Liberty and security are forever in tension, and never more so than in wartime. This is particularly true when, as in both World War II and the ongoing struggle against radical Islam, the nation has been subjected to a devastating domestic attack and is addled by the prospect of additional strikes.
These conditions always spark fierce controversy between civil libertarians and those whose first concern is national security. Thankfully, people of good will are abundant on both sides. Regrettably, the New York Times is, by contrast, the most juvenile type of libertarian: both doctrinaire and hyper-partisan — instinctively unreasonable when it comes to the most modest public-safety measures, and devoid of any self-correcting detachment if the word “Bush” has even the most attenuated association.
That’s fine. There is a place for doctrinaire partisans. Their fulminations can bring a welcome sharpening to any debate … as long as the debate is kept where it belongs: the opinion pages.
The Times, however, can’t keep it to the opinion pages. Day after day, news coverage in a once-great newspaper devolves into Left-wing polemic, to the point where there is no longer a qualitative difference between the Times and The Nation. Save one: The Nation, self-described “flagship of the left,” has no pretensions about being anything other than the Nation; the Times still pretends to be the Newspaper of Record — and continues to be treated that way by the “mainstream” press (which itself still pretends to be mainstream).
The problem, of course, is that we are supposed to get an accurate account of what the record is before we start a partisan brawl about what it means. That’s not possible with the Times anymore. Monday’s hatchet job on Michael B. Mukasey, the former federal judge tapped by President Bush to be the nation’s next attorney general, is proof positive.
THE ANTI-ARAB DISCRIMINATION NARRATIVE
“Post-9/11 Cases Fuel Criticism for Nominee” is the ominous headline on correspondent Philip Shenon’s dispatch. It is a truly alarming account: In the wake of the suicide-hijacking strikes that killed nearly 3000 Americans, a Justice Department dragnet ordered by President Bush scooped up “dozens of Arab men [who were] detained around the country.” Among those imprisoned for no better reason than being Arab was Osama Awadallah. Judge Mukasey [pregnant pause] presided over this travesty.
What does Shenon tell readers about Awadallah’s background? We learn that at the time of his arrest, he was a “21-year-old Jordanian immigrant,” a “college student in San Diego with no criminal record” who shuffled “in shackles” into the courtroom of Mukasey — then chief judge at the federal district court in Manhattan (in easy walking distance from Ground Zero). “Mr. Awadallah,” Shenon adds, “was not charged at the time with any crime and had friends and family in San Diego who could vouch that he had no terrorist ties.” Yet, Mukasey ordered him held “indefinitely” as a “material witness.” And when his lawyer claimed he’d been manhandled, the judge “seemed little concerned,” advising counsel to make an application for a medical examination or file a civil lawsuit against the authorities (which lawsuit, the Times might have noted, was never forthcoming).
So coldly detached was Mukasey that he “seemed not to care” that Awadallah “had been whisked away from San Diego to New York” without any notice to his lawyer. The attorney, Randy Hamud, was incredibly inconvenienced: He had to take the red eye to attend the Manhattan court session. (By contrast, agents, prosecutors and judges were on duty around the clock, as were the emergency personnel then picking body parts out of the smoking Twin Tower remnants.) Mukasey, Shenon notes, even denied the assistance of “a prominent Arab-American criminal-defense lawyer, Abdeen Jabara, to help defend Mr. Awadallah.”
Shenon concludes that the whole Kafkaesque spectacle was part of the Bush “administration’s reasoning after Sept. 11 that young Arab men should be held as ‘material witnesses’ in terrorism investigations.” It reflected, the correspondent elaborates, “an early effort by the Bush administration to rewrite or reinterpret laws on detention, interrogation and surveillance of people suspected of terrorist ties.”
Ever on the lookout for objective observers, the Times adds that “critics” contend the “1984 material witness law was abused by the Justice Department, and by Judge Mukasey and his judicial colleagues.” Shenon does not identify these “critics” … except for Jesse Berman, one of Awadallah’s own lawyers whose previous claim to fame was his representation of Mahmud Aboulalima. (Berman, a keenly insightful thinker, told Time Magazine that Mahmud, since convicted of bombing the World Trade Center bomber, was charming and “very human”).
That’s the Times for you: When it suits the Gray Lady’s Bush-bashing agenda, you get to learn what Jesse Berman thinks, but not what the federal courts have ruled.
Yes, the federal courts. They are, we know, the darlings of the New York Times when awarding civil rights to alien enemy combatants or holding — often only to be reversed — that this or that Bush administration initiative violates the Constitution. Yet somehow the courts manage to be AWOL from Shenon’s story.
Why? Could it possibly be because, for half a century, the federal courts have held that it is perfectly appropriate, and violates no constitutional entitlement, for the government to detain witnesses whose valuable information might otherwise be lost to investigators? Could it be because Judge Mukasey and the several other judges who detained witnesses in the 9/11 investigation would have been flouting settled law had they declined to detain material witnesses?
Even for followers of the Times’s routinely politicized “news” pages, this account is an eye-opener. It is one of the most pervasively disingenuous reports one is apt to encounter in any journalistic forum, including those which unapologetically identify themselves as partisan.
THE 9/11 INVESTIGATION
To begin at the beginning, in the aftermath of the 9/11 attacks, the Justice Department commenced an investigation of unprecedented breadth. I was one of the supervising prosecutors in New York. We began with at least three distinct disadvantages:
(a) We knew next to nothing about the jihadists who had carried out the strikes, and thus even less about the supporters — witting or unwitting — they necessarily had inside our country. The hijackers, having self-immolated in the operation, were not available for questioning. We were starting from scratch.
(b) There was no way of knowing whether 9/11 was a one-off or just the first round in a series of attacks. With thousands already dead, the only responsible course was to assume the latter and move heaven and earth to figure out where the next hit might come from. For law enforcement, time was of the essence in a way it had never before been.
(c) We didn’t even know what we knew. In 1995, due to irrational concerns over purely hypothetical civil-liberties abuses, the Justice Department had dramatically bolstered internal protocols that prevented intelligence agents from sharing information with criminal investigators and prosecutors. Right after 9/11, this “wall” was declared dismantled. In that immediate time frame, however, the wall’s consequences were profound: even as we tried to develop current investigative leads, we were frantically piecing together years’ worth of clues in a puzzle that had intentionally been kept fragmented.
In spite of those daunting challenges, a couple of things bear emphasizing. First, no one was apprehended for being an Arab male or a Muslim. This may be news to Phil Shenon but, quite apart from the fact that the Justice Department does not engage in such noxious behavior, public-spirited Arab males who cooperated with the authorities had been essential to the successful prosecution of terrorists throughout the 1990s.
I have been as critical as anyone of what I believe has been the government’s propensity, under both the Bush and Clinton administrations, to rely on the wrong Muslims — to work with, and implicitly enhance the prestige of, several Islamic interest groups (such as CAIR) which tend to be more part of the problem than the solution. Nevertheless, the impulse behind this government outreach has always been sound, admirable and a reflection of reality: We need the assistance of patriotic Muslims (and there are plenty of them) to root out Islamic extremism. You don’t get that by indiscriminately rounding people up based on nothing other than their ethnicity or the unadorned fact that they adhere to a particular creed.
Second, only those mulishly determined to politicize national security and ignorant of the way things actually work fathom the post-9/11 material-witness detentions as a Bush-administration initiative, part of a large-scale, premeditated scheme to rewrite law. Though not a member of the Bush administration, I authorized a number of the material witness arrests. I personally researched the issue — notwithstanding the frenetic conditions that obtained — to ensure that such detentions would be lawful. I don’t get a medal for being careful. In our office, the United States Attorney’s Office for the Southern District of New York, nothing less would have been acceptable.
Of course I had a chain of command, and, in theory, President Bush was at the top of it. But the White House does not micromanage the activities of prosecutors in the field. Nor does the Justice Department. I was put in a position to make such judgments by my boss, United States Attorney Mary Jo White, as wise, non-partisan, and rigorously ethical a prosecutor as it has been my privilege to know and serve. We were reporting our progress to the Justice Department, as were U.S. attorneys and FBI field offices in districts throughout the country. But neither President Bush nor Attorney General John Ashcroft was directing our activities. We weren’t, moreover, undertaking to make policy. We were law-enforcement professionals conducting an investigation to determine who was involved in the 9/11 attacks and who might be conspiring more attacks.
In the Southern District of New York, we made decisions based on what we believed the law of the United States permitted. If we had believed the law forbade material-witness detentions, we would not have resorted to them. Independence from Washington is the proud boast of my former office, and I can assure you that people there would resign before complying with an order to violate the law. Knowing Bob Mueller, then the new FBI director, and Barry Mawn, then the Bureau’s top agent in New York, I can further assure you that the FBI would not have executed orders it had reason to believe were lawless or based on ethnic or religious animus.
Our decisions, moreover, would have been exactly the same had the Clinton administration — during which we’d repeatedly investigated and convicted terrorists — been in power. Between Right and Left, we can and do argue whether, from a policy perspective, terrorism ought to be considered more a matter of law-enforcement or national-defense. No one, however, can credibly deny that, within the parameters of law-enforcement, the Clinton administration was extremely and aptly aggressive when it came to pursuing terrorists and their abettors. Indeed, in my eight years’ experience with them, Clinton officials were more anxious than Bush officials (and, for what it’s worth, more anxious than me) to demonstrate that the tools of the criminal justice system — and the material witness warrant is such a tool — were sufficient to respond to the terrorist threat. In any event, arresting a material witness is a decision made in the field. It is based on the facts on the ground, and usually driven by exigency. We were conducting an investigation, not a crusade.
JUST A COLLEGE STUDENT
So, was Osama Awadallah really just a college student arrested because he was Arab? Here is what the New York Times doesn’t tell you — even though the facts are quite notorious.
On September 11, Nawaf al-Hazmi and Khalid al-Midhar led the suicide-hijacking team that crashed American Airlines Flight 77 into the Pentagon. Al-Hazmi had abandoned a car at Dulles Airport in Virginia. When agents searched it, they found a piece of paper with the notation, “Osama 589-5316.” It was Awadallah’s phone number in San Diego. It turned out that he had been living there at the same time and in the same vicinity as al-Hazmi and Al-Mihdhar.
Agents went to Awadallah’s California apartment on September 20. They interviewed him and obtained consent to search his home and two cars. The searches, an appellate court later recounted, “produced several computer-generated photographs of Osama bin Laden; … two videotapes on Bosnia and one on Islam[,] and a retractable razor which could be described as a box-cutter or a carpet knife.”
Awadallah admitted that he knew al-Hazmi. He told agents al-Hazmi was often in the company of a man whose name Awadallah claimed not to know.
(The federal appeals-court later noted that Awadallah had taken an English course, and agents eventually obtained a booklet he’d completed in connection with an exam. In it, he’d written the following: “One of the qui[e]test people I have met is Nawaf. Another one his name Khalid. They have stayed in S.D. [i.e., San Diego] for 6 months.” After initially testifying before a grand jury that the “Khalid” entry was not in his handwriting, Awadallah admitted he had, in fact, scrawled it and that he did know Khalid al-Midhar.)
Awadallah was not on the government’s radar screen because he was Arab. To the contrary, there was abundant reason to believe he knew two of the hijackers sufficiently well that they had his phone number; and, unlike most people in the United States back then, he had an awareness of Osama bin Laden, the al Qaeda emir who had ordered the 9/11 attacks. Further, the box cutter, though undeniably legal to possess, was noteworthy given the hijackers’ murderous use of them in taking control of the planes.
Nevertheless, the agents did not arrest Awadallah as a material witness right away. They allowed him to return home for the evening. He was arrested as a material witness the following day after being administered a polygraph examination probing whether he had foreknowledge of the suicide hijackings.
It is not true that Awadallah was secretly whisked across the country. Rather, a prosecutor in New York applied to Judge Mukasey for a material-witness warrant. At the time, Mukasey was one of several judges in the country entertaining such applications. The warrant was issued based on the known facts then presented: the phone-number connection to the hijackers, Awadallah’s acknowledgment that he knew al-Hazmi, the bin Laden photos, the box cutter, and the fact that Awadallah was a Jordanian national who had extensive family ties to his native country and might well attempt to flee rather than provide testimony to the grand jury about his savage acquaintances.
Yet, when federal agents first arrested Awadallah, they did not bring him to New York. As federal law requires, they brought him to the nearest available magistrate. In this case, that was Magistrate Judge Ruben B. Brooks of the federal district court in Southern California. Judge Brooks advised Awadallah of his rights, ensured that counsel was appointed, and conducted a bail hearing. After listening to the parties, Judge Brooks declined to release Awadallah, ordering him removed to New York where the grand jury was sitting.
Shenon suggests that Awadallah’s lawyer, Randy Hamud, was caught unaware by these developments. That’s nonsense. Awadallah’s California bail hearing took place on September 25. Hamud and everyone else in attendance knew he had been ordered transported to New York.
Awadallah arrived in New York nearly a week later, on October 1. Once there, federal law dictated that he be brought to court without undue delay. This procedure — known as a “presentment” — is for the benefit of the detainee, not the convenience of the lawyer. Its purpose is to ensure that the detainee understands what his rights are, that his detention is under the supervision of a judge (i.e., not at the whim of the executive branch), and that he may seek release from the court if he believes he is being held illegally.
Judge Mukasey thus ordered that a presentment be held the following day, October 2. Had it been delayed beyond that, Shenon would no doubt raise the hairs on our necks with tales of Awadallah’s secret incarceration, inexplicably denied access to a court. But since that didn’t happen, we instead hear that the attorney-client relationship was strained because a lawyer had to take a long flight — at night, no less. Oh, the horror!
GET ME THE BLIND SHEIKH’S LAWYER
Awadallah, of course, did not need Hamud. No one has a right to a lawyer who is not admitted to the bar of the court where the case is taking place. In the Southern District of New York, moreover, anyone arrested has free access to ever-available assistance from an extraordinarily competent panel of defense attorneys, admitted in and thoroughly familiar with the practice in our court. Nevertheless, Awadallah wanted Hamud, who, upon arriving, very helpfully announced that he was not up to representing his client because, “I am not familiar with the nuances of the Southern District.”
Hamud’s solution? He proposed that Abdeen Jabara be added to the Awadallah team. Judge Mukasey said no, agreeing with prosecutors that this would present a conflict of interest given Jabara’s prior representation of Sheikh Omar Abdel Rahman, the master terrorist convicted in a trial before Judge Mukasey (in which I was the lead prosecutor) on charges arising out of the 1993 World Trade Center bombing and a subsequent plot to bomb New York City landmarks.
The Times portrays this ruling as a stunning miscarriage of justice. Hamud, we learn, was “taken aback.” Here again, though, is what the Times doesn’t tell you.
Bin Laden, the 9/11 orchestrator whose picture was in Awadallah’s car, has publicly credited Sheikh Omar with issuing the fatwa that authorized the 9/11 attacks. And, sure enough, here is what Abdel Rahman — a doctor of Islamic jurisprudence graduated from the prestigious al-Azhar Univerisity in Egypt — pronounced about Americans in 1996 after he was sentenced to life-imprisonment: “Muslims everywhere [should] dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships, . . . shoot down their planes, [and] kill them on land, at sea, and in the air. Kill them wherever you find them.”
In fact, the year before Awadallah’s arrest, bin Laden had stood side-by-side with Sheikh Omar’s son at the “Convention to Support Honorable Omar Abdel Rahman.” During the program, broadcast throughout the Muslim world by al-Jazeera, Mohammed Abdel Rahman urged followers to “avenge your Sheikh” and “go to the spilling of blood.” Not so coincidentally, al Qaeda bombed the U.S.S. Cole, killing seventeen American sailors, about three weeks later.
The central issue in the grand jury probe for which Awadallah’s testimony was sought was: Who was behind the 9/11 attacks? It would be a fairly blatant conflict for a witness to be represented by a lawyer who owes professional fealty to the co-conspirator identified by the self-professed ringleader of the attacks as having provided the Islamic authorization deemed necessary by jihadists.
But if the arc is not clear enough, let’s keep it simple and parochial. Jabara is not a New York attorney. He is a Michigan practitioner who was permitted to be third-wheel on the Blind Sheikh’s defense team because the lead counsel, Lynne Stewart (who was also joined by former U.S. Attorney General Ramsey Clark) was admitted in New York. It is one thing for a judge to be asked to abide a conflict involving an attorney who regularly practices before the court and has a long-standing relationship with the client. It is quite another for the judge to be asked gratuitously to import a conflict — particularly under circumstances where there are about ten zillion unconflicted lawyers in New York City ready, willing and able to represent the likes of Awadallah, who had no prior relationship with Jabara.
THE APPEALS-COURT RULING
Contrary to the Times’s assertion, Awadallah was not held “indefinitely” as a material-witness. He was so held for a grand total of 20 days before being brought before the grand jury. Meanwhile, though the material witness statute did not require it, Judge Mukasey ensured that Awadallah’s counsel was made aware of the government’s basis for believing he had relevant information and was a flight risk.
The proceedings were strictly supervised, such that Awadallah appeared before the grand jury on October 10, 2001 — the first available date, no additional delay being tolerated by the court. After that full-day appearance, and a return engagement five days later, Awadallah was indicted on two counts of perjury: for falsely denying he knew al-Midhar and falsely denying the handwriting in the aforementioned booklet was his own. From then on, his detention was not based on material-witness status but on criminal charges. Though it took five years to complete his case, he was free on bail from late November 2001 through the rest of the proceedings.
Astoundingly, Shenon’s hatchet job does not mention, much less explain, that in November 2003, the United States Court of Appeals for the Second Circuit thoroughly rejected the central premise of his story. The judges found that the federal material-witness statute (Section 3144 of Title 18, U.S. Code) had long authorized the detention, for a reasonable period of time, of witnesses who might flee or otherwise become unavailable so that their testimony could be presented before grand juries. The appellate court reasoned that, for decades, federal courts had understood the grand jury to be the type of “criminal proceeding” contemplated by the statute; that “the legislative history of § 3144 makes clear Congress’s intent to include grand jury proceedings within the definition of ‘criminal proceeding’” for which detention is permitted; and that, in light of the Supreme Court’s well-settled conclusion that sharing one’s information with a grand jury was a “public duty,” it had long been the law that detention to enforce that duty did not violate the Constitution.
Thus, though the Times won’t tell you, I can report that the Court of Appeals ruled,
The undisputed facts establish that [Awadallah] received two bail hearings … within days of his arrest, and that the judges in both hearings found his continued detention to be both reasonable and necessary. Under these circumstances, Awadallah’s detention as a material witness was a scrupulous and constitutional use of the federal material witness statute.
While the Times is quick to point out that Awadallah was eventually acquitted of the perjury charges — the better to intimate that the whole adventure was a monumentally abusive injustice — that does not come close to telling the story.
In fact, Awadallah had two trials. The first ended in a hung jury. It had voted overwhelmingly (11-1) for conviction. Since criminal juries must be unanimous, that forced a second trial, at which the acquittal took place.
In both cases, it is important to note (though Shenon’s story elides) that Awadallah did not claim to have given true information. As the Times reported in 2006, Awadallah conceded that his initial statements to the grand jury about al-Midhar had been false, but claimed this was due to confusion brought on by harsh treatment, not willful dishonesty, and that the inaccurate information had not been “material” (as prosecutors must prove in a perjury case) since he corrected it.
Plainly, it was not an injustice to prosecute Awadallah — he was found not guilty, but it could easily have gone the other way. Even if an injustice had arguably been done, however, that would have utterly nothing to do with the propriety of seeking Awadallah’s testimony. Nor would it bear on the propriety of detaining a Jordanian national who had an undeniable tie to the 9/11 suicide hijackers for a brief period of time so he could be questioned by a grand jury probing both the atrocities and the very real possibility of further attacks targeting Americans for mass murder.
It would have been irresponsible under the circumstances not to pursue Awadallah’s information by any legal means at the government’s disposal. But what is truly irresponsible is for the New York Times to suggest that the means used by government, and approved by Judge Mukasey after searching analysis, was legally dubious. In truth, it was airtight.
Judge Mukasey has been nominated by the president for a high office. In that office, attorney general of the United States, fidelity to the rule of law is paramount. The episode in question underscores (as if further underscoring were necessary) his fitness. Indeed, there is an 88-page opinion by a federal appeals court to prove it.
The Times may not like witness detentions — that’s its editorial board’s right. But by what right, by what journalistic standard, does the Times withhold from readers of its news pages, in a matter of such manifest public significance, the fact that a federal appeals court — four years ago — studiously analyzed the central allegations in Philip Shenon’s “news” story and rejected every one?
– Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.