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Imagine, if you will, that I represent a single man of Middle Eastern descent who came to the U.S. from Pakistan a few years ago. This client has many friends and acquaintances from the Middle East, and he overhears and participates in many conversations while in their company. Over the last several months, he has discussed with his family members the possibility of returning to Pakistan, and he has even made some preparations to do the same. Imagine that my client told me that he needed some legal advice. He said that he had recently overheard two acquaintances discussing plans to blow up a federal building. He said that he did not regard the two conspirators as his friends, but he knew them fairly well because they hung around with others in his circle of friends. Based on what my client knew about the two, he said, he felt certain that they were serious in their discussions. My client called to ask me what I thought he should do. He said that on the one hand he wanted to go to the police to tell them what he heard and who made the statements. He said he wanted to thwart the terrorist plot before it occurred, because, he stated, “it sounded like hundreds of people might die.” On the other hand, he said, he was concerned and wanted to know: if he came forward and was honest about everything he heard, could he be detained indefinitely as a material witness? He then referred to the detention of 26- year-old Mukkaram Ali, a man who has been jailed as a “material witness” for over a year now, notwithstanding that he has not been charged with a crime. My client knew (from news accounts) that a judge had ordered that Ali be kept in prison until Ali’s testimony in the case is completed. Currently, the trial is set for June 30, 2003. My client told me that he would not want to tell police what he knows if something like that could happen to him, and he asked me whether I thought it could happen. He also asked whether he should alternatively place an anonymous call to police to “disclose the plot before it’s too late.” I told my client that I would have to research the matter and get back to him later. “For the time being,” I said, “just sit tight and don’t discuss this with anyone, especially the police, until you hear from me.” In the meantime, of course, a possible terrorist act was nearing its deadline. So I researched the issue, looking first at the federal “material witness statute.” It states: If it appears . . . that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person. . . . No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken. . . . (Title 18 U.S.C. Section 3144). I then read various news accounts of the Mukkaram Ali matter. (Ali is being held as a material witness in the trial of terror suspect Zacarias Moussaoui.) I searched for the court’s stated reasons why it was impracticable to secure Ali’s presence by subpoena, or why Ali was not released, for example, after being deposed or for being held for an unreasonable period. My search for answers proved futile. It turns out that these determinations are made outside of the presence of the media — in connection with secret grand jury proceedings — and that even Ali’s attorneys are prohibited from disclosing the reasons why Ali remains imprisoned. After considering the text of Section 3144 and the information I read about the Ali matter, I felt that my client would substantially risk his own imprisonment if he went to the police with his story. But just to be thorough, I decided to look further into this material witness statute to see how it has been invoked in other cases. My legal opinion was only confirmed. I considered the case of Osama Awadallah. A medical student in San Diego, he was jailed for 83 days as a material witness because he was once acquainted with one of the Sept. 11 hijackers. When questions mounted about his lengthy imprisonment, and the government sensed pressure favoring his release, he was charged with lying to a grand jury for incorrectly recalling the name of the hijacker. In a 60-page decision dismissing Awadallah’s indictment, U.S. District Court Judge Shira Scheindlin said that “[the] broad reading of the material witness statute has led to serious abuses.” Next, I read about how James Ujaama was arrested on July 22 as a material witness. That arrest was ostensibly intended only to buy some time during which prosecutors would build a case against him. Ultimately, Ujaama was charged with setting up a terrorist camp. While Ujaama was jailed as a material witness, however, police deemed themselves free to interview him without the requirement of Miranda or the presence of counsel; any self-incriminating statements Ujaama made, according to prosecutors, would be admissible because Miranda does not apply to people who are only jailed as witnesses. Similarly, Ujaama was not afforded the right to make phone calls. I then read through numerous articles available on the Web concerning the Justice Department’s recent increased use of the material witness statute. By far, the bulk of the articles — most quoting law professors, judges and/or reputable legal experts — were severely critical of the government’s use of the statute. The sense I got from it all was that most material witness arrests have constituted an abuse of the spirit and original purpose of the statute. In addition, there were even questions about the constitutionality of Section 3144 itself. Having determined that the Ali and Ujaama cases were not anomalies, and that the government imprisons even material witnesses who are not flight risks, I knew that my client’s freedom would be at stake if he attempted to save the innocent people by going to the police. (In fact, my client could even be characterized as a flight risk for previously discussing and preparing for a return trip to Pakistan.) So I considered alternatives. What if I get all of the facts from my client and then, without revealing my client’s identity, and with his permission, I tell police everything my client tells me? Well, of course, that might put me in the hot seat; and I think I’d rather not risk it. After all, the language of Section 3144 is pretty vague: How may it become “impracticable to secure the presence of [a] person by subpoena”? How is testimony by deposition “adequately secured”? How long is a “reasonable time” for delaying release? (For some undisclosed reason, the judge controlling Ali’s detention apparently thinks that Ali’s testimony cannot be adequately secured by deposition and that delaying Ali’s release for over one year is not unreasonable.) As one who is properly expected to look out for the best interests of his client, it appears that the best advice I could give mine is to keep quiet or, at least, remain anonymous. Regarding the latter, why don’t I just tell him to go ahead and make that anonymous call? Well, if I do, and he makes the call, federal agents would likely investigate and attempt to identify the caller, especially if the anonymous tip was later corroborated by, e.g., discovery of explosives wired to the building specifically identified by the caller. If that investigation to determine his identity succeeded, and my client was arrested as a material witness, then would I have committed malpractice by suggesting that he make the call? Would I have been looking out for his best interests by advising him to make the call? How about if I advised him to openly go to police? The answers to these questions might be close, so I think that I’d rather err on the side of caution. Therefore, my advice to my client would be: “If you absolutely do not want to be jailed as a material witness, then keep what you heard to yourself.” To anyone inclined to blame me for the deaths of these imaginary innocents: Your real gripe is with the Justice Department, Congress and the courts. Stephen S. Pearcy is an attorney in Sacramento with a general practice emphasizing business.

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