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
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.
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
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
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
In 1984, Congress enacted 18 U.S.C. § 3144 ("section 3144"),
commonly known as the "material witness statute." Section 3144 states in
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
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
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
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.
III. SEPTEMBER 21, 2001 THROUGH OCTOBER 10, 2001
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.
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).
IV. THE GOVERNMENT EXCEEDED ITS AUTHORITY UNDER THE MATERIAL WITNESS
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
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
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
(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