On Nov. 17, 2006, a jury of twelve people sitting within the virtual shadows of the World Trade Center in a federal district court in South Manhattan, New York City, found Osama Awadallah, age 26, not guilty of lying to a grand jury about his interactions with one of the 9/11 hijackers, Khalid Al-Mihdhar. Al-Mihdhar was on Flight 77, the airliner that stuck the Pentagon. Five years one month and twenty-seven days earlier, Osama’s odyssey had begun when he was arrested in San Diego, California, as a material witness because of his acquaintance with Al-Mihdhar and Nawaf Al-Hazmi, who was also on Flight 77. Al-Mihdhar and Al-Hazmi had visited San Diego in 2000. After the 9/11 attacks, Osama had attracted the attention of the FBI because his old telephone number had been found on a scrap of paper in Al-Hazmi’s car.
Osama is a Muslim-Arab who immigrated to the United States from Jordan in 1999. Born in Venezuela and reared in Jordan, he is the son of naturalized US citizens. He came to the States to further his education and become a citizen.
He is a devout Muslim who believes in the literal truth of the Muslim holy book, the Qur’an. The Qur’an teaches him that the forebear of the Jews was Isaac, son of Abraham; Isaac’s brother, Ishmael, was the forebear of the Arabs. By blood, Jews and Arabs are cousins. The Qur’an also teaches him to respect the Jews as worshippers of the one God. As a practicing Muslim, Osama unquestioningly accepts these teachings.
However, like most Arabs from the Middle East, by the time he came to the United States he was very conflicted about his Semitic cousins. Jordan shares a border with Israel, and over 1.5 million Palestinians live in Amman, Jordan’s capital. Jordan’s media is replete with stories about Israeli bulldozers knocking down Palestinian homes and Israeli soldiers killing Palestinians. In spite of the teachings of the Qur’an, Osama’s Semitic cousins govern Israel, the self-declared Jewish state, and must bear responsibility for the plight of the Palestinian people.
After his arrival in the United States, Osama enrolled as a student at Grossmont Community College in East San Diego. Broken English aside, by September 2001 he was perceived on campus as a good student and a proselytizing Muslim.
After his arrest on Sept. 21, 2001, his family hired me to represent him. I’m an Arab-American who was born in the United States and reared in a secularized Muslim household. When I first met Osama in the San Diego federal prison in which he was being held, his English was poor, he was scared to death, and he had been told by the FBI agents who arrested him that he would be spending the next year in secret detention in New York City while a grand jury investigated 9/11.
I assured him that the law said otherwise. A material witness could be arrested only if he or she refused to appear before a grand jury. Osama had been cooperating with the FBI and had expressed a willingness to go to New York voluntarily to testify. Once a judge heard that, at the very least he would be freed from custody on condition of reasonable bond.
I was wrong. Immediately after 9/11, then Attorney General John Ashcroft had unleashed a secret, nationwide dragnet aimed at sweeping Arabs and Muslims from the streets. For the first time, the federal government was using the material witness statute as a pretext to arrest individuals pending investigations to determine whether they had committed any crimes.
Osama and I appeared before a local magistrate judge on Sept. 25. In the name of national security, the courtroom was sealed from the general public. Our request for release on reasonable bond was denied. The judge, like a lot of other judges across the country at that moment, had succumbed to the Ashcroft juggernaut. He ordered Osama transported to New York City immediately.
A week later, Osama and I appeared in the sealed courtroom of US District Judge Michael Mukasey in South Manhattan. Also present was Abdeen Jabarra, a well known New York attorney and Arab-American activist whom I had retained as local counsel. Apparently Judge Mukasey and Abdeen had crossed swords before. Without explanation, the judge refused to allow Abdeen to act as local counsel and removed him from the courtroom.
Osama then whispered to me that he had been beaten by the guards. I notified the judge and demanded an immediate medical examination and investigation. Judge Mukasey denied the request, commenting that Osama looked fine to him. He then ordered Osama held without bond and scheduled him to testify before the grand jury on Oct. 10.
Once outside the courtroom, I caught up with Abdeen. He knew that I was representing Osama in a sea of crocodiles and needed local counsel fast. He took me to the nearby office of Jesse A. Berman, a criminal defense lawyer with over thirty years’ experience in the South Manhattan courts. Judge Mukasey would likely raise no objection to Jesse. After brief discussion with us, Jesse unhesitatingly agreed to represent Osama.
From my perspective at the time, Jesse just as easily could have refused to become involved in the case. He was Jewish; his office was not that far from Ground Zero; and Osama had actually known two of the hijackers. For all Jesse knew, Osama could have been a terrorist sympathizer who had played a role in 9/11. But Jesse did not turn us down. And from that moment on, Osama’s fate would rest in Jesse’s very capable hands. Ironically, Jesse would not be the only one of our Semitic cousins to step forward and play a pivotal role on Osama’s behalf.
Osama testified before the grand jury on Oct. 10. By the time he testified, he had been beaten by the prison guards; subjected to nineteen days of physical, mental, and verbal abuse; presented to the grand jury in the orange prison jump suit ordinarily worn by felony defendants; and handcuffed to a chair in front of the grand jurors. For the whole day, he was bombarded by questions from two federal prosecutors.
Jesse and I were confined to a small interview room down the hall from the grand jury room. Lawyers are not allowed inside the grand jury room. If a witness wants to consult with an attorney before answering a question, he or she must leave the room and find the attorney. That is pretty hard to do when the witness is handcuffed to a chair. Jesse and I wondered why Osama never came out to ask us any questions during his lengthy testimony. Only much later did we discover that he had been handcuffed to a chair.
At the end of the day, the prosecutors came to us and told us that they believed Osama had lied because he had not been able to recall Al-Mihdhar’s first name. They possessed a poor-quality photocopy of a workbook from his English class at Grossmont College. In it, he had written that he was acquainted with “Nawaf” and “Khalid.” They claimed that the book proved that Osama had been lying about Al-Mihdhar. Apparently the book had been provided to the F.B.I. by his English-As-A-Second Language teacher, Mimi Pollack, who also happened to be Jewish.
A few days later, Osama was indicted for perjury. Jesse continued to represent him as his criminal defense attorney. Osama’s criminal case was assigned to South Manhattan court of United States District Judge Shira A. Scheindlin. She, too, is Jewish. On November 27, 2001, Judge Scheindlin granted Osama release on bond. She was the first judge in the country to grant bond to a Muslim-Arab swept up in Ashcroft’s now-public dragnet. Her decision caused much consternation in the United States Attorney General’s office and across the country.
Then in February, 2002, Judge Scheindlin did the unthinkable. She dismissed the indictment against Osama. (To be continued)
— Randall B. Hamud is an attorney at law based in San Diego, CA. He can be contacted at: [email protected]
