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Guilty until proven innocent

CNET's Declan McCullagh chronicles the bizarre tale of an Intel engineer thrown into U.S. solitary confinement for reasons that remain confidential.

Intel engineer Mike Hawash is in solitary confinement in a federal prison in Sheridan, Ore. On Mar. 20, the FBI arrested Hawash at gunpoint in Intel's parking lot near Portland for reasons that remain confidential. A 38-year-old American citizen with a wife and three children, he has not been charged with a crime.

This is a development that deserves close attention in the technology community. More than other industries, the computer business relies on immigrants. And some, like Hawash, are getting caught up in the U.S. Justice Department's campaign against suspected domestic terrorists.

The Hawash case is not an isolated situation. I wrote recently about how Attorney General Ashcroft wants more power to snoop on the Internet, observing private conversations by installing secret microphones, spyware and keystroke loggers. Combine that with the broad powers that the Justice Department received under the 2001 Patriot Act, and you've got a situation that concentrates a tremendous amount of surveillance power in a small group of federal police and prosecutors.

Hawash is being held as a "material witness" under a 1984 law that the Justice Department believes should let the government detain American citizens at will for an arbitrary length of time. A well-researched Washington Post article from last fall said the Justice Department has imprisoned at least 44 people, including seven U.S. citizens, under the same law, with some held for many months and possibly for more than a year.

These legal battles over the imprisonments are fierce and ongoing. Last week, a federal appeals court heard oral arguments in the case of a Jordanian man with the unfortunate name of Osama Awadallah, who was detained as a material witness after the Sept. 11, 2001, terrorist attacks. A trial judge ruled last year that Awadallah was unlawfully detained, and the Justice Department appealed.

The odd thing about this law, through which Congress intended to prevent the flight of possible witnesses to a crime, is how backward it is: If Hawash had been accused of a violent crime, he would have been out on bail weeks ago. Instead, he is serving time in what the Bureau of Prisons calls "FCI Sheridan," a federal institution where Hawash is permitted one 10-minute phone call and one visit from his family a week.

Hawash's career is a typical geek success story: Born in the West Bank municipality of Nablus in 1964, he graduated from the University of Texas with bachelor's and master's degrees in electrical engineering. A naturalized American citizen, he worked for Compaq, helping to port Windows NT to the company's line of personal computers, and then joined Intel's Multimedia Software Technology Group.

As a lead engineer on Intel's MMX software team, Hawash worked on the MMX technology emulator and MPEG decoders. In 1997, Addison-Wesley published a book that Hawash co-authored titled "DirectX, RDX, RSX and MMX Technology: A Jumpstart Guide to High Performance APIs."

It remains unclear why Hawash was arrested.

What's unusual is that nobody with any real knowledge of the situation can talk about it.
His friends speculate that it might be because he made two donations totaling about $10,000 to the Global Relief Foundation, an Islamic charity whose assets were frozen last year after the Bush administration alleged that it had links to terrorism. A second Oregon man targeted for his close ties to the organization pleaded guilty last month to federal fraud charges.

What's unusual is that nobody with any real knowledge of the situation can talk about it. The U.S. Attorney's office has steadfastly refused to discuss the case, and Hawash's attorneys are subject to a gag order. His wife, Lisa, has been served with a subpoena to testify before a grand jury and has been advised by her lawyer not to talk to the press.

"It's remarkable--none of us has ever seen anything like this," says Dave Fidanque, director of the Oregon chapter of the American Civil Liberties Union. "This is unprecedented. We have no idea what kind of evidence they might have...Our Constitution was designed to prevent secret court procedures. Our Constitution was intended to guarantee every individual the right to due process. Since Sept. 11, Attorney General Ashcroft and the Justice Department have taken the position that they're entitled only to the rights that John Ashcroft thinks they're entitled to."

U.S. District Judge Robert Jones, who is overseeing the case, held a secret hearing last week and concluded that Hawash has so far been lawfully detained. But Jones did give the Justice Department a deadline, ordering prosecutors to take Hawash's testimony before a subsequent closed-door hearing on April 29.

In many ways, Hawash is luckier than most of Ashcroft's secret detainees because his friends at Intel have rallied around him and publicized his plight. About 200 people showed up for a rally at the Portland federal courthouse last week, there's a Web site, and former Intel Vice President Steven McGeady is helping with the campaign to release Hawash.

Robin Kobacker, an attorney whose family runs a charitable foundation, learned of the case because of the online outcry. "This

Right now, the public has almost none of the necessary details about why the Justice Department is interested in Hawash.
seems like an absoluely clear violation (of individual liberties) to me," Kobacker says. "I immediately wrote my father and said let's give money. He said fine."

She envisions being able to give a few thousand dollars to help with the legal defense.

Right now, the public has almost none of the necessary details about why the Justice Department is interested in Hawash. Since Sept. 11, 2001, the United States has felt especially vulnerable to attacks by terrorists living on American soil. It's certainly possible--although from what I know I'd say extremely unlikely--that Hawash has terrorist ties.

If prosecutors can show good cause why they need to ask someone vital questions about terrorist activities, let them. But detaining American citizens indefinitely as "material witnesses" to undisclosed crimes is unreasonable and unjust, and it sets a very worrying precedent.