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Much evidence stays secret
By SUSAN ASCHOFF
© St. Petersburg Times,
Al-Najjar had no idea then what the government had. He still doesn't. A year ago, the 44-year-old immigrant from Gaza filed suit in federal court after numerous requests for his files got him virtually nothing. Over the years he has been given more than 10,000 pages. But the stacks are largely transcripts from public hearings and forms he has filled out himself. The U.S. Immigration and Naturalization Service recently acknowledged that of 5,745 pages it has on Al-Najjar, 1,727 have been withheld in their entirety, and 78 others have been referred to another agency for review, said Al-Najjar's attorney, Joseph Hohenstein of Philadelphia. The FBI has "technically not produced any documents," Hohenstein said. Now, the government says it wants to meet in private with U.S. District Judge Royce Lamberth, who is hearing Al-Najjar's suit under the Freedom of Information Act requesting documents. The government wants to present the classified information it is not willing to share with Al-Najjar. "If the FBI has been conducting an investigation for five years or longer," said Hohenstein, "and it has nothing more to show for that than the unlawful detention of Mazen Al-Najjar and an investigation that was disbanded years ago, then I don't think it's legitimate to keep every sentence . . . secret." Government attorneys declined to comment on the FOIA case. Federal law allows government agencies to withhold information to protect investigations and sources, national security or international relations. For Al-Najjar, the fight for even a scrap of information is a tedious process that has lasted years and now totals more than $150,000 in mostly unpaid legal fees. He and his attorneys first requested his files about the same time he was arrested in May 1997 for overstaying a student visa. Such a violation is relatively common, but as a stateless Palestinian, Al-Najjar's paperwork was more convoluted than most. Then the government made it atypical: Al-Najjar should be held without bail, it said, because of secret evidence he is "associated with the Palestinian Islamic Jihad." The pronouncement put Al-Najjar in a group of 24 to 36 men and one woman entangled in secret evidence cases across the United States during the past decade. They are almost all Arab or Muslim immigrants. Some have been deported. Most are still fighting for residency and for answers. Al-Najjar believes his work in the early 1990s with WISE, a think tank affiliated with the University of South Florida, put him under scrutiny. Another WISE employee, Ramadan Abdullah Shallah, left Tampa in 1995 and assumed leadership of the Palestinian Islamic Jihad, a Damascus-based group claiming responsibility for suicide bombings in the Middle East. Al-Najjar's brother-in-law, tenured USF professor Sami Al-Arian, is a national leader on immigration and Palestinian issues and a frequent critic of U.S. policy. The recent FOIA case is but the latest round in a dozen hearings before almost as many judges. That matter ultimately could go to the U.S. Supreme Court. Since he was ordered deported in 1997, Al-Najjar has come to believe that the government's case rests on information from Israeli intelligence. He thinks he is part of a decadelong vendetta to discredit Israel's opponents at universities and think tanks in this country. "They really don't have anything substantial -- there is no guilt," said Al-Najjar. He denies any terrorist activity. He moved to the United States 20 years ago to complete his doctorate in engineering and later taught Arabic classes at USF. He and the others detained on secret evidence won release when they rebutted what little they knew of the government's allegations or when federal judges found their constitutional rights were violated. Al-Najjar was freed last December after a federal judge in Miami and an immigration judge in Bradenton said the government either had to let him go or to tell him more so he could defend himself. The government declined to elaborate. Al-Najjar still needs to know. "The court wants to deport him on his record, but he can't see his record. Even if he is naturalized (as a citizen), someone down the road can try to revoke that based on the same secret evidence," said Houeida Saad, a D.C. attorney and legal co-director of the National Coalition to Protect Political Freedom, formed in 1997 to address immigrant rights. Al-Najjar's best hope may be the review of the secret evidence by Lamberth, Saad said. A federal judge can consider constitutional issues that an immigration judge cannot. "Mazen may not have the right to know who the source is, but he has the right to know what the source said, and he has the right to validate the reliability of the source," Saad said. FOIA requests on Al-Najjar also were filed by the St. Petersburg Times in 1998 and to five additional agencies in November 1999. In February the FBI refused to release even redacted documents. A year earlier, the CIA responded that it would "neither confirm nor deny the existence or nonexistence of records responsive to your requests." A response from the Attorney General's office is still pending after the Times contested an initial response that said there were no pertinent documents in an office that has had numerous meetings on his case, including one with a Hillsborough County citizens group. Meanwhile, Al-Najjar's legal limbo continues. The government is appealing Immigration Judge R. Kevin McHugh's decision to release him. Al-Najjar is appealing his deportation. He awaits a ruling from the 11th U.S. Circuit Court of Appeals on arguments made in January that the U.S. government has made him undeportable: No country will take a man labeled a terrorist.
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