Judge: Arrest of Sept. 11 witness was illegal
CNN New York Bureau
NEW YORK (CNN) -- A federal judge dismissed perjury charges Tuesday against a Jordanian-born college student accused of lying about his acquaintance with two of the September 11 terrorists.
The judge also ruled the government had no right to detain Osama Awadallah, or others like him, as a material witness in the first place.
Awadallah, 21, was under indictment for allegedly making false statements to a grand jury about how he knew two of the men who crashed a hijacked American Airlines plane into the Pentagon.
U.S. District Judge Shira Scheindlin dismissed the charges, ruling that Awadallah's arrest by the FBI on September 21 was unlawful and the government had exceeded its authority by detaining him as a material witness in the terrorism investigation.
"No Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation," Scheindlin wrote in two opinions that stretched over 119 pages.
"The federal material witness statute does not authorize the detention of material witnesses for a grand jury investigation," she said.
Scheindlin's decision could have implications in many post-September 11 cases, since an unknown number of the hundreds of people detained by the Department of Justice were held on material witness warrants, including two of Awadallah's fellow students.
FBI agents tracked down Awadallah after finding his first name and old phone number on a scrap of paper in the glove compartment of the car abandoned by Nawaf Alhazmi at Dulles Airport outside Washington.
Alhazmi was one of five men who commandeered American Airlines' Washington-to-Los Angeles Flight 77 and crashed it into the Pentagon, killing 64 passengers and crew and 125 Pentagon employees.
Both Alhazmi and fellow hijacker Khalid Almidhar lived in San Diego during part of 2000.
Awadallah moved there to live near his older brother, a permanent U.S. resident, and father, a naturalized U.S. citizen. He enrolled in Grossmont Community College where he studied English as a second language.
Awadallah admitted having met Alhazmi 18 months before the September 11 attacks and seeing him about 40 times, sometimes with Almidhar, at the gas station he worked at or at a mosque.
But Awadallah said he did not see either man for nearly a year before the attacks.
The FBI waited for Awadallah outside his apartment September 20. They searched his apartment, questioned him for six hours at their office and subjected him to a lie detector test the next day before applying to arrest him as a material witness.
Scheindlin faulted the FBI for failing to inform Awadallah that he was "free to leave whenever he wanted" and said the "consent he gave to search his home and cars was nonetheless involuntary."
After his arrest, Awadallah was eventually transferred to New York and spent a 83 days in prison, where he was treated as a high-security inmate and often was placed in solitary confinement. Scheindlin granted him bail last December.
Awadallah was charged with perjury after two appearances before a New York grand jury last fall that was probing the September 11 attacks.
In his first appearance, he denied knowing a "Khalid" -- referring to Almidhar -- or writing his name in a college exam booklet. Awadallah corrected his testimony five days later, but was charged with making two false statements.
Scheindlin called the government's actions "troubling" and its motives "dubious," given that Awadallah had given FBI agents details of his encounters with the terrorists.
Because Awadallah's detention was unlawful, Scheindlin wrote, his post-arrest statements to the FBI and evidence FBI agents gathered at his apartment would have been suppressed. His attorneys argued those points in a four-day evidentiary hearing in February.
Awadallah's attorney, Jesse Berman, said the dismissal of the case "is wonderful for my client, who suffered enough and never did anything wrong."
He added, "He can get on with his life. It's a shame he spent three months in jail."
Responding to Scheindlin's decision, U.S. Attorney James Comey said, "We believe the court's opinions are wrong on the facts and the law, and we are reviewing our appellate options."
Attorney General John Ashcroft called Scheindlin's opinion an "anomaly" and said other judges have upheld the use of material witness warrants "in the settings that we have been using them."
Material witness warrants usually are used rarely by prosecutors to compel a reluctant witness to testify.
Former federal prosecutor Sean O'Shea said the government was using the material witness warrant as a "dragnet device."
"What Awadallah did was commit the sin of knowing the hijackers and being an Arab. That's not appropriate to throw somebody in jail in this country. It never has been," O'Shea said.
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