Is torturing “material witnesses” constitutional?

Is torturing "material witnesses" constitutional?

by digby

I always get a sick feeling when I see DAs on cop shows blithely say they can hold a suspect as a material witness until they find the evidence to charge him. (They always "need" to because the suspect is "one of the really bad ones.") It's such a perversion of our constitution that it always brings home to me the fact that many of those who object strenuously to the idea of a "living" constitution are the ones who are the most willing to corrupt the Bill Of Rights whenever they get the chance.

After 9/11 this particular practice reached a peak, with horrors like this happening all over the country:

Abdullah al Kidd was on his way to Saudi Arabia to work on his doctorate in Islamic studies in March 2003 when he was arrested as a material witness in a terrorism investigation. An F.B.I. agent marched him across Dulles Airport in Washington in handcuffs.

"It was the most horrible, disgraceful, degrading moment in my life," said Mr. Kidd, an American citizen who was known as Lavoni T. Kidd when he led his college football team, the Vandals of the University of Idaho, in rushing in 1995.

The two weeks that followed his arrest, he said, were a terrifying and humiliating ordeal.

"I was made to sit in a small cell for hours and hours and hours buck naked," he said. "I was treated worse than murderers."

After that, a federal judge ordered him to move in with his in-laws in Las Vegas, where his wife was planning to stay until she joined him in Saudi Arabia.

Mr. Kidd, who described himself as "anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism," was never charged with a crime and never asked to testify as a witness. In June, 16 months after his arrest, the court said he was free to resume his life.

He was tortured. They strip searched him repeatedly and made him stay naked in his cell. No charges were ever brought. He wasn't the only one:

Osama Awadallah, a college student in San Diego, says he was badly mistreated while held as a material witness in New York. He has since been charged with perjury, which he denies.

In court papers, Mr. Awadallah described handcuffs so tight that his hands bled, a cell so cold his body turned blue, a series of humiliating strip searches and extreme hunger for lack of food that his faith allowed him to eat. He was, his lawsuit says, beaten by guards at the New York Metropolitan Correctional Center.

"He was so scared his chains were rattling," Mr. Hamud said of meeting his client in court. "He had bruises on his upper arms, torso, upper biceps. I saw them myself."

That is from a 2004 article. It was explained this way:

Mary Jo White, who supervised several major terrorism investigations as the United States attorney in Manhattan until she resigned in 2002, said the frequent and aggressive use of the material witness law in terrorism investigations was a recent development.

"It was really my idea to use the material witness warrant statute in appropriate cases to detain for reasonable periods of time people who might not appear for a grand jury with information related to the 9/11 attacks," she said. The law is, she said, an important tool, but one that must be used judiciously.

"Some of the criticism that has been leveled at it is not wholly unjustified," said Ms. White, who was appointed by President Bill Clinton in 1993. "Was enough done to clear the status of the person? Did you hold the person longer than you needed to? Does it really sort out to being in one sense preventive detention? Yes, it does, but with safeguards."

No word at the time on whether it was "justified" to torture the "material witness" but I doubt anyone cares. Very few people care about any of the torture that routinely goes on in the American prison system.

The good news is that after all these years, al Kidd will finally get a chance to legally protest what was done to him:

A federal judge in Idaho has ruled that the United States, after the Sept. 11 terrorist attacks, wrongly imprisoned an American under a law designed to keep trial witnesses from fleeing and that since there was evidence that the government may have willfully misused the law against him, his case should go to trial.

Judge Edward J. Lodge, who was appointed by President George Bush, issued his rulings late on Thursday in the longstanding case of Abdullah al-Kidd, an American who was seized at an airport in 2003, imprisoned for 16 days, repeatedly strip-searched and left naked in his cell. The Justice Department had sought to have his trial request summarily dismissed and denied having misused the law in detaining him.

Mr. Kidd’s lawyer, Lee Gelernt of the American Civil Liberties Union, welcomed the ruling, saying, “It will finally put the government on trial for its post-Sept. 11 practices.”

America owes a debt of gratitude to al Kidd and his lwayers for doggedly sticking with this. It's extremely important that we at least try to determine if our Bill of Rights has any legal meaning anymore. It very well might be over for all but the 2nd Amendment, but I think it's better to know it than live in denial.