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The decision by a federal appeals court allowing the government to detain material witnesses pursuant to grand jury investigations was a significant victory for an administration searching for every edge it can get in prosecuting the war on terror. The 2nd U.S. Circuit Court of Appeals, in a decision written by Judge Dennis Jacobs, agreed with Southern District U.S. Attorney James B. Comey that the material witness statute, 18 U.S.C. � 3144, is broad enough to allow the detention of witnesses for more than pretrial proceedings. The 2nd Circuit on Friday also reinstated the perjury indictment of Osama Awadallah, a San Diego college student who was arrested as a material witness and then allegedly lied to a grand jury probing the Sept. 11 terror attacks when he denied knowing one of the hijackers. The decision in United States v. Awadallah, 02-1269, reversed the controversial ruling of Southern District Judge Shira Scheindlin, who found that the statute, which concerns the detention of witnesses to secure their testimony for a “criminal proceeding,” does not include grand jury testimony because a grand jury is a non-adversarial, non-criminal proceeding. The decision, Comey said Friday, “vindicates the use of one of the most important tools in our Sept. 11 investigation and many others.” Robert Boyle, one of three lawyers who argued for Awadallah at the 2nd Circuit, said: “We’re disappointed because we believe the decision sanctions an unwarranted expansion of the government’s arrest power.” Scheindlin had dismissed the perjury charges against Awadallah because the judge believed he had been illegally detained. Scheindlin, who was sharply critical of the Federal Bureau of Investigation, also found that an affidavit submitted by one FBI special agent in support of the warrant for Awadallah’s arrest contained material misrepresentations. The 2nd Circuit disagreed in what Comey said was the vindication of Special Agent Ryan Plunkett, whom he called one of the most effective anti-terrorism officers in the government. Finally, the circuit court reversed Scheindlin’s ruling that the FBI violated the Fourth Amendment of the U.S. Constitution when it conducted unreasonable searches and seizures on Sept. 20 and 21, 2001. The Awadallah case illustrated the constraints and pressures facing federal agents as they scrambled after leads in the wake of the attacks on the World Trade Center and the Pentagon. Awadallah’s old phone number was found in the abandoned car of one of the hijackers who crashed into the Pentagon, Nawaf Al-Hazmi. The agents who tracked down Awadallah, finding a picture of Osama bin Laden and what they thought was a box cutter in his room, were convinced they had found a man who could provide critical information about the Sept. 11 plot. Before the grand jury in October 2001, prosecutors alleged that Awadallah denied knowing Al-Hazmi’s alleged cohort, Khalid Al-Mihdar. They also alleged Awadallah denied that his handwriting in a college examination booklet, which made a reference to “Khalid,” was his own. Within months of Scheindlin’s ruling, Southern District Chief Judge Michael B. Mukasey, in In re Material Witness Warrant, 213 F. Supp. 2d 287, set up a split in the 2nd Circuit by finding that “there is no constitutional impediment to detention of grand jury witnesses.” Ironically, it was Mukasey who had signed the arrest warrant for Awadallah. Despite Musakey’s ruling, Comey said the Scheindlin decision “sent ripples throughout the entire criminal justice system, because all around the country, defense lawyers were saying” that a judge in New York had rejected material witness detentions for grand juries. Comey said there was a “misperception” that the statute has been used to “lock people up and hold them for a long time.” “I hope the American people read about this because they need to know that we are doing the right thing in the right way,” he said. CENTRAL ISSUE The 2nd Circuit said the central issue could have been avoided by simply ruling that Awadallah’s testimony should not have been suppressed — a possibility that the circuit panel raised during oral argument in April. But the appeals court opted to decide the issue, Jacobs said, because the split in the circuit “affects the liberty interests of persons identified as material witnesses, the security and law enforcement interests of the government, and the ability of courts to make prompt and fair rulings on present and future detentions.” Rejecting Scheindlin’s interpretation, Jacobs said, “‘Criminal proceeding’ is a broad and capacious term, and there is good reason to conclude that it includes a grand jury proceeding.” The legislative history, he said, “makes clear Congress’s intent to include grand jury proceedings within the definition of ‘criminal proceeding,’” and the U.S. Supreme Court has made several pronouncements supporting the legality of detaining witnesses who have knowledge of a crime “Even in the less August context of a police investigation.” Moreover, he said, the 2nd Circuit itself has upheld the constitutionality of detaining grand jury witnesses under New York’s material witness statute. “The district court failed to account for these cases in detecting a constitutional problem in the detention of a material witness, and focused instead on developing its own Fourth Amendment analysis,” he said. “Even meeting the district court decision on those terms, we see no serious constitutional problem that would warrant the exclusion of grand jury proceedings from the scope of Sec. 3144.” One concern addressed by the court is that the government might use the arrest of a material witness as a pretext to seize someone suspected of a crime, a possibility that Scheindlin said would be an illegal use of the statute. And with the government scrambling to use every tool at its disposal to track down leads in terror investigations, opponents of using material witness arrests for grand jury proceedings, including the New York Council of Defense Lawyers, say that a broad interpretation invites abuse by the government. In fact, one of the most important post-Sept. 11 cases confronting the circuit concerns a man who was first arrested as a material witness and then designated an enemy combatant by President George W. Bush. Jose Padilla, who allegedly was pursuing a plot to obtain and detonate a radioactive weapon, has been held in a military brig without access to counsel since last year. On Nov. 17, the 2nd Circuit will hear the government’s appeal of a judge’s ruling that Padilla’s challenge to his detention cannot be processed without some assistance by counsel. The judge who made that ruling was, again, Michael Mukasey. Despite the 2nd Circuit’s agreement that using the material witness law to detain a person suspected of the crime would be improper, Jacobs said, Scheindlin made no such finding in the case of Awadallah. The circuit also said that “significant infringements on liberty” were at stake in the arrest of witnesses, but those infringements were tempered by several procedural safeguards.” Among those protections is the statute’s requirement that witnesses can be detained only if their testimony cannot be “adequately secured by deposition,” as well as the power of the court to set conditions for the release of the defendant following a hearing. And while � 3144 contains no express time limit, Jacobs said, “the statute and related rules require close institutional attention to the propriety and duration of detentions.” Under the circumstances of this case, Jacobs said, “we are satisfied that Awadallah’s detention was not unreasonably prolonged,” in part because he received “adequate process” — he was held for only 20 days before his grand jury appearance, and had two bail hearings to challenge the reasonableness and necessity of his detention. The 2nd Circuit then rejected Scheindlin’s finding that the FBI affidavit supporting the arrest warrant contained misrepresentations, saying the sworn statement established probable cause that Awadallah’s testimony was material to the investigation, and securing his presence by subpoena might be impracticable. The circuit then ruled that Scheindlin erred by suppressing evidence obtained from Awadallah on Sept. 20 and 21, 2001. In a concurring opinion, Judge Chester J. Straub took issue only with the majority’s finding that the material witness warrant was valid. He said that should evidence unlawfully obtained from Awadallah be excised from the affidavit, “the few strands of factual information that would have remained � would not have established probable cause to believe it may have ‘become impracticable’ to secure Awadallah’s presence before the grand jury by subpoena.” Judge Gregory W. Carman, chief judge of the U.S. Court of International Trade, sitting by designation, joined in the opinion. In addition to Comey, Assistant U.S. Attorneys Robin L. Baker, Karl Metzner, Celeste L. Koeleveld and Christine H. Chung represented the government. Robert Boyle, Lawrence Mark Stern and Jesse Berman represented Awadallah. Diana D. Parker of the New York Council of Defense Lawyers appeared as amicus curiae in support of Awadallah. The New York Civil Liberties Union, led by Arthur N. Eisenberg, and the American Civil Liberties Union also joined in as amicus in support of Awadallah.

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