Apropos of Steve’s fascinating post (and essay) concerning judicial reluctance to permit civil suits to go forward in national security related cases: new developments in connection with the al-Kidd litigation.
Faced with summary judgment motions from al-Kidd, the US government, and two individual defendants (a current and a former FBI agent) sued in their individual capacities, Magistrate Judge Mikel Williams has recommended a set of rulings largely favoring al-Kidd:
As to the individual defendants, this Report and Recommendation concludes that Agent Gneckow should not receive qualified immunity for the affidavit he submitted in support of the original material witness warrant application (which the court concluded recklessly omitted important information), and that further proceedings are required before a decision should be reached as to Agent Mace (who did not prepare the underlying affidavit, but did present it to the court).
As to the United States as a separate defendant, this Report and Recommendation concludes that al-Kidd is entitled to summary judgment on his false imprisonment claim, that the United States is not entitled to summary judgment on prosecutorial immunity or discretionary function exception grounds, and that disputed questions of fact preclude a ruling at this time on the plaintiff’s abuse of process claim.
Of course, all this is just the Magistrate’s R&R. The district court may or may not go along with it, and of course there could be appeals beyond that. In the meantime, there is more coverage here from Rebecca Boone of AP.