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U.S.: Judge Curbs Investigatory Powers In Terror Probe

  • Andrew Tully

A federal judge has reined in the U.S. government's investigation into the 11 September terrorist attacks in New York, Washington, and Pennsylvania by saying it may not incarcerate possible suspects without filing charges against them solely for the purposes of investigation. Attorney General John Ashcroft says the ruling ignores the fact that the American judiciary has previously permitted the practice, and is considering appealing the ruling. But civil liberties groups say it is time for investigators to respect the rights of the accused.

Washington, 2 May 2002 (RFE/RL) -- An American judge says the U.S. Constitution does not permit the Justice Department to detain potential suspects in the 11 September terrorist attacks unless investigators have enough evidence to file charges against them.

The 30 April ruling involves the case of just one man, but can be applied to all cases like his. Legal analysts say the ruling exemplifies the dynamic give-and-take in the American legal system between the need to investigate crimes to protect the public and the rights of the accused, even those suspected of huge atrocities.

The case involves Osama Awadallah's status as a "material witness." A material witness is a person believed to have significant information about a lawsuit or criminal prosecution. Because of the value of this information, the court must do its best to ensure the witness's availability to testify. Sometimes, this can involve incarceration if the witness is believed to be involved in a crime and may try to flee.

Awadallah, a Jordanian attending school in San Diego, California, was arrested as a material witness 10 days after the September attacks in New York, Washington, and Pennsylvania, and was moved from prison to prison under extremely high security until he ended up incarcerated in New York.

Awadallah testified before an investigatory panel, called a grand jury, on 10 October. Prosecutors say he lied when he stated, under oath, that he did not know the name Khalid al-Midhar, one of the hijackers of the plane used in the Washington attack.

He then was formally charged with perjury, and was to have been tried soon on the charge, punishable by up to 10 years in prison. He was released on bail pending trial, and resumed his studies in San Diego.

In the 30 April decision, Judge Shira Scheindlin said federal investigators had no constitutional right to incarcerate Awadallah as a material witness for a grand jury -- in other words, strictly for investigatory purposes. She said material witnesses may be detained only for trials, which are held only after investigations are conducted.

As a result, the judge ruled that his grand jury testimony could not be used against Awadallah because he was being held illegally, and she dismissed the perjury case against him.

U.S. Attorney General John Ashcroft expressed disappointment in the decision. He said federal investigators have incarcerated material witnesses many times in the past under similar circumstances, and called the ruling an "anomaly."

"The [Justice] 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."

Paul Rosenzweig -- who analyzes legal issues at the Heritage Foundation, a Washington policy center -- supports Ashcroft's position. He told RFE/RL that it is important for U.S. law enforcement officials to have such tools to ensure that those guilty of crimes are brought to justice.

Besides, according to Rosenzweig, investigators for the American government have always been careful not to overstep their right to detain material witnesses. He points out that very few people are now being detained as material witnesses, even in the investigation of the September attacks.

"The government hasn't -- at least historically, and even post nine-eleven [after 11 September] -- abused this authority. I think I read in one of the papers this morning there's something like 12 people in detention right now under this theory [detention of material witnesses], and that's after the most significant and extreme act of violence this country has ever witnessed."

In fact, Rosenzweig says, he believes the issue of Awadallah's freedom is being overemphasized by those who believe the Justice Department detained him illegally. He notes that Awadallah was freed on bail more than four months ago. "Yesterday (30 April), when this decision came down, he was home, right? He was out of jail already. He'd been released in December."

Rosenzweig says he is comfortable with allowing the detention of material witnesses in countries like the U.S., which have a long tradition of judicial fairness. But he says it would probably not be a good idea to grant such powers to law enforcement officials in countries that are coping with the transition from totalitarianism to democracy. In nations such as these, he said, there would be too much opportunity for abuse.

James Ross, the acting general counsel for the advocacy group Human Rights Watch in New York, says he isn't comfortable with such powers in the hands of any government, regardless of its tradition of fairness. Ross told RFE/RL that such powers can lead to a significant erosion of civil liberties unless they are resisted at every opportunity.

Ross notes that under U.S. law, a person charged with a crime is formally considered innocent until found guilty by a jury. Even a person charged with the most heinous of crimes has rights under the American system -- including the right to a lawyer of his own choosing, and the right not to testify in his case if he or his lawyer believes such testimony might incriminate him.

According to Ross, detaining a suspect as a material witness is an unacceptable -- and unconstitutional -- shortcut to a rigorous investigation that leads to formal charges that must be proven in court.

"There's concern that the government is actually using this provision as a way of holding people who they believe are criminal suspects but without actually treating them as criminal suspects, meaning they're not bringing charges against them, they're not giving them the full rights that criminal suspects deserve to get."

Ross applauds Judge Scheindlin for her ruling against the detention of material witnesses solely for investigatory purposes. He notes that American and other Western legal systems thrive on the efforts by each side to maximize its own advantages and minimize the advantages of its opponent. He says judges like Scheindlin play an important part in this dynamic.

"The judiciary in the United States has an important role of protecting not only the rights of the majority, but [also] the rights of the minority, whoever that minority is, whether it's ethnic or religious groups, or even those [rights] of criminals and criminal suspects."

Meanwhile, the Justice Department says it is considering an appeal of Judge Scheindlin's ruling. While Ashcroft spoke diplomatically in calling her ruling an "anomaly," his chief prosecutor in New York was more blunt. He said Scheindlin's ruling was wrong "on the facts and the law."

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