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April 30, 2002


The opinion of the court was delivered by: Shira A. Scheindlin, U.S. 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 (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 (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 (1967).


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 (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 (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:

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.*fn1 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 prohibiting socail 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 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.*fn2 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"), No. 01 Cr. 1026, 2002 WL 123478, at *13 (S.D.N.Y. Jan. 31, 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.*fn3 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.


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. 2 d 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, 2002 WL 123478, at *1.

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 *31. An evidentiary hearing was held on February 15-18, 2002.


Awadallah was incarcerated in four prisons and suffered many of the hardships imposed on all federal prisoners.*fn5 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 housing unit ("SHU") of the San Diego MCC and, unlike other prisoners, prohibited from having family visits. See Tr. at 502-03. In response to Awadallah's allegation that he was denied showers, the government has explained that "in the SHU, an inmate is offered a shower every other day, but a shower for a high security inmate — which Awadallah was — could be delayed if no lieutenant was available [for the shower]." Gov't Mem. at 19 (citing Tr. at 495-99). Likewise, "[t]he Government does not dispute Awadallah's testimony that he was strip searched each time he was taken from and to his cell," Gov't Mem. at 20, which Awadallah estimated occurred about ten to fifteen times at the San Diego MCC alone, see Tr. at 996.

Awadallah was not permitted to call anyone prior to being moved to New York or while in transit because the "San Diego MCC [had] passed along the order that the material witnesses would not be allowed to make phone calls." Id. at 604. See also id. at 574, 995, 1003. Thus, it was only on the morning of October 1st that Awadallah's lawyer, Randall Hamud, learned from the government that Awadallah was in New York. See GX 503 at 9. Until then, Hamud had been unable to locate Awadallah after he left San Diego.*fn6 See id. Whenever Awadallah was transported anywhere (e.g., a new facility or court), he was surrounded by federal marshals. Awadallah was also usually placed in a "three-piece suit," which is "a set of leg restraints, a belly chain, and a set of handcuffs looped through the belly chain so that the hands are restrained at the person's waist." Tr. at 685.

"Awadallah and other inmates who were at the New York MCC in connection with the investigation into the September 11th terrorist attacks were designated high-security inmates and handled in accordance with the procedures for such inmates."*fn7 Gov't Mem. at 28 n. 39 (citing Tr. at 635-36, 651-52). "[T]he warden determined that until [the MCC] had any concrete evidence from the FBI or other folks, that there was not a terrorist association or anything of that nature, that [the MCC] would have to keep [the material witnesses] separate[]" and special precautions would apply. Tr. at 636. Awadallah was therefore incarcerated in the SHU and kept in solitary confinement.*fn8 See id. at 617, 631-32, 641.

It was also decided "early on" that "[w]ith respect to all of the folks who were being brought in as material witnesses and under investigation for the World Trade Center attacks . . . that [the MCC] would record their movements with a hand-held camera, a policy that the prison had previously used with the "African Embassy bombers." Id. at 621. Thus, Awadallah was videotaped by the guard whenever he left his cell. See id. at 1013-15. During this time, he was also strip-searched. See id. Moreover, Awadallah was not allowed any family visits or phone calls prior to his grand jury testimony.*fn9 See id. at 637-38, 1021.

With respect to Awadallah's allegations of physical abuse, the government states that "[t]here is no dispute that Awadallah had bruises on his upper arms as of October 4, 2001." Gov't Mem. at 30 (citations omitted). In addition, a Special Investigative Agent prepared a report that found Awadallah had "multiple [bruises] on arms, right shoulder, [and] both ankles," a cut on his left hand, and an unspecified mark near his left eye. GX 305 at 2. See also Tr. at 797.

Finally, as a devout Muslim, Awadallah only eats halal meat. But, even after receiving the prison's common-fare religious diet, Awadallah was never assured that it complied with his religious requirements (i.e., the meat was slaughtered in a particular fashion).*fn10 See Tr. at 523. As a result, Awadallah refrained from eating any meat, or any food that touched the meat, throughout his incarceration. At times, this meant that Awadallah ate little or nothing the entire day. See id. at 1001 (Awadallah testifying that he only ate an apple during his 24- hour incarceration at San Bernardino).


A. The Statute's Structure

1. Sections 3144 and 3142

Although the phrase "criminal proceedings" may create some uncertainty, "[t]he statute's structure clarifies any ambiguity inherent in its literal language."*fn11 Castillo et al. v. United States, 530 U.S. 120, 124 (2000) (turning first to the statute's structure to determine the meaning of ambiguous terms). The material witness statute begins: "If it appears from an affidavit filed by a party . . . ." 18 U.S.C. § 3144. "[B]y a party" plainly invokes an adversarial process — a proceeding where there is a prosecutor and a defendant and in which either side may submit an affidavit stating why a particular witness is material to its case.

In contrast, there are no parties to a grand jury proceeding. "The grand jury is an investigatory body. Until it completes its job, the criminal process cannot begin." In re Schmidt, 775 F.2d 822, 824 (7th Cir. 1985) (emphasis added). See also Branzburg v. Hayes et al., 408 U.S. 665, 688 (1972) ("Because [the grand jury's] task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad.") (emphasis added).*fn12 A "party" to a criminal proceeding does not exist until after the grand jury has returned an indictment.

Consider, for example, the affidavit issued in this case. "The warrant was issued based on the affidavit signed by New York FBI Special Agent William Ryan Plunkett." Gov't Mem. at 17 (citing Tr. at 550, 937-39, 947-49; Plunkett Aff.). But Agent Plunkett was not a party to the grand jury proceeding — at best, Agent Plunkett was, like Awadallah, a witness before the grand jury. It was thus improper, under the plain language of the statute, for him to sign the affidavit seeking Awadallah's detention as a material witness. In fact, even after the perjury indictment issued, Agent Plunkett's status did not change because only the United States (as represented by the U.S. Attorney) and Awadallah (as represented by his counsel) are parties to these criminal proceedings.

Moreover, section 3144 does not apply to every witness that the parties may wish to call at a criminal proceeding; it only applies to those whose testimony is material. Although there is no fixed definition of when a witness's testimony is "material," in the context of a pending trial it is obvious that the judge must "determin[e] the importance of the witness to the case." Ronald L. Carlson and Mark S. Voelpel, "Material Witness and Material Injustice," 58 Wash. U.L.Q. 1, 21 (1980). Witnesses who are insignificant to the prosecution or defense may not be detained, even if they might be unavailable for trial.

In the context of a grand jury investigation, it is very difficult, if not impossible, for a judge to determine who is a material witness. The grand jury operates in secret and courts are generally prohibited from inquiring into its proceedings. See Fed. R. Crim. P. 6(e)(2). Because there is no reasonable way to determine whether a witness's testimony is material to the grand jury investigation, a court would be forced to rely on "a mere statement by a responsible official, such as the United States Attorney." Bacon v. United States, 449 F.2d 933, 943 (9th Cir. 1971). But if a judge abdicates her role by delegating her authority to the government, she reads the materiality requirement out of the statute.

Section 3144 continues by stating that "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." 18 U.S.C. § 3144. In turn, section 3142 explicitly states that it applies to proceedings "pending trial":

(a) In general. — Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be [released or detained].

18 U.S.C. § 3142. Given that a trial is not pending when a grand jury investigation is initiated to investigate potential criminal acts, it is plain that section 3142 cannot apply to grand jury proceedings.

Moreover, in determining whether to detain a defendant or witness pending trial, section 3142 mandates that "[t]he judicial officer shall . . . take into account the available information concerning,"

(1) The nature and circumstances of the offense charged . . .;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person . . .;
(4) the nature and seriousness of the danger to any person . . . that would be posed by the ...

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