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Judge Tosses Out Perjury Indictment Against College Student Who Knew 2 Alleged 9/11 Hijackers
New York Daily News ^ | 4/30/02 | LARRY NEUMEISTER

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.


TOPICS: Breaking News; Crime/Corruption
KEYWORDS: awadallah; billofrights; jihadinamerica; taqiyyalist; terrorwar; traitorlist
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1 posted on 04/30/2002 12:39:14 PM PDT by areafiftyone
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To: areafiftyone
Interesting. I had a feeling the courts may not look to kindly upon the actions of Asscroft.

And no one get me wrong here. Any person who is not an American citizen who is even suspected of having terrorist ties should be deported immediately.

2 posted on 04/30/2002 12:47:36 PM PDT by FreeTally
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To: areafiftyone
federal judge Shira Scheindlin

That is " Clinton appointed federal judge Shira Scheindlin" to you ...

3 posted on 04/30/2002 12:51:58 PM PDT by a_witness
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To: FreeTally
I take it by your spelling of Ashcroft, you don't like him?
4 posted on 04/30/2002 12:53:01 PM PDT by SolitaryMan
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To: areafiftyone
Well what did we expect, after all x42 got away with this. Why shouldn't terrorists?

Yes this country is now seeing the seeds sown by X42. After all you can't expect a man to tell the truth about.....when he has to protect the ........ of others.

5 posted on 04/30/2002 12:54:19 PM PDT by w1andsodidwe
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To: SolitaryMan
I take it by your spelling of Ashcroft, you don't like him?

Did I spell something wrong? ;)

6 posted on 04/30/2002 12:54:31 PM PDT by FreeTally
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To: FreeTally
So if I understand correctly, he did in fact lie about his connection to al-Midhar. Wonder how come?
7 posted on 04/30/2002 12:56:03 PM PDT by ecomcon
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To: ecomcon
So if I understand correctly, he did in fact lie about his connection to al-Midhar. Wonder how come?

I don't give a damn if he lied about his connection. If they suspected it(but had no proof which they obviously did not), then they should have deported him, which would have been legal. Abusing the Material Witness statute was not the answer.

8 posted on 04/30/2002 12:59:27 PM PDT by FreeTally
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To: areafiftyone
I agree with the fact that we shouldn't be allowed to hold people during an investigation.. can you imagine being a material witness in the OJ murder and having to sit in jail for 6 months for that trial to begin? That's a gross violation of the constituion.. but regardless even if he was overheld I don't understand the dismissal of the perjury. He clearly lied about all knowledge which impeded an investigation. I'm not buying this whole he was brutalized and so therefore he should be let go crap.
9 posted on 04/30/2002 12:59:36 PM PDT by Almondjoy
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To: ecomcon
So if I understand correctly, he did in fact lie about his connection to al-Midhar. Wonder how come?

Probably for the same reason Peter denied he knew Christ.
10 posted on 04/30/2002 12:59:57 PM PDT by BikerNYC
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To: FreeTally
I'm not questioning some convoluted point of law. And besides, why deport someone you consider to be a material witness?

I'm asking how come this guy lied.

11 posted on 04/30/2002 1:04:05 PM PDT by ecomcon
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To: ecomcon
He had direct contact with one of the hijackers 30-40 times, he had videotapes and pictures of his hero, OBL. It's mindboggling that we Americans are losing some of our rights to protect ourselves from these sleepers yet this liberal clinton-appointed judge decides that this guy should have his constitutional rights!
12 posted on 04/30/2002 1:07:31 PM PDT by freeperfromnj
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To: ecomcon
I'm not questioning some convoluted point of law. And besides, why deport someone you consider to be a material witness?

The judge that threw out the indictment explains why he could not legally be detained under the "material witness" law. Please note that the law is called the "material witness" law and one does not just become a "material witness" because the government detains you (illegally) under this law.

I'm asking how come this guy lied.

I suspect we all know why he lied. Deport the anti-american who shouldn't have been here in the first place.

13 posted on 04/30/2002 1:07:50 PM PDT by FreeTally
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To: areafiftyone
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.”

Surely this is a stretch. The "authors" (founding fathers) could not have believed that the "people" should be forever secure. Maybe the authors beleived "citizens" should be secure, but certainly not potential terrorists, terrorists or mass murderers. There is a perverse and malevalent lack of common sense in this era of weapons of mass destruction this judge exemplifies, that, unless corrected, will result in mass casulties.

Like it or not, Ozzie and Harriet are gone and America's enemies have access to powerful, miniature weapons. We have to deal with that, and non-citizens should be well treated guests but should not have unfettered, anonymous access to our infrastructure.

We can maintain our moral high ground as the country that grants all kinds of rights to illegal aliens but there will eventually be a price to pay.

14 posted on 04/30/2002 1:10:04 PM PDT by The_Media_never_lie
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To: freeperfromnj
Why didn't the government just charge him with "terrorist activities" instead of illegally detaining him under a provision that relates to pre-trial activities and not grand jury investigations?

If Asscroft wants to charge any of these foreign terrorist associates or sympethizers as "terrorists", then I have no problem, providing there is proof. Just don't manipulate the law to your liking.

Bottom line, they will not deport these KNOWN TERRORISTS for a reason. What is it? They knew these people were associates of terrorists long before 9/11. Every American needs to ask the hard question, "Why, oh why, would our government let known terrorists and associates into this country in the first place". No other questions are needed.

15 posted on 04/30/2002 1:12:37 PM PDT by FreeTally
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To: FreeTally
There's really no reason to be puerile and uncivil about disagreement.
16 posted on 04/30/2002 1:14:54 PM PDT by Psycho_Bunny
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To: areafiftyone
Judge Shira Scheindlin

Maybe the judge is right on the point of law.

(but...she's still a Clinton appointee...)
17 posted on 04/30/2002 1:15:48 PM PDT by VOA
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To: VOA; rdavis84
interesting perspective on the law & the appoinment.
18 posted on 04/30/2002 1:21:30 PM PDT by thinden
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To: VOA
Maybe the judge is right on the point of law.

How do you think this decision will affect other detainees being held under similar circumstances?

19 posted on 04/30/2002 1:23:04 PM PDT by freeperfromnj
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To: Almondjoy
The way I see it, The justice dept. did everything they could to avoid declaring martial law and suspending all liberties. They knew they would be in for criticism from the courts and have accepted it.

I think, in retrospect, they did the right thing. The suspension of liberties under martial law would have sent a shockwave through the world. The criticism is really mild IMHO.

20 posted on 04/30/2002 1:23:31 PM PDT by Cold Heat
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To: FreeTally
then they should have deported him,

How do you know he's not a citizen?

21 posted on 04/30/2002 1:27:53 PM PDT by miamimark
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To: FreeTally
They would not want to deport terrorists or known accomplices in order to obtain information from them. Simply deporting them doesn't make any sense from a security standpoint. Also ... Ashcroft is good decent man. What's your beef with him?

This case illustrates the problem with liberal judges. They don't have a lick of common sense. Even with 9/11 they still don't get it.
22 posted on 04/30/2002 1:29:23 PM PDT by plain talk
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To: thinden
"interesting perspective on the law & the appoinment."

My neck hurts.

23 posted on 04/30/2002 1:30:33 PM PDT by rdavis84
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Comment #24 Removed by Moderator

To: areafiftyone
The law allows Ashcroft to deport any immigrant.

It does not allow Ashcroft to detain any person, without charges, for as long as he likes.

Ashcroft should try obeying the law, if he wants to distinguish himself from his predecessor (which he hasn't so far.)

25 posted on 04/30/2002 1:41:08 PM PDT by dead
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To: freeperfromnj
How do you think this decision will affect other detainees being held under similar circumstances?

Sorry...I can't give a real opinion as I'm not a lawyer and "haven't even played one
on television".
I was just being "snippy" in pointing out that the judge was a Clinton appointee.

But...once somebody like this has been picked up and it's a matter of public record,
especially if their face is splashed around by the media, I suspect that their
use as a terrorist operative probably goes about to zero.
Partly because they must presume that their every step and every word they speak is being
monitored after they are released.
(I'm not in law enforcement either...so that's just my naive guess.)
26 posted on 04/30/2002 1:41:18 PM PDT by VOA
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To: FreeTally
"Bottom line, they will not deport these KNOWN TERRORISTS for a reason. What is it?"

Embarassing Question.

27 posted on 04/30/2002 1:43:09 PM PDT by rdavis84
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To: areafiftyone
Hon. Shira A. SCHEINDLIN
United States District Judge

Daniel Patrick Moynihan United States Courthouse
500 Pearl Street, Room 1050
New York, New York 10007-1312
(212) 805-0246

Courtroom 12C
Deputy (212) 805-0120

28 posted on 04/30/2002 1:45:18 PM PDT by Tai_Chung
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To: areafiftyone
For Immediate Release
July 28, 1994

PRESIDENT CLINTON NOMINATES THREE FEDERAL JUDGES

The President today announced the nomination of Diana E. Murphy to serve on the United States Court of Appeals for the Eighth Circuit. The President also named the following two individuals to serve on the federal district bench: Dominic J. Squatrito for the District of Connecticut and Shira A. Scheindlin for the Southern District of New York.

"These nominees have demonstrated outstanding legal ability and a commitment to justice for all," the President said. "I am sure they will be of great service to our Nation's courts."

Diana E. Murphy, 60, currently serves as Chief Judge for the U.S. District Court for the District of Minnesota.

Ms. Murphy began her legal career as an associate with the Minneapolis law firm of Lindquist & Vennum. From 1976 to 1978, she served as Hennepin County Municipal Judge and from 1978 to 1980, she served as a Judge for the Minnesota District Court.

In 1980, President Carter appointed Diana Murphy to serve on the U.S. District Court for the District of Minnesota. She has been Chief Judge since 1992. She is past president of the Federal Judges Association and past chair of the board of the American Judicature Society. She currently serves on the boards of the Federal Judicial Center and the Federal Judges Association.

Ms. Murphy earned a B.A. degree from the University of Minnesota. She also studied at the Johannes Gutenberg University in Germany on a Fulbright Scholarship and pursued graduate studies in history at the University of Minnesota. Murphy received a J.D. degree from the University of Minnesota Law School. Murphy and her husband, Joseph E. Murphy, Jr., have two sons and live in Minneapolis, Minnesota.

Upon confirmation, she would become the first woman to serve on the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit has 11 judgeships and hears cases from Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

Dominic J. Squatrito, 55, has practiced law with the Manchester, Connecticut firm of Phelon, Squatrito, Fitzgerald, Dyer & Wood since 1966. He is a former President of the Manchester Bar Association and a former Chief Counsel for the Connecticut State Senate. Mr. Squatrito received a B.A. degree from Wesleyan College and a J.D. degree from Yale Law School. He and his wife, Carla Squatrito, have two children.

Shira A. Scheindlin, 47, is a partner with the Manhattan law firm of Herzfeld & Rubin. Prior to joining that firm, she was a partner with the firm of Budd Larner Gross Rosenbaum Greenberg & Sade. Previously, Ms. Scheindlin served as a U.S. Magistrate Judge and as an Assistant U.S. Attorney for the Eastern District of New York. She received a B.A. degree from the University of Michigan, an M.A. degree from Columbia University, and a J.D. degree from Cornell Law School.

29 posted on 04/30/2002 1:51:03 PM PDT by Tai_Chung
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To: wirestripper
Agreed on both points. I think they were willing to risk some convictions or indictment's being overturned due to their agressiveness in order to prevent attacks. Even if we let a few of the bad guys go they will be monitor.. they'll have no luck forming their cells back together. We busted them and their rings.. they'll have to start from scratch again. On the other side this is the right decision for the court to make now that I've thought about it a little more simply because this would be a huge violation of every american's civil liberties if the judge upheld it.
30 posted on 04/30/2002 1:59:27 PM PDT by Almondjoy
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To: FreeTally
I'd like you to tell me why he lied.
31 posted on 04/30/2002 2:08:10 PM PDT by ecomcon
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To: rdavis84
Perhaps before they get around to deporting them...maybe the JD wants to know what they know? Could that be why they are slow in deporting them? It makes sense to me. Duhhhhh.
32 posted on 04/30/2002 2:09:29 PM PDT by Rockiesrider
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To: areafiftyone
This guy's name and phone number were found in Alhazmi's Toyota Corolla that was left in the Dulles parking lot.
33 posted on 04/30/2002 2:12:08 PM PDT by denydenydeny
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To: FreeTally; thinden
My Neck Hurts.
34 posted on 04/30/2002 2:12:14 PM PDT by rdavis84
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To: FreeTally
I've noticed, as a rule, that the folks who use "Free" or "Patriot" in their monikers are the biggest pantloads on this forum.
35 posted on 04/30/2002 2:12:39 PM PDT by ArneFufkin
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To: Tai_Chung
Last year, Congress passed a law that bans the sale or rental of "sexually explicit" magazines, videos and recordings on military bases and ships. Congress paraded the law under the title of The Military Honor and Decency Act.

On Jan. 22, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York -- in a ringing defense of the First Amendment -- found the act unconstitutional and struck it down.

The act was sponsored by conservative Congressmen Christopher H. Smith (R-N.J.) and Roscoe G. Bartlett (R-Md.) and former Congressman Robert K. Dornan; and supported by the Christian Coalition, the Traditional Values Coalition, the Family Research Council, and other conservative groups.

The rest of the story

Judge Scheindlin has worked on some interesting cases, including that of an INS employee who paid dearly for "whistle blowing" on corruption and reverse discrimination here

36 posted on 04/30/2002 2:15:31 PM PDT by browardchad
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To: VOA
The INS issued new docs to at least two of the hijackers, Mohammed Atta and another, after they were dead. Mohammed Atta's name is infamous. Still, he gets through the cracks.

I have no confidence in the governments ability to keep track of someone who doesn't want to be kept track of. The FBI and other law enforcement agencies are barely able to do it, when they are focused.

37 posted on 04/30/2002 2:15:39 PM PDT by ecomcon
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To: areafiftyone
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.

Reading this, it seems to me that it was the FBI who blew this one… but that’s no big surprise. The judge may be a Klintoon flack but I tend to agree that she is most likely right in here legal interpretation and is the FBI who we should be pointing the fingers at.

38 posted on 04/30/2002 2:17:07 PM PDT by The Magical Mischief Tour
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To: ecomcon
they don't seem to be worried about the mans lies,deport him and be done with it.
39 posted on 04/30/2002 2:17:33 PM PDT by linn37
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To: browardchad
Oops - bad links.

Corrections: The rest of the story

INS case here

40 posted on 04/30/2002 2:27:04 PM PDT by browardchad
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To: miamimark
Still no word on whether this guy was a citizen or not. It ought to make a difference, but probably doesn't in the eyes of modern, citizen-of-the-world judges.
41 posted on 04/30/2002 2:29:18 PM PDT by Iconoclast2
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To: freeperfromnj
The 1st amendment guarantees child pornographers access to your child's home computer, and freedom to foreign terrorists on US soil. But the 2nd amendment allows you to shoot them!
42 posted on 04/30/2002 2:42:55 PM PDT by mikhailovich
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To: Almondjoy
There is no stretch if the person in question being held is not an American.
43 posted on 04/30/2002 2:44:54 PM PDT by rwfromkansas
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To: Iconoclast2
He is a permanent U.S. resident. After 5 years they can apply for citizenship. Also, he bonded out on $500k back in December according to CNN.
44 posted on 04/30/2002 2:46:02 PM PDT by miamimark
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To: Iconoclast2
From the actual case at Link:

...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.

45 posted on 04/30/2002 2:48:43 PM PDT by LurkedLongEnough
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To: LurkedLongEnough
From same link mentioned in post #45:

"Awadallah is a lawful permanent resident of the United States and a citizen of Jordan."

Very interesting reading.

46 posted on 04/30/2002 2:56:01 PM PDT by LurkedLongEnough
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To: VOA
"maybe she is right on the point of law"

For what it's worth, the government attorneys think she is wrong and appear to be planning an appeal.
47 posted on 04/30/2002 2:56:52 PM PDT by Steve_Seattle
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To: rwfromkansas
I don't agree with you. Any person afforded a visa here and is here legally should be afforded all rights under the constitution. Would you feel that way if the man was German? or Swiss? or Dutch? I think you would. Now the question is.. are we allowing people to come here legally we shouldn't? That's another question entirely. Just because someone is here on Visa doesn't mean that they get to be treated like spies.. we shouldn't be allowing spies or terrorists in.. legally or illegally. Those are two seperate issues and we cannot combine them as it is in my opinion unconstutional.
48 posted on 04/30/2002 3:08:12 PM PDT by Almondjoy
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Comment #49 Removed by Moderator

To: The_Media_never_lie
Maybe the authors beleived "citizens" should be secure, but certainly not potential terrorists, terrorists or mass murderers.

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.

50 posted on 04/30/2002 3:49:57 PM PDT by Dianna
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