Appeals court reinstates charges against man linked to 9/11 hijackers

Case focuses on use of material witness law in terror investigation

November 08, 2003|By Patricia Hurtado | Patricia Hurtado,NEWSDAY

NEW YORK - In a victory for the government's use of the material witness statute after the Sept. 11 attacks, a federal appeals court reinstated charges yesterday against a Jordanian whose name and telephone number were found in a car belonging to a hijacker.

Osama Awadallah, 23, was indicted on charges that he lied to a federal grand jury about knowing Khalid Al-Midhar, one of the hijackers aboard American Airlines Flight 77, which hit the Pentagon.

In April last year, U.S. District Court Judge Shira Scheindlin tossed out the case, calling the government's jailing of a material witness for a grand jury investigation unconstitutional.

Scheindlin also ruled that Awadallah's allegedly perjured grand jury testimony should be suppressed.

But the 2nd Circuit Court of Appeals reversed Scheindlin's decision, ruling that the statute was correctly applied and was used correctly to secure testimony of an otherwise unavailable witness.

"We conclude that the Material Witness warrant was valid, that Awadallah's grand jury testimony should not have been suppressed and that the indictment must therefore be reinstated," the judges wrote.

I. Michael Greenberger, a University of Maryland law professor who has followed the issue closely, called the ruling "outrageous."

"This is a very important ruling," he said. "It gives the Justice Department a lever to do basically anything they want."

On Sept. 11, 2001, investigators found Awadallah's name on a paper in the car that hijacker Nawaf Alhazmi left at Washington Dulles International Airport. Alhazmi also was on Flight 77. The government accused Awadallah of knowing both hijackers when they lived in the San Diego area.

Investigators located Awadallah in California on Sept. 20, 2001, and he was taken to testify before a federal grand jury in Manhattan.

Investigators found several computer-generated photos of Osama bin Laden in Awadallah's home and videotapes on Bosnia and Islam, as well as a box cutter in his car. The appeals court found that the government had reason to believe Awadallah would not testify without the material witness warrant.

"It is telling that the FBI agents located Awadallah on Sept. 20," the appeals court 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 he had about one or more of the hijackers."

James Comey, the U.S. attorney for Manhattan who argued the government's appeal, said yesterday: "We are very pleased with the court's decision. It vindicates the government's use of the material witness statute in criminal investigations - one of the most important tools in our Sept. 11 investigation and many others."

Comey said many had misunderstood the government's use of the statute after Sept. 11. David Kelley, chief of Comey's terrorism unit, said yesterday that 50 people were detained during the terrorism investigation using the statute.

"It is a tool to hold people who might know about crime and might otherwise disappear," Comey said.

Comey said the decision would have a widespread impact. "It removes any cloud over the use of the material witness statute."

Sun staff writer Scott Shane contributed to this report. Newsday is a Tribune Publishing newspaper.

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