Government Cannot Use Material Witness Statute to Detain People, ACLU Tells Appeals Court

Affiliate: ACLU of New York
November 22, 2002 12:00 am

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NEW YORK – The American Civil Liberties Union today urged a federal appeals court to uphold a ruling that the government unlawfully used the material witness statute to detain a Jordanian-born college student for 20 days.

“The Constitution does not permit the government to use the material witness statute illegally as a mechanism for preventive detention,” said Arthur Eisenberg, Legal Director of the New York Civil Liberties Union, which filed the brief together with the national ACLU.

At the very least, Eisenberg said, “if the government wants the testimony of someone it has detained as a material witness, it should promptly bring that person before a grand jury or else take his deposition and release him.”

The case concerns Osama Awadallah, a Jordanian-born student who was charged last year with making two false statements during a grand jury proceeding arising out of the terrorist attacks of Sept. 11.

The ACLU legal brief describes how the government purported to be interested in Awadallah’s testimony before the grand jury, but instead treated him as a criminal although he was not accused of any wrongdoing.

Awadallah was held by the U.S. government — often shackled and in solitary confinement — for a total of 83 days, from Sept. 21 until December 13, 2001. After his appearance before a grand jury 20 days after his detention, he was arrested and indicted on charges of perjury because he had denied knowing the name of one of the September 11 terrorists.

A judge granted Awadallah bail in December 2001. In May 2002, Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York dismissed the perjury charges against Awadallah and ruled that his detention as a material witness without being charged was unlawful. Authorities “made several misrepresentations and omissions” to get an arrest warrant for Awadallah and then misapplied the material witness statute to have him testify before a grand jury, she said. “If the government has probable cause to believe a person has committed a crime, it may arrest that person,” she wrote. “But 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.”

Scheindlin also criticized authorities for treating Awadallah in a manner “more restrictive than that experienced by the general [prison] population.” Even before he was charged with a crime, he was treated as a high-security inmate, held in prolonged solitary confinement and shackled and strip-searched every time he left his cell.

The case is United States v. Osama Awadallah, No. 02-1269.

The ACLU’s legal brief is online at /node/35407

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