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Feds to appeal ruling on post-Sept. 11 tactics

Osama Awadallah
Osama Awadallah  


From Phil Hirschkorn
CNN New York Bureau

NEW YORK (CNN) -- Federal prosecutors said Friday they will appeal a judge's ruling earlier in the week that the government's detention of certain material witnesses since the September 11 terrorist attacks was unconstitutional.

A notice of appeal was filed with the 2nd U.S. Circuit Court of Appeals in Manhattan by James Comey, U.S. attorney for the Southern District of New York.

It followed Tuesday's decision by U.S. District Judge Shira Scheindlin dismissing perjury charges against a Jordanian-born college student accused of lying before a grand jury about his acquaintance with two of the September 11 hijackers.

Scheindlin said the three-month incarceration of Osama Awadallah, 21, was unlawful because the government has no "authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation."

"We filed a notice of appeal ... to preserve all of our appellate options," said Herbert Haddad, a spokesman for Comey.

Comey previously indicated he believed Scheindlin's decision was "wrong on the facts and the law." Attorney General John Ashcroft labeled it "an anomaly," because other judges have upheld the use of material witness warrants "in the settings that we have been using them."

Possible far-reaching implications

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Read the judge's opinions in U.S. v. Awadallah: Opinion 1 
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The government's appeal in the Awadallah case could have implications in many other post-September 11 cases, since an unknown number of the hundreds of people detained by the Department of Justice after the terrorist attacks were held on material witness warrants.

"Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks," Ashcroft said earlier this year.

But Scheindlin found fault with that statement. "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," he wrote in his decision.

Material witness warrants are used rarely by prosecutors to compel a person who may have witnessed a crime but is reluctant to testify to take the stand at trial.

The judge said the only legitimate reason to detain a grand jury witness is "to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person."

The government's notice of appeal does not include arguments responding to the judge's detailed 60-page decision on the material witness statute.

The next step is for the appeals court to order when filings must be made. There is no precise timetable but it usually occurs within a few weeks.

FBI traced Awadallah to San Diego

FBI agents tracked down Awadallah in San Diego 10 days after the terrorist attacks after finding his first name and former phone number on a scrap of paper in the glove compartment of the car abandoned by Nawaf Alhazmi at Dulles Airport outside Washington.

Alhazmi was one of five men who commandeered American Airlines' Washington-to-Los Angeles Flight 77 and crashed it into the Pentagon, killing 64 passengers and crew and 125 people inside the Pentagon.

Alhazmi and fellow hijacker Khalid Almidhar lived in San Diego part of 2000.

Awadallah met them 18 months before the attacks after he had moved to California to live near his older brother, a permanent U.S. resident, and father, a naturalized U.S. citizen. He enrolled in Grossmont Community College, where he studied English as second language.

Awadallah told investigators he had seen Alhazmi about 40 times, sometimes with Almidhar, at the gas station he worked at or at a mosque. But Awadallah said he didn't see either man for nearly a year before the attacks.

In his first grand jury appearance he denied knowing a "Khalid" -- referring to Almidhar -- or writing his name in a college exam booklet that investigators found.

Awadallah corrected his testimony five days later but was charged with making two false statements and could have faced up to 10 years in prison.

FBI agents who searched his apartment found a poster of Osama bin Laden downloaded on his computer and videotapes about Muslim fighters in Bosnia in his car.

Scheindlin faulted the FBI for failing to inform Awadallah that he was "free to leave whenever he wanted" during the interrogation and said the "consent he gave to search his home and cars was ... involuntary."

She also issued a separate 59-page opinion suppressing evidence gathered in the case.

Awadallah spent 83 days in jail, treated as a high-security inmate often in solitary confinement until Scheindlin granted him bail last December.



 
 
 
 


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