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Go directly to jail, crime or no

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© St. Petersburg Times
published April 20, 2003

Sometimes, before an abusive government practice gains widespread attention, bad things have to happen to someone with this bio: American citizen, blond wife, adorable children, good job and high-status friends.

That victim would be Maher "Mike" Hawash, a naturalized American of Palestinian descent who has been held in federal custody as a material witness to a terrorism investigation since March 20.

In an early-morning raid, Hawash was seized by armed FBI agents in the parking lot of his workplace in Portland, Ore. His home was later searched for hours and four computers were confiscated. Hawash has since been held under maximum-security conditions in a federal prison south of Portland. No one who can talk knows why Hawash has been detained or what the FBI agents are looking into, although there is conjecture it might have something to do with his donations to a Muslim charity. Everyone directly associated with the case, including his lawyers, has been ordered by a judge not to speak about it.

But Hawash is lucky. Unlike other Muslim and Middle Eastern men who have found themselves in this predicament, Hawash has well-situated friends. As a former employee and now a contract software engineer for Intel Corp., Hawash has a wide cadre of associates in the computer industry. And they are not sitting on their hands. An Internet-driven information campaign ( and organized "free Mike" rallies have increased interest in his case and, as a result, in the way Attorney General John Ashcroft has been misusing the material witness statute.

Steven McGeady, a former Intel vice president, is leading the effort on Hawash's behalf. McGeady said he had been a casual observer of the post-Sept. 11 terrorism detentions -- concerned but not engaged. His activism kicked in when his good friend was arrested. What happened to Hawash "is the classical definition of a police state," McGeady said. "Government can hold you in secret at any time and for any length of time. It violates, for me and everyone I know, the pre-existing trust we have in government." McGeady believes firmly that if Hawash were "not of Arabic descent" he would never have been treated in this pre-emptory manner: Instead of waiting in a prison cell, "he'd be home waking up with his wife and kids every morning."

At issue in Hawash's case is the 1984 material witness statute that allows the government to hold a person whose testimony is "material in a criminal proceeding" for an indeterminate time. The law is to be used only when the witness is reticent and will likely flee the country to avoid having to testify. But since the terror attacks Ashcroft has transformed it into a tool of repression, using it to put people behind bars for preventive detention. Ashcroft's approach is to arrest first, investigate possible terrorist ties later -- a patently unconstitutional practice under which the "witness" label has become just a pretext.

Back in November, the Washington Post did a stellar job trying to uncover exactly how Ashcroft's Justice Department has used the statute. The paper counted at least 44 people who were arrested as material witnesses -- a remarkable journalistic achievement given that it is nearly impossible to get information on who has been arrested. Because the detentions are ostensibly to provide grand jury testimony, judges seal the records and issue gag orders. It plays perfectly into Ashcroft's obsession with secrecy.

The paper found that twenty of the "witnesses" were released without ever being asked to appear before a grand jury. And only two were ever indicted on terrorism-related charges. (Another, Jose Padilla, the so-called "dirty bomber," is being held without charge as an enemy combatant.)

Lives and families were destroyed by the incarcerations, with some of the detentions lasting for months. Yet this statute imprisons people who are not accused of doing anything wrong.

As to checks on Ashcroft, Congress has been exceptionally meek. Earlier this month House Judiciary Committee Chairman James Sensenbrenner and ranking member John Conyers sent Ashcroft a letter asking for details regarding each person detained as a material witness. But this is likely to go nowhere. Congress has been unwilling to call Ashcroft to account for his outrages against liberty. Nearly everyone's intimidated.

The courts have been a little better but not much. One federal judge in New York ruled that the material witness statute could not be used in the grand jury context, but that ruling is likely to be set aside on appeal. Courts seem to be failing to vigilantly test the government's claim that the men held on these warrants are a flight risk. Hawash is an American with a good job, a nice home, an American-born wife and three children. He's got just the kind of vita that says he would be a cooperative witness.

A federal judge has ordered Hawash detained "but not indefinitely," with a closed-door hearing to review his status set for April 29. By that time he will have spent more than five weeks in prison with no formal accusation or charge against him. Welcome to Ashcroft's America.

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