U.S. v. Awadallah, No. 01CR1026(SAS).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtScheindlin
Citation202 F.Supp.2d 55
PartiesUNITED STATES of America, v. Osama AWADALLAH, Defendant.
Docket NumberNo. 01CR1026(SAS).
Decision Date30 April 2002
202 F.Supp.2d 55
UNITED STATES of America,
v.
Osama AWADALLAH, Defendant.
No. 01CR1026(SAS).
United States District Court, S.D. New York.
April 30, 2002.
As Amended May 13, 2002.

Page 56

Robin Baker, Karl Metzner, Celeste Koeleveld, Rosemary Nidiry, Assistant United States Attorneys, United States Attorney's Office, Southern District of New York, New York, NY, for the Government.

Jesse Berman, New York, NY, for Defendant.

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FIRST OPINION AND ORDER

SCHEINDLIN, District Judge.


The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21, 18 L.Ed. 281 (1866)

The imperative necessity for safeguarding these rights ... under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)

It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile.

United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967)

I. INTRODUCTION

Designed in 1787 to create a strong federal government, the United States Constitution now stands as the oldest living written constitution in the world. Yet, when the Constitution was presented to the states for ratification, the people viewed it as fundamentally flawed because it failed to provide them protection from the government. Experience had taught them that government officials would be prone to disregard civil liberties in pursuit of their own goals. "Vivid in the memory of the newly independent Americans," for example, "were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists." Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). Those general warrants were viewed "as the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book, because they placed the liberty of every man in the hands of every petty officer." Id. (quotation marks omitted).

As a result, in December 1791, the Bill of Rights became "the supreme Law of the Land." U.S. Const. art. VI cl. 2. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. "These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever `be secure in their persons, houses, papers, and effects' from intrusion and seizure by officers acting under the unbridled authority of a general warrant." Stanford, 379 U.S. at 481, 85 S.Ct. 506 (emphasis added).

* * * * * *

In 1984, Congress enacted 18 U.S.C. § 3144 ("section 3144"), commonly known as the "material witness statute." Section 3144 states in full:

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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. 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 pursuant to the Federal Rules of Criminal Procedure.

18 U.S.C. § 3144 (various emphases added). 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. Properly read, the statue 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.

* * * * * *

On Friday, September 21, 2001, FBI agents in California arrested Osama Awadallah as a material witness for a grand jury investigation of the September 11th terrorist attacks.1 Approximately three hours later, an affidavit in support of an application for Awadallah's arrest under section 3144 was submitted to a judge of this Court by an FBI agent and a warrant was issued. Over the next twenty days, Awadallah was treated as a high-security inmate, detained in various prisons across the country. Awadallah was eventually flown to New York, where he was kept in solitary confinement and shackled and strip-searched whenever he left his cell. He was unable to have family visits or use the telephone because the prison had no operating telephones and was on a high security alert which prevented family visits. Awadallah was held as a material witness in a grand jury investigation; he was not arrested based on probable cause to believe that he had committed any crime.

On October 10, 2001, Awadallah testified, without immunity, before a grand jury in New York. Dressed in prison garb and handcuffed to a chair, he was asked several hundred questions over the course of the day. Awadallah's testimony was consistent with everything he had previously told the government. Awadallah had met two of the hijackers involved in the September 11th attacks eighteen months earlier and had last seen them a year earlier. Although Awadallah described the physical appearance of both of these men, he could only recall the name of one, Nawaf Al-Hazmi. Awadallah also testified, just as he had informed the government on two occasions, that he had meet

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Al-Hazmi approximately forty times, mostly at work and at the local mosque.

When the government repeatedly asked whether he knew anyone named "Khalid Al-Mihdar" or anyone named "Khalid," Awadallah said no. At the end of the day, however, the government produced an examination booklet that it had received from Awadallah's teacher, eight days earlier, on October 2.2 Inside the booklet, Awadallah had written: "One of the quietest people I have met is Nawaf. Another one, his name Khalid. They have stayed in San Diego for 6 months." United States v. Awadallah ("Awadallah II"), 202 F.Supp.3d 17, 32 (S.D.N.Y.2002) (referring to GJX 41). Awadallah immediately denied writing the name "Khalid" in the booklet. However, five days later, when he again testified before the grand jury, Awadallah testified that he had written the word "Khalid." When asked if he "recalled any part of this man's name," Awadallah testified that he thought that the "man's name was Khalid." 10/15/01 GJ Tr. at 8. The government subsequently charged Awadallah with two counts of knowingly making a false material declaration before the grand jury for: (1) testifying that he did not know Khalid's name, and (2) testifying that he did not write the word "Khalid" in the exam booklet.3 See Complaint, United States v. Osama Awadallah, No. 01 Mag. 1833 (filed October 18, 2001) ¶¶ 1-2 (citing 18 U.S.C. § 1623(a)).

Awadallah spent eighty-three days in prison before being released on bail.

II. PROCEDURAL HISTORY

Awadallah was arrested on the perjury complaint on October 21, 2001, and indicted on two counts of perjury on October 31, 2001. See United States v. Awadallah, 173 F.Supp.2d 186, 187 (S.D.N.Y.2001). This Court set bail with conditions on November 27, 2001. See id. at 192-93. Awadallah satisfied those conditions on December 13, 2001. See Awadallah II, 202 F.Supp.3d at 19.

On December 3, 2001, Awadallah moved for an evidentiary hearing "to suppress (1) all physical evidence found by law enforcement officers who searched his home, computer and cars, and (2) all statements that he made to any government agent from September 20, 2001 through October 3, 2001," as well as to dismiss the indictment. Id. On January 31, 2002, this Court granted the motion for an evidentiary hearing and reserved its right to dismiss the indictment. See id. at 54. An evidentiary hearing was held on February 15-18, 2002.

III. SEPTEMBER 21, 2001 THROUGH OCTOBER 10, 2001

Many of Awadallah's allegations about his treatment during the weeks of incarceration are uncontested. Reading the allegations in the light most favorable to the government,4 his incarceration can be summarized

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succinctly: Awadallah was treated as a high security federal prisoner. Having committed no crime—indeed, without any claim that there was probable cause to believe he had violated any law—Awadallah 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 incarcerated in four prisons and suffered many of the hardships imposed on all federal prisoners.5 In many ways, however, the conditions of his confinement were more restrictive than that experienced by the general prison population. He was immediately put in solitary confinement in the special...

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17 practice notes
  • Al-Kidd v. Ashcroft, No. 06-36059.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 September 2009
    ...of material witnesses at the New York City Metropolitan Correctional Center (MCC). It cites a case, United States v. Awadallah, 202 F.Supp.2d 55, 59-61 (S.D.N.Y.2002) (Awadallah I), rev'd on other grounds, 349 F.3d 42 (2d Cir.2003) (Awadallah II), which discusses the conditions of confineme......
  • U.S. v. Awadallah, Docket No. 02-1269.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 November 2003
    ...to make "findings of fact on disputed issues regarding the conditions of confinement." See United States v. Awadallah, 202 F.Supp.2d 55, 59 n. 4 (S.D.N.Y.2002) ("Awadallah III"). Nonetheless, Judge Scheindlin noted that Awadallah spent most of his time in solitary confin......
  • Ashcroft v. Al-Kidd, No. 10–98.
    • United States
    • United States Supreme Court
    • 31 May 2011
    ...(we accept for the 131 S.Ct. 2084sake of argument) that the detention would therefore be unconstitutional. United States v. Awadallah, 202 F.Supp.2d 55, 77, n. 28 (S.D.N.Y.2002). The Court of Appeals thought nothing could "have given John Ashcroft fair[er] warning" that his conduc......
  • Higazy v. Millennium Hotel and Resorts, No. 02 CIV. 9802NRB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 30 September 2004
    ...Weaver v. Brenner, 40 F.3d 527, 536 (2d Cir.1994). Relying on Judge Scheindlin's April 2002 decision in United States v. Awadallah, 202 F.Supp.2d 55 (S.D.N.Y.2002), rev'd 349 F.3d 42 (2d Cir.2003), which held that the term "criminal proceeding" in the material witness statute does......
  • Request a trial to view additional results
17 cases
  • Al-Kidd v. Ashcroft, No. 06-36059.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 September 2009
    ...of material witnesses at the New York City Metropolitan Correctional Center (MCC). It cites a case, United States v. Awadallah, 202 F.Supp.2d 55, 59-61 (S.D.N.Y.2002) (Awadallah I), rev'd on other grounds, 349 F.3d 42 (2d Cir.2003) (Awadallah II), which discusses the conditions of confineme......
  • U.S. v. Awadallah, Docket No. 02-1269.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 November 2003
    ...to make "findings of fact on disputed issues regarding the conditions of confinement." See United States v. Awadallah, 202 F.Supp.2d 55, 59 n. 4 (S.D.N.Y.2002) ("Awadallah III"). Nonetheless, Judge Scheindlin noted that Awadallah spent most of his time in solitary confin......
  • Ashcroft v. Al-Kidd, No. 10–98.
    • United States
    • United States Supreme Court
    • 31 May 2011
    ...(we accept for the 131 S.Ct. 2084sake of argument) that the detention would therefore be unconstitutional. United States v. Awadallah, 202 F.Supp.2d 55, 77, n. 28 (S.D.N.Y.2002). The Court of Appeals thought nothing could "have given John Ashcroft fair[er] warning" that his conduc......
  • Higazy v. Millennium Hotel and Resorts, No. 02 CIV. 9802NRB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 30 September 2004
    ...Weaver v. Brenner, 40 F.3d 527, 536 (2d Cir.1994). Relying on Judge Scheindlin's April 2002 decision in United States v. Awadallah, 202 F.Supp.2d 55 (S.D.N.Y.2002), rev'd 349 F.3d 42 (2d Cir.2003), which held that the term "criminal proceeding" in the material witness statute does......
  • Request a trial to view additional results

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