http://www.boston.com/news/nation/washington/articles/2003/11/08/court_upholds_us_detention_power/

Court upholds US detention power
Jordanian student held in 9/11 probe loses challenge
By Lyle Denniston, Globe Correspondent, 11/8/2003

WASHINGTON -- A federal appeals court yesterday upheld the constitutionality of the government detaining individuals without criminal charges, as long as they are witnesses who possibly have information about terrorism -- a power the Justice Department has used repeatedly over the past two years.

The ruling by the US Circuit Court of Appeals for the Second Circuit, based in New York City, was issued in the case of a Jordanian student whom government prosecutors have sought to link to some of the 19 hijackers involved in the terrorist attacks of Sept. 11, 2001.

"We see no serious constitutional problem" in detaining people to make sure they show up to testify in a grand jury investigation, the three-judge panel said. In this case, judges said, the fact that the grand jury "was investigating the Sept. 11 terrorist attacks" reinforced the government's need to hold witnesses who might help them discover "the conspirators, means, contacts, and operations in order to forestall future attacks."

Attorney General John D. Ashcroft said the department was pleased that the appeals court "recognizes the important principle that witnesses whose testimony is material to criminal proceedings . . . may be detained when that detention is reasonable and necessary."

The person involved in the case, Osama Awadallah, a Jordanian who was living in San Diego and attending Grossmont College there, was located by the FBI after his first name and an out-of-date telephone number for him were found in a car left behind at Dulles Airport outside Washington by one of the hijackers of the plane that crashed into the Pentagon.

The FBI later learned that two of the hijackers had lived near Awadallah in San Diego.

In ruling against his challenge to the detention, the appeals court said it was significant that Awadallah had not come forward to tell what he knew after the names and faces of the 19 hijackers had been widely publicized across the nation after the attacks. His failure to do so, the court said, was added proof that he probably would have tried to flee from authorities if he was not detained. That aspect of the ruling divided the three-judge panel, 2 to 1.

The Justice Department has not disclosed the number of times it has used the "material witness" law, dating in its present form from 1984, to hold potential witnesses in terrorism investigations. But published accounts have said the number was more than 40.

Among the people originally taken into custody as "material witnesses" were Zacarias Moussaoui, the only person charged with a role in the Sept. 11 attacks, and Jose Padilla, being held in a military brig as an "enemy combatant" for his alleged role in a plot to explode a radioactive bomb in the United States.

In more than half of those "material witness" cases, the people were never summoned before grand juries to tell what, if anything, they knew, according to statements by defense lawyers in interviews with the media.

The Jordanian student, with support from civil liberties groups, mounted a constitutional challenge to the use of the "material witness" law solely to round up potential witnesses, with no indication at the time of their detention that they would be accused of crime. The appeals court said the only reason Awadallah was arrested was "to secure information" about terrorism.

A federal judge ruled last year that the tactic was unconstitutionally used against him. But another judge, in a separate case, had disagreed. The appeals court ruling sorted out the different judgments, ruling in favor of the Justice Department.

After Awadallah had been held in various prisons for 20 days and questioned repeatedly, he was summoned before a grand jury. That testimony led to criminal charges of two counts of lying. He has not been charged with a terrorist act.

The false statement charges had been thrown out by the federal judge who found his detention to be invalid, but were reinstated by the appeals court ruling. Since his detention as a material witness was valid, the appeals court said, the dismissal of the charges was wrong.

Rules governing detained witnesses generally require the government to justify holding anyone for more than 10 days. But the appeals court said "we are satisfied that Awadallah's detention was not unreasonably prolonged," even though it lasted for 20 days before he was put before a grand jury for questioning.

During that testimony, he denied that he knew one of the hijackers, Khalid Al-Mihdhar, and denied that the handwriting in a booklet was his -- writing that suggested he knew Mihdhar. Those two denials led to the two criminal counts.