Material Witnesses Can Be Jailed, Judge Rules

NEW YORK — The jailing of material witnesses in the Sept. 11 investigation was found constitutional by a federal judge, who criticized an earlier ruling freeing a Jordanian detainee.

Judge Michael Mukasey's ruling was issued Thursday in the case of an illegal immigrant who asked to be immediately deported rather than held for questioning before a grand jury probing the terrorist attacks.

The witness based his request, in part, on the reasoning of Judge Shira Scheindlin, who in April tossed out perjury charges against a Jordanian college student, Osama Awadallah, accused of lying about his associations with two of the Sept. 11 hijackers.

Scheindlin had ruled that federal statute does not authorize the detention of material witnesses solely for the purpose of a grand jury investigation – a decision criticized by Attorney General John Ashcroft.

Mukasey said Scheindlin's decision was "poorly reasoned" and failed to fully consider the law's history or other judges' opinions in similar cases.

The government said Thursday that it has released most of the detainees it picked up as part of its investigation into the Sept. 11 attacks.

Justice Department spokesman Mark Corallo said that of the more than 1,100 people detained, only 74 remain in custody. Most have been deported, though some were released after being cleared of criminal involvement in the attacks.

Mukasey said Scheindlin's findings would require judges to evaluate the weight of the evidence against a defendant when deciding whether to detain a material witness. "No court has ever read the statute in this fashion," he said.

Prosecutors have indicated they will challenge Scheindlin's ruling.

The detainee in Thursday's case was identified only as John Doe. A message left with his lawyer, Neil Cartusciello, was not immediately returned.

Mukasey, chief judge of the federal court in Manhattan, presided over the trial of those convicted in a 1993 plot to blow up New York landmarks and has conducted numerous hearings involving Sept. 11 detainees.