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July 31, 2014

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DAILY MEMO:

Detained for years but never charged

Lawsuit by witness held in Vegas could affect government actions

Beyond the Sun

Many people wanted by authorities come to Las Vegas to hide. Abdullah al-Kidd came here so the federal government could keep an eye on him.

For about three years he lived here, much of it under house arrest, in his wife’s parents’ home while federal lawyers in Idaho prosecuted a suspected Islamic terrorist. Al-Kidd was supposed to be a star witness in that trial, and he was told to remain in Las Vegas until he was called to testify.

As he waited, his marriage slowly unraveled. His job with a defense contractor at Nellis Air Force Base fell apart. He had to surrender his passport. He even routinely reported to a probation officer, even though he was never charged with a crime.

Finally, after never being called to testify in a trial that ended in acquittal anyway, al-Kidd left town. Today, a divorced father, he lives abroad. But his name is generating new controversy: A federal appeals court has ruled that former Attorney General John Ashcroft could be held personally responsible for wrongly detaining him as a material trial witness.

The ruling, won in a lawsuit filed by al-Kidd, could significantly change how the government fights the war on terror in this country. If officials are held personally liable for violating the constitutional rights of innocent people, government might think twice about future arrests.

In the weeks and months after the 9/11 terror attacks on the East Coast, government agents swept up countless people and held them indefinitely on material witness warrants. Many caught up in the dragnets were undocumented immigrants who were then deported.

Al-Kidd, however, was born in Wichita, Kan. He later starred as a running back for the University of Idaho football team. His arrest changed everything.

“He was very scared, he was angry, he was emotionally devastated,” his attorney, Lee Gelernt of the ACLU in New York, said in an interview Wednesday. “He also was confused about why this would happen to him.”

He was born Lavoni T. Kidd but changed his name after embracing Islam. In Idaho, he and his wife, Nadine Zegura, befriended Sami Omar Al-Hussayen, a graduate student there. When Al-Hussayen was arrested for visa fraud and making false statements to authorities, al-Kidd began cooperating with the FBI.

But when he left Idaho in March 2003 to continue his Islamic studies in Saudi Arabia, the FBI arrested him en route — at Dulles International Airport outside Washington.

Fearing he was trying to slip out of the country rather than provide “crucial” information about the Al-Hussayen case, they held him on a material witness warrant. That meant they could detain him until the Al-Hussayen trial was over, or at least until he testified.

Nancy H. Wiegand, associate general counsel of the Justice Department, would later say in court papers that there was “no evidence of negligence or a wrongful act or omission” by the federal government in detaining al-Kidd.

According to al-Kidd’s lawsuit, he was taken to a small, two-man cell in Alexandria, Va. He slept on the floor, curled up near the toilet — when it was not clogged and overflowing.

A week later he was moved to the federal prison transfer center in Oklahoma City. He said his hands and legs were cuffed, and a chain was wrapped around his waist and ankles. His hands were placed in a padlocked box.

They flew him on “Con Air” with 100 other federal detainees. In Oklahoma he was strip-searched, he said, and kept naked for long periods in his holding cell.

Then he was taken to the Ada County Jail in Boise, Idaho. He was placed in a cell with a glass wall infested with ants. He said they let him out just one hour a day.

In Washington at the time, FBI Director Robert S. Mueller was testifying before separate Senate and House committees, and cited al-Kidd among the biggest arrests in the war on terror, along with Khalid Shaikh Mohammed, the alleged 9/11 mastermind. Mueller noted that al-Kidd had been stopped “en route to Saudi Arabia.”

Fifteen days after al-Kidd’s arrest, a federal judge in Idaho ordered him released into the custody of his wife, then living at her parents’ home in Las Vegas. But, he later told the judge, his “living conditions had become unbearable” and he and his wife were separating. He was permitted to live alone in Las Vegas, and moved to an apartment on Decatur Boulevard.

Prosecutors never called him to testify in the Al-Hussayen trial, and in June 2004, Al-Hussayen was acquitted. The government then lifted the conditions on al-Kidd’s house arrest.

Nevertheless, he was fired from his job as an employee of a government contractor after being denied a security clearance due to his arrest. Unable to find steady employment, his marriage dissolving, al-Kidd left Las Vegas in 2006, and eventually the United States altogether.

In 2005, in U.S. District Court in Idaho, he sued top Washington officials, including Ashcroft and Mueller, and the three jail wardens for his mistreatment at their facilities. He sought to hold them personally responsible for his ordeal.

The claims against the wardens have been settled, with monetary compensation and agreements to change the rules on how some prisoners are treated. The case against the Washington officials was moving toward requests for summary judgments against the government when Ashcroft separately appealed to the U.S. 9th Circuit Court of Appeals, based in San Francisco. He argued he should not be personally held liable.

On Sept. 4 the appellate court ruled against Ashcroft and said the former attorney general could indeed be personally forced to pay if al-Kidd’s lawsuit prevails.

The appellate court also stressed that in the more than six years since his arrest, “No evidence of criminal activity by al-Kidd was ever discovered.”

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