"We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history," Judge Milan D. Smith Jr. wrote.
The ruling allows Abdullah al-Kidd, a U.S. citizen, to proceed with a lawsuit that claims his constitutional rights were violated when he was detained in 2003 as a material witness in a federal terrorism case.
Phone messages left at Ashcroft's Washington D.C. lobbying and law firms were not returned Friday.
Ashcroft had asked that the matter be dismissed, saying he was entitled to absolute immunity from the lawsuit because his position at the Department of Justice was prosecutorial.
Justice Department spokesman Charles Miller would only say Friday that the agency was reviewing the opinion. If the ruling stands, Ashcroft could be forced to submit to a deposition, said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General.
"The mere prospect of that causes a lot of concern for these officials, with the time and secrecy parts of that and all the publicity that this kind of thing attracts," Seamon said. "That's exactly why qualified immunity exists, so these officials can be spared that."
The judges noted that as the case moves forward, al-Kidd will have a significant burden to show that Ashcroft himself was personally involved in an illegal policy.
All three judges on the panel have reputations as politically conservative jurists, with two appointed by former President George W. Bush and the third a Reagan appointee.
The judges said they didn't intend to dampen the ardor of prosecutors as they carried out their duties, and said they were mindful of the pressures faced by the attorney general. But even qualified immunity doesn't allow the attorney general to carry out national security functions completely free from any personal liability concerns, they said.
The Department of Justice may now ask the full 9th U.S. Circuit Court of Appeals to reconsider the ruling by the panel, may appeal to the U.S. Supreme Court, or it could allow the lawsuit to revert back to Boise's U.S. District Court.
If the case goes back to the lower court, the government will likely have to comply with al-Kidd's discovery requests -- releasing documents and files that it has previously maintained were highly confidential and that could pose a threat to national security. him unable to get the necessary security clearance.
Earlier this year, the U.S. Supreme Court ruled that another former Sept. 11 detainee, Javaid Iqbal, couldn't sue Ashcroft and FBI Director Robert Mueller for abuse he suffered while detained because Iqbal couldn't show there was anything linking the top government officials to the abuses.
The 9th U.S. Circuit judges said al-Kidd's case was different, however, because he was able to offer as evidence specific statements that Ashcroft himself made regarding the post-Sept. 11 use of the material witness statute.
Ashcroft said that the use of the material witness statute and other enhanced tactics "form one part of the department's concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street," the ruling said.
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