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Former US AG Ashcroft denied prosecutorial immunity in material witness suit

[JURIST] US District Judge Edward Lodge of the District of Idaho [official website] on Wednesday ruled that former US Attorney General John Ashcroft [official profile] does not have absolute immunity from a lawsuit alleging that the government wrongfully arrested plaintiff Abdullah al Kidd as a material witness [HRW backgrounder] in a failed computer terrorism case [indictment, PDF] against a classmate of Kidd. Lodge also denied a motion to dismiss the lawsuit, forcing the plaintiffs to appeal the ruling, reach settlement, or proceed to trial. If the government chooses to move forward with the trial, Ashcroft and other defendants could potentially face questions about their actions after the Sept. 11 attacks [JURIST news archive]. A trial would also create the task of defending against allegations that Ashcroft was personally liable for violating Kidd's rights by creating "a national policy to improperly seek material witness warrants" in an effort to arrest individuals without probable cause. Lodge refused to grant Ashcroft immunity on the grounds that Ashcroft does not qualify because his own actions are at issue in the case and "the development and practice of using the material witness statute to detain individuals while investigating possible criminal activity" is a police activity and not prosecutorial advocacy. Earlier this month, Lodge ruled that the government cannot use federal material witness statutes [ACLU press release] to preventively detain suspects.

Both Kidd and Sami Omar al Hussayen [Wikipedia profile], who was acquitted of terrorism charges but ultimately deported to Saudi Arabia before completing his doctoral work at the University of Idaho, worked on behalf of the Islamic Assembly of North America [advocacy website], a charitable organization that federal investigators believed supported terrorism activities in the US. A former college football standout, Kidd was not charged with a crime nor asked to testify before his release, and lost a scholarship as a result of his imprisonment [JURIST report]. AP has more.

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