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Overview of the Secret Evidence Case
"There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivations of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection."
— United States Supreme Court in Matthews v. Diaz, 1976.
Dr. Mazen Al Najjar seemed to be living the American dream. He had a successful career, a wife and three daughters, and he was a respected community and religious leader.
All of that changed on May 19, 1997, when he was arrested by federal agents from the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS). Since that time, Dr. Al Najjar has been detained by INS in the Manatee County Jail near Sarasota - on the basis of secret evidence which he has never been allowed to see or challenge.
Dr. Al Najjar, a Palestinian refugee, first came to the United States as a student in 1981. However, in April 1985 the INS began deportation proceedings against him for failure to maintain the conditions of his student visa. Although he immediately challenged an immigration court's 1986 determination of his deportation case, the INS never responded to Dr. Al Najjar's request to have his case re-opened until February 1996, after more than ten years had elapsed.
In the interim, Dr. Al Najjar lived continuously in the United States, earning a Master's degree and a Ph.D. in engineering, starting a family and becoming a father three times over. He became a professor at the University of South Florida, where he taught engineering and Arabic courses, and he became an active member of the Arab-American and Muslim communities in the Tampa area. Dr. Al Najjar helped to establish a mosque and served as its prayer leader and president. He also volunteered for organizations dedicated to peaceful political advocacy and humanitarian assistance in the Middle East.
Finally, in May 1997, an immigration judge concluded that Dr. Al Najjar should be deported - despite finding that Dr. Al Najjar possessed strong community and family ties. Six days after the court's decision, FBI and INS agents appeared at Dr. Al Najjar's home and offered him U.S. citizenship if he would provide testimony linking others he allegedly knew to the Palestine Islamic Jihad, a group the U.S. government lists as a foreign terrorist organization. However, when Dr. Al Najjar was not able to provide the government with the information it wanted, he was arrested and jailed.
Although Dr. Al Najjar has never been formally charged with engaging in any criminal conduct, he has nevertheless been detained for the last 2 ½ years by the INS on the basis of still-undisclosed evidence. While the INS has asserted that Dr. Al Najjar poses a threat to the national security of the United States by virtue of his alleged association with the Palestine Islamic Jihad, to date the only official charge ever made by the government against Dr. Al Najjar centers around the violation of the student visa granted to him in 1981. In fact, throughout his extended period of incarceration, Dr. Al Najjar has never been given an opportunity to review or contest the secret evidence which serves as the basis for his detention.
With the aid of the Center for Constitutional Rights (CCR), the Nationalities Service Center (NSC) and the ACLU of Florida, Dr. Al Najjar filed a petition for habeas corpus in U.S. District Court in Miami challenging his incarceration based on secret evidence. The petition, filed in December 1999, seeks his immediate release as well as an injunction against further use of secret evidence against him. Professor David Cole, of Georgetown University Law Center and one of the leading lawyers nationally on the use of secret evidence, is lead counsel for Dr. Al Najjar.
The habeas corpus petition argues that the use of secret evidence to detain Dr. Al Najjar is unauthorized by the immigration laws of the United States and violates Dr. Al Najjar's constitutional rights. It contends that Dr. Al Najjar has been denied the most basic elements of due process of law - notice of the charges against him and a meaningful opportunity to defend himself. In addition, the petition also alleges that the immigration judge's failure to maintain a record of the secret evidence deprived him of any opportunity for meaningful review in federal court. Moreover, the petition argues, the government's decision to detain Dr. Al Najjar based on his religious and alleged political associations violates his First and Fifth Amendment rights, particularly given that the INS has presented no evidence which would indicate that Dr. Al Najjar ever sought to further any illegal ends. No hearing has yet been scheduled in the case.
The petition closely follows an October 1999 decision by a U.S. District Court in New Jersey declaring that the use of secret evidence to detain aliens violates due process and is unconstitutional.
Legislation has been introduced in Congress, with 63 co-sponsors, to prohibit the use of secret evidence altogether.
