ACLU Seeks Release of Palestinian Immigrant Held for Over Two Years on Secret Evidence

Affiliate: ACLU of Florida
December 22, 1999 12:00 am

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MIAMI — American Civil Liberties Union attorneys today asked a Miami court to release a former University of South Florida professor who has been held for more than two-and-a-half years based on secret evidence the government has kept secret from him and his attorneys.

The detainee, Dr. Mazen Al Najjar, is Palestinian and has been detained by the Immigration and Naturalization Service. The lawsuit, filed by the Center for Constitutional Rights, the Nationalities Service Center and the ACLU of Florida in federal district court here argues that the INS’s 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 holding aliens on these grounds.

“To hold someone for 2-and-a-half years on the basis of evidence he’s never even been able to see violates the most basic principles of due process,” said Prof. David Cole, of the Georgetown University Law Center, who is serving as lead counsel for Dr. Al Najjar. “To do so solely on the basis of allegations of political association only compounds the injury.”

Dr. Al Najjar, who is being held in the Manatee County Downtown Facility, has never been charged with any criminal conduct or terrorist activity. He has been detained on secret evidence of his alleged political association with the Palestine Islamic Jihad, a group the United States government has designated as “terrorist.”

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 him 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.

The ACLU said that 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.

In court papers filed today, the ACLU said that the use of secret evidence to detain Dr. Al Najjar is unauthorized by immigration law and violates due process. The papers also allege First Amendment violations because he is being held solely for his alleged political associations, without any evidence that he sought to further any illegal conduct.

The groups also charge that the use of secret evidence by the INS, especially when the immigration judge has kept no record, 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. Without a record the court will also lack a clear basis to decide whether or not Dr. Al Najjar constitutes a threat to national security.

“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 ACLU of Florida.

In the original hearing, 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.

“It is time to end the practice of locking someone up based on the use of secret evidence,” said Howard Simon, Executive Director of the ACLU of Florida, “It is Kafkaesque. People can be jailed if they are convicted in a court of law for engaging in terrorist activities, but Congress should outlaw the use of secret evidence to detain anyone.”

Today’s filing follows an October New Jersey court decision holding that the use of secret evidence to detain aliens violates due process (Kiareldeen v. Reno). It also follows the INS’s decision in November to release an Egyptian immigrant, Nasser Ahmed, who had been detained on secret evidence for more than three and a half 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.”

Congress is now considering the Secret Evidence Repeal Act, H.R. 2121, which is sponsored by Rep. David Bonior of Michigan. It was introduced on June 10, 1999 and has 63 co-sponsors.

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