Judge Orders Release of Palestinian Immigrant Jailed by U.S.

Affiliate: ACLU of Florida
December 6, 2000 12:00 am

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BRADENTON, FL– A local immigration judge today ordered the release on bond of Mazen Al Najjar, a Palestinian held for more than three-and-a-half years as a national security threat on the basis of secret evidence that neither he nor his lawyers ever had a chance to see.

Judge R. Kevin McHugh ruled today that the government’s unclassified summary of secret evidence failed to meet a previous standard set by a Miami federal judge, and therefore declined to consider the government’s evidence. Judge McHugh ordered Al Najjar released on $8,000 bond.

Randall C. Marshall, ACLU of Florida Legal Director, hailed the decision — the latest in a string of defeats for the Immigration and Naturalization Service — as “another nail in the coffin of the government’s use of secret evidence to detain individuals.”

“Since both presidential candidates expressed their distaste for this pernicious practice,” he added, “we look forward to congressional action to prohibit the government from jailing people on the basis of secret evidence. Action by Congress would eliminate the need for judicial intervention which was required in this case.”

In 1997, Judge McHugh ruled, based on secret evidence presented to him behind closed doors by the INS that Al Najjar posed a threat to national security, and should be detained without bond. At the time, Al Najjar was told only that the evidence showed that he was associated with the Palestinian Islamic Jihad, a group the United States government has designated as “terrorist.”

In May, Miami federal Judge Joan Lenard ruled that detaining Al Najjar on secret evidence violated his due process rights. She did not order his release, however, and instead remanded the matter to the Immigration Judge to permit the INS another chance — in a fair hearing — to show that Al Najjar should continue to be detained as a national security threat.

The immigration judge ruled in October that the INS failed in a ten-day public hearing to show that Al Najjar posed any threat to national security. But the INS proceeded to present secretevidence again, behind closed doors, and without the presence of Al Najjar or his attorneys.

Judge Lenard had left open the possibility that the INS could present secret evidence, but only if it could do so in a way that give Al Najjar notice of the evidence against him and a meaningful opportunity to confront it.

“We are delighted and relieved,” said David Cole, a professor at Georgetown University Law Center and Al Najjar’s lead counsel. “Mazen Al Najjar has spent more than three years behind bars, despite having never been charged with a single crime, on the basis of secret evidence he has never seen. This is only the latest in an unbroken string of defeats for the INS in cases where it has sought to lock up immigrants on the basis of secret evidence, and it illustrates, once again, that the INS’s practice cannot be squared with due process.”

Counsel for Al Najjar also included Martin Schwartz of Tampa, Florida, Joe Hohenstein of the Nationalities Service Center in Philadelphia, Nancy Chang of the Center for Constitutional Rights, Randall C. Marshall, Legal Director of the ACLU of Florida, and Ira Kurzban of Miami.

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