That scene unfolded in March 2003, a year and a half after the Sept. 11 terrorist attacks. One of the four planes hijacked in 2001 took off from Dulles. “I could only assume that they thought I was a terrorist,” Abdullah al-Kidd recalled in an interview with The Associated Press.
Al-Kidd called his airport arrest “one of the most, if not the most, humiliating experiences of my life.”
The humiliation had only just begun.
Over the next 16 days he would be strip-searched repeatedly, left naked in a jail cell and shower for more than 90 minutes in view of other men and women, routinely transported in handcuffs and leg irons, and kept with people who had been convicted of violent crimes. On a long trip between jails, a federal marshal refused to unlock al-Kidd’s chains so he could use the bathroom.
Eight years later, the Supreme Court is weighing whether al-Kidd’s arrest and detention violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The court, which will hear arguments Wednesday in the case, also is being asked to decide whether former Attorney General John Ashcroft can be held personally liable for his role in setting the policy that led to al-Kidd’s arrest at a Dulles ticket counter as he prepared to board a flight to Saudi Arabia.
In the midst of al-Kidd’s detention, FBI Director Robert Mueller testified to Congress about recent major successes against terrorism. No. 1 on Mueller’s list was the capture of professed Sept. 11 mastermind Khalid Sheikh Mohammed.
No. 2 was the arrest of al-Kidd, a Kansas-born convert to Islam who was not charged with a crime — either then or later.
Al-Kidd, now 38, was one of about 70 men, almost all Muslims, who were arrested and held in the months and years after Sept. 11 under a federal law intended to compel reluctant witnesses to testify to grand juries and at criminal trials.
The material witness law has existed in some form since 1789. But after Sept. 11, al-Kidd argues in his lawsuit, federal authorities began using it to take someone suspected of ties to terrorism off the streets even when they had insufficient evidence to believe he had committed a crime.
Ashcroft and other high-ranking officials publicly described the importance of using the material witness law against suspected terrorists, including U.S. citizens. Less than two months after Sept. 11, Ashcroft said that the “aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”
Al-Kidd was among the roughly half of those detained who were never called to testify in any criminal proceeding. One measure of Ashcroft’s policy is that the government apologized to or reached monetary settlements with at least 13 people, according to a report by civil liberties groups.
But al-Kidd received no apology. The Obama administration, representing Ashcroft for his actions as attorney general, continues to argue the arrest was constitutional.
No attorney general has ever been held personally liable for official actions, civil rights lawyers said.
Five former attorneys general have joined the administration in urging the high court not to end that tradition. But 31 former federal prosecutors have sided with al-Kidd and argue the law’s only proper use is to make sure witnesses show up.
The Supreme Court has said high-ranking officials may be held personally liable if they can be tied directly to a violation of constitutional rights and understood the action crossed that line.
At the trial court in Idaho and the San Francisco-based 9th U.S. Circuit Court of Appeals, judges, who like Ashcroft were appointed by Republican presidents, have so far allowed the case against Ashcroft to go forward.
Al-Kidd said he has two main goals: personal vindication and “to insure this doesn’t happen to other people.” Now teaching English at a university in Saudi Arabia, al-Kidd sat for an interview shortly after returning to the United States this month to see his two children and other relatives.
The government’s interest in al-Kidd appears to have stemmed from a trip he made to Yemen after Sept. 11 and his ties to a man the Justice Department prosecuted on computer terrorism charges. That defendant, Sami Omar al-Hussayen, was a graduate student at the University of Idaho, where al-Kidd played running back for the college football team in the 1990s.
Al-Kidd said he met with FBI agents several times and answered all their questions. He said he was never told he might be called as a witness, never told not to travel or asked to voluntarily turn over his passport, as the FBI did with another potential witness in the same investigation.
Early in 2003, he was planning to go to Saudi Arabia on a scholarship to study Arabic and Islamic law. Days before he left — some six months after his last contact with federal authorities — the FBI persuaded a judge in Idaho to sign a material witness warrant authorizing his arrest. Agents picked him up at Dulles two days later.
But the sworn statement the FBI submitted to justify the warrant had important errors and omissions. The $5,000 one-way, first-class seat that the agents said al-Kidd purchased was, in reality, a coach-class, round-trip ticket. The statement neglected to mention that al-Kidd had been cooperative or that he was a U.S. citizen with a wife and children who also were American.
Claims against the FBI agents are on hold pending the outcome of the Supreme Court case. Al-Kidd has separately reached settlements with Virginia, Oklahoma and Idaho jail officials over his treatment. A federal judge in Oklahoma ruled the strip searches al-Kidd endured at the federal jail in Oklahoma City “were objectively unreasonable and violated the Fourth Amendment.”
When al-Kidd was brought before a federal judge in Idaho, more than two weeks after his arrest, he was released from custody, but under very strict conditions.
Recently married for a second time, he could only travel in four Western states and was required to live with his new in-laws in Las Vegas. “It was pretty stressful,” he said. “In their defense, they probably want the best for their daughter, and even if this guy didn’t do anything wrong, he’s damaged goods at this point.”
His marriage quickly deteriorated and relations were so tense at home that the court allowed him to find his own place.
Al-Kidd found a job delivering supplies to a store on Nellis Air Force Base, near Las Vegas, but was told after eight or nine months that security officials would no longer allow him on the base.
Even after al-Hussayen was acquitted on the most serious charges, the government took no action to end restrictions on al-Kidd. But he persuaded a judge to end them.
Nine months later, Al-Kidd filed his suit, which he hopes will finally to clear his name. “I haven’t lost faith in the system,” he said.