Posted on 04/30/2002 12:39:14 PM PDT by areafiftyone
The government’s jailing of terrorism witnesses for a grand jury probe of the Sept. 11 terrorist attacks is unconstitutional, a federal judge concluded Tuesday in dismissing a perjury case against a Jordanian college student.
In a ruling that, if upheld, would have far reaching implications on the government’s approach to investigating terrorism, Judge Shira Scheindlin attacked the reasoning of Attorney General John Ashcroft.
She criticized Ashcroft’s reported statement that “aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”
Scheindlin wrote that “Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute.”
The judge made the finding as she threw out perjury charges against Osama Awadallah, 21, a Grossmont College student in El Cajon, Calif. who was accused of lying about his associations with two Sept. 11 hijackers.
The decision drew a swift response from U.S. Attorney James B. Comey, who said, “We believe the court’s opinions are wrong on the fact and the law and we are reviewing our appellate options.”
Scheindlin explained her findings in a lengthy ruling that began by telling how the founding fathers wrote the Bill of Rights because the Constitution “failed to provide them protection from the government.”
The judge said its authors believed people “should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.”
Congress in 1984 carefully carved out an exception with a material witness statute that lets a witness be detained until his testimony can be secured by deposition in the pretrial phase of a court case, she said.
She said the exception “could not be clearer” in being limited only to material witnesses in the pretrial phase of a criminal proceeding rather than during a grand jury probe.
“Detaining Awadallah solely for the purposes of a grand jury investigation was therefore unlawful,” Scheindlin wrote. “Such an interpretation poses the threat of making detention the norm and liberty the exception.”
She said trying to apply the exception to a grand jury proceeding was like trying “to fit a square peg into a round hole.”
Scheindlin said the broad reading of the material witness statute had already “led to serious abuses.”
She cited the case of Abdallah Higazy, an Egyptian-born student arrested Dec. 17 as a material witness after a handheld pilot radio was found in his Sept. 11 hotel room overlooking the trade center. The charges were dropped when it was later found that the radio belonged to someone else and a hotel security guard had lied.
Scheindlin said a magistrate judge in San Diego not only ignored pertinent portions of the statute but added language to keep Awadallah imprisoned after FBI agents confronted him outside his San Diego home on Sept. 20 and detained him a day later as a high security prisoner.
“Awadallah was effectively seized,” she wrote. “Having committed no crime — indeed, without any claim that there was probable cause to believe he had violated any law — Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.”
The judge also threw out evidence in the Awadallah case including videotapes and a picture of Osama bin Laden.
“Wonderful,” said Jesse Berman, a lawyer for Awadallah. “He did everything he could to be cooperative and they treated him terribly. I’m just happy that he’s been vindicated.”
The judge cited several factors showing that Awadallah’s consent to go with FBI agents to their office and later submit to a lie detector test was the “product of duress or coercion.”
She said the agents repeatedly made a show of force by telling him he could not drive his own car, refused to let him inside his apartment, ordered him to keep a door open as he urinated and engaged in a “flagrant violation of the Fourth Amendment” by repeatedly frisking him.
Moreover, she said, one agent even threatened to “tear up” the apartment during a search.
Scheindlin’s ruling followed a February hearing in which federal agents and Awadallah testified about the circumstances of his arrest.
Awadallah was charged with perjury for allegedly lying about his knowledge of one of the alleged hijackers blamed for the suicide attack on the Pentagon.
In grand jury appearances, Awadallah admitted meeting alleged hijacker Nawaf al-Hazmi 30 to 40 times but denied knowing associate Khalid al-Mihdhar. Confronted with an exam booklet in which he had written the name Khalid, he later admitted he knew both of them.
If convicted, Awadallah could have faced up to 10 years in prison.
...Awadallah now makes several motions related to the perjury charges.
First, he moves to dismiss the Indictment on the grounds that
(1) he properly recanted his false testimony, thereby barring prosecution,
(2) the government violated the Vienna Convention on Consular Relations by not informing him of his rights as a foreign national,
(3) the government interfered with his right to counsel, and
(4) the government denied him due process while holding him in custody prior to his grand jury appearance as well as during his testimony.
"Awadallah is a lawful permanent resident of the United States and a citizen of Jordan."
Very interesting reading.
I believe all residing here are innocent until proven guilty. If he's guilty of an immigration offense, and yet is a material witness that we need to keep around, perhaps there is a legal way to hold him.
If there is no credible evidence to indicate that he committed a crime, LEGALLY, it sounds like he cannot be held.
If a person is here legally, and is living within all rules required of an immigrant or visitor then we ought to leave them alone. OR cancel all visas immediately because of the danger and ship them all out.
That's a fair enough statement but these are unusual circumstances. He had multiple meetings with one of the actual hijackers. That, combined with what they found when they initially arrested him makes him highly suspect IMHO. Below is a brief description of what they found. (excerpts from a November 2 Union Tribune article)-- His attorneys and the media were portraying him as a victim from day one:
Pictures of Osama bin Laden and videotapes about martyrs were found in the car and apartment of Grossmont College student Osama Awadallah, according to the first indictment issued by the New York grand jury investigating the terror attacks.
According to the indictment, a search of Awadallah's apartment yielded computer-generated photographs of bin Laden, and inside his car were videotapes titled "Martyrs of Bosnia," "Bosnia 1993" and "The Koran v. the Bible, Which is God's Word?"
The 21/2-hour video "Martyrs of Bosnia" is described on a Web site as a documentary of stories about "Mujahedeen killed in Bosnia." Mujahedeen refers to Muslim warriors engaged in a jihad, or a struggle against injustice.
"For somebody who allegedly has no involvement with these people it certainly is interesting," said a federal investigator, who asked to remain anonymous because law enforcement officials have been told not to comment on the case. "Those (tapes) are the same propaganda devices bin Laden uses to recruit people. How many of these do you have in your collection? Let's see, bin Laden, that comes right after Bambi?"
Awadallah's attorney, Randall B. Hamud, called the new information "meaningless window dressing" meant to spice up a flimsy prosecution.
"They're just trying to demonize the kid, that's all," Hamud said. "It's not against the law to have a picture of Osama (bin Laden) and not against the law to have a videotape.
After 9/11 tempers were very hot, and there were indeed lynchings, not covered by the press for good reason, but known to the American Muslim community. Folks from the FBI show up, probably aren't that courteous, and looking at you as a co-conspirator. You come from a country where the cops can and do torture people at will, and the cops wanting to talk to you, right after an unprecedented episode of mass murder, (well excepting the cleansing of American Indians) are looking at you with the "I want to nail a scumbag" look. You may or may not know that, theoretically at least, you have a right to a lawyer.
You're obviously close to pissing your pants, whether or not you are a co-conspirator in the atrocity or not. Do you a) tell them everything you've done, and know, and give the reason to be even angrier, or b) obfuscate and lie. Bear in mind, you've grown up with thugs of cops, and a culture that, out of necessity, condones lying to the cops, frequently the most corrupt people in the whole country.
Do you a) dissemble, or b) try and survive for as long as you can? I doubt one in a thousand people in that man's shoes would have been completely truthful from the get go. And I doubt that the judge would have let him off had he not sorted things out to her satisfaction.
The tribute to America is that we have innocent until proven guilty, and that this man will go free. If we dispense with innocent until proven guilty, we may just as well go fly airplanes in Arab skyscrapers, though it may behoove us to use remote controlled airplanes. Some of the enemies to the American way of life are those who don't understand this, and think that, ultimately, our power stems from our weapons, and not our laws. Our thugs do not beat their thugs. Rather, we try not to have thugs.
Nonetheless. We are in a new game now. We are dealing with an international cabal of fanatical murderers who plan to cause mayhem on our soil. It's high time for the Congress to enact new laws that apply to this specific circumstance. It's called "Situational Management". Now, I am not making an extra-constitutional argument regarding US citizens, whose rights under the US Constitution must be preserved. I am suggesting that non-citizens, who are after all VISITORS, should be treated according to the current necessities. For example, there is no reason that the US is obligated to allow people from, for lack of a better word, "suspect" nations to enter this country at all. And in fact, all foriegn nationals from these "suspect nations" should be deported immediately. And please spare me the liberal arguments (e.g. it's ultimately our loss, etc.). We are at war, and the saccharine discussion that pervades the mainstream is, IMO, misleading and dangerous. For one thing, a stern policy will provide an (otherwise absent) incentive for such "suspect nations" to get their act together.
What is it EXACTLY that you think he might be guilty of? Can I be charged with a crime for being publically associated with a "fringe" militia group, having pictures of bombs and books or info about how to make bombs?
The guy may very well have been involved up to his eye brows, but we have to be able to prove it.
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