© St. Petersburg Times, published November 30, 2001
WASHINGTON -- The debate on the use of secret evidence appears to be back at square one.
With Mazen Al-Najjar in jail again under a final deportation order, a federal appeals court has dismissed as moot the question of whether the government wrongly detained him for 3 1/2 years on the basis of classified evidence allegedly linking him to terrorism.
U.S. law gives Attorney General John Ashcroft "unambiguous authority" to take Al-Najjar into custody because an appeals court affirmed his final deportation order Nov. 13, a three-judge panel wrote in an order released Wednesday. As a result, the court said, there is no case for it to decide.
The Atlanta-based 11th Circuit Court of Appeals had been weighing arguments in the government's appeal of a May 2000 ruling by U.S. District Judge Joan Lenard in Miami that holding Al-Najjar on the basis of secret evidence violated his due process rights.
But once the former University of South Florida teacher had exhausted appeals of his deportation case and returned to jail, the court said, the question of whether the government had the authority to hold him ceased to exist.
The panel also voided the ruling by Lenard that led to the release of Al-Najjar from a Bradenton jail in December 2000. It was that decision that the government had appealed, arguing Lenard had ruled in error.
Taken together, the developments mean the Al-Najjar case will not be providing the legal precedent that civil liberties advocates and the government had been hoping for regarding the use of secret evidence.
"Our decision does not detract from the recognition that this case, if live, would raise a number of extremely significant issues involving immigration law and procedure, national security and classified information, and due process of law," said the order, signed by circuit judges Frank M. Hull, Stanley Marcus and Jerome Farris.
David Cole, an attorney for Al-Najjar, said he was pleased that the court had dismissed the government's appeal, "since that's what we had asked." But he said he disagreed with the court's reasoning.
Cole said that Ashcroft does not have the "unfettered power" to detain Najjar in this last stage of his five-year deportation that the appeals court said he did.
"We're considering challenging his current detention as unlawful, because there has simply been no showing that he is a threat to anybody," Cole said.
It is not clear that such a challenge would succeed, given the appeals court's ruling that the attorney general "now possesses unquestioned authority to detain Al-Najjar without bond."
Al-Najjar's attorneys also have said they will appeal his deportation to the Supreme Court.
Al-Najjar, a Palestinian from Gaza, came to the United States in 1981 from the United Arab Emirates, where he had been working on a temporary work visa.
In the United States, he studied in North Carolina and at the University of South Florida. During that time, he had several brushes with the INS, including allegations that he married his first wife to get a green card.
Al-Najjar later remarried, living illegally in the United States after a student visa expired. The INS began deportation proceedings in 1996.
Al-Najjar was arrested in 1997 on the basis of classified information the government said showed him to be involved with Palestinian Islamic Jihad, a terrorist group that claims responsibility for suicide bombings and shootings in Israel.
Then-Attorney General Janet Reno ordered his release in December 2000 after Lenard ruled that he could no longer be detained on classified information. But Immigration and Naturalization Service agents arrested him again on Saturday after an appeals court affirmed his deportation.
Before his latest arrest, Al-Najjar's case became an international cause for civil libertarians and sparked a bill in Congress to ban the use of secret evidence in immigration cases.
But now, the legal issues his case raised will have to be decided some other day, and legal observers expect that day to come.
Ashcroft has issued a series of policy directives and Justice Department regulations that liberally interpret his power to detain immigration violators in extreme cases without judicial review.
"This case (Al-Najjar's) got a lot of attention, and I have no doubt there will be other circumstances where people will wrestle this question of secret evidence," said University of Virginia law professor David Martin, who served as INS general counsel in the Clinton administration.
But, Martin said, "The issue won't come up in the same climate."
Before the destruction of the World Trade Center and attack on the Pentagon, "we didn't feel very threatened, and people were much more interested in focusing on the other side of the equation, which was the civil liberties side," Martin said.
"Now people are reminded of the reasons why, gee, yes, we do want to have some confidential informants out there and that we might want to use the information they develop without jeopardizing their safety."