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Judge
Declares Imprisonment Of by Larry Neumeister,
May 1, 2002 NEW YORK (AP) - A judge earned the wrath of federal authorities and the praise of civil liberties activists by calling the imprisonment of material witnesses in the government's terrorism probe unconstitutional. The ruling by U.S. District Judge Shira Scheindlin could have far-reaching implications for anti-terrorism efforts since dozens of people have been jailed under similar circumstances since the Sept. 11 attacks. Scheindlin's decision was hailed as "a brave and bold" step by constitutional lawyer Floyd Abrams, while Attorney General John Ashcroft called it "an anomaly." Scheindlin threw out perjury charges against Osama Awadallah, 21, a college student in El Cajon, Calif., who was accused of lying about knowing two of the Sept. 11 hijackers. Awadallah was held as a material witness in a grand jury investigation and spent 83 days in prison before being released on bail. Scheindlin said federal law does not permit such detentions for grand jury probes. The judge wrote that "imprisoning a material witness for a grand jury investigation raises a serious constitutional question under the Fourth Amendment," which prohibits unreasonable searches and seizures. Ashcroft responded that the roundup of material witnesses after the Sept. 11 terrorist attacks was constitutionally sound and that the opinion of "one trial judge in New York represents an anomaly." "The department's use of material witness warrants is fully consistent with the law and long-standing practice. Numerous other judges have authorized the use of material witness warrants in the settings that we have been using them, and the use of such warrants has been validated at the appellate level," Ashcroft said. By contrast, Rachel Ward, a lawyer with Amnesty International, called the judge's ruling a "welcome step forward." The human rights organization criticized the government's secrecy in a recent report on post-Sept. 11 detentions. "It's a matter of grave concern because it creates a lack of public accountability," Ward said. First Amendment lawyer Abrams agreed, saying the judge's ruling represented "a brave and bold reaffirmation of core Constitutional principles." "Speaking as someone who believes that the harm we face is indeed exceedingly grave, I nonetheless think she deserves enormous credit for taking an action that only an American judge would have the courage to do," he said. In Manhattan, U.S. Attorney James B. Comey said: "We believe the court's opinions are wrong on the fact and the law and we are reviewing our appellate options." Scheindlin's ruling could complicate the federal government's broad reading of the material witness statute, which the judge said had already "led to serious abuses." The judge said that federal law only allows "a witness to be detained until his testimony may be secured by deposition in the pretrial, as opposed to the grand jury, context." Scheindlin cited the case of Abdallah Higazy, an Egyptian-born student arrested Dec. 17 as a material witness after a pilot radio was found in his Sept. 11 hotel room overlooking the World Trade Center. Charges were dropped when it was later found that the radio belonged to someone else and a hotel security guard had lied. "Since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation," the judge said. Scheindlin ruled 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." Agents also failed to tell Awadallah he had a constitutional right to refuse any searches when they asked him to sign a form consenting to a search, the judge said. "He did everything he could to be cooperative and they treated him terribly," said Jesse Berman, a lawyer for Awadallah. "I'm just happy that he's been vindicated." On the Net: http://www.nysd.uscourts.gov Source: http://news.findlaw.com/ap/o/1110/5-1-2002/200205011020248703.html
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