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Attorney General Releases Palestinian Jailed for More Than Three
Years on Secret Evidence
December 15, 2000
BRADENTON - Attorney General Janet Reno today authorized the release of Mazen Al Najjar, a Palestinian immigrant who has been incarcerated by immigration authorities in a Bradenton County jail for over three and a half years on the basis of secret evidence that neither he nor his attorneys have ever seen. Reno's decision overruled the INS Commissioner, who had asked her to overturn Monday's decision of the Board of Immigration Appeals to release Al Najjar.
"This defeat for the INS should put another nail in the coffin for the use of secret evidence," said Randall Marshall, Legal Director for the American Civil Liberties Union of Florida, "it is simply antithetical to our system of justice that an individual can be deprived of liberty indefinitely on the basis of secret evidence. We note that President-Elect Bush spoke out during the campaign about this practice and hope that he will urge and sign legislation ending this pernicious practice."
Dr. Al Najjar is an adjunct professor at University of South Florida, a leader in the Tampa community, the president of a local private school, and active in a mosque in Tampa. He has been detained since May 1997 under authority that allows the INS to detain aliens in deportation proceedings if they pose a threat to national security. In 1997, Immigration Judge R. Kevin McHugh ruled, based on classified evidence presented to him in a secret session, that Al Najjar was a threat to national security. Al Najjar was told only that the secret evidence concerned his associations with the Palestine Islamic Jihad. He was not informed of the source of the allegation, of how he was alleged to be associated, or of what he was alleged to have done. He denied any tie to the group, but was otherwise unable to defend himself.
In December 1999, after a long administrative process was exhausted, Al Najjar challenged the constitutionality of his detention in federal district court in Miami. On May 31, 2000, Judge Joan Lenard ruled that his detention violated due process because the use of secret evidence denied him a meaningful opportunity to respond to the evidence. She ordered a remand to the Immigration Judge under instructions to give Al Najjar a fundamentally fair hearing.
After holding two weeks of trial, on October 27, 2000 Judge McHugh ruled that the INS had failed, in a public proceeding, to offer any evidence to support its claims that Al Najjar was a threat to national security. He stated that "the Court has not been presented with any evidence linking Respondent to the PIJ." The INS then sought again to present classified information. On December 6, 2000, Judge McHugh ruled that the INS failed to afford Al Najjar notice of the secret evidence and a meaningful opportunity to respond to it, as required by the district court, and therefore he disregarded the secret evidence and authorized Al Najjar's release on bond.
The Board of Immigration Appeals denied the INS's request for a stay of that release order, which led the INS Commissioner to take the extraordinary step of referring the matter to the Attorney General. On Tuesday, the Attorney General granted a temporary stay to permit her to review the matter, and today she ordered his release.
David Cole, a professor at Georgetown University Law Center and lead attorney for Al Najjar, said, "We are delighted. There is nothing more gratifying than seeing an innocent man go free. This case shows once again that the use of secret evidence is unconstitutional, unreliable, and un-American. But it's too bad that it took three and a half years of Mazen's life for the INS to realize that." Professor Cole has represented 13 immigrants against whom the INS has sought to use secret evidence, asserting that they are threats to national security. In all 13 cases, the INS has lost, and the immigrants are now living freely and peaceably in the United States.
Al Najjar's ordered release follows the release in August of an Iraqi held in Los Angeles for over two years on secret evidence, the release in November 1999 of an Egyptian held in New York for three and a half years on secret evidence, and the release in October 1999 of another Palestinian held in New Jersey for nineteen months on secret evidence. In every case, the courts rejected INS claims that it could detain the aliens as national security threats.
Al Najjar is also represented by Nancy Chang of the Center for Constitutional Rights, Joseph Hohenstein of the Nationalities Service Center, Randall Marshall of the ACLU Foundation of Florida, Martin Schwartz, an immigration attorney in Tampa, Florida, and Ira Kurzban, an immigration attorney in Miami.
- To find out more about what you can do to stop the use of secret evidence, click here.
- Click here for additional background information on this case.
