‘Free Country’ Datum III–“Material Witness” Detentions

The New York Times reports on the saga of Abdullah al Kidd.

1. Abdullah al Kidd is a US citizen;
2. Mr. Kidd was at no point charged with doing anything wrong, and the NYT reports nothing that suggests there was any reason to suspect him nor that any law enforcement officers ever had a reasonable suspicion he did anything illegal;
3. Mr. Kidd didn't know much of importance;
4. What Mr. Kidd allegedly knew was about another guy who was aquitted of aiding alleged terrorists by working on a web site, and all he supposedly knew was something about the other guy having overstayed a visa;
5. The other guy's prosecution was itself a disgrace—a complete stretch of the law that, had it succeeded, could have made any computer consultant a 'terrorist'.

Mr. Kidd was detained as a material witness for 16 months, some in jail and the rest forced to live with his in-laws where he had been staying temporarily prior to leaving for his scholarship in Saudi Arabia. During this period, he lost his graduate scholarship. The director of the FBI testified to Congress that Mr. Kidd's arrest was a triumph of counterterrorism. Mr. Kidd had to work moving furniture. His wife left him and took his daughter. Now he finds he's as unemployable as if he were a convicted felon.

I believe this abuse of the material witness statute to be incompatible with freedom. It is one more reason why not re-electing George W. Bush is essential to preserving our liberties. And if Congress had any guts, it would amend the material witness statute post haste. (Being something of a realist, I'd even settle for immediately post-election.)

For Post-9/11 Material Witness, It Is a Terror of a Different Kind: 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 …

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.

But at the kitchen table of his dumpy little bachelor flat here, with a television on the floor and incense in the air, Mr. Kidd said the experience had cost him dearly. He lost his scholarship, he now moves furniture for a living, and his marriage has fallen apart. About 60 other men have been held in terrorism investigations under the federal material witness law since the Sept. 11 attacks, according to a coming report by Human Rights Watch and the American Civil Liberties Union…

Though the law requires that material witnesses be held “for a reasonable period of time until the deposition of the witness can be taken,” such sworn interviews are seldom used in terrorism investigations

The jury found Mr. Hussayen not guilty of the more serious charges and deadlocked on others. Not long after, the restrictions on Mr. Kidd's travel were lifted and his passport was returned.

Norm Brown, an F.B.I. supervisor in charge of the joint terrorism task force in Spokane, Wash., said Mr. Kidd had information relevant to a minor charge – that Mr. Hussayen had violated the terms of his student visa.

You need a lay witness to establish that a person overstayed his visa???

Mr. Brown of the F.B.I. defended the decision to detain Mr. Kidd, citing what he called three red flags. Mr. Kidd had listed “jihad” among his interests on a Web site, which the F.B.I. interpreted, Mr. Brown said, as a reference not to “a personal struggle so much as a holy war.”

Second, Mr. Brown said, Mr. Kidd “sold tapes and books containing the teachings of radical sheiks” when he lived in Idaho. Third, Mr. Kidd's possessions when he was arrested included a video of concern, Mr. Brown said. “It had to do with the hijacking and terrorist events on Sept. 11, 2001. At this point, I'll leave it at that.”

Mr. Kidd responded that “jihad” has “a vast array of meanings”; that he never knowingly distributed radical works; and that the video documented terrorism, rather than promoting it.

These are all First Amendment activities. Or, at least, they were.

I hope John Ashcroft and George Bush are real, real proud of how they are defending Amercia. If this is “steady leadership” I'll take wobbly any day.

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16 Responses to ‘Free Country’ Datum III–“Material Witness” Detentions

  1. MP says:

    Oh how you leave out and twist the facts.

    Lavoni T. Kidd is his real name. He changed his name when he converted to radical (jihaadist) islam. When he was picked up by the feds, he was on his way to Yemen via Saudi Arabia to “study Islamic law and the Arabic language” ala Walker-Lindh. But you still want to call it “Graduate Studies”? He moves furniture because he’s a dumb football player with no other skills, not because he’s unhirable as an “academic”.

    Read this:

    and then ask if it wasn’t appropriate to hold him in the US rather than trust him to return to testify after having left for his “graduate studies” in yemen. In criminal law, comporting with a bad element may be considered in a probable cause affidavit. Criminal associations may be introduced as evidence before a grand jury and sometimes trial and sentencing. So now you would argue that associations with criminals don’t justify restricting international travel by a witness with his background in a terrorist case?

    That’s funny, because Michael Moore made such a stink about the binladen family leaving the US after the 9/11 attacks. Where do you liberals really stand? Suspects and witnesses are free to come and go, or aren’t they?

    Don’t kid yourself about who and what this kid is. He’s free because he’s innocent “under the law”, not because he’s a humble little lamb.

  2. Chris says:

    I read stories like this in stunned disbelief–am I even living in the United States? Do my feelings mirror those of the Germans in the 1930s, as they saw their republic plunge irrevocably into fascism? Or the Romans, as their cherished and centuries-old Republic disintegrated into an Asian-style despotism?

    Unfortunately, the neocons don’t quite see it this way. Their perspective: “What does it matter if a few innocent people suffer the violation of their basic rights, so long as the rest of us feel safe.” Our resident neocon troll even baldly said as much in an earlier post. So why is it that my feeling of safety plunges with every law that gives the government more power over my life, and with every example of arbitrary and pointless tyranny committed for what the neocons tell us is our own good? Into whose lap does the advantage fall, when citizens are no longer entitled to their “inalienable” rights?

  3. Patrick (G) says:

    Does Mr. Kidd have any legal recourse,
    Like charging the DOJ with unlawful detention, kidnapping, slander, anything ?

  4. Wow, where to start. Ok, first things first. Moore wasn’t trying to suggest that Bin Laden’s family members should’ve been restricted a la Mr. Kidd, based on suspicion. He was wondering why, WHEN ALL AIR TRAFFIC WAS GROUNDED, a special dispensation was allowed for possibly material witnesses.

    Second, even if guilt by association gets you past the P.C.A. stage, its not enough for months of incarceration and other restriction of movement.

    But mostly, I’m terrified by the idea that someone can be innocent under the law and still bear, in your mind, a justifiable suspicion resulting in government restriction of his movement and other freedoms. Innocent under the law is innocent in this country. The fact is, even by the article you site, the religous education in yemen was where Mr. Kidd was when 9/11 happened. Just after his arrest, according to all of the major media sources I can find, he was on his way to Saudi, on a scholarship he’s now lost and can’t regain.

    And where do we get “radical jihadist islam?” He started out in the Nation of Islam as a follower of Farrakhan, inspired to do so by an Uncle, and began studying more traditional islam when he decided that group was too radical. This is a man who was counseling the homeless in Seattle, bought a $1,700.00 plane ticket to go study in Saudi, a nation our president is LOATHE to suggest had anything to do with 9/11 despite its obvious ties, who was immediately arrested not because of a fellow member of some obscure religious sect, but because of a fellow muslim he met at the american university he attended. Funny enough, that ticket was reported to cost $5,000.00 by the FBI and other sources, across the board. And like it or not, the “bad element” he was supposed to have trafficked with in his college days? Was unanimously acquitted by a jury without Mr. Kidd even being called to testify.

    The simple fact of the matter is that if Mr. Kidd had the exact same associations and history, and was not a Muslim, it can be assumed that he wouldn’t have been detained in the fashion he was. And I can’t imagine an American respecting in the slightest our system of justice and suggesting that innocence per a jury of your peers isn’t good enough to free you from this kind of tyranny. Even the old British bills of attainder generally waited until you were convicted before letting you wave goodbye to your civil rights…

  5. MP says:

    Good post Chopin. We disagree on the characterization of what Lavoni was really up to. You’re still spinning. We also disagree on how our system works.

    You continue the smoke-screen by refering to his education as financed by a “scholarship”. The saudis finance wahabiist indoctrination schools all over the world, known to be breeding grounds for terrorists. To refer to the money as such would be akin to refering to hitler youth as “scholars” whose education was financed by “scholarship” money of the third reich. Was jose padilla a “scholar” receiving a “scholarship” to study nuclear engineering, financed by a benevolent “university”?

    Your statement “Innocent under the law is innocent in this country” is also wrong. Would you let Michael Jackson babysit your children? Your daughter marry Scott Petersen or OJ? The burden of proof in a criminal trial need not apply to pretrial phases, sentencing, and most of all not to public opinion.

    It is crystal clear to me that there was probable cause, and good cause, to hold Lavoni. Sometimes we arrest the wrong person. Sometimes we arrest the right person, but fail the burden of proof at trial. Apparently that happened here. It happens every day. What if Scott Petersen is acquitted? Should he be able to sue for being falsely imprisoned? Absolutely not. But I assume Patrick (G) would disagree. If he is really innocent, then sorry but he gets screwed, but eventually wins his freedom. Thats our system. If you want to blame anyone, then blame the judges who approved his detention, not Bush. But frankly, everyone did it right.

    As for radical islamic ties being a factor, that is absolutely and shamelessly a factor. It wasn’t mormons who attacked on 9/11, nor do the scientologists lead fascist regimes in the middle east sworn to destruction of the west. That’s like saying the IRS unjustly targeted al capone because of his ties to the mafia. yemen is not a country where true peace loving muslims go to study islam and arabic, but that is where he was headed.

    Lavoni got his day in court, and “cleared” his name. So might Petersen and Jackson. There are plenty of americans with no muslim ties held on charges with much less substance in the jails of your county at this very moment. You blame Bush for that too? Our your own elected judges? What makes Lavoni so special, other than his being a useful case to distort into an attack against Bush? Are you implying muslims should get special treatment?

    I see nothing in the posts on this topic but a general condemnation of our criminal justice system, twisted and contorted with muslim victimization to somehow make it look like the Bush administration’s fault. I would love to see scott peterson acquitted, just to see how michael will somehow manage to spin it into an attack on Bush.

  6. Mojo says:

    MP; Everything you’ve said is irrelevent and often simply wrong. For example:
    “Lavani got his day in court and cleared his name”. No, because he never went to court because he was never charged with anything! (I’m also confused as to why you keep calling him Lavani since the article you link to calls him Javoni.)
    What possible difference does it make that Saudi Arabia contains “breeding grounds for terrorists”? Kidd wasn’t accused of being a terrorist or of supporting them. He was a WITNESS!
    “What if Scott Petersen is acquitted? Should he be able to sue for being falsely imprisoned?” Irrelevent. A more germane issue would be what if we imprisoned YOU for weeks and then limited your movements (to your detriment) for over a year because we claimed you could testify to some minor piece of evidence related to a minor charge in the trial and then never even called you as a witness?
    (No room on this post for more.)

  7. Mojo says:

    MP; I think the primary point of Professor Froomkin’s post was that this was misuse of the material witness concept. A material witness is “a witness whose testimony is both relevant to the matter at issue and required in order to resolve the matter”. Neither of those requirements was met here. The FBI never even alleged that he knew anything that couldn’t be proven more effectively using official government records. More tellingly, if his testimony was “required in order to resolve the matter”, why was he never called, particularly in an unsuccessful prosecution?
    This story is of particular concern to me because my son attended WSU (studying computer science) during that time period and currently lives in Moscow, Idaho. I think the fact that he’s neither Arab nor Muslim will protect him from arbitrary arrest, but I can’t be sure any more.

  8. Well said, Mojo. The way I see it, if you cannot blind yourself to the fact that Kidd is a muslim, whether by birth or conversion, and see the application of this law in this case as equally just, then you just can’t justify the application.

    If this had happened to any white suburban college grad based on an association made in college and with no eventual call even for his testimony, or conviction of the associate, I don’t think it would be as easy to slough off.

  9. MP says:

    I don’t know, nor did the original post give, what the actual charges were. I do not disagree that government records would be better evidence than a witness if the question is purely: “Did he overstay?”

    However, if elements of whatever crimes he was charged with required proof of knowledge and/or intent to overstay, then a witness he confided in would be usefull and government documents would not.

    To the rest-
    You’re kidding yourselves if you think this guy was some kind of budding islamic scholar. he was headed for a radical wahabiist madrassa. It was highly unlikely he was going to show up to testify if he had been allowed to leave. I did make the mistake of saying the witness had cleared his name. Actually the accused overstayer did, and the witness no longer needed. Again, that’s how our system works. It has nothing to do with religion per se.

    As far as the muslim issue, again you ignore the facts of what this kid was involved in. He had a demonstrated propensity to leave the country, and likely an incentive not to return. There were other facts in his past that also cast doubt on his availability to testify. He wasn’t headed to Paris to study at the cordon bleu.

    It wasn’t about his being a muslim. It was about the type of islam he had gotten caught up in, a type of islam rejected by peaceful muslims. In any case, his religion probably played a much lessor role than the fact he intended to leave the country with a questionable intent to return.

  10. First, the idea that an intimate witness would be required to prove intent to remain in the country illegally doesn’t make a whole lot of sense. If he was here, wasn’t supposed to be, and was capable of leaving, what’s the other argument, that he thought he was really in Riyadh?

    And further, I see nothing to suggest that Mr. Kidd was unlikely to return to America. Yes, he was going to Saudi Arabia to study.

    But more importantly, you repeat and repeat and repeat that this individual is a member of a radical islamic sect. Mr. Kidd is affiliated with the Islamic Assembly of North America. I’ve scoured google’s hits pretty hard, no one even seems to be suggesting anything untoward about this group, but let’s say they’re the worst thing since unsliced bread. They’re in Michigan. Why are we arresting individuals in airports when, apparently, there’s a mass group of radical fundamentalists in Michigan?

    You keep saying he was headed to study some sort of fundamentalist theme when he was arrested, but all I can find, and not just from his lawyers, are statements that he was headed to Saudi with a job contract to teach english, and a corresponding scholarship studying Islam. The worst I can find the FBI saying as to his relation to fundamentalists anywhere is that he visited a “pro-Taliban” website, and used the word “jihad” in his profile there, and that he had materials produced by fundamentalists in his possession. And the guy’s writing a book on the subject, so he’d better be doing at least some research, right?

    Apparently you’ve gotten the impression, MP, that Mr. Kidd was arrested by the government for some reason and they couldn’t get the conviction. Or maybe even that they just know he did something, but they can’t prove a lick.

    But that’s not the claim. No one even suggested anything more serious than that Mr. Kidd might be a useful witness as to the failure of Al Hussayen to stick to the visa rules. No one, except you, has suggested that Mr. Kidd is a fan of fundamentalists, and by his own proclamation he’s anti-osama, anti-taliban. Again, writing a book on the subject. So if its not about the fact that he’s a muslim, with a muslim name, what’s it about? You say he practices a form of Islam that all peaceful muslims reject? Good lord, man, I was raised Catholic. Should I reject them now based on the crusades and the silent acceptance of the holocaust and the mass sexual abuse scandals, before I’m associated with the guilty too?

  11. MP says:

    There are many crimes which require knowledge and intent. I don’t know and dont care to research it, but perhaps there is one crime when you simply overstay but by “accident”. Perhaps there is another crime when you never intended to leave when you applied for the visa in the first place and abuse the system.

    I never thought he had been accused of anything, although I admit I wasn’t precise in my posts. I have said from the beginning that the restrictions on his liberty were reasonable in light of the circumstances. By mentioning Peterson and Jackson, I intended to bring to light the fact that probable cause is enough to restrain a person’s liberty. Granted, they are accused. But it is easy to see that in certain cases, material witnesses might be needed as well by the same standards. But I’ll give you credit, since you were the first to argue that the evidence points toward his actually returning to testify. I find the evidence points to the opposite.

    You are also correct, in that nobody but him will ever know what his true religious beliefs are. But they are irrelevant. There was enough evidence to indicate that he would not return. His religious “affiliations” were but one piece of the puzzle.

    I await the book this “scholar” was working on. A college football running back, and now a religious scholar. My, my. A true renaissance man. Sure.

    But again, I don’t see how any of this has anything to do with Bush, and nobody has connected the dots for me.

  12. First, as to intent. When you can tell me how someone capable of leaving the U.S. “accidentally” forgets to cross the border and never realizes it after, you get the lollipop for the day.

    Second, as to P.C.. You’re correct. Probable cause, or a reasonable suspicion a crime has been committed, is a legitimate reason to restrict someone’s freedom. And that’s why, here, in the lack of it, there’s a pretty significant issue. The government never even suggested it had P.C. to believe that Al-Kidd had committed a crime, nor did they ever charge him with one or even suggest they’d like to. Rather, there’s a different motivation at play.

    Immediately following 9/11 A.G. Ashcroft (you let me know when you see the Bush connection appear, now) announced that “aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks.” Since that time, 18 USC 3144 has been used in order to further this agenda. But go read the Code. It immediately refers you to Sec. 3142, with a strong order to use the least restrictive option available to get your witness to trial. The presumption is clearly in favor of as little restriction as possible. Not remotely what happened in this case.

    In fact, these material witnesses are subject to more serious restrictions than the majority of convicted inmates. (See Judge Schira Scheindlin’s ruling from the Southern Dist. of NY that Osama Awadallah’s incarceration under the material witness statute was not only overly restrictive, but improperly achieved.) Now I’m not a criminal attorney, but it seems to me that I recall something about the admissibility of hearsay and the unavailability of the material witness statute in cases where testimony may be preserved by deposition. Perhaps I just made all that up.

    The fact of the matter is, when you have the Washington Post identifying 44 detained material witnesses, half of which never made it to a grand jury, there are only two real possibilities. Either the material witness statute is being abused to hold those individuals we might think we want to charge later, whether or not the evidence exists now, or else our law enforcement is so blind and halfwitted that only in half of the cases do they even arrest the right individual. Either way, its not a proposition I get behind strongly.

    I ask you again what evidence suggests Mr. Kidd wouldn’t return to the United States other than the fact that he was traveling to Saudi Arabia. You say again you believe all evidence suggests that, but I’ve heard you cite none. On the other hand, this is a U.S. educated citizen who lives in Renton, Washington, and keeps all his family here. No history of criminal activity. No identifiable history of association with any fundamentalist group. No evidence brought forward of any ability to remain in Saudi and be cared for there.

    You tell us that religious affiliations are just “one piece of the puzzle,” despite the lack of any clear evidence as to what Mr. Kidd’s affiliations actually are. So aside from the fact that the man wanted to travel to Saudi and has, in the past, met other Muslims, what seems to be the flight risk? I’m just not catching it.

    The fact of the matter is simple. Individuals charged with protecting our nation’s security, much as you seem to have done, have gotten the idea that they know, personally, who is or is not most likely guilty, or at least involved in terrorism. They know they lack the probable cause to make an arrest. They know they genuinely have no need to use the individual as a material witness. And they detain them anyway, because they figure, just as you did, that innocent under the law can still mean convicted in the eyes of the one applying it.

    The F.B.I. publicly apologized in June of 2003, for using this same statute to incarcerate 8 Egyptian born men who were and have never been accused of any crime. In that case, they had received an anonymous tip it took them, luckily, only a week to realize wasn’t based in any fact or evidence whatsoever. And feel free to search around for this incident. You’ll find fun stories about federal housing loans being denied based on the arrest record, restaurants going out of business thanks to the scandal, and the like. American citizen’s lives ruined by our American government with so little justification they even apologize after. I’m sure that makes everything ok.

    What you are doing, quite frankly, is to assume the guilt of someone not even charged with a crime because of his name and his religous affiliation. Nothing other than religous affiliation and general Islamic beliefs have even been mentioned. This is a man who, at the worst, knew a guy in college who might have made webpages for fundamentalists, but who was acquitted of those charges by a jury. In return, he lost a year and a half of his life. And because of the thinly veiled alternate explanation of flight risk, he probably has no chance of ever getting past the layers of immunity to the sad and misguided ideas that put him in jail in the first place, whether through civil rights litigation or otherwise.

    This was never ok. On November 13, 1966, Lyndon Johnson himself, to my utter amazement, signed memo 611 disapproving a Washington, D.C. crime bill allowing police the ability to detain and question without arrest for several hours, saying that “In the case of a material witness, the bill contains provisions even more extreme than those applicable to suspects themselves.

    Any citizen at the scene of a crime-including the victim–can be taken into custody as a material witness. It is not necessary either to obtain a subpoena, or to take the witness before a magistrate, until 6 hours after be is picked up. In effect, the person can disappear from sight merely on an individual policeman’s judgment that he is a material witness, and that there is a reasonable probability that he will not be available to testify at the trial.”

    Now honestly, if we knew this kind of arbitrary “I think he’s guilty so lock him up” policy was wrong 40 years ago, what’s changed? Are we more under attack in the world and at home now than we were in 1966? Or do our civil rights simply matter less to Bush than even to another warmoning Texan?

    How sad a statement is it that our civil rights are less protected now than they were in 1966? In a nutshell, here’s what it comes down to. The least restrictive alternative is required. Saudi Arabia is supposed to be our international bosom buddy, always friendly and helpful. But there’s no alternative whereby someone can travel to Saudi Arabia and be expected to return? No restriction on travel you can put on a person to allow the FBI to find him to testify short of incarcerating him in maximum security facilities? No bond he could put up, or other restriction that might bring him back to court rather than have him become a lifelong fugitive to avoid testifying that a guy he met in college overstayed his visa? Garbage.

  13. Patrick (G) says:

    Please don’t feed the troll.
    As Paul Krugman observed, you cannot win an argument with a pathological liar.

  14. Chris says:

    I can be more explicit re Bush’s responsibility. Recall the memos released by the White House and DOJ et al that give the President authority to suspend or ignore laws, treaties, and the Constitution should these become inconvenient to the CIC in prosecuting the war on terror. I’d be surprised if Bush personally directed the FBI to treat al Kidd as they did (essentially levying de facto punishment on someone not accused of anything), but the memos send a pretty clear message where everything that happened to al Kidd should have been a foreseeable consequence. At the very least, posters to this site saw the possibilities right quickly once the memos were first leaked. If we could figure out the implications within minutes of reading the documents, so can government functionaries.

    I think this answers the other good point that MP raised, which was whether al Kidd’s situation is simply yet another sorry example of a miscarriage of justice in our CJ system. Knowing something about the CJ system and why miscarriages usually occur, the difference is that one is typically an unfortunate consequence of overburdened courts, zealous prosecutors, incompetent and overworked defense counsel, and ignorant defendants, whereas al Kidd’s circumstance was the foreseeable outcome of a conscious policy decision made by the State. The former is bad enough, but the latter is tyranny.

  15. Chris says:

    This story from CBS is superficially unrelated to Michael’s post, but definitely leaves you wondering if the unfettered freedom of the govt to wage a war on terror “serendipitously” gives them freedom to abuse government power. I didn’t think Bush would have the balls to do something like this, even though I had speculated in other posts that there was nothing to stop Bush from using his power this way if he felt like it, but already suspicious stuff is starting to creep out:


    At least Ted wasn’t secretly taken to Gitmo for “questioning,” since suspicion is all that’s required these days for the government to wreck your life. But we’ve taken another baby-step closer to that point…

  16. Chris says:

    Here’s still more, though the people harmed were common riff-raff like you or I rather than Ted Kennedy–and it’s not like I’m even looking very hard for these stories.


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