- The Washington Times - Wednesday, July 17, 2002

A sharp split has developed between two Manhattan federal judges as to whether the government may constitutionally use the material witness statute to detain a witness before a federal grand jury. The Court of Appeals or perhaps even the Supreme Court will most likely resolve the conflict.

The material witness statute authorizes detention of a witness to ensure his appearance before the inquiry. It is regarded by law enforcement as a particularly potent weapon in the war on terror since members of al Qaeda and their associates have the resources to evade criminal investigation by fleeing the country for the shadowy cloak of certain nations beyond U.S. subpoena or extradition powers.

The first case, decided by District Judge Shira Scheindlin last April, involved the detention of Osama Awadallah as a grand jury material witness. Mr. Awadallah, a Jordanian national pursuing a course of study in the United States, was a fair subject of grand jury scrutiny. He knew two of the September 11 hijackers and had met with one more than 40 times. His name was found in a car left by one of the hijackers near Dulles Airport. In his apartment were photographs of Osama bin Laden. Having flunked cold a lie detector test about his relationship with the hijackers, Mr. Awadallah testified before the grand jury. There, he denied under oath knowing anyone named Khalid. Khalid was the name of a hijacker.

Confronted with his written musings about a "Khalid," he denied it was in his handwriting only to admit the falsity of his testimony some five days later. He was then indicted for perjury.

Judge Scheindlin, in a hypertechnical opinion disturbing to legal experts, ordered Mr. Awadallah's release and dismissed the perjury indictment against him on the ground that, narrowly read, the material witness procedure applied only to trial witnesses not to witnesses before the grand jury. The court's reasoning flies in the face of what one commentator noted was "400 years of precedent" sustaining material witness arrest in grand jury proceedings. James Comey, the U.S. attorney for the Southern District of New York, echoing the drum roll of editorial criticism, blasted Judge Scheindlin's opinion as "wrong on the facts and wrong on the law."

The government received a boost this month when Southern District Judge Michael B. Mukasey, who had issued the original warrant in the Awadallah case before it was assigned to Judge Scheindlin, totally rejected the Awadallah holding in a case involving someone who was awaiting deportation by the Immigration and Naturalization Service. The INS transferred the witness to the custody of the Justice Department under a material witness warrant for his eventual appearance before a grand jury.

The detainee sought to quash the warrant, citing Judge Scheindlin's opinion in Awadallah, but the court refused to agree with Judge Scheindlin's analysis. Citing a 1971 decision of the 9th U.S. Circuit Court of Appeals, ironically known as the most liberal court of appeals in the nation, Judge Mukasey found support for the proposition that the predecessor material witness statute to the one before him and Judge Scheindlin covered grand jury proceedings. He then pointed to "direct evidence" in the legislative history that in re-enacting the material witness statute in 2000, Congress was aware of the 9th Circuit case and intended that the new statute would apply to the grand jury as well.

Courts have routinely applied the material witness statute to grand jury proceedings. In 1929, the Supreme Court said the "constitutionality of [the] statute has never been doubted" and in 1953 stated that the "duty to disclose knowledge of crime is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness." Accordingly, long before September 11, Terry Nichols was detained as a material witness before the grand jury that indicted Timothy McVeigh in the tragedy in Oklahoma City.

U.S. Attorney Comey is obviously correct. Judge Scheindlin's decision is bad law, bad policy and an unacceptable result. It is bad law because only the most contorted reading of the material witness statute and a total disregard of the legislative history could lead to the conclusion that Congress intended the statute to apply only to trial witnesses, but not to witnesses with evidence material to a grand jury investigation. It is an unacceptable result because charges were dismissed against a defendant who probably committed a crime and may have been a source of information about the terrorist network that threatens the national security. It is bad policy because there is no real issue of civil liberties.

As Justice Robert H. Jackson put it over a half century ago, "the choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."


James D. Zirin is a partner in the New York office of Sidley Austin Brown & Wood LLP.

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