Ashcroft can be Sued over Jailing 'Witnesses'

"We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history ... "

Bob Egelko, Chronicle Staff Writer
September 5, 2009

Former Attorney General John Ashcroft can be sued for damages for ordering Muslims jailed as material witnesses in criminal cases, allegedly as a pretext to investigate their possible links to terrorism, a federal appeals court in San Francisco ruled Friday.

The 2-1 decision by the Ninth U.S. Circuit Court of Appeals, the first of its kind in the nation, was a rebuke to the Bush administration's post-9/11 practice of using the material-witness law to hold people as suspected terrorists without evidence that they had committed crimes.

The government lacks "the power to arrest and detain or restrict American citizens for months on end ... merely because the government wishes to investigate them for possible wrongdoing," Judge Milan Smith, an appointee of former President George W. Bush, said in the majority opinion.

"We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history," Smith wrote. ...

More: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/05/BATB19IRF5.DTL