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.
How do you know he's not a citizen?
My neck hurts.
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.)
Embarassing Question.
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
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.
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.
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
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.
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.
Corrections: The rest of the story
INS case here
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