|HELD WITHOUT CHARGE: Material Witness Laws Put Detainees in Limbo|
Part 4: Held Without Charge
Material witness law puts detainees in legal limbo
September 18, 2002
ABDALLAH HIGAZY, a small silver Islamic crescent glinting proudly from the chain around his neck, remembers calling his parents in Cairo during a sleepless night in his 51st floor room in lower Manhattan's Millenium Hilton Hotel in the early morning hours of Sept. 11. He woke to a boom and papers fluttering outside later that morning, and fled.
Then, he remembers sitting in the FBI's Manhattan headquarters one night a few months later after being arrested as a "material witness" in the Sept. 11 investigation. He worried mostly about how he would get word to Brooklyn Polytechnic that he might miss his final exams. He thought the arrest was a silly mistake that would be quickly corrected.
Instead, Higazy was held without charges for nearly a month in high-security confinement. To try to get out, he submitted to an FBI lie-detector test that he says turned into an interrogation. Faced with pressure he couldn't resist, he finally confessed to owning a ground-to-air radio that he didn't own. And then, after he was indicted for a crime he didn't commit, he remembers the odd greeting he got from his lawyer.
"Congratulations!" attorney Robert Dunn told the beleaguered 31-year- old. "You've been officially charged. Now we know what your rights are."
It turned out to be prophetic. Within five days of actually being charged publicly with a crime, Higazy was exonerated and released. He made headlines as the falsely accused "radio man." And he became the poster boy for a simmering controversy about the government's expansive use of the legal limbo called material witness status as a tactical linchpin in its war against terror.
While his case is the best known, Higazy was one of at least two dozen men imprisoned since Sept. 11 without charges under a little-used, 104-word federal statute typically used to make sure recalcitrant or threatened witnesses are available to testify at criminal proceedings. Flexibly interpreted for use in the terror war, material witness detentions became one in an array of strategies that have tested the traditional balance between civil liberties and government power.
With the Justice Department's post-Sept. 11 emphasis on preventing terrorism, the tactic has been an attractive one. As the government interprets the law, it can be used to detain immigrants and citizens alike when there is insufficient evidence available to charge them with a crime, but federal investigators suspect they might be up to no good or might be withholding information that might be of value.
And, as with other post-Sept. 11 tactics, government officials insist their use of the material witness statute has been in strict compliance with the law. "I have told the members of the Department of Justice to think outside the box, to think of new ways to help, but never think outside the Constitution," Attorney General John Ashcroft told the Senate Judiciary Committee during recent testimony defending his agency's use of material witness warrants.
An examination of Higazy's case and a dozen other material witness detentions, however, paints a more complex picture. The Justice Department, experts say, has taken a law that was typically used to make sure a person was around to provide particular testimony for a particular trial and employed it in the service of a sprawling, amorphous set of grand jury investigations of tips and suspicions relating to Sept. 11 and terrorism that have no end in sight.
That shift, critics say, has turned a narrow law designed to assist the judicial process into a broad preventive detention statute, giving the government relatively open-ended powers of arrest that are vulnerable to misjudgments and abuse:
At least 10 innocent men with no information relating to terrorism or Sept. 11, no immigration violations and no other criminal liability - ranging from Higazy (an Egyptian engineering student), to a San Antonio doctor, a Florida travel agent and an Indiana restaurant owner - have been incarcerated under the law since Sept. 11., some for days, others for weeks.
Although the law is designed to ensure that witnesses testify, prosecutors have routinely used it to detain people for questioning without immediately bringing them before a grand jury to testify. Instead, some of those detained never were brought before a grand jury and others waited weeks.
While individuals are detained as witnesses, in many cases they have complained of being treated more like suspects - held in high-security conditions, unable to communicate easily with friends and family, prohibited by gag orders from speaking about their cases.
The law allows detention only when there is reason to believe a person would ignore a subpoena, but judges have allowed the detention of people who came forward and volunteered information, people who cooperated with FBI agents and people with families, homes and settled lives in their communities.
While courts have so far signed off on many of these practices, in one case a jurist - U.S. District Judge Shira Scheindlin of Manhattan - ruled the government's use of the material witness law in the grand jury context unconstitutional. And critics say that while the government may need special new detention rules for terror investigations, it is taking the wrong course by trying to re-invent an old law to claim that authority instead of asking Congress to pass a new one.
"The law has been metamorphosing into something it was not originally conceived for," said Ronald Carlson, a University of Georgia law professor who has studied the evolution of material witness laws for more than 20 years. "The current use of the law is very troubling. If the pattern continues, it's only a matter of time before this spreads to detention in terms of general crimes instead of just terror."
Unlike many civil liberties issues that have arisen since Sept. 11, the battle Higazy was caught up in focuses not on a newly passed rule or law, but on an old one. Authority to detain witnesses who might flee has its roots in 18th century American law, but the language of the current federal statute dates to 1962.
"If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding," the law says, "and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person..."
In recent years, former prosecutors say, the law had most often been used in drug smuggling and illegal immigration cases - to detain illegal-alien witnesses whose testimony was needed at trial. The use in grand jury investigations was not unprecedented - Oklahoma City bombing suspect Terry Nichols, for example, was held on a material witness warrant after the arrest of Timothy McVeigh - but it was not widespread, and usually limited to preserving testimony against a specific, identified suspect.
The technical legal issue focuses on the phrase "criminal proceeding." Scheindlin, in an April ruling involving a San Diego student, Osama Awadallah, who had contact with two hijackers, found that the phrase did not cover a grand jury. In July, Manhattan's chief federal jurist, U.S. District Judge Michael Mukasey, came to the opposite conclusion in a case involving a witness identified only as "John Doe."
That dispute, experts say, seems headed for higher courts. In the meantime, the government has found its interpretation particularly useful for several reasons.
Grand jury proceedings are secret, so the Justice Department has argued that the names and even the number of detained material witnesses also must be secret. Sealed papers, closed proceedings and gag orders on lawyers and defendants keep the investigation hidden from terrorists, the government says. But it also has made it hard for the public to scrutinize the actions of agents, prosecutors and judges.
In addition, although detentions must be authorized and supervised by judges, the scrutiny may be limited by the secrecy of the grand jury proceedings to which a detainee's testimony may be "material." Mukasey, for example, said in his decision that the "representation of the U.S. Attorney as to materiality is sufficient" to hold a grand jury witness.
And after a witness is detained, the statute gives judges no guidance on how long they can be held. "A federal grand jury can last 24 months," said Paul Rosenzweig, a legal fellow with Washington's Heritage Foundation. "That's an awful long time."
Finally, read literally, the statute's language is elastic. Any suspect or target is, in theory, also a witness to whatever he is suspected of. So the law has been used to keep individuals such as accused Sept. 11 conspirator Zacarias Moussaoui and alleged "dirty bomber" Jose Padilla on ice without charging them.
At the same time, anyone who is merely the subject of an intriguing tip, such as Higazy, or suspected of holding back information may "appear" to have material testimony, and may be held until the situation is explored. Indeed, at times Justice Department officials have talked about the material witness law as if testimony is not their central goal.
"Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks," Ashcroft said in November. "It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism."
While using the law expansively, critics say, the government has also diluted one of the statute's key protections - a requirement that prosecutors show that a person they want to hold would not respond to a subpoena.
For example, two days after Sept. 11, agents in Orlando, Fla., arrested Ahmed "Ed" Badawi, an established travel agent in the area, on a material witness warrant issued in New York. The basis, his lawyer says, was that Badawi sold an airline ticket to a man whose name was suspicious to investigators. Badawi was held for three days.
Michael Presutti, his lawyer, says Badawi was treated well and has more complaints about the media, which began writing stories connecting him to terrorism, than about the government. But, he acknowledges, it's difficult to see how prosecutors could have concluded that a man they knew nothing about would not have cooperated voluntarily - as Badawi quickly did.
"If they had investigated Mr. Badawi, they would have found he had a lot of roots," Presutti said. "He wouldn't flee. But they didn't know him. They were just looking at it as being possible terrorists, a large vaporous group that could melt into the community."
Another curious target for a material witness warrant was Eyad Alrababah, a Connecticut man who approached the FBI in late September with information about casual contacts he'd had with two of the hijackers. He was arrested and detained on a material witness warrant and later charged with immigration violations and deported.
"It turns the material witness statute on its head to use it against a guy for six weeks when he came to the FBI and said, 'I want to help,'" said Alrababah's lawyer, Frank Salvato. "It was used as a tool to put pressure on him. Unfortunately, it created tension because he didn't think he was being treated fairly."
And in Evansville, Ind., in October, eight friends of Egyptian descent - some citizens, some visitors - were arrested on material witness warrants based on a report to the FBI from the new wife of one of the men that her husband had made a comment about committing suicide and a big crash. Jailed in Chicago for a week, they were released without appearing before a grand jury for their "testimony" before their release.
One man, Tarek Albasti, was apparently considered a flight risk although he had run an Evansville restaurant called the Crazy Tomato - where several of the others worked - for six years, had been a U.S. citizen for four years and lived in a house he owned with his American wife and 3-year-old daughter, according to family members.
"All the checks on government power here seem to have been swept away," said John Krull, director of the Indiana Civil Liberties Union, who helped Albasti's family locate him and press for his release. "It is a huge blank check."
Higazy, an Egyptian diplomat's child who had spent long stretches of his youth in the United States, came to New York in late summer last year to attend engineering school with the aid of a scholarship from the Institute of International Education, a U.S.-government-affiliated foundation.
The institute reserved a room for him at the Millenium while he was looking for a place to stay in Brooklyn. After evacuating on Sept. 11 and settling into his studies, he apparently came into the scope of federal investigators when Millenium security guard Ronald Ferry claimed to have discovered a ground-to-air radio in a safe in Higazy's room, along with his passport, on top of a copy of the Quran.
Ferry said he found the items while taking inventory of guests' property in the closed hotel in October and reported it to the FBI. But Higazy, who had been in touch with the hotel about retrieving his abandoned property, heard nothing until he came to the hotel on Dec. 17 to get his possessions.
After informing management the radio listed under his name on an inventory list was an error, he was ushered into a room by three FBI agents. In addition to the radio, he says, they questioned him about his political views, his friends, his background in Egypt and why he was in the United States
Then, as Higazy stuck to his insistence that he had never seen the radio and didn't even know what it was, they arrested him as a material witness. He remembered the title of an Egyptian play: "A Witness Who Witnessed Nothing."
Without the material witness law, the government would have been in a difficult position. They couldn't tie the radio itself to any criminal conduct - there has never been any evidence, at least publicly, that the Sept. 11 hijackers received transmissions from the ground. And even if the radio had been Higazy's, it's not a crime to have a radio in your hotel room.
But the material witness law provided an alternative - and, in the end, a case study in how the ability to arrest without charges can spawn charges without a crime.
Investigators justified holding Higazy based on a web of circumstances: He denied owning the radio. He was a recent arrival, staying next to the World Trade Center. He was from Egypt, and so were some hijackers. He had maps of New York and Washington airports in his room. He wasn't forthcoming because he first denied knowing anything about the radio, but later volunteered that he knew about such devices from his service in the Egyptian army.
Prosecutors acknowledged, in a hearing before U.S. District Judge Jed Rakoff, that despite arresting Higazy, they still hadn't contacted the Institute of International Education, which had placed him at the Millenium, to check out his explanation of why he was there. Dunn, Higazy's attorney, told the judge that the airport maps had been provided to all incoming students and said that agents were taking an unduly jaundiced view of his attempts to deny knowledge of the particular radio while admitting that he knew about radios generally.
Rakoff, according to transcripts that were later unsealed, said that it was "not perhaps the most overwhelming showing on the part of the government," but concluded that a grand jury might reasonably want to hear testimony about the radio. He agreed to hold Higazy. And once in custody in a small cinder-block cell, the ground shifted.
Higazy was detained because his "testimony" was material, but prosecutors did not actually want the testimony he was offering. Indeed, it was clear, Dunn said, that if Higazy went before a grand jury and stuck with his story, he would be charged with perjury. Instead, they wanted him to change his story and tell the "truth" as they saw it.
Unless he did that, it wasn't clear when Higazy would be released, or how he could earn his freedom from his top-security cell at the Metropolitan Correction Center.
"You're guilty until proven innocent as a material witness," Higazy said. "You're in a closed loop. As far as I knew, they were going to hold me indefinitely until I 'cooperated.' There were other guys [at the correction center] who had been there since a few days after Sept. 11. I didn't want to be there indefinitely."
That fear led Higazy - against Dunn's advice - to ask for a lie detector test, hoping it would show he wasn't lying. Prosecutors agreed, but insisted Dunn couldn't be in the room. The strategy backfired. Higazy spent three to four hours alone in a room with the government's polygraph examiner, but no lie detector test ever was completed.
Instead, according to Higazy, the examiner - an FBI agent whose name is still under seal - impressed on him again and again that it would be hopeless to try to pass the test without changing his story, admitting he owned the radio and explaining where it came from. And eventually, Higazy says, as the test turned into an interrogation, a threat was made that led him to fear for both relatives at home and a brother attending school in upstate New York.
"If you don't cooperate with us," Higazy recalled the agent saying, "the FBI will make your brother upstate live under scrutiny and will make sure Egyptian security gives your family hell." Prosecutors initially denied any threats were made, but now decline to comment on what happened and on the permissibility of using such threats as an interrogation technique.
Already convinced he would never get out if he stuck to the truth, the interrogation pushed him over the edge, Higazy said. He thought he was being "set up" in the United States, and saw no reason the setup couldn't fool Egyptian police just as it had fooled the FBI.
"I began hyperventilating, my heart was racing, I had sweaty palms, I could feel my blood pressure going up," Higazy recalled. "Admitting that the device was mine seemed like the lesser of two evils."
After the session, Higazy sought to recant his "confession," and refused to go before the grand jury to repeat it. So prosecutors charged him with lying to the FBI in his original denials about the radio and cited the confession at Higazy's arraignment. Then, five days later, the whole case collapsed.
A pilot - who has never been identified - showed up at the Millenium looking for the radio he left in his room on the 50th floor. Ferry admitted he had lied, saying the radio had actually been found on a table by a co-worker. Higazy was released. Since then, Ferry has pleaded guilty to lying to the FBI, receiving a sentence of weekends in jail for six months. Rakoff has pressed the office of U.S. Attorney James Comey in Manhattan to investigate and report on what happened during Higazy's interrogation.
Higazy - a chatty, friendly sort who has married an American woman and completed his courses since his release - was initially forgiving, ascribing his detention to an unavoidable mistake. Since then, he says, his views have hardened.
He and Dunn have learned, they say, that the government moved to arrest him as a material witness without a sworn statement from his chief accuser, Ferry. They have questions about why the government didn't interview other Millenium witnesses - such as a second employee who, according to court papers, was with Ferry when the radio was discovered - before arresting Higazy. And they wonder why the government moved to detain Higazy without even bothering to call the educational institute that placed him at the hotel.
"It was a rush to judgment," Dunn said.
They think he was from the start treated more like a suspect than a material witness. And they think the polygraph was a ruse - used to entice a man eager to win his freedom into a planned interrogation without his lawyer.
"All this," Higazy said, "could have been avoided."
Next: Paterson, N.J.'s Muslim communityTaking Liberties
Sunday: Justice and the war on terrorism.
Monday: Noncitizens face detention.
Yesterday: Freezing assets.
Today: Material witnesses.
Tomorrow: The mood among Muslims in one U.S. city.
'You're guilty until proven innocent as a material witness.
As far as I knew,
they were going to hold me indefinitely until I "cooperated."
I didn't want
to be there indefinitely.'
- Abdallah Higazy, seen with his attorney, Robert Dunn, left, in January
Some of the people detained on material witness warrants since the Sept. 11 terrorist attacks:
Zacarias Moussaoui. A Frenchman detained on immigration charges in Minnesota in August 2001 after his actions at a flight school aroused suspicions, Moussaoui was held in New York as a material witness after the attacks. Later charged with conspiracy in the Sept. 11 attacks.
James Ujaama. Former Seattle community activist was detained on a material witness warrant in late July 2002 in Denver amid an investigation into his ties to a radical Muslim cleric in London. After a month in jail in Virginia, he was charged in Seattle with conspiring to establish a jihad training camp in the United States.
Ahmed "Ed'' Badawi. Florida travel agent detained on a material witness warrant on Sept. 16, 2001, apparently because he sold airline tickets to a person with a name that aroused investigators' suspicions. Released after three days and later voluntarily testified to a grand jury.
Mohammed el-Yacoubi. Virginia resident detained on a material witness warrant en route to Israel in December 2001 after airport authorities discovered a note from his brother in his luggage that they believed indicated he was planning a suicide mission. Released without charges after six weeks.
Tarek Albasti. Egyptian- American restaurant operator in Evansville, Ind., was one of eight friends detained on a material witness warrant in October 2001 based on a tip that one of the men had made a remark about suicide and a big crash. The men were released after a week in custody in Chicago.
Ahmed el-Kheir. Egyptian who arrived Sept. 7, 2001, on a tourist visa, was arrested for trespassing while staying at a College Park, Md., motel shortly after Sept. 11, then transferred to New York and held on a material witness warrant. Warrant was vacated Oct. 11. Kheir was deported in November. Basis of his detention is under seal.
Jose Padilla. Former Chicago street gang member was secretly arrested on a material witness warrant after returning from Pakistan in May 2002, based on suspicions he was plotting a "dirty bomb'' attack. After a month, transferred to Defense Department custody as an enemy combatant.
Al Badr al Hazmi. Saudi Arabian radiologist training in San Antonio was detained as a material witness on Sept. 12, 2001, apparently because his name was similar to a hijacker's, he had traveled to Boston and Washington prior to Sept. 11, and other coincidences. Released and cleared after two weeks.
Osama Awadallah. One of three San Diego students detained on material witness warrants in September 2001 based on contacts with two hijackers. Indicted for perjury because he denied recognizing one of the men's names. Indictment dismissed after a Manhattan federal judge ruled the material witness law could not be used to secure grand jury testimony.
SOURCES: Interviews, Court Filings, News Reports.
1) 'You're guilty until proven innocent as a material witness. As far as I knew,
they were going to hold me indefinitely until I "cooperated." I didn't want to be there indefinitely.' - Abdallah Higazy, seen with his attorney, Robert Dunn, left, in January. 2) 'All the checks on government power here seem to have been swept away. It is a huge blank check.' - John Krull, director of the Indiana Civil Liberties Union, who helped gain release of Tarek Albasti, seen above in October with his daughter, Aya. 3) 'Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks. It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism.' - Attorney General John Ashcroft
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