His attorneys say the government has no legal right to hold Mazen Al-Najjar longer than six months.
By GRAHAM BRINK, Times Staff Writer
© St. Petersburg Times, published May 15, 2002
TAMPA -- Since immigration officials detained Mazen Al-Najjar in November, his attorneys have argued that the federal government had six months to deport him or release him from prison.
That deadline came and went Tuesday, and the former University of South Florida teacher remains behind bars.
In reaction, Al-Najjar's attorneys filed a petition in federal court in Miami arguing that his continued detention violates immigration laws and the U.S. Constitution.
"The law is clear," said David Cole, one of Al-Najjar's attorneys. "They have no authority to hold him any longer."
Officials with the U.S. Department of Justice said they would not comment on the case.
Cole, a professor from the Georgetown University Law Center, said he does not expect his client to walk free this week. A federal judge will have to consider the petition and possibly hear arguments from both sides. He said the federal government sent Al-Najjar a notice that it will review his confinement on June 7.
Cole argues that Al-Najjar's case falls under the 1995 immigration laws that allow the government to jail a potential deportee for 180 days. If federal officials cannot deport him in that time, they can continue to try but must first let him out of jail.
The government can impose reasonable reporting requirements, such as weekly check-ins, but cannot keep him in prison, Cole said.
The only exception under the 1995 law, Cole said, is if the defendant purposely thwarts efforts to deport him. Al-Najjar has cooperated with the Immigration and Naturalization Service every step of the way, he said.
Al-Najjar entered the United States from Gaza in 1981 and overstayed his student visa. He has been fighting deportation since 1996. A federal appeals court affirmed a deportation order against him on Nov. 13, and that's why the INS detained him, federal authorities said at the time.
No country, however, has offered to take him, including the United Arab Emirates, which rejected Al-Najjar's request for residency in March. Al-Najjar is a stateless Palestinian linked to terrorism by the federal government, although he has never been charged with a crime.
Cole thinks the federal government will argue that Al-Najjar's case falls under laws enacted in 1996 that the INS says gives it more flexibility in detaining potential deportees who are a threat to national security.
Cole said Al-Najjar's case began before those laws were enacted. And even under the more recent laws, the INS has no reason to keep Al-Najjar in prison.
"We've been through much of this before and the judges keep ruling in favor of Al-Najjar," Cole said.
In 1997, Al-Najjar challenged an immigration judge's decision to keep him jailed on the basis of classified evidence allegedly linking him to the terrorist group Palestinian Islamic Jihad.
He spent 3 1/2 years in jail on the basis of the classified information. In December 2000, then-Attorney General Janet Reno released him after a federal judge ruled his constitutional rights were violated by the government's refusal to share the secret evidence with him.
After his most recent detention in November, U.S. District Judge Joan Lenard in Miami ruled that the government could keep Al-Najjar in jail while trying to deport him. But she cited a 2001 Supreme Court decision, Zadvydas vs. Davis, that sets a six-month time limit on detention in such cases.
Cole said the federal government has failed to prove Al-Najjar is a threat to national security.
Al-Najjar has spent the last six months in solitary confinement at the Coleman Federal Correctional Complex in Sumter County, about 75 miles north of Tampa. He spends 23 hours a day in a 6-foot by 9-foot cell.
His brother-in-law, controversial USF professor Sami Al-Arian, said the past six months have been exhausting for Al-Najjar's wife, Fedaa, who also faces deportation, and their three children.
Al-Arian was a founder of the World and Islam Studies Enterprises, an Islamic think tank at USF that was raided by the FBI in 1995 after a former head of the group turned up as the leader of Palestinian Islamic Jihad. Al-Najjar also was involved with the think tank. Neither man was ever charged with a crime.
"We have to hope that the judge acts quickly to resolve what has become a terrible situation," Al-Arian said. "This needs to end."