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One of the government’s weapons in the war on terror and the probe into the Sept. 11 attacks was challenged Tuesday, when a federal judge said the material witness statute does not allow authorities to detain a witness for a grand jury investigation. U.S. District Judge Shira A. Scheindlin in New York found that the plain words of the statute allow a witness to be detained only after a criminal charge has been brought and a trial is pending. As a result, the judge dismissed perjury charges brought against San Diego college student Osama Awadallah, who allegedly lied to a grand jury about knowing one of the hijackers of the airplane that was crashed into the Pentagon. Awadallah is one of several people — the government refuses to say how many — who have been detained since the Sept. 11 attacks under the material witness statute, 18 U.S.C. � 3144. “In enacting this statute, Congress carved out a carefully limited exception to the general rule that an individual’s liberty may not be encroached upon unless there is probable cause to believe that he or she has committed a crime,” Scheindlin said. “Properly read, the statute 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.” The judge’s decision drew a sharp response from Southern District U.S. Attorney James B. Comey, who released a statement saying: “We believe the court’s opinions are wrong on the facts and the law.” He added that his office was “reviewing our appellate options.” U.S. Attorney General John Ashcroft also responded at an afternoon press conference, saying that the opinion of “one trial judge in New York represents an anomaly.” In a separate decision Tuesday, Scheindlin also found the government made “material omissions and misrepresentations” in its original application for an arrest warrant for Awadallah in September. And so even if a higher court reverses Scheindlin on her interpretation of the material witness statute in United States v. Awadallah, 01 Cr. 1026, the judge said she was granting Awadallah’s motion to suppress statements he gave to FBI agents on Sept. 20 and 21. Awadallah was arrested on Sept. 21 after his teacher at Grossmont College alerted authorities to an examination booklet in which Awadallah said, “One of the quietest people I have met is Nawaf. Another one, his name is Khalid.” Nawaf Al-Hazmi and Khalid Al-Mihdar were two of the hijackers of American Airlines Flight 77. While under arrest as a material witness, Awadallah admitted before a grand jury in October that he knew Al-Hazmi, but denied knowing Al-Mihdar. Although Awadallah returned to grand jury a few days later and admitted knowing Al-Mihdar, he was subsequently charged with two counts of perjury. Judge Scheindlin later rejected Awadallah’s motion to dismiss the charges, rejecting his argument that he effectively recanted his false testimony. Awadallah is currently free on bail. Although Scheindlin said Tuesday that the precursors to the material witness statute and legislative history support her ruling on the law, she focused first on what she said was the unambiguous wording of � 3144, which reads as follows: “If it appears from an affidavit filed by a party 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 and treat the person in accordance with the provisions of Section 3142 of this title.” The statute goes on to say that: “No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can be adequately secured by deposition, and if further detention is not necessary to prevent a failure of justice.” For Scheindlin, the words “in a criminal proceeding,” make detention for grand jury proceedings improper because a criminal proceeding is not underway until a charge is filed. And the words “‘by a party,’ plainly invokes an adversarial process,” the judge said, adding that “there are no parties to a grand jury proceeding.” “It was thus improper, under the plain language of the statue,” she said, for an FBI special agent to sign the affidavit used to obtain the arrest warrant for Awadallah. “Applying Section 3144 to a grand jury proceeding is an attempt to fit a square peg into a round hole,” she said. Moreover, the judge said the language of � 3142 “explicitly states that it applies to proceedings ‘pending trial.’” Scheindlin said the use of the material witness statute to detain grand jury witnesses opens up several avenues for abuse. Awadallah, she said, was imprisoned as a high security inmate and “having committed no crime — indeed, without any claim that there was probable cause to believe he had violated the law,” he “bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.” Awadallah was kept in solitary confinement, repeatedly strip-searched and reportedly subjected to physical abuse by guards, she said, and when it came time for him to testify before the grand jury on Oct. 10, he remained handcuffed to a chair throughout the questioning. The judge cited the case of Abdallah Higazy, an Egyptian-born student who was arrested on a material witness warrant in December when he returned to a hotel near the World Trade Center to gather possessions left in his room during the hotel evacuation on Sept. 11. A security guard claimed that a ground-to-air radio was recovered from Higazy’s room, a fact that was later proven untrue when another Sept. 11 guest of the hotel claimed the radio as his own. While being held as a material witness, ostensibly for an appearance before a grand jury, Higazy gave a statement to federal agents they deemed a confession, and he was later charged with lying to the agents. Higazy was ultimately freed. Judge Scheindlin also quoted Attorney General Ashcroft as saying that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” But Scheindlin said, “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.” At his press conference Tuesday, Ashcroft said: “The department’s use of material witness warrants is fully consistent with the law and longstanding practice.” “Numerous other judges have authorized the use of material witness warrants in the settings we have been using them, and the use of such warrants has been validated at the appellate level,” he said. Jesse Berman represented Awadallah. Assistant U.S. Attorneys Robin Baker, Karl Metzner, Celeste Koeleveld and Rosemary Nidiry represented the government.

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