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.
I can answer that. It was because he was scared. That's no indication of guilt.
That he knew two of the highjackers is no crime. Were they his buddies he hung out with? Was he in on the plot? Or were the highjackers just passing acquaintances?
If the Justice Department really had something on him they would have charged him with something. And no I'm not a bleeding heart liberal or soft on terrorists. If you think I am look up some of my other posts before you answer.
I'm saying that if you rush to defend a percieved loss of liberty, before you use your common sense and determine the facts, there will come a time when your "liberties" will be used against you to kill you. Profiling is an example.
Think "hate crimes".
Can I be charged with a hate crime for hanging out with a fringe militia group, owning pictures of bombs and books about constructing bombs?
BTW I don't accept the concept of "hate crime". There is no such thing.
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