request had been denied, and that he was told that he would be taken to New York and jailed for “a year,” I was unable to interview Mr. Awadallah on the 21st" because when I visited the San Diego MCC that evening, I was initially told by the prison guards that no such person was there. I knew otherwise. Coincidently, that same afternoon I had been at the FBI headquarters on another matter; and the agents with whom I was dealing had confirmed that Mr. Awadallah had been arrested and was at MCC. After one and one-half hours of cajoling the FBI from my cellular telephone in front of MCC, I was finally told that, indeed, Mr. Awadallah was there and that I could see him. When I was finally directed to the attorney interview room on the third floor, I found a young man whom I thought to be Mr. Awadallah, whom I had never met. The young man proceeded to tell me that he had been arrested that afternoon as a material witness; that he had requested to call and attorney; that his request had been denied; and that he was told that he would spend the next year in jail in New York. Then we discovered that he was not Mr. Awadallah. He was Mohdar Abdallah. Notwithstanding that the incarcerating authorities had been denying him the opportunity to contact an attorney, one was now in his presence. Suffice it to say that he immediately retained me. After completing my initial interview of Mr. Abdallah, I went back downstairs and explained the mistake to the prison guards. I informed them I now represented Mr. Abdallah and requested to see my other client, Mr. Awadallah, I was told to leave the prison immediately. My protests were futile, and I left. I was finally saw Mr. Awadallah on the morning of September 22nd. Even after assuming a documented representational role of behalf of my clients, time and again the incarcerating officials have interfered with the former's ability to communicate with me and with my ability to with visit them. While they were material witness detainees, my clients were never allowed to call me by telephone when they needed to speak with me. And several times, I was denied access to them when I attempted to visit them both at MCC in San Diego and at MCC in South Manhattan. As the Attorney General of the United States, you should be especially sensitive to the importance of a represented inmate's right to free and unobstructed access to his or her attorney. Time and again, that has not been the case relative to my clients when they were being held as material witnesses. On September 23, 2001, I visited MCC in San Diego and was told that neither of them was there. After more cellular-telephone cajoling with the FBI, I was told that, in fact, they were there and that I could see them. I note that their presentation to the magistrate was scheduled for September 24th. This was a deliberate attempt by the incarcerating authorities to interfere with my preparations for their coming court appearances. After completing of the magistrate's appearances on September 25th, sometime between that day and September 27th they were spirited out of MCC in San Diego. Not until the morning of October 1st did I learn that they were in New York. Both of my clients informed me that daring their transit to New York they had repeated requested to contact me and that their requests had been denied. Similarly, between October 24th and November 5th, when Mr. Abdallah was returned to San Diego to face incidental immigration charges, he again was denied any opportunity to call me while in transit. I had no idea of his whereabouts until he turned up in San Diego on the morning of November 5th. And I note that after Mr. Awadallah completed his material witness testimony in New York on October 15th and was rearrested and charged with allegations of misrepresentation before the grand jury, both Mr. Berman and Mr. Awadallah have encountered similar obstacles. I enclose for your information a copy of Mr. Berman's letter of November 12, 2001, addressed to the Honorable Shira A. Scheindlin, District Court Judge, in which he catalogues his many complaints and frustrations. Note that his complaints include the inability of Mr. Awadallah to call Mr. Berman, the refusal to allow Mr. Berman to see Mr. Awadallah, and the continuing refusal of the incarcerating officials to allow Mr. Awadallah family visits. As October 23th, Mr. Berman was denied access to Mr. Awadallah, This inappropriate behavior by the incarcerating authorities made Mr. Berman's preparation for the November 21 bail hearing even more problematical. It was as though the government was deliberately doing everything that it could to prevent him from fully preparing his client and his witnesses for that hearing. Such conduct is almost beneath comment. An even more egregious violation of Mr. Awadallah's civil rights occurred on the afternoon of October 4, 2001. At that time, Mr. Berman and I observed bruises on Mr. Awadallah's upper right arm, neck, wrists, and ankles. Mr. Awadallah informed us that the guards had hurt him. We observed his injuries during a 2:00 p.m. proffer session in a fifth-floor conference room at the offices of the United States Attorney in South Manhattan, 500 Pearl Street. Present at the session were the following United States Attorneys: Robin Baker, Chris Marvillo, and Rob Spencer. Also present were FBI agents Adam Cohen, Jacqueline McGuire, and Ryan Plunkett. All of them observed the bruises, as Mr. Berman and I pointed them out to those present. Further, at that time Mr. Awadallah told us that earlier that day he had been taken to the prison dispensary for xrays to determine whether he had any broken bones. And a blood sample had been taken from him, and possibly, he had received some sort of injection. In our presence, he still wore a bandage over the needle sticks) in his left arm vein. I was quite distressed at seeing his injuries. You see, on the morning of October 2nd before court proceedings were convened in South Manhattan, Mr. Awadallah had informed me that he had been beaten by the prison guards. Because of the order sealing those proceedings, I am not at liberty to disclose the substance of what occurred after I discovered this information. However, as the Attorney General of the United States, you may obtain this information by reviewing the transcripts of those proceedings. I invite you to do so. On the afternoon of October 4th I informed Ms. Baker and the others present that I wanted my clients moved from MCC before any further injuries were inflicted on any of them. I gave them twenty-four hours within which to do so. The next day, I was informed by Ms. Baker that my clients would not be moved. My response was to publicize the incident that afternoon in the hope that publicity would prevent further brutality. Apparently I had some modicum of success, as Mr. Awadallah later reported to me that a physician had examined him, that a prison official had met with him and given him tips about placating his guards, and that his physical treatment had somewhat improved. My thanks to the Fourth Estate. Finally, regarding my clients' overall treatment while at MCC's in San Diego and New York, I have several other complaints. In addition to the earlier discussed denial of family visits, they were denied television and radio privileges; reading and writing materials; mail privileges; and meals in conformity with their Muslim faith. I know full well that "kosher" meals, which my clients may eat, are available at both facilities and that such meals were repeatedly denied to them. As recently as November 5th, when meeting with Mr. Abdallah at the federal court holding facility in San Diego, he was served a ham sandwich for lunch. Further, at MCC in New York, the guards constantly harassed my clients and the other material-witness Arab/Muslim inmates by referring to them as "f ing terrorists;" by making sexually inappropriate remarks to them when they are stripped naked and videotaped several times a week (for security purposes?); and by mocking and denigrating their religious practices (e.g., forcing them to replace the sheet on their bed whenever they were attempting to use it as a rug on which to conduct their Muslim prayers), and their Prophet (Praise be I-iis Name). I believe that one of my clients best described their conditions on incarceration. when he stated that "people in this country treat their animals better than we were treated." Before closing, please let me comment about your observation on November 27th that the absence of any civil rights lawsuits pertaining to detainees like my clients led you to believe that no civil rights violations had occurred. As an attorney, you know full well that the timing of such lawsuits depends on many factors other than your own impression about when they should be filed. And you also know that many of these proceedings remain under seal, which complicates any immediate filings. But let me assure you, sir, that such lawsuits are being readied. They are a natural consequence of your own words and deeds. As you yourself have said, "all possible measures are being taken to detect and prevent future attacks to both incapacitate and deter would be terrorists." You have chosen to do by casting a nationwide dragnet woven from the threads of racial, ethnic, and religious profiling. You have chosen to do by advising your President to eavesdrop on the communications between profiled inmates and their attorneys. You have chosen to do so by casting aside the United States Constitution and the finest criminal justice system in the world and advising your President to empanel military tribunals for the trial and probable execution of accused who will have no right of judicial review. Doubtlessly, at the appropriate time and in the appropriate venues, the offices of the United States Attorneys across this great country will be very busy in the courts responding to the multitude of lawsuits engendered by your misguided policies. In conclusion, I hope that I educated you regarding the civil rights violations that have befallen my clients. I am certain that their situations are the rule rather than the exception among those presently incarcerated. I leave it to you to determine henceforth whether such violations will remain the rule rather than the exception. And a final note of legalese'. this letter is for informational purposes and is not to be construed to be a formal claim prefatory to the filing of any lawsuit against the federal government or any other state or local entity or any individual. If necessary, such formal claim or claims will be later filed under separate cover. Very truly yours, CC: Sen. Patrick Leahy, Chair Senate Judiciary Committee By Facsimile: 202-224-9516 (w/encls) Senator Russ Feingold By Facsimile: 202-224-2725 (w/encls.) By Facsimile: 202-225-2944 (w/encls.) Jesse Berman, Esq. By Facsimile: 212-941-0980 (w/o encls.) encls. RANDALL B. HAMUD JESSE BERMAN, ATTORNEY AT LAW Hon. Shira A. Scheindlin United States Court House 500 Pearl Street New York, NY 10007 Re: U.S. v. Osama Awadallah 01 Crim. 1026 (SAS) As the November 21, 2001, bail hearing in this matter approaches, I want to provide an update on the status of my attempts (1) to have Mr. Awadallah be allowed to telephone me t at my office and (2) to have the MCC officials approve Mr. Awadallah's family so that they could visit him prior to the bail application. The history surrounding these two questions is as follows: The government has known since October 4, 2001, that I am Mr. Awadallah's attorney: I represented him at his October 4, 2001, proffer session with the government: I represented him at his October 10 and 15, 2001, appearances before the grand jury; I represented him at his October 16, 2001, appearance before Judge Mukasey; and I represented him at his October 19, 2001, appearance before Magistrate Judge Gorenstein. On that same day, I filed my notice of appearance on behalf of Mr. Awadallah with the clerk of the Court. In mid-October 2001, Mr. Awadallah (who has been held in solitary confinement since September 21, 2001) filed with hi' counselor at MCC, Mr. Santiago, a written request that his father, Ismail Awadallah, and his brother, Jamal Awadallah (both of whom are United States citizens), be permitted to visit him. On October 23, 2001, I attempted to visit Mr. Awadallah at MCC and was denied access to him. After I waited in the ground-floor lobby of MCC for an hour, I was permitted to speak over the telephone to Les Owen, the in-house legal counsel at MCC. Mr. Owen, who refused to emerge from his ground-floor office to see me faceto-face, said that the government had not yet informed MCC that I was Mr. Awadallah's lawyer. I asked Mr. Owen to phone the magistrate's clerk's office, where my notice of appearance on behalf of Mr. Awadallah was on file. He refused, stating that only the U. S. Attorney's office, and not the Court, would tell MCC who could visit anyone. On November 1, 2001, I visited Mr. Awadallah at MCC, on 9 South, the Special Housing Unit. I asked the officers on 9 South if Mr. Awadallah's family had been approved to visit him. I was told to check with Counselor Santiago. Counselor Santiago was not in the counselor's office at that time. I was also told by the 9 South officers that Mr. Awadallah was allowed to phone me if he gave 48 hours written notice. On November 2, 2001, I phoned Mr. Santiago. Again I was told that he was not in his office at the time. I left Mr. Santiago a clear message to call me. He has never returned my call. On that same day, I phoned MCC counsel Les Owen and left him a message to call me. He has never returned my call. When I raised these issues in court on November 5, 2001, the Court suggested that AUSA Robin L. Baker look into it. On November 6 or 7, 2001, 1 phoned Ms. Baker. She said she had spoken to Mr. Owen, who had informed her that Mr. Awadallah is not permitted to phone me at all, since my office is not out of town. Ms. Baker said that Mr. Owen would be writing me a letter explaining this policy. Mr. Owen has never written me. I visited Mr. Awadallah today at MCC, on 9 South. Prior to going up to 9 South, I asked the lobby desk officer whether Mr. Awadallah's family had been approved yet to visit him. He said that they had not been approved yet, because the computer had been down for the past three weeks. Mr. Awadallah's brother, Jamal Awadallah, is flying here from San Diego on November 19, 2001. The family is of modest means, and airline tickets purchased on short notice at Thanksgiving time are, of course, very expensive. I am requesting this Court to intervene to the limited extent of directing that Mr. Awadallah and his brother and I be permitted to meet on November 20, 2001 at MCC or, if that is impossible, at the court house, so that we might prepare for the bail hearing of November 21, 2001. Respectfully yours, cc: AUSA Robin L. Baker JESSE BERMAN Article by Hon. Orrin Hatch, in USA Today, December 6, 2001 THREAT WARRANTS LEEWAY OPPOSING VIEW: ADMINISTRATION'S USE OF LAWFUL POWERS FOLLOWS THE America is at war. Our adversary is a global terrorist organization that has imbedded hundreds of "sleeper agents" in America. These "sleeper agents" have killed thousands of Americans and stand ready to launch further attacks if given the chance. The American people understand the threat we face. They know our leaders are acting out of a sincere concern for both our security and our liberty. They understand we must do everything in our power, consistent with our Constitution, to protect ourselves from those who aim not to change our way of life but to kill as many of us as possible. And they agree with noted Harvard law professor Lawrence Tribe when he arms that "Civil liberty is not only about protecting us from our government. It is also about protecting our lives from terrorism." The Senate Judiciary Committee recently held oversight hearings concerning the administration's efforts to protect America from terrorists. Those hearings culminate today with an appearance by the attorney general. He will confirm what countless other legal experts already have told the committee: The administration has aggressively used every lawful power at its disposal to investigate and prevent terrorist attacks. These powers are appropriate given the threat we face. And the use of these powers military commissions, alien detention and monitoring communications of suspected terrorists and their attorney agents does not violate our Constitution. Military commissions have been used since George Washington used them in the Revolutionary War. They have been used by other presidents including Franklin Roosevelt They have been authorized by Congress and repeatedly approved by the Supreme Court for use in trying war criminals. The 608 people detained by the justice Department have been detained for criminal offenses, immigration violations or because they are material witnesses in the terrorism investigation. The detainees have access to attorneys and to our courts. Independent federal judges have ruled that these individuals should not be released on bond. Publishing detainees' names would jeopardize the terrorism investigation, endanger lives and violate detainees' privacy. Ironically, the same civil liberties groups demanding publication of the detainees' names previously opposed the publication of the names of convicted sexual predators. The Justice Department's regulation lawfully allows the monitoring of conversations between extremely dangerous federal prisoners and those attorneys suspected of carrying messages for them. The Constitution does not require that we allow terrorists to conduct their murderous operations from within our prisons. Yes, the administration has been aggressive in using the Constitutional powers at its disposal to protect Americans. But given what happened Sept. 11, wouldn't it be unforgivably derelict if it did not? Sen. Orrin Hatch, R-Utah, is ranking minority member of the Senate Judiciary Committee. Statement of the Heritage Foundation, by David D. Rivkin, Jr*., Lee A. Casey, and Darin R. Bartram, Washington, D.C. BRINGING AI-QAEDA TO JUSTICE: THE CONSTITUTIONALITY OF TRYING AI-QAEDA TERRORISTS IN THE MILITARY JUSTICE SYSTEM EXECUTIVE SUMMARY As the United States and its coalition partners execute diplomatic, financial, and military responses to the September 11 terrorist attacks, the legal options regarding the trial of members of the alQaeda terrorist organization are being increasingly discussed.1. As many as 1,000 individuals have been detained by law enforcement authorities in this country in response to the attacks.2 Reports that some of them may have been directly involved in the September 11 conspiracy or were planning to carry out similar terrorist acts add a particular urgency to the discussion.3 Attorneys have been appointed for, or employed by, those who have been detained, and legal proceedings likely have begun with respect to their detention. At some point in the near future, the executive branch will likely have to decide whether to release them, deport those that are subject to deportation, or charge them with a crime. With respect to the last option, the government will have to decide what charges to bring against them and W what court system. Some commentators have suggested that members of al-Qaeda apprehended in or extradited to the United States should not be treated as ordinary criminal defendants, but instead tried in military courts, either by regular courts martial or by specially constituted military commissions. Media reports indicate that this issue is already being considered by, among others, the staff of the Senate Committee on the Judiciary.4 From the government's perspective, the use of the military justice system to try al-Qaeda members involved in terrorist acts on behalf of a hostile foreign power offers several advantages. In particular, trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial. A number of government officials have indicated that the previous trials of terrorist defendants, including the 1993 bombers of the World Trade Center, resulted in damaging disclosure of information on intelligence sources and methods, investigative techniques, and other matters that have made it more difficult for the United States government to uncover and prevent such plots in the future.5 Under the Uniform Code of Military Justice (UCMJ), and military court decisions interpreting it, the accused enjoy extensive due process protections, but their rights are not coextensive with the protections civilians enjoy in normal criminal trials David B. Rivkin, Jr., Lee A. Casey, and Darin R. Bartram practice law in the Washington office of Baker & Hostetler, LLC. They frequently write on constitutional and international law issues. Messers. Rivkin and Casey served in a variety of legal positions in the Reagan and Bush Administrations. 1 Osarna bin Laden, the acknowledged leader of the al-Qaeda network, may be killed in the fighting. If he is captured, the United States and other countries involved have several legal options available to them regarding his trial. See infra. But the legal analysis in this memorandum would apply to bin Laden if he were extradited to and tried within the United States. 2 Neil A. Lewis, "Detentions After Attacks Pass 1,000, U.S. Says," The New York Times, October 30, 2001. 3 Philip Shennon and Don Van Natta, Jr., "U.S. Says 3 Detainees May Be Tied to Hijackings," The New York Times, November 1, 2001. 4 Richard Willing, "Feds Explore How to Try Terrorism Suspects," USA Today, October 15, 2001, at 13A. 5 Although some measures can be, and have been, taken to protect classified evidence in the context of criminal trials, e.g., the Classified Information Procedures Act of 1980 (CIPA), 18 U.S. C. App. §§ 1-16, constitutional imperatives ensure that the judicial proceedings in the ordinary federal courts cannot go too far down this path. The CIPA primarily constrains pretrial "discovery" opportunities. In the normal federal courts, the CIPA does not substantially alter the government's obligation under Article III of the U.S. Constitution and the Sixth Amendment to conduct a "public trial" and present to the jury, in open court, the facts on which it is relying to establish a defendant's guilt. |