Bail is granted in secret evidence case
By SUSAN ASCHOFF
© St. Petersburg Times, published December 7, 2000
An immigration judge Wednesday ordered the release of Mazen Al-Najjar after three years in jail on secret evidence, saying the government failed to give him enough information to dispute his alleged ties to terrorists.
But the Tampa man remained in a Bradenton detention facility Wednesday evening.
The Immigration and Naturalization Service sought an emergency stay, granted at 7:20 p.m., for 24 hours. Today, briefs will be filed by both sides. An immigrations appeals panel will either free Al-Najjar or keep him in jail pending further court action.
Wednesday's tempered victory comes after a years-long struggle to free the 43-year-old teacher waged by civil rights groups and, more recently, more than 100 members of Congress. His detention without charges and on evidence he could not see, they maintain, is unconstitutional.
Family and friends in Tampa gathered at the Al-Qassam Mosque for evening prayers in observance of the Muslim holy month of Ramadan and collected money to pay his $8,000 bail.
"I am so happy. This is his fourth Ramadan in jail, and he will now get to spend it with his family," said Sami Al-Arian, Al-Najjar's brother-in-law and a University of South Florida professor.
Al-Najjar, an immigrant from Gaza who has lived in the United States almost 20 years, was ordered deported for overstaying a student visa. He appealed but was jailed in May 1997 on secret evidence as a terrorist threat to national security.
The order for his release comes about two weeks after Immigration Judge R. Kevin McHugh reportedly took secret government testimony on Al-Najjar's alleged connections to the Palestinian Islamic Jihad. The group, based in Damascus, Syria, has claimed responsibility for terrorist bombings to derail the Middle East peace process.
Al-Najjar says he does not support terrorism. The government says he raised funds for the group through his work at a USF-affiliated think tank and at political conferences in the early 1990s.
In 10 days of public testimony ended in October, McHugh found the government failed to prove a single allegation. The government then presented its secret evidence, classified due to national security concerns, only to McHugh.
McHugh did not address the contents of what was submitted in secret in the six-page order issued Wednesday, except to say it concerned the Palestinian Islamic Jihad. He said the government may be warranted in not revealing its information to Al-Najjar and the public.
But he refused to consider the secret evidence in ruling on Al-Najjar's bail because the legally mandated summary of its contents to be shared with Al-Najjar failed to provide "a meaningful opportunity for him to defend against that evidence," McHugh wrote.
He closed the case and ordered Al-Najjar released on $8,000 bail.
Al-Arian, the USF professor, finished teaching a computer class Wednesday to find a dozen messages on his voice mail about the order. However, he and Al-Najjar's attorneys were informed the jail was closed for the day.
Wednesday evening, he hoped to reach House Minority Whip David Bonior, D-Mich., who last session sponsored a bill to ban the use of secret evidence, to intervene with the administration and end the case.
David Cole, a Georgetown University law professor who has successfully defended a dozen immigrants in secret evidence cases, led Al-Najjar's defense team at the Bradenton court hearing. He remained hopeful the government would end its pursuit.
"I am overjoyed for Mazen. I respect Judge McHugh for refusing to consider the secret evidence when he found Mazen Al-Najjar would not have a meaningful opportunity to defend himself," Cole said. "That's what we were really pushing since the beginning of this case. One never has a meaningful opportunity to defend against evidence you can't see."
An INS representative could not be reached for comment.
McHugh is the same judge who denied Al-Najjar bail in 1997 after hearing secret evidence. After an immigration appeals panel upheld McHugh, Al-Najjar's attorneys sought relief from a federal judge in Miami. Last May, U.S. District Judge Joan A. Lenard said his constitutional rights to due process were violated. If secret evidence were to be used against Al-Najjar, enough information had to be shared with him so he could defend himself, she said.
McHugh's ruling mirrored Lenard's language and found the government fell short.
Al-Najjar is one of about two dozen immigrants, almost all Muslims or Arabs, who have been detained on secret evidence. No criminal charges have been filed against the men.
Presidential candidates Al Gore, George W. Bush and Ralph Nader all called for changes. A coalition of national Muslim groups endorsed Bush shortly before the Nov. 7 election, saying Gore and the Clinton administration have failed to act against the discriminatory practice.
Al-Najjar and his wife, Fedaa Al-Najjar, remain under a deportation order. They will argue their appeal before the 11th U.S. Circuit Court of Appeals in Atlanta in January. Their three daughters are U.S. citizens. Al-Najjar now will likely argue he qualifies for asylum because the U.S. government's terrorist label has guaranteed no other country will take him.
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