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U.S. v. El-Hage

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U.S. v. El-Hage?, 213 F.3d. 274 (2000)


 Defendant Wadih El-Hage? appeals from an order entered orally on January 10, 2000 and by written endorsement January 13, 2000 in the United States District Court for the Southern District of New York.
 The order denied defendant's motion to be released on bail, his application for rescission or for substantial modification of the Special Administrative Measures (S.A.M.) of his confinement, and his application for an evidentiary hearing regarding the substance of the motion.
 On March 13, 2000 this panel heard oral argument on this appeal,
 On March 17, 2000 entered an order denying each of the three applications, in effect affirming the order of the district court.


How long may a pre-trial detention extend before violating due process limits?


 Wadih El-Hage? is a 39-year old United States citizen who, until his arrest, resided in Arlington, Texas with his wife and seven children.
 He is a native of Lebanon and has lived in the United States for much of the past 22 years, and also has lived in Pakistan, the Sudan, and Kenya with his family during that period.
 He was arrested on September 16, 1998 and charged with six conspiracies to kill United States citizens and destroy United States property abroad, 20 counts of perjury based on his grand jury testimony, and three counts of false statements.
 The charges against him arise from his alleged participation in conspiracies led by co-defendant Usama Bin Laden, who is still at large, to attack United States citizens and interests world-wide.
 The indictment charges defendant with being a key participant in the terrorist organization founded by Bin Laden, called “al Qaeda” (the Base).
 The indictment states that Bin Laden and al Qaeda issued a public declaration of war against the American military in August 1996.
 Count One
(1) asserts that to achieve these aims, al Qaeda provided its members with military and intelligence training, training in guerilla warfare, urban fighting, explosives, assassination and kidnaping, and that it purchased, stored and transported weapons and explosives, and made efforts to obtain the components of nuclear and chemical weapons.
(2) declares that al Qaeda trained the persons responsible for the killing of 18 members of the United States armed forces in Mogadishu, Somalia, on October 3-4, 1993.
(3) On August 7, 1998 members of al Qaeda carried out the bombing of the United States embassy in Nairobi, Kenya causing more than 212 deaths and injuring 4,500 people, and the bombing of the United States embassy in Dares Salaam, Tanzania that caused 11 deaths and injuries to 85 people.

 On September 24, 1997, prior to the embassy bombings, El-Hage? was called to testify before a grand jury in the Southern District of New York investigating the activities of Bin Laden and al Qaeda.
 Based on his testimony that day El-Hage? was indicted and charged with seven counts of perjury (Counts 245 through 251) concerning his contacts with Bin Laden and al Qaeda and his knowledge of their activities.
 After the embassy bombings, El-Hage? was again subpoenaed to appear before the grand jury on September 16, 1998.
 Thirteen counts of perjury (Counts 252 through 264) were added to his indictment based on his testimony that day regarding his knowledge concerning documents found in his files in Kenya.
 First Bail Request
(1) El-Hage? first sought bail on September 23, 1998 when he was charged with eight counts of perjury and three counts of false statements.
(2) He was denied on the grounds of:
o risk of flight (relying on El-Hage's foreign ties and extensive foreign travel)
o he had previously failed to appear on a minor bad check charge in Texas,
o the dishonesty element of the perjury charges,
o the gravity of the then-unindicted accusations against him.
 Second Bail Request
(1) Defendant again sought bail on February 8, 1999 before United States District Court and denied because of the government's “overwhelming case for detention based on danger to the community and risk of flight.”
(2) El-Hage? filed the instant bail application, from the denial of which this appeal has been taken, on December 6, 1999.

 The government justifies its very lengthy pretrial detention of defendant and its opposition to his bail motion on the trial court's findings of risk of flight and dangerousness.
 the government urges that the prison restrictions on El-Hage? also do not violate due process and that defendant is not entitled to an evidentiary hearing.


 Under 18 U.S.C. § 3142(e) a person may be detained before trial if it is found that no condition or combination of conditions of an indicted defendant “will reasonably assure the appearance of the defendant ... and the safety of any other person and the community.”
 It is well-settled that so long as pretrial detention is administrative rather than punitive, it is constitutional
 To determine whether the length of pretrial detention has become unconstitutionally excessive, a court must weigh:
(1) its length,
(2) the extent of the prosecution's responsibility for delay of the trial,
(3) the gravity of the charges, and
(4) the strength of the evidence upon which detention was based, i.e., the evidence of risk of flight and dangerousness.

Consequently, after weighing the length of the delay, the government's lack of fault in causing the delay, and the strength of the evidence, we conclude that El-Hage's continued detention is regulatory and that a rational purpose may be assigned it. Hence, the detention does not violate defendant's rights to due process. The order of the district court is accordingly affirmed.

This case is interesting because it provides some insight to the reasoning the government asserts in detaining the Guantanamo prisoners. The court states that the length of the detention by itself rarely violates due process. Any detainees determined to pose a threat to national security will be held captive for long periods of time, especially if they are accused of participating in terrorist attacks. Most of the detainees at Guantanamo have passports and therefore are immediate risks of flight. Other section of 18 U.S.C. §3142 are pertinent in detaining prisoners for long periods of time.

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