The Court of Appeals for the Ninth Circuit has carved an exception to the general rule of prosecutorial immunity, in order to subject the former Attorney General under President George W. Bush, John Ashcroft, to personal liability for allowing the arrest and detention of a witness trying to leave the country. This unprecedented ruling illustrates the aphorism of “bad facts make bad law.”

Lavoni T. Kidd was born as an American citizen in Kansas and starred as a running back in college in Idaho. There he converted to Islam and changed his name to Abdullah al-Kidd, after he and his wife befriended a Muslim graduate student named Sami Omar Al-Hussayen. Later Al-Hussayen was charged with visa fraud and making false statements to authorities.

In March 2003, al-Kidd was arrested at Dulles International Airport while en route to Saudi Arabia, reportedly to continue his studies of Islam there. He was never charged with criminal activities, but was held as a “material witness” for the upcoming trial of Al-Hussayen. In other words, al-Kidd was arrested and detained, not because he was a suspected criminal, but because he was considered a “material witness” to crimes by someone else.

He spent two weeks in deplorable conditions in prisons and then was ultimately held under the equivalent of house arrest in Las Vegas, at his in-laws’ house. The entire ordeal lasted for 16 months. Due to the arrest, he lost his job, and his marriage unraveled. He was never called as a witness at the trial, and Al-Hussayen was acquitted. al-Kidd sued then-Attorney General Ashcroft for being mistreated despite never having been charged, let alone convicted, of anything.

The Ninth Circuit, in an opinion authored by Judge Milan D. Smith Jr., held that the government’s retention of al-Kidd was “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.” al-Kidd v. Ashcroft, 580 F.3d 949, 981 (9th Cir. Sept. 4, 2009). The Court stripped Ashcroft of his personal immunity from the lawsuit for allegedly violating al-Kidd’s constitutional rights. But just as the recent Iranian election raises questions about whether democracy is compatible with Islam, there are doubts as to whether a jury trial in open court works well in combating terrorism. There is no right to a jury trial in Islamic nations. Issues of national security in requiring public disclosure of information, difficulties in extraditing key witnesses from hostile nations, and ensuring protection for the judge, jury, and participating attorneys, are problematic. Saddam Hussein’s own chief defense attorney was assassinated during his trial, despite the high level of American-provided security in Iraq.

This Ninth Circuit ruling compounds these problems by interfering with detention policies for material witnesses who might otherwise travel to Islamic nations. Simply put, this precedent exposes the Attorney General and others to personal liability for defending national security.