Abdullah al-Kidd and the FBI

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

In a case that didn’t receive too much publicity, the federal district court in Idaho recently struck a blow against the FBI’s misuse of the material witness statute which is designed to allow for the government to arrest and detain witnesses who will be used to testify in court cases against third parties.  The case in question involved a United States citizen who converted to the Muslim faith during college and was arrested, detained and abused in jail in 2003.  The man in question was born in Kansas and was a college football star and his name is Abdullah al-Kidd.

“Mr. al-Kidd’s ordeal began after 9/11 when the FBI started investigating Muslims in Idaho—including Mr. al-Kidd, who converted to Islam in college. The FBI spoke with Mr. al-Kidd on multiple occasions, and he always voluntarily cooperated with their requests for interviews. Yet in March 2003, as he was preparing to travel to Saudi Arabia to study abroad on a scholarship, the FBI arrested him without warning. For 16 days, he was imprisoned under extremely harsh conditions. He was held in high-security cells that were kept lit 24 hours a day. He was stripped naked in full view of criminal inmates and guards. He was shackled, humiliated, and subjected to multiple body-cavity inspections. Although he was treated like a dangerous criminal, he was never charged with any wrongdoing. Finally, the court released him from jail on the condition that he relinquish his passport, live with his in-laws, and limit his travel to four states. Mr. al-Kidd lived under these conditions for more than a year. During this time, he lost his scholarship, had difficulty finding work and saw his marriage disintegrate.”  ACLU

It turns out that our friends at the FBI were caught “fudging” a material witness warrant application that allowed them to arrest Mr. al-Kidd and a Federal court judge did not spare the rod in his comments in the recent decision. The FBI lied on their warrant application and withheld information from the judge at the time of the application. “What’s more, in Mr. al-Kidd’s case, the FBI agents misled the court in order to get the arrest warrant they wanted. There was simply no reason to believe Mr. al-Kidd wouldn’t voluntarily show up to testify if asked. On the contrary, he was a U.S. citizen with a wife and child in Idaho and strong community ties, who had previously cooperated with the FBI on every occasion. So instead, the FBI submitted a warrant application riddled with omissions and falsehoods. The FBI did not tell the court that Mr. al-Kidd was an American citizen with family members living in the United States; instead, the application strongly implied that he was a Saudi national leaving the United States for good. Nor did they tell the court about Mr. al-Kidd’s past cooperation with the FBI. The FBI’s warrant application even falsely claimed that Mr. al-Kidd had purchased a one-way ticket to Saudi Arabia—when in fact, he had a round-trip ticket with an unscheduled return date, exactly what you’d expect of a student going to study abroad.” ACLU

The Federal judge decisions which can be found here and here, detailed the magistrate’s report that the FBI had prepared the warrant application with full knowledge that it was incorrect and faulty.  “Last week, the court in Idaho—the very same court that granted the FBI’s request for a warrant in 2003—took the FBI to task for this “misleading and highly suggestive” warrant application. Judge Edward J. Lodge, adopting the recommendations of Magistrate Judge Mikel H. Williams, ruled that the FBI agent who sought Mr. al-Kidd’s arrest violated the Fourth Amendment by recklessly misleading the court. Judge Lodge also ruled that the United States was liable for false imprisonment, and that Mr. al-Kidd’s “abuse of process” claim—his claim that the government had misused the material witness statute “for a purpose other than to secure testimony”—deserves a trial.  ACLU

This is the first time a Federal court has held that the Federal government was misusing the material witness statute as a means of controlling and detaining Muslims and it is an offshoot of the Supreme Court case where Mr. al-Kidd attempted to hold former Attorney General Ashcroft liable for the misuse of the statute and his illegal detention and treatment.  As the ACLU article suggests, this decision is a first step in holding our runaway Federal government accountable for its illegal post-9/11 actions.  I see this decision as a watershed moment for the judiciary affirming that the rule of law in this country is still alive, no matter who the defendant is.  No one should be above the law and Mr. al-Kidd has given us a prime example of how the system should work.

Of course, the sad truth is that it happened to begin with and that it took 9 years for Mr. al-Kidd to get a measure of justice.  Had Mr. al-Kidd been named John Smith and been a Christian, he may not have suffered under the thumb of the government since 2003.  Will Mr. al-Kidd have a second chance to argue his fate in front of the Supreme Court now that the Federal Magistrate and Federal District Court have agreed that the FBI lied on their warrant application?  Do you think the Justice Department will settle this case to keep it out of the news or will it go to trial?

I, for one believe that the FBI should not only be liable for its purposely misleading and false warrant application, but that the entire use of the federal material witness statue subsequent to 9/11 is tainted and needs to be reviewed to see just how many times the FBI violated the law.  Finally, will any FBI or Justice Department officials be called into account for breaking the law?  What do you think should happen to the FBI and the Justice Department officials involved in this violation of the law?

Congratulation to Mr. al-Kidd and the ACLU for standing up for the rights of us all.

Additional reference:  Ashcroft v. al-Kidd; 

Material Witness Statute,   18 USC 3144

35 thoughts on “Abdullah al-Kidd and the FBI

  1. nick,
    that may be correct, but it was the rank and file, along with Ashcroft that perpetuated this illegal policy, that not only detained people illegally, it resulted in abuses while in detention.

  2. I’m glad you raised this important issue Raff. Not only was this a travesty, but it is illustrative of how many in the FBI have acted during and since the days of J. Edgar. Not only should Mr. Al-Kidd receive enormous damages, but those responsible should be fired and charged with crimes if the statute of limitations hasn’t passed.

  3. Yeah, what Mike S said, and what’s more, all those higher-ups in the agency who tried, during this nine-year travail, to hide what had been done wrong, to cover-up the various abuses piled on this man, to fudge, to resist discovery, to prolong the torment, in any way, shape or form should be fired, lose their pensions, and publicly shamed. WE NEED TO RID OURSELVES of these people who enable government crimes and corruption. There are not any two, three, four or five ways to do it. There is only ONE WAY to do it: DEMAND ACCOUNTABILITY; EXPOSE THE LIARS AND THEIR LIES.

  4. Now if these guys were CIA, then they would go over to contracting for the CIA after dismissal. Holding them economically responsible, I know nothing about.
    Maybe the FBI is sucking on a dry teat, and won’t get off so easy obtaining income after trial. But maybe they could contract high security facilities.

    J-Edgar would be proud of them.

    If worse comes to worse, all of them can emigrate to CaymanIslands.

    You’ve guessed my point. One reversal and exposure does not a significant movement make.

    Why did it take so long to fix? How many others are rotting now? Investigate? Would take a new FBI to do it.
    Who watches the guardians of justice?

    Thanks for the cheer-up, Rafflaw.

  5. We perhaps assume that these guys are evil, corrupt, crooked.

    I, on the basis of what Ishael Jones wrote in “Human Factor”, would say they are not. They are just following orders, which on the face of them seem reasonable. “Don’t let him disappear to Saudi, then we won’t have anybody to interview and look like we are busy chasing terrorists.”
    Things are thin here in Idaho, and we need all the ones we have and more ot appear busy.”

    It is that stupid and simple, keeping jobs and expanding to create more chief layers. At least at CIA.

    Rafflaw is correct in choosing the top down method.
    The only time when Ishmael was there when the shivers went through the organization, was when a new Chief, who’d been a Congressman with experience oversighting the CIA, started cleaning house. After 3 years the bureaucrats had got him under control.

  6. rafflaw, Obviously the field agents “followed orders.” However, I don’t think this is in the same category as the Nazi following orders. Please don’t misinterpret my comment. This is a good post and shows how Ashcroft abused his power. I was just giving some context. I know FBI agents and they are not all monsters. Actually, monsters are a distinct minority. The intent was to provide context, nothing more. I see that as my role here @ times.

  7. nick,
    I understood your comment, but it seems that these good guys have been following orders since 2001 with multiple instances of brazen law breaking and lies to the judiciary. If Ashcroft abused his power, then was the Supreme Court in error in the first Ashcroft v. al-Kidd case?

  8. To quote those fine upstanding men of the SS-Totenkopfverbände:
    “Ve Vere only Vollowing orders”

    And besides, the kid was a moose-limb. We should be allowed to do whatever we want to one of them because they are not humans like us, they are ‘untermensch’.

    Now sing louder damn it! AAHHHm Proud to be an AMERICAN where at least Ah no Ahm freeeeeeeeeee

  9. I read the court’s documents. I would agree that Agent Gneckow is in some trouble over this. It seems from what I read the Gov’t lost the case on a summary judgement hearing. If the statute of limitations has not expired, I would say a criminal prosecution for Perjury against Agent Gneckow is reasonable.

    in my limited knowledge of federal common law, but going be experience I have in state court, when posed the question as to whether or not the gov’t will continue to appeal this case, I am a bit mixed. On one hand I believe it would be dangerous to set any precidents at the appeals level or the SCOTUS that could very much reflect badly on the US Gov’t. I don’t really see there is a new, un-reviewed aspect of common law that this case brings up so I don’t see what there could be to be argued by the gov’t.

    I do see the “jerk” factor coming up with regard to the gov’t dragging this on for ten years just to deny the plaintiff justice in a vindictive sense. This to me is worrying because that is often how bureaucrats exact their revenge.

    It reminds me of reading recently how the BATFE just recently fired the Whistleblower to the Fast and Furious Debacle, and did it within a Denny’s parking lot. This is so absolutely and completely typical of how this type of corruption takes place. And, it makes me concerned Mr. al-Kidd will experience the same type of attitude from the gov’t.

  10. This is another one of the many reasons why I stopped donating to politicians and increased my donations to the ACLU. The Republican attacks on our civil liberties, facilitated by ALEC, have become nearly overwhelming, as have the attacks on all of us by our own federal government under the pretext of “fighting terrorism”. Voter suppression, violent attacks on Americans exercising their First Amendment rights by thuggish militarized police forces, attacks on women’s ability to obtain basic medical treatment, overt Gerrymandering of state and federal districts for the purpose of depriving minorities of an equal voice at the polls, defunding minority public schools to force minority students into corporate-run for-profit schools.

    Add to this the Bush/Cheney fear-mongering and violations of the U.S. Constitution, continued and expanded under the Obama administration, and we have a sorry record of our “unalienable rights” being alienated in plain sight of all of us.

    And, who is fighting all of this? The FBI? The Justice Department? The Courts? Generally speaking, the answer is “no”, until they are prodded by the ACLU to do what they should have done on their own. In my opinion, those of us who aren’t lawyers, have only one option to recover our lost civil liberties and preserve those we still have left- and that is to support the ACLU to the fullest extent of our abilities.

  11. rafflaw,

    Off topic–but an important story;

    9/11 Trial Censorship In Guantanamo Terror Cases Under Scrutiny
    By BEN FOX

    GUANTANAMO BAY NAVAL BASE, Cuba — A U.S. military judge is considering broad security rules for the war crimes tribunal of five Guantanamo prisoners charged in the Sept. 11 attacks, including measures to prevent the accused from publicly revealing what happened to them in the CIA’s secret network of overseas prisons.

    Prosecutors have asked the judge at a pretrial hearing starting Monday to approve what is known as a protective order that is intended to prevent the release of classified information during the eventual trial of Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the terror attacks, and four co-defendants.

    Lawyers for the defendants say the rules, as proposed, will hobble their defense. The American Civil Liberties Union, which has filed a challenge to the protective order, says the restrictions will prevent the public from learning what happened to Mohammed and his co-defendants during several years of CIA confinement and interrogation.

    The protective order requires the court to use a 40-second delay during court proceedings so that spectators, who watch behind sound-proof glass, can be prevented from hearing – from officials, lawyers or the defendants themselves – the still-classified details of the CIA’s rendition and detention program.

    “What we are challenging is the censorship of the defendant’s testimony based on their personal knowledge of the government’s torture and detention of them,” said Hina Shamsi, an ACLU attorney who will be arguing against the protective order during the pretrial hearing at the U.S. base in Cuba.

    The protective order, which is also being challenged by a coalition of media organizations that includes The Associated Press, is overly broad because it would “classify the defendants own knowledge, thoughts and experience,” Shamsi said in an interview.

    “It’s a truly extraordinary and chilling proposal that the government is asking the court to accept,” she said.

  12. What do you think should happen to the FBI and the Justice Department officials involved in this violation of the law?
    I can send you some IRS documentation that’s somewhat similar, short of the fact I wasn’t arrested. I’m not impressed with the federal judicial system. I’m not impressed with the state judicial system either.

  13. Elaine,
    Thanks for the link to the Gitmo article. I almost wrote about it today when I saw it on the ACLU site. It is amazing that the government won’t allow the truth out in this so-called “trial”.

  14. DarrenSmith it should reflect badly on the government.
    I was talking to a man yesterday who seemed reasonable and rational until he told me a relative worked for the FBI, why not?, but then that he worked fro the CIA and the pentagon houses a whole wing where CBS, NBC etc have offices are fed propaganda they then send out as news and continued telling me all thse conspiracy theories. I thought, well, he’s a nut, but stories like this certainly add grist to the mill.

  15. Rafflaw all the more so because it is true. (It almost sounds like a crazy conspiracy story, my att’y, I did not know this til after the forcing of settlement, was the lead attorney for the phen fen diet drug case where they won 54 million$ award. Docis guy after whom surgery is named, The governor of a state, the sec’t of health. I never thought that politics informed the judicial process until it happened (and maybe money too. The initial settlement contract was for 5,000 less then then what they told me (changed it when I insisted that was not the right amount). (Interesting sidelight, went to fee dispute against the lawyer, Mike Fishbein of Phila, I was “awarded” the lowest of 5 figures (not allowed to say amt) then they wrote in their official opinion they found in favor of the lawyer; so he can say he has never lost in fee dispute Alice in Wonderland is alive and well.

  16. Raff….. Excellent…. I seemed to have missed this….. Thank you…. Apparently some judges still have the ability to do what’s right…

  17. According to this article, “the FBI” did this and “the FBI” did that. That’s not accurate. Some individual committed each act of misleading, testifying incompletely, or flat out lying to the court. I wish we would get in the habit of identifying each “person” (I use the term in its strictest sense) who thinks he or she is above the law so we can get as familiar with the names of the scum who violate civil rights as we are with their victims’.

  18. If the FBI treated Mormons like they treat Muslims then perhaps there would be an outcry from the blue jeaned wonder who wants to eliminate Big Bird. You see Big Bird is not really the target. The Willard does not like truly fair and balanced reporting. He wants Fox to prevail over all. Deutschland, Deutschland uber alles and Rupert Muroch and the like over the rest.

  19. Michael Simpson 1, October 14, 2012 at 11:33 pm

    (I use the term in its strictest sense) who thinks he or she is above the law so we can get as familiar with the names of the scum who violate civil rights as we are with their victims’.
    The Assistant Chief Union Steward NTEU Chapter One told me the managers are above the law. I said they’re not above the law, nobody is. She said yes they are. I lost my case.

    They are above the law. That means the law doesn’t exist.

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