Post-9/11 Case Weighs on Mukasey Confirmation

Oct. 16, 2007— -- 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.

Mukasey has admitted in writing that he has "no doubt" that after 9/11 people were taken into custody "who in retrospect should not have been." Showing his respect for law enforcement in a 2004 Wall Street Journal op-ed, the judge continued, "But we should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either overinclusive or underinclusive. There are consequences both ways. The consequences of overinclusiveness include condemnations. The consequences of underinclusiveness include condolences." Mukasey's comments were broad, not specific to any of his cases.

In Washington, when word of Mukasey's nomination leaked, many Democrats delighted in the choice. Sen. Charles Schumer, D-N.Y., and Leahy talked about his reputation for fairness. He was considered a consensus nominee, because while he was known to be generally conservative in his rulings, he has not been in lockstep with the administration.

Lawyer Donna Newman has appeared before Mukasey on several occasions. When one of her clients, Jose Padilla, was accused of working to develop a "dirty bomb," he was held under the material witness warrant. In contrast to Awadallah's lawyer, Randy Hamud, who has criticized Mukasey — calling him "beyond judicial arrogance" and accusing the judge of allowing the "passions of the moment to overwhelm his objectivity" — Newman has a different take entirely.

She said she does not agree with the use of the material witness warrant but has nothing but praise for Mukasey. "The man has the highest integrity," she said. "I personally respect him; he's always demonstrated to me his thoughtfulness."

When President Bush announced Mukasey's nomination, he focused heavily on the former federal judge's experience in the legal war on terror.

Former U.S. Attorney Mary Jo White, who supervised the government attorneys involved in the Awadallah hearing, praised Mukasey and said he would be an excellent attorney general. "He will call these shots as he sees them," White said, "and I think that's exactly what the White House should want and certainly it's what the country should want and what the country will get if he is confirmed."

Mukasey himself warned in an August 2007 Wall Street Journal opinion article that "current institutions and statutes are not well-suited" to the post-9/11 task of handling the legal war on terror. He has expressed worry that terrorism trials in the United States have "unintentionally provided terrorists with a rich source of intelligence" and writes "disclosure not only puts our secrets at risk but also discourages allies abroad from sharing information with us lest it wind up in hostile hands."

But critics of the government's use of the material witness statute said it has backfired in other cases, such as the case of Brandon Mayfield, a Portland attorney who was originally detained as a suspect for the 2004 Madrid bombings based on faulty fingerprint evidence found near the scene.

Michael Greenberger at the University of Maryland Law School said, "the U.S. was badly burned in its use of the statute, especially in the now famous Brandon Mayfield case where Mayfield [like Awadallah] was wrongfully held as a material witness, has sued the U.S. leading to embarrassing admissions, court losses and a damage settlement of about $2 million. In sum, Chief Mukasey set in motion a process through which the Bush administration has permitted to hang itself on its own petard."

The American Civil Liberties Union has written to Congress, urging members to ask Mukasey about the material witness statute. The letter says, "Mukasey signed material witness warrants for the arrest and detention of both citizens and noncitizens sought by the Department of Justice. He then closed court hearings of all material witness cases to the press and the public. Some of those detained were held for months; most were never charged with any crime whatsoever, thus suggesting many were being held not as witnesses but for purely preventive or investigative purposes."

In a 2002 speech, Mukasey took on critics of the federal material witness statute. He said only a "very small" number of people were taken into custody on material witness warrants. "Those people were not held incommunicado," said Mukasey. They each "had the same right" that a criminal defendant has.

Addressing critics of the warrants, he said, "That's the unremarkable truth behind the breathless half-truths you might have heard." He added that the government is entitled to receive from the people "at least the benefit of the doubt."

As for Awadallah, one of the "very small" number of people who were taken in for material witness warrants, he is now applying for U.S. citizenship.