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Attorneys seek release of Tampa professor detained by federal government
on secret evidence
Palestinian, held for 21/2 years in Florida Jail, Argues Detention on Secret Evidence is Unconstitutional
December 27, 1999
MIAMI Lawyers for Dr. Mazen Al Najjar, a stateless Palestinian, have filed a petition for habeas corpus in federal district court in Miami seeking his release. Dr. Al Najjar, a former University of South Florida professor, has been detained by the Immigration and Naturalization Service (INS) for more than 2 1/2 years on evidence the government has kept secret from him and his attorneys.
The lawsuit, filed by the Center for Constitutional Rights, the Nationalities Service Center, Tampa attorney Martin Schwartz, and the American Civil Liberties Union (ACLU) of Florida argues that the Immigration and Naturalization Service (INS) practice of detaining people on the basis of secret evidence is unconstitutional and that there is no authority under immigration law for the current government policy of detaining aliens on the basis of secret evidence.
Dr. Al Najjar, who is being held in the Manatee County Downtown Facility north of Sarasota, has never been charged with any criminal conduct or terrorist activity, and has been detained for the last 21/2 years on secret evidence of his alleged political association with the Palestine Islamic Jihad, a group the United States government has designated as "terrorist."
"To hold someone for 2 and ½ years on the basis of evidence he's never even been able to see violates the most basic principles of due process. To do so solely on the basis of allegations of political association only compounds the injury," said Prof. David Cole, of the Georgetown University Law Center, who is serving as lead counsel for Dr. Al Najjar.
The federal government has provided no reason other than its reliance on secret evidence that he constitutes a threat to national security. Dr. Al Najjar denies the charge of association with the Palestine Islamic Jihad, but has been unable to confront his accusers.
The complaint filed on Friday maintains that the use of secret evidence to detain Dr. Al Najjar is unauthorized by immigration law and violates due process. It also alleges First Amendment violations because Dr. Al Najjar is being detained solely for his alleged political associations, without any evidence that he sought to further any illegal conduct.
The complaint also charges that the use of secret evidence by the INS, especially when as here the immigration judge has kept no record of it, violates due process of law. Dr. Al Najjar has never been able to answer the government allegations because neither he nor his lawyers have ever known clearly what those allegations are.
Especially without a record, the court in this matter will also lack a clear basis to decide Dr. Al Najjar constitutes a threat to national security. In the original hearing, the public testimony was overwhelmingly favorable for Dr. Al Najjar. Ramsey Clark, a former U.S. Attorney General, university professors, and respected community leaders all testified on his behalf. The Immigration Judge who decided against him held that he has strong community and family ties in the Tampa area and conceded that he would have been released, except for the secret evidence. Yet that judge never kept a record of that evidence.
Today's filing follows a New Jersey district court decision in October holding that the use of secret evidence to detain aliens violates due process (Kiareldeen v. Reno), and the INS's decision in November to release an Egyptian immigrant, Nasser Ahmed, whom it had detained on secret evidence for more than 3 ½ years.
In October, a U.S. District Judge in New Jersey, William Walls, ordered the release of a Palestinian who had been held for 18 months, ruling that "the government's reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United states, citizens and resident aliens alike."
Dr. Al Najjar's detention began on May 19, 1997 when the INS and FBI arrested him at his home with his wife and their three U.S. citizen daughters watching. This action came on the heels of an immigration judge's decision denying Dr. Al Najjar and his wife asylum and other benefits under immigration law. Dr. Al Najjar has lived in the United States as a student, professor and religious and community activist for the last fifteen years.
"Jailing someone on the basis of evidence he cannot know about and on which he cannot confront his accusers is inconsistent with the most basic principles of our American legal system" said Andy Kayton, Legal Director of the American Civil Liberties Union of Florida.
"It is time to end the practice of locking someone up based on secret evidence," said Howard Simon, Executive Director of the ACLU of Florida, "It is Kafkaesque. The government can jail people if they are convicted in a court of law for engaging in terrorist activities, but Congress should outlaw the practice detaining anyone based on the use of secret evidence."
Congress is now considering the Secret Evidence Repeal Act, H.R. 2121, introduced on June 10, 1999 and now has 63 Congressional sponsors.
