Feds ask court to toss witness arrest lawsuit

A federal judge in Boise, Idaho is questioning the urgency that FBI agents felt when they arrested and detained an American Muslim under a law designed to ensure that witnesses show up to testify in court.

U.S. Magistrate Judge Mikel Williams questioned Department of Justice attorney Marcus Meeks during a hearing Thursday in a lawsuit brought by Abdullah al-Kidd against the federal government.

Al-Kidd, a U.S. citizen, sued former Attorney General John Ashcroft and other federal officials in 2005, after he was arrested and jailed as a material witness in a terrorism-related criminal case against another man. He contends his arrest was just a ruse to give the government time to investigate him for any potential wrongdoing. The federal government maintains its actions were constitutional.

The U.S. Supreme Court has already thrown out al-Kidd's claims against Ashcroft and a few other defendants, and al-Kidd has prevailed in a claim against one prison and settled his claims against two other lockups. Now FBI agents Michael Gneckow and Scott Mace and the Department of Justice are asking the judge to throw out al-Kidd's claims against them.

The case began in 2003, when a University of Idaho student and Saudi national Sami Omar al-Hussayen was arrested on terrorism-related charges. The FBI also interviewed al-Kidd, who was a football star at the university and who had done some computer work for al-Hussayen.

Al-Kidd said he cooperated with investigators and willingly talked to FBI agents whenever they approached him, but was never told he should remain in the country or that he would be expected to testify in al-Hussayen's trial. Instead, eight months after his last contact with investigators, he was arrested at Washington's Dulles International Airport as he was about to fly to Saudi Arabia on a scholarship to study Arabic and Islamic law. The arrest came less than a month before al-Hussayen's trial was scheduled to begin, although the trial ended up being delayed for more than year.

Al-Kidd said he was imprisoned for 16 days, repeatedly strip searched and at times left naked in a jail cell. He was never called to testify in al-Hussayen's trial.

He claims that Gneckow and Mace falsified information and left out important facts on an affidavit they used to get a judge to sign his arrest warrant, and that the United States falsely imprisoned him and abused his right to due process. The warrant didn't include the fact that al-Kidd was a U.S. citizen and was married, nor did it mention that he had cooperated with the FBI in the past. It also wrongly stated that he was flying to Saudi Arabia on a $5,000, first-class and one-way ticket. In reality, it was a round-trip coach class ticket with an open return date that cost $1,700.

"The affidavit makes it sound like Mr. al-Kidd is a Saudi national returning home with no intent of ever coming back," al-Kidd's attorney, Kate Desormeau told the judge.

Desormeau also took issue with the government's contention that they made the decision because they had no way to be sure that al-Kidd would comply with a subpoena.

"The government's argument uses words like, 'There was no guarantee,'" al-Kidd's attorney Kate Desormeau told the judge. "But that gets it precisely backward. There must be an indication that a person will disobey a subpoena, not an assumption that the person will."

But Gneckow and Mace have countered that they were relying on the best information they had at the time, and that they are immune from the lawsuit because they were acting under the authority of a federal prosecutor. Gneckow's characterization of al-Kidd's plane ticket to Saudi Arabia was based on information given him by another FBI agent, Department of Justice attorney Marcus Meeks said.

Gneckow made a reasonable decision based on the information he had at the time and believed to be true, Meeks said.

"Here we have a situation that a witness for the government is going to leave the country, and there's no indication that he's going to come back, when he's going to come back," Meeks said.

The judge questioned whether it was reasonable for the government to assume that there was an immediate need to arrest al-Kidd as a witness, since trials are usually postponed for months.

"I don't think there's any prosecutor or defense attorney that would have thought that trial would have gone on in 30 days," Williams said. "In fact, it took 14 months ... That's one of the quandaries I have, just something based upon all of our experience."

The judge is not expected to rule Thursday.