New York Times - June 1, 2005
Jordanian student's case:
With 9/11 trial set to begin, prosecution appeal delays it
By Julia Preston
The government's longtime effort to prosecute a student from Jordan who was an acquaintance of two of the Sept. 11 hijackers ran into a new delay yesterday when a judge sent home a jury that had been ready for the trial to begin.
The delay this time was of the prosecutors' own doing. On Thursday they appealed a ruling by the judge, Shira A. Scheindlin of the Federal District Court in Manhattan, who had decided that the government could not call grand jurors to testify at the trial about their personal impressions of the defendant's demeanor when he appeared before them in October 2001. Such testimony, Judge Scheindlin found, would be overly speculative.
The accused, Osama Awadallah, is charged with committing perjury before the grand jurors concerning how well he knew one of the hijackers, Khalid Almihdhar, whose name, Mr. Awadallah told them, he could not even remember. One defense lawyer, Jesse Berman, has said that Mr. Awadallah misspoke to the grand jury because he was disoriented, exhausted and frightened after three weeks in solitary detention.
Mr. Awadallah, now 25 and a full-time student at San Diego State University, has never been charged with conspiring in or knowing about the Sept. 11 attacks. But he was arrested as a material witness on Sept. 21, 2001, having come under suspicion when F.B.I. agents found a scrap of paper with the name "Osama" and an old telephone number of his in a car left behind at Dulles International Airport by Nawaf Alhazmi, another of the hijackers who steered a plane into the Pentagon.
Court documents show that Mr. Awadallah was held for 21 days in solitary confinement. In court yesterday, his lawyers cited evidence that he had seven visible bruises when he appeared before the grand jury, marks they said had come from rough handling by prison guards during his detention.
The defense also argued yesterday, unsuccessfully, for dismissal of the case because Mr. Awadallah was handcuffed to a chair when he went before the grand jury. One of his lawyers, Elizabeth Fink, argued that the handcuffs had made him "look absolutely like a criminal" during questioning by a prosecutor, Robin Baker.
"Oy vey, what is he going to do, go out the windows?" Ms. Fink said to the judge, basing her argument on a Supreme Court decision in May holding that it was unconstitutional to use shackles in court on a prisoner convicted of a capital crime.
Mr. Awadallah's crime, she said, "is being a Jordanian citizen of Palestinian descent who is of the Muslim faith."
Witnesses before grand juries are not entitled to have lawyers with them inside the grand jury room, and Ms. Fink said that since Mr. Awadallah, handcuffed to the chair, had been unable to leave the room to speak with his lawyers, he had been deprived of his right to legal counsel.
Judge Scheindlin rebuked the prosecutors for use of the handcuffs, calling it "poor judgment." She also scorned Ms. Baker's statements to the grand jury that Mr. Awadallah had been held only "briefly" before his appearance there.
But the judge rejected Ms. Fink's arguments that Mr. Awadallah had been deprived of his legal rights, noting that he had been allowed to leave the room during several breaks.
Judge Scheindlin threw out the case once, in 2002, ruling that a law allowing detention of material witnesses to ensure their presence in criminal proceedings did not apply to appearances before grand juries. But an appeals court overturned her decision.
Just as it appeared that the trial was imminent, prosecutors informed the defense in May that they planned to call several of the grand jurors to tell how Mr. Awadallah looked as he was testifying.
But Judge Scheindlin ruled last week, and reconfirmed in writing yesterday, that although the grand jurors could testify about what objective events occurred during the testimony, they could not discuss their personal impressions of Mr. Awadallah's presentation.
With that ruling now under appeal by the government, Judge Scheindlin told the trial jurors yesterday that while she was not dismissing them, she would allow them to resume their lives because she could not predict how long resolution of the appeal would take.
She also moderately lightened the terms of Mr. Awadallah's bail, saying he appeared to pose no risk of flight. And, after learning that the government had bought only a one-way ticket from California for him, she ordered marshals to pay for his return to await trial.
News Day - May 30, 2005
Justice steeped in turmoil:
Controversy over Jordanian student's detention
after 9/11 hinges on perjury and civil rights issues
BY PATRICIA HURTADO
Nearly four years after the Sept. 11 attacks, the controversial case of Osama Awadallah continues to roil in the federal courts without resolution in sight. And still not one word of trial testimony has been uttered.
The perjury trial of the Jordanian college student, who investigators say had links to two of the hijackers and lied about knowing one of them, was to begin tomorrow in U.S. District Court in Manhattan. But court maneuvers now place it in legal limbo.
First, U.S. District Court Judge Shira Scheindlin issued a ruling May 24 that prosecutors contend irreparably hobbles their case. On Thursday, prosecutors filed an expedited appeal of that ruling with the Second Circuit Court of Appeals, an action that appears to have put it on hold. Late Friday, the Circuit Court denied a request by Awadallah's lawyers to dismiss the government's appeal, which would have allowed the trial to go on.
In another twist, Scheindlin has scheduled a separate hearing in the case tomorrow and has warned she may dismiss all charges on the grounds Awadallah was illegally handcuffed during his 2001 grand jury appearances. This is not the first time Scheindlin has found fault with the case. In 2002, she dismissed all charges, ruling the government improperly used the material witness statute to detain Awadallah, calling his jailing unconstitutional. His case was the first to challenge the legality of the statute, which was used to detain several people as part of the government's terror probe.
Awadallah's case also has been a political and legal flashpoint. Civil libertarians have supported Scheindlin's 2002 ruling, and pointed to the case as an example of how those with even the slightest of connections to criminals can be compelled to come forward or be charged.
Other government critics have contended it is an example of zealous overreaction following Sept. 11, arresting and detaining people, many of them Muslims, as material witnesses for a Manhattan federal grand jury probe investigating the attacks.
9/11 paper trail?
For FBI agents searching for clues in the days after the terrorist attacks, Awadallah appeared to be a solid lead: His phone number was found on a slip of paper inside a car that Nawaf al-Hazmi abandoned at Dulles International Airport. Al-Hazmi was a hijacker aboard American Airlines Flight 77, which slammed into the Pentagon.
On Sept. 20, 2001, FBI agents tracked down the scribbled notation "Osama 589-5316" to a San Diego address where Awadallah, then a student at Grossmont College there, once lived.
FBI Special Agent Aurelia Austin testified before Scheindlin in 2002 that the agency's objective was clear. "We were searching for any connection or any knowledge they had about the suspected hijackers," she said.
Awadallah eventually was brought to New York as a material witness and was asked about al-Hazmi and Khalid al-Midhar, another terrorist aboard Flight 77. He admitted knowing al-Hazmi; later, he was charged with perjury after he denied knowing al-Midhar.
Almost as soon as the case arrived on Scheindlin's docket, it stalled. The judge has rulings that assailed the validity of the government's case, and which prosecutors have appealed.
Awadallah charged he was physically abused by jail guards during his cross-country trip to New York, held incommunicado, deprived of proper Muslim food and not allowed to practice his religion while in federal custody. Authorities denied his charges. They pointed out the lack of phone service in lower Manhattan for nearly eight weeks after the terrorist attacks, because the collapse of the Twin Towers ruined a crucial switching station. Prosecutors also produced a federal jail chaplain who said he gave Awadallah a Quran.
The government has long maintained that the laws they used during the probe have been misunderstood and that Awadallah was one of fewer than 50 people who were taken into custody on material witness warrants.
Prosecutors assert the case was an instance when the FBI did "connect the dots" and locate a man who crossed paths with the hijackers. When questioned under oath, they argue, he chose to lie.
Judge rules on detention
Soon after Awadallah's October 2001 indictment, Scheindlin held an extraordinary four-day hearing into allegations he had leveled that he was illegally detained, physically abused and coerced into committing perjury while being held as a material witness in the terror probe.
She dismissed the charges after concluding Awadallah's arrest was unlawful and that the government had no authority to detain him under the material witness statute. Scheindlin sharply criticized the FBI agents and other law enforcement officials who dealt with him, writing, "Awadallah was treated as a high-security federal prisoner. Having committed no crime ... Awadallah bore the full weight of a prison system designed to punish convicted criminals."
James Comey, then U.S. attorney for the Southern District of New York, argued the government's case before the Second Circuit in appealing Scheindlin's ruling. "It is preposterous to think that these agents were looking for anything other than a second wave of attackers in September 2001." Others appeared skeptical of claims that the FBI was intent on entrapping Awadallah. "Doesn't it defy belief to suggest that hard on the heels of the events of Sept. 11, in the frenzy of investigative activity, when a telephone number is found in a hijacker's automobile, that the government was intent on locating that individual with perjury in the future in mind?" Judge Chester Straub asked at the appeals hearing.
In November 2003, the federal appeals court overturned Scheindlin's ruling and reinstated the case, concluding the government correctly applied the law and had every reason to believe Awadallah would not testify unless he was held under the material witness warrant.
It is telling that the FBI agents 'located' Awadallah on Sept. 20, 2001," they wrote. "This means that, in the wake of a mass atrocity and in the midst of an investigation that galvanized the nation, Awadallah did not step forward to share information that he had about one or more of the hijackers."
A high court rebuff
The U.S. Supreme Court refused to hear Awadallah's appeal, and the case was returned to Scheindlin earlier this year.
Scheindlin granted an adjournment to let Awadallah, now 24, complete his courses at San Diego State University. A jury was selected earlier this month, and the trial was set to begin tomorrow. Then came the tempestuous court session on May 24.
Scheindlin barred prosecutors from questioning grand jurors about Awadallah's demeanor before them in 2001. Instead, she ruled, grand jurors could only describe the room and Awadallah's physical appearance.
Assistant U.S. Attorneys Robin Baker and Karl Metzner argued the grand jurors' testimony about Awadallah's demeanor was crucial, because defense lawyers Jesse Berman and Liz Fink had said they will argue at trial that their client's alleged lies were mistakes made as the result of "memory lapse, misunderstanding, exhaustion." Awadallah's lawyers also have charged that he felt "under pressure," "scared" and "afraid" during his grand jury testimony and was "flanked between two enormous law enforcement officers who ... shackled him to a chair." The government wanted to refute these claims. Scheindlin firmly refused.
Berman and Fink had one more challenge: They asked Scheindlin to dismiss the case again, citing a newly issued Supreme Court decision, Deck v. Missouri, that concluded shackling of defendants "undermines the presumption of innocence."
Metzner and Baker argued that Awadallah was handcuffed, not shackled, during his grand jury appearances. They noted prosecutors instructed grand jurors not to draw conclusions about the handcuffing, while Metzner explained the restraint was to keep him from fleeing and said other material witnesses that appeared before the same grand jury also were handcuffed. Scheindlin interrupted him, speaking angrily and rapidly.
"He was clearly so dangerous that he needed to be shackled! Mr. Metzner, there's no way around that inference!" she exclaimed. "He wouldn't have to be shackled unless you thought he was dangerous! He wouldn't have needed two guards! Do you routinely shackle your witnesses before the grand jury? When I was an AUSA [assistant U.S. attorney] we didn't shackle anybody!"
Metzner argued the Deck case was not relevant because it pertained to the penalty phase of a capital murder case. Scheindlin did not want to hear the argument at that time, and instead scheduled a hearing on the matter today at 4 p.m, then rescheduled it for tomorrow.
But she concluded the May 24 hearing with portentous words for defense lawyers Berman and Fink. "If you were to prevail on the Deck motion, there is no trial ... no harm done," Scheindlin told them. "... if the indictment is then dismissed and there is another appeal ... there are all sorts of remedies."