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