COMMENTARY: Does the War on Terror violate rights?

By Jermaine A. Wyrick

On a tourist bus in New York, the saddest stop is where the World Trade Center stood prior to the September 11, 2001, terrorist attacks. Personally, as a child in the 1980s, I remember seeing the Twin Towers in their entire splendor. After our nation's most horrific tragedy, new national security measures were enacted to prevent terrorism. However, one such measure inhumanely and overzealously usurps individual rights. Shortly after September 11th, then United States Attorney General John Ashcroft advocated for the use of material witness warrants to detain reluctant witnesses to testify at grand jury proceedings and criminal trials. Ashcroft said that the, "aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks."

In a recent case, Ashcroft v. Al-Kidd, those two interests--national security and individual rights--ran contrarily to one another. The United States Supreme Court ruled that Ashcroft cannot be sued for his role in the post-September 11 arrest of an American Muslim who was investigated, but not charged with a crime. Supreme Court cases hold high-ranking officials liable if an official is directly tied to a violation of the constitutional rights and their action crosses that line.

Prior to the Supreme Court, a San Francisco Federal Appeals Court held that Ashcroft could be liable. Judge Milan D. Smith characterized material witness warrants as: "repugnant to the U.S. Constitution."

In 2003, Abdullah Al-Kidd was arrested under the federal material witness law. Al-Kidd contends that the arrest violated the Fourth Amendment of the Constitutions' prohibition against unreasonable searches and seizures. Al-Kidd rightfully contends the law allows arrests even when there is insufficient evidence to believe an individual committed a crime. Al-Kidd was not subpoenaed to testify in any court proceeding.

Al-Kidd was one of approximately 70 men, almost all Muslim, who were arrested and held after the September 11, 2011 terrorist attack. Al-Kidd is a former University of Idaho football player. Presently, he teaches English to college students in Saudi Arabia. The government's interests in him began based upon his ties to Omar al-Hussayen, a former graduate student at the University of Idaho, who was convicted of computer terrorism charges. Early in 2003, Al-Kidd planned a trip to Saudi Arabia to study Arabic and Islamic Law. At the request of federal agents, an Idaho judge signed a material witness warrant authorizing his arrest. In March, 2003, he was arrested boarding a flight at Washington Dulles International Airport. He had on Muslim clothing and a long, dark beard. Al-Kidd called the arrest, "one of the most, if not the most humiliating experience of his life." He was detained for 16 days, strip-searched repeatedly, left naked in a jail cell and shower for 90 minutes in view of other men and women, routinely transported in handcuffs and leg irons, and kept with individuals who were convicted of violent crimes. Even when he was released, he was restricted--only allowed to travel to four states, and he was required to live with his in-laws in Las Vegas. His marriage deteriorated. He lost a job at Nellis Air Force Base after nine months because security officials no longer wanted him there.

Problematically, the sworn statement used to justify the warrant had important errors and omissions. Specifically, the $5,000 one-way, first class seat to Saudi Arabia was in reality, a cheaper, coach-class, round-trip ticket. Further, the sworn statement did not mention that Al-Kidd was a U.S. citizen with an American wife and children. Moreover, he cooperated with the investigation. Notwithstanding the decision, Al-Kidd still has a viable claim pending against FBI agents who obtained the material witness warrant used to arrest him. His personal goals are "personal vindication and to insure this doesn't happen to other people." He is resolved, "I haven't lost faith in the system." Similarly, those of us who strongly believe in individual rights should remain vigilante as well.


Attorney Jermaine A. Wyrick can be reached at (313) 964-8950, or by e-Mail:, and is available for speaking engagements on legal topics.

Published: Fri, Jun 24, 2011


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