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Civil Rights Lawyers To Oppose Government's Efforts to Detain Immigrants on Basis of Secret Evidence
Miami Federal Court Hearing Set for Thursday in Government Appeal of Decision that Led to Release of Palestinian Who Spent 3? Years in Jail
November 7, 2001
MIAMI ? Nearly one year after Miami Federal Judge Joan Lenard ordered Dr. Mazen Al Najjar's release, lawyers for the Palestinian immigrant jailed for three-and-a-half years on secret evidence are still fighting the government's efforts to jail immigrants on the basis of evidence kept secret from them and their attorneys.
In a hearing scheduled for Thursday, the U.S. Court of Appeals for the Eleventh Circuit will hear arguments in Al Najjar v. Aschcroft et al. The federal government is appealing a Miami federal court decision in the case that declared the detention of Al Najjar unconstitutional. Dr. Al Najjar of Tampa was held without charges on secret evidence that he never had an opportunity to confront or rebut. Civil rights attorneys are now fighting to keep the government from throwing him back behind bars.
The hearing will be at 9 a.m. Nov. 8 in the 12th Floor Courtroom of the Federal Justice Building, 99 N.E. Fourth Street, in downtown Miami, Florida.
"The outcome of this challenge to the constitutionality of the INS's practice of detaining immigrants solely on the basis of secret evidence is critically important, given the events of September 11th," said Randall Marshall Legal Director of the ACLU of Florida, which is representing Al Najjar along with lawyers from the Center for Constitutional Rights and the Nationalities Service Center. "Since September 11th, the government has detained over 1000 immigrants, and it undoubtedly will seek to rely on secret evidence to detain and deport many of them."
In May 2000, a federal district court in Miami ruled that Al Najjar's detention was unconstitutional because it deprived him of his liberty without affording him the opportunity to defend himself. The government appealed, and the court of appeals will consider that appeal at Thursday's hearing.
"At issue here is whether our government can lock up human beings without affording them a meaningful chance to defend themselves," added David Cole of the Georgetown University Law Center, who has been serving as lead counsel for Al Najjar. "Al Najjar lost 3 and 1/2 years of his life to incarceration because of this practice. The fact that the Attorney General herself ultimately authorized his release shows that he never posed a true threat to national security in the first place. So you have to wonder why the government is pursuing this appeal."
In December 2000, Al Najjar was freed after an immigration judge gave him a new bond hearing and ruled that the government had failed to show that he was a threat to national security. At the time, Attorney General Janet Reno declined to exercise her authority to bar Al Najjar's release. Al Najjar has been free ever since, and the government in August 2001 abandoned its administrative efforts to detain him. The government nonetheless is pursuing this federal appeal, in an effort to establish the right to rely upon secret evidence.
Before his detention, Al Najjar was an adjunct professor at the 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 was detained from May 1997 to December 2000 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 was never recorded, that Al Najjar was a threat to national security based on his alleged ties to the Palestinian Islamic Jihad (PIJ).
Al Najjar was told only that the secret evidence concerned his associations with the PIJ. 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. Although he categorically denied having ties to the PIJ or any other terrorist group, he was unable to defend himself against the charges that were kept secret from him.
In May 2000, the district court held that such reliance on unrecorded and undisclosed evidence violated Al Najjar's due process rights, and further held that he could not be detained based on charges of mere association with the PIJ. The government in its appeal argues that immigrants placed in deportation proceedings have no right to procedural due process protections, including the right to confront and rebut evidence or to object to being held on mere association.
Every federal court to address the use of secret evidence in immigration proceedings in the last decade has declared it unconstitutional, yet the government continues to employ the practice. President Bush himself criticized the practice during the second televised Presidential debate, and Attorney General John Ashcroft acknowledged concerns about it during his nomination proceedings. A bill to end the practice has substantial bipartisan support in Congress, but it is not clear what its prospects are after September 11.
Al Najjar is represented by David Cole, a professor at Georgetown University Law Center, 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.
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For more on the ACLU and secret evidence, click here.
