Another sad story today, this time about a detainee the Chicago Tribune calls the forgotten prisoner.

"Although he has never been charged with a crime and there is no evidence he is involved in terrorism, Mukkaram Ali, 26, has been imprisoned for more than a year and remains in jail today--thanks in no small part to the wishes of terror suspect Zacarias Moussaoui."

For nine months Ali, a college student at the University of Oklahoma who overstayed his visa, was held due to prosecutors designating him a "material witness" in the Moussaoui case. They dropped their request but then Moussaoui named Ali as a defense witness in one of his uncounseled, handwritten pleadings. Apparently Ali allowed a friend of his and Moussaoui to stay at his apartment in Norman, OK for a few weeks in the summer of 2001 while Ali was out of town. Ali and Moussaui were only casual acquaintances.

As a result of Moussaoui's request, the Judge has ordered Ali be kept in prison until his testimony in the case, which is not set for trial now until June 30, 2003.
Ali is probably the only person being held as a material witness for a terror defendant.

"The material witness law allows the government to jail someone if prosecutors believe that person has important information about a criminal investigation. The government's use of the law is controversial, given that it has allowed prosecutors to jail people, such as Ali, in high-security prisons without charges and in near-total secrecy."

The Government has never threatened to charge Ali with a crime and they have not presented any evidence that he has terrorist ties. His attorneys say they may seek to have his testimony presented by videotape and may move for his release.

We think they should seek both. Here is the text of the material witness statute:

"If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure."

We haven't read anything about why it would be impractical to secure Ali's appearance by subpoena. Or why a videotaped deposition wouldn't be sufficient. By the time Moussaoui's trial comes around, Ali will have been imprisoned for 1 year an 9 months without having committed a crime. His only misdeed appears to be overstaying his student visa. Assuming the information in the Tribune in accurate and complete, this is simply unfair.

We think the Justice Department should file a motion asking the Court to direct Moussaoui to take Ali's testimony by video deposition now (with the Government present to cross-examine Ali) if Moussaoui or his standby counsel won't request it, and then either release or deport Ali or do whatever it is that they would otherwise do once his presence for trial is no longer at issue.