the same units used to detain terrorists, and other persons charged with, or convicted of, other serious crimes. While at the Alexandria facility, al-Kidd was required to remain in a small cell where he ate his meals, except for one or two hours a day. He was strip-searched, denied visits by family, and denied requests to shower. Each time he was transferred to a new facility, he was shackled and accompanied by other prisoners who had been charged with, or convicted of, serious crimes. After sixteen days, "al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws' home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport." al-Kidd, 580 F.3d at 953.

Not too long after al-Kidd's arrest and detention, in congressional testimony regarding the government's efforts to fight terrorism, FBI Director Robert Mueller boasted that the government had charged over 200 "suspected terrorists" with crimes. Mueller then offered the names of five individuals as examples of the government's recent successes. Four of those persons had been criminally charged with terrorism-related offenses; the other was al-Kidd.

"After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, as alKidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen's trial, more than fifteen months after being arrested.²In July 2004, al-Kidd was fired from his job. He alleges he was terminated 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 was also deprived of his chance to study in Saudi Arabia on scholarship." Id. at 953-54 (emphasis added).

Al-Kidd ivas arrested more than a year before the Al-Hussayen trial began. In their interviews with al-Kidd, the FBI never suggested, let alone demanded, that alKidd appear as a witness in the Al-Hussayen trial. While in custody, al-Kidd was repeatedly questioned about matters unrelated to...