© St. Petersburg Times, published December 20, 2001
WASHINGTON -- Lawyers for Mazen Al-Najjar on Wednesday challenged the Immigration and Naturalization Service's authority to label him a national security threat and keep him in jail pending the outcome of his deportation case.
The complaint before U.S. District Judge Joan Lenard in Miami also challenged the government's right to keep Al-Najjar in solitary confinement at Coleman Federal Correctional Complex, about 75 miles north of Tampa Bay in Sumter County.
"If they do not immediately release him, we are asking that they give him the same housing conditions as general prisoners," said his Tampa attorney, Martin Schwartz.
Another attorney, David Cole, said, "The only legitimate basis for locking him up is if he's a danger to national security." But there is no public evidence that suggests Al-Najjar is a threat, Cole said.
The government, Cole said, merely reasserts allegations of terrorist ties that an immigration judge last year found to be not supported by the publicly released evidence.
"We argue this is unconstitutional," Cole said.
A Palestinian and longtime Tampa resident, Al-Najjar was arrested Nov. 24 after a federal appeals court affirmed the government's right to deport him for overstaying a student visa that expired in the 1980s.
Al-Najjar had already spent 31/2 years in prison on the basis of classified intelligence information the government said linked him to Palestinian Islamic Jihad, a terrorist group.
He was released from his first jail term in December 2000 after Lenard ruled that Al-Najjar's due-process rights were violated when the government refused to share enough of the classified information for him to mount a defense.
But there are many nuances to the law for noncitizens like Al-Najjar. As an immigration violator he enjoys some, but not all, of the constitutional protections afforded citizens.
One important legal wrinkle is the status of his deportation case. Al-Najjar has been fighting deportation since 1997, but his appeals ran out on Nov. 13 when the 11th U.S. Circuit Court of Appeals in Atlanta issued a final deportation order that his lawyers have not appealed. At that point, Al-Najjar lost the legal protection against incarceration that he had since Lenard ordered him released last year, the government says.
The 11th Circuit Court of Appeals agreed, saying the attorney general has "unambiguous authority" and "unfettered power" to keep noncitizens who are under final deportation orders off the street if they are deemed a threat to society or national security.
The opinion echoes a Supreme Court ruling this year in Zadvydas vs. Davis in which the court found there are "special circumstances" for keeping some deportable aliens in jail.
Al-Najjar's brother-in-law is Sami Al-Arian, a tenured University of South Florida professor under investigation for terrorist links since 1995, when the FBI raided a USF think tank he formed that employed Al-Najjar.
On Wednesday, USF president Judy Genshaft said she would move to fire Al-Arian because controversy surrounding the allegations of his terrorist ties has disrupted university operations.
Neither Al-Arian, a legal permanent resident, nor Al-Najjar has ever been charged with a crime. Both have denied any connection to terrorism.
As a stateless Palestinian, Al-Najjar has said no country will accept him. But the government is working through diplomatic channels to get him accepted in the United Arab Emirates, the country where he lived before moving to the United States in 1981.
But Cole said Wednesday the UAE only issues temporary visas to noncitizens and will not do so for Al-Najjar unless he has "a country to return to," which he does not. Officials at the UAE embassy in Washington did not return phone calls.