BOISE, Idaho – A federal magistrate says the United States falsely imprisoned a former Idaho man under a law designed to ensure that key witnesses show up for trial, and a jury should decide if the government has misused that law in the wake of the 9/11 terrorist attacks.
The ruling from U.S. Magistrate Mikel Williams in Boise still must be signed by U.S. District Judge Edward Lodge before it may go into effect, and it's possible that attorneys with the Department of Justice will appeal, ask Lodge not to sign or simply reach a settlement with Abdullah al-Kidd.
The Wichita, Kansas resident and former University of Idaho football star sued the government in 2003 after he was arrested and held as a material witness in a terrorism-related criminal case against another man.
"This case marks the first ruling against the government on the merits in a post 9-11 material witness case," al-Kidd's attorney, Lee Gelernt with the ACLU, said Wednesday. "The stakes are now very high because a jury will be asked to decide if the government engaged in preventative detention — a practice that Congress has never authorized in the history of this country."
Al-Kidd, a U.S. citizen, sued former Attorney General John Ashcroft and other federal officials in 2005, contending that his arrest two years earlier was just a ruse to give the government time to investigate him for any potential wrongdoing. He said he was imprisoned for 16 days, repeatedly strip searched and at times left naked in a jail cell. He was never actually called to testify in the trial against fellow University of Idaho student Sami Omar al-Hussayen.
Al-Kidd, who changed his name from Lavoni T. Kidd after he converted to Islam as an adult, said he had always cooperated with investigators who questioned him about al-Hussayen. Al-Kidd also contended that he was never told he must remain in the country, nor was he told that he might be asked to testify at al-Hussayen's trial.
He was in the Dulles Airport in Virginia about to fly to Saudi Arabia to study when federal agents arrested him on March 16, 2003.
Former FBI agent Mike Gneckow and agent Scott Mace had obtained an arrest warrant from Williams after telling the magistrate judge that al-Kidd had a one-way, first-class ticket to Saudi Arabia, had received more than $20,000 in payments from al-Hussayen, and that he was needed to testify about information that was crucial in the trial against al-Hussayen. The affidavit prepared by Gneckow to justify the arrest warrant didn't include the fact that al-Kidd was a U.S. citizen, that he had a wife, son and extended family members living in the United States and that he had always cooperated with FBI agents in the past.
In fact, al-Kidd's plane ticket was coach and was round-trip, though the return date had not yet been set, and the "payments" were a salary for work al-Kidd had done for al-Hussayen's company.
Williams said Gneckow's failure to check the facts and decision not to include the information about al-Kidd's citizenship and family ties were reckless, and that the affidavit essentially duped the court into issuing the warrant. Williams said Gneckow could be held personally liable for his actions.
U.S. Department of Justice spokesman Charles Miller said the agency had no comment on the case.
Last year, the U.S. Supreme Court threw out al-Kidd's claims against former Attorney General John Ashcroft, finding that Ashcroft couldn't be personally sued over his role in the arrest. But four justices said the case raised serious questions about post-9/11 detentions under the material witness statute.
Williams echoed that sentiment in his ruling, citing the facts surrounding al-Kidd's arrest and the fact that shortly after, FBI Director Robert Mueller testified before Congress that al-Kidd's arrest was a "major success" in the government's anti-terrorism efforts.
"Finally, the brutal conditions of al-Kidd's confinement during his sixteen days of incarceration while on his way to Idaho led Justice Ginsberg to question the arguably legitimate basis upon which the government relies," Williams wrote. "If Justice Ginsberg drew conclusions from the circumstantial evidence supporting an ulterior, improper motive, so too, could a jury."