Home » News & Events » News Archive » 2001 Press Releases PALESTINIAN PROFESSOR CHALLENGES HIS DETENTION AS UNCONSTITUTIONAL
Detained on Charges of Terrorist Ties that Have Been Proved Unfounded
A Statement by Dr. Al Najjar's Attorneys, Dr. Al Najjar's family and Tampa Bay Coalition for Justice and Peace
December 19, 2001
MIAMI -- Lawyers for Dr. Mazen Al Najjar, a Palestinian professor who was again thrown behind bars last month after having spent more than 3½ years in jail based on secret evidence, filed an emergency motion for his immediate release today.
The 26-page habeas corpus petition, filed in federal court, challenges his latest re-arrest and detention as unconstitutional.
Al Najjar was released from immigration custody in December 2000 after a federal judge declared his detention unconstitutional. His release also came after immigration judge ruled that there was no basis on the public record to justify his detention.
On November 24, 2001, however, the INS rearrested Al Najjar, and he is now detained at the Federal Correctional Complex in Coleman, Florida.
"The government's justification for detaining Al Najjar is that he is alleged to be a flight risk, a threat to the community or a threat to national security," said Randall Marshall, Legal Director of the ACLU of Florida, which is representing Al-Najjar, along with attorneys from several other non-profit legal organizations. "But in a full and fair hearing, each of these contentions was rejected by a U.S. Immigration Judge."
In connection with Al Najjar's re-arrest, the Department of Justice issued a statement claiming that Al Najjar was a threat to national security because of his alleged ties to terrorist groups.
Al Najjar's habeas corpus petition argues that his current detention violates due process and federal immigration laws because the government has simply reasserted old allegations that were found wholly unsupported last fall after a two-week trial before an immigration judge.
The DOJ statement claims, for example, that Al Najjar was linked to the Palestinian Islamic Jihad through his association with two domestic "front" groups in the U.S. But last fall, the immigration judge ruled that there was "no evidence before the Court that demonstrates that either [of the domestic groups] was a front for the PIJ." The immigration judge also ruled that the groups were engaged in lawful and legitimate activities, and that Al Najjar's activities in connection with them were all lawful. He concluded that the INS had submitted no evidence linking Al Najjar to the PIJ, and that "there are no facially legitimate and bona fide reasons to conclude that Respondent is a threat to national security.'"
(See excerpts from Judge R. Kevin McHugh's ruling below.)
Since Al Najjar's release in December 2000, he has been a law-abiding member of the community. He has taken care of his three young daughters, and volunteered at the school they attend and the local mosque. The INS makes no claim that while on release Al Najjar engaged in activity that threatened the national security.
Al Najjar also maintains that his detention violates the First Amendment, because it is predicated on guilt by association. Al Najjar has never been charged with engaging in any criminal activity of any kind, much less terrorist activity.
Moreover, Al Najjar is preparing an appeal to the Supreme Court. However, even if his appeals ultimately fail, he is unlikely to be deported, because he is a stateless Palestinian and has no right to return to any country.
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, and Martin Schwartz, an immigration attorney in Tampa, Florida, and Ira Kurzban, an immigration attorney in Miami.
Professor Cole said, "The only charges the INS advances to justify its detention were flatly rejected after a full and fair hearing just last fall, and the INS does not claim to have any new evidence. To lock up a human being without any justification violates both immigration law and the Constitution. It makes sense to be tough on terrorism, but not against a person who has never even been accused of terrorist activity, and who has been found to pose no threat whatsoever after a full and fair trial."
Since Nov. 24, 2001, Dr. Mazen Al-Najjar has been in solitary confinement at the maximum security section of a federal correctional facility. His prison conditions are extremely harsh and punitive as he is in a 23-hour lock down and under 24-hour observation. Everyday, he is strip searched twice. He has no access to the library, TV or papers. He has very limited access to phones and has just been afforded limited non contact visits with his immediate family members. Amnesty International has
protested his arrest and prison conditions in its report last month to Attorney General John Ashcroft.
Background
Dr. Mazen Al-Najjar is a stateless Palestinian, who has been residing in the US since 1981. He received his MS and Ph.D. degrees from 2 fine US universities. Although he has no country to go to after finishing his studies, and despite the fact that both of his parents and 3 young daughters are US citizens, he was denied asylum in May 1997. Shortly after he was apprehended by the INS on May 19, 1997. He was then denied bail on the basis of secret evidence presented to INS Judge R. Kevin
McHugh.
After exhausting all his administrative appeals, a habeas federal court law suit was filed in December 1999. It was argued before federal district court Judge Joan Lenard in April 2000. On May 31, 2000, Judge Lenard ruled that Dr.Al-Najjar's was denied due process during his bail hearing in 1997. She ordered that a new bail hearing be set in which the judge would reside over a two phase process. The first phase involved an open record hearing . If the judge concluded that Dr. Al-Najjar was not a threat to national security, then the second phase would take place where "secret evidence", at the discretion of the government, might be used. However, in this phase, the government would have to provide a "meaningful
summary" to the respondent in order to allow for a meaningful defense. It's important to note that Judge Lenard did not ban the use of secret evidence, but required the meaningful summary in order to safeguard the due process constitutional clause.
The open record hearing phase took place before Judge McHugh in August and October 2000. On October 27, 2000, Judge McHugh issued a 56 page ruling that concluded that Dr. Al-Najjar was not a threat to national security. In November 2000, Judge McHugh allowed the government to present its secret evidence. He concluded that its presentation did not differ much from the open record presentation. In addition, the summary was deemed insufficient for a meaningful defense as required by Judge Lenard's decision. Subsequently, he ordered Dr. Al-Najjar to be released on bail. The government
appealed that decision to the Board of Immigration Appeals (BIA). After staying the release order for a few days, the BIA lifted that stay and also ordered Dr.
Al-Najjar's release. The INS asked then Attorney General Janet Reno to block Dr. Al-Najjar's release, but the Attorney General refused after reviewing the case. Dr. Al-Najjar was hence released on December 15, 2000 after spending 1307 days in detention on the basis of secret evidence.
Nevertheless, the government appealed Judge Lenard's decision that opened the process for setting a procedure for the use of secret evidence. This appeal was argued before the 11th circuit court of appeals on November 8, 2001. No ruling has been issued yet on this appeal.
On November 24, the INS re-arrested Dr. Al-Najjar under the pretext of the final order of deportation. This detention was not mandatory. It's not clear if Dr. Al-Najjar is deportable since he lacks a travel document and so far no country has accepted him.
Excerpts from Ruling of Immigration
Judge R. Kevin McHugh
(October 27, 2000)
- The Court finds it remarkable that out of five-hundred videotapes that were seized, from which a thirteen-minute
composite tape was created, not one excerpt of the composite depicted Respondent engaging in fundraising for any organization. .... Even if the Court found that the evidence demonstrated that the ICP raised money for the PIJ at this event, it was not illegal to do so until 1997...... However, in this case, there is still no evidence that the Respondent raised funds for the PIJ or sent funds to the PIJ. In conclusion, the Court finds that the evidence does not demonstrate that Respondent engaged in fundraising for the PIJ through the ICP. page 39 - The Court finds that the Service's claim that the Respondent engaged in fundraising activities for the PIJ, through either the ICP or WISE, is unsupported by the evidence of record. page 41
- [T]he record before the Court is devoid of any direct or indirect evidence to support the conclusion that Respondent was meaningfully associated, as required by the Act, with the PIJ. pages 45-46
- Although there were allegations that "the ICP and WISE were 'fronts' for 'Palestinian political causes,'" there is no evidence before the Court that demonstrates that either organization was a front for the PIJ. To the contrary, there is evidence in the record to support the conclusion that WISE was a reputable and scholarly research center and the ICP was highly regarded. page 48
- [T]he Court finds, based on the evidence presented at the public portions of the remand bond redetermination proceedings, that there are no "facially legitimate and bona fide reasons to conclude that [Respondent] is a threat to national security." page 49
You may write to Dr. Al-Najjar at the following mailing address:
Mazen Al-Najjar (# 35673-019)
SHU: C-8
Federal Correctional Complex Penitentiary
P.O. Box 1033
Coleman, FL 33521
Contact Persons:
Alessandra soler Meetze, aclu of florida, 305-576-2337 ext. 16
Attorney David Cole (202) 662-9078 (O)
Attorney Joe Hohenstein, 215-893-8400 (O)
Attorney Nancy Chang, 212-614-6420
Attorney Martin Schwartz, 813-269-7421
Dr. Sami Al-Arian (813) 300-9393
