Post-9/11 Case Weighs on Mukasey Confirmation

Osama Awadallah has a different perspective on attorney general nominee Michael B. Mukasey — he once appeared before the then-federal judge in shackles.

The Jordanian-born San Diego resident was arrested as a material witness after 9/11 because his phone number was found on a piece of paper in the abandoned car of one of the hijackers who flew American Airlines Flight 77 into the Pentagon.

It was Mukasey, then serving as the chief judge of the Southern District of New York, who signed a material witness arrest warrant for Awadallah, and an appeals court later upheld the use of the statute for such cases.

Mukasey heads to Capitol Hill this week, meeting with Senate Judiciary Chairman Patrick Leahy, D-Vt., Tuesday, one day before his confirmation hearings begin. It's during those hearings that Leahy and his fellow lawmakers will press Mukasey on his views regarding the material witness law. The law, signed in 1984, is designed to allow the government to temporarily hold witnesses who might otherwise flee to avoid testifying in a criminal procedure.

Human Rights Watch calls the government's use of the law since 9/11 "Kafkaesque," saying that the government has used it improperly to hold witnesses who are in fact suspects. According to the organization's 2005 report, "It sets a disturbing precedent for future use of this extraordinary government power to deprive citizens and others of their liberty."

The group estimates that at least 70 men were detained under the law and held in a world "of indefinite detention without charges, secret evidence and baseless accusations of terrorist links."

Awadallah was detained for 20 days in San Diego, then flown to New York City where he appeared before Mukasey. In a transcript of the Oct. 2, 2001, hearing, unsealed four months later, Awadallah's lawyer complains about his client's treatment.

The lawyer, Randall B. Hamud, told Mukasey, "Mr. Awadallah has informed me that, while in custody, he was beaten physically." Mukasey, who had a widely held reputation as a tough but fair judge responded, "As far as the claim that he was beaten, I will tell you he looks fine to me."

Later in the proceeding, Hamud accused the government of interfering with his "attorney-client privilege" by not allowing him to meet with his client. Hamud asked Mukasey to admonish the government for its behavior, but Mukasey's response was sharp: "I don't understand. Your question is ridiculous."

At the hearing Mukasey denied bail to Awadallah. "He has ties outside of the country," Mukasey said. "There is no way to prevent him from leaving."

Awadallah went on to testify in front of a grand jury. While he readily acknowledged he knew one of the hijackers, Nawaf Al-Hazmi, he denied knowing the other, Khalid Al-Mihdhar. The government presented a page from one of Awadallah's own notebooks that mentioned Al-Mihdhar. Although Awadallah appeared again before the grand jury, saying his memory had been refreshed, he was charged with lying to a grand jury.

He was released on bail and spent five years trying to clear his name. He was eventually acquitted of all charges. While his trial was pending, he graduated from college.

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