This case involves the U.S. government’s unconstitutional application of the federal "material witness" statute. During the period of Sept. 21, 2001 through Oct. 10, 2001, Osama Awadallah was not accused of a crime but was, nonetheless, detained in communicado by federal officials under the federal "material witness" statute. The government’s purported interest in Mr. Awadallah’s detention was to have him testify before a grand jury in New York City, in which he was questioned about whether he knew two of the individuals who were suspected of involvement in the September 11 hijacking. Mr. Awadallah was then indicted on two counts of making false statements during his grand jury appearance on October 10, 2001.
On April 30, 2002, United States District Judge Shira A. Scheindlin ordered the suppression of Mr. Awadallah’s grand jury testimony and dismissed the indictment. The District Court held that the arrest of Mr. Awadallah was secured on the basis of a misleading application for an arrest warrant. The Court also held that the material witness statute does not apply to grand jury proceedings. Since Mr. Awadallah’s arrest and detention were therefore unlawful, his compelled testimony before the grand jury was unauthorized by law and could not serve as the basis for a perjury indictment.
On July 11, 2002, however, Chief Judge Mukasey issued an opinion in an unrelated case that rejected Judge Scheindlin’s reasoning and held that 18 U.S.C. § 3144 applies to grand jury witnesses, thereby causing a split in authority within the Circuit on this question. In an amicus brief filed in the Second Circuit, the NYCLU and ACLU argued that, as a constitutional matter, the Judge Scheindlin’s decision should be affirmed. In this regard, the amicus brief observed that, under Fourth Amendment and Fifth Amendment jurisprudence, when the government seeks to restrain the liberty of an individual -- particularly one who is not accused of any wrongdoing -- it may only do so in the service of special and substantial needs and, even then, only if less restrictive mechanisms will not adequately serve those needs.
The use of deposition testimony in lieu of live testimony before the grand jury suggests itself as a viable and less restrictive alternative to detention. Indeed, the use of depositions is required by the material witness statute itself. Yet, no deposition of Mr. Awadallah was taken, and the government never adequately explained why the taking of Mr. Awadallah’s testimony by deposition was not feasible. Accordingly, the ACLU/NYCLU brief argued that the government unconstitutionally applied the material witness statute and this unconstitutional conduct provides an alternative basis for affirming the District Court’s decision. Nevertheless, on Nov. 7, 2003, the Court of Appeals reversed the District Court’s decision and remanded the case for reinstatement of the indictment and further proceedings. A petition for rehearing en banc on behalf of Awadallah was denied.
U.S. Court of Appeals, 2nd Cir., No. 02-1269 (amicus)