[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Friday that former attorney general John Ashcroft [JURIST news archive] is not entitled to absolute and qualified immunity, allowing an unlawful detention lawsuit by US citizen Abdullah Al-Kidd to go forward. At the heart of the case is whether the Department of Justice (DOJ) [official website] policy of using the federal material witness statute [18 USC § 3144 text; HRW backgrounder, PDF] as a way to preemptively detain and investigate terrorism suspects without probable cause is lawful. The Ninth Circuit said that Al-Kidd's case had three legitimate causes of action that could go forward, concluding:

We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a "material witness" under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

Ashcroft had previously claimed absolute immunity because his actions to seek a material witness warrant were those of a "prosecutor." He had claimed qualified immunity as an attorney general because his actions furthered an investigatory or national security function. The court rejected both of those claims, upholding a lower court decision [JURIST report].

In May , the US Supreme Court [official website] ruled [JURIST report] that a similar case challenging Ashcroft's immunity from lawsuits for mistreatment of prisoners could not go forward because of failure to adequately state a claim. Without ruling on the substance of the allegations, the Court remanded the case to the US Court of Appeals for the Second Circuit [official website] so that it may decide whether to allow the plaintiff an opportunity to amend his complaint. The Court declined to rule on Ashcroft's assertion of qualified immunity, except to note that the denial of a motion to dismiss based on qualified immunity "can fall within the narrow class of appealable orders despite 'the absence of a final judgment'" and that the Second Circuit therefore had proper interlocutory jurisdiction over the case.