Mazen Al-Majjar

As many immigrants fear for their safety after the attacks of September 11, powers granted to federal prosecutors following the 1995 Oklahoma City bombing are still being used to imprison immigrants based on secret evidence and “classified” charges.

Mazen Al-Najjar, a 44-year-old Palestinian born in Gaza City, is one of more than two dozen immigrants detained using secret evidence in the past five years. Al-Najjar was incarcerated in Florida for three years and seven months on classified evidence that he and his lawyers were never allowed to see.

Al-Najjar finally was freed in December 2000 after Attorney General Janet Reno determined there was no basis for holding him, but the Immigration and Naturalization Service and FBI continue to press their case in an effort to return him to prison. Al-Najjar’s case could potentially go to the Supreme Court, says his lawyer, Georgetown Professor David Cole, who has handled (and won) 13 classified evidence cases. “They’re taking the position that they have the authority to do what they did to Mazen and nothing they did is wrong,” Cole says.

Under the Immigration and Nationality Act and the expanded powers provided in the 1996 Anti-Terrorism and Effective Death Penalty Act, a number of political asylum seekers and immigrants have found themselves, like Al-Najjar, in a Kafkaesque situation in which they have been detained indefinitely on classified evidence that is not made available to them or their lawyers. The government used secret evidence in a case against eight Palestinians in Los Angeles, and Harpal Singh Cheema, a Sikh from India, remains in jail based on secret evidence.

In secret evidence cases, former director of the CIA James Woolsey testified before the Senate, INS procedure “is to collect rumors and unfounded allegations, not investigate them, submit them [privately] to the immigration judge, and then demand that the individual in question be held [as] a threat to national security if he does not succeed in refuting the charges of which he is unaware.”

The case against Al-Najjar seems largely based on guilt by association. Al-Najjar was executive director of the World and Islam Studies Enterprise, an academic research center on Islam formerly associated with the University of South Florida in Tampa. In 1995, a series of articles appeared in the Tampa Tribune attempting to link the center to terrorists, specifically to the Palestinian group Islamic Jihad. The articles were later debunked by a number of sources, including the Miami Herald, amid charges they had used biased sources and unsubstantiated evidence to fabricate a case against Al-Najjar.

Nevertheless, Al-Najjar was arrested in 1997. “We were provided with only a one-sentence unclassified summary” of the classified evidence used to obtain the arrest warrant and to deny bail, Al-Najjar says. “My lawyers tried hard to find some way to defend me, but we didn’t have any access to this information. There was no due process.”

Al-Najjar was held for 15 months before receiving a ruling from the Board of Immigration Appeals upholding the Florida immigration court’s decision to detain him. In May 2000, a Florida judge declared INS treatment of Al-Najjar unconstitutional under the due process clause and the First Amendment. She “ordered that I should be afforded first a public evidence hearing,” Al-Najjar says.

In a 56-page ruling after two weeks of public hearings, the same immigration judge who originally ordered Al-Najjar’s detention dismissed the INS allegations as unfounded. After three and a half years of imprisonment based on unfounded charges, no apologies and no compensation have been offered to Al-Najjar and his family.

Local and national groups have called for an end to the use of secret evidence, and a bill to that effect (HR 1266) introduced in the House earlier this year attracted 100 co-signers. But the bill’s prospects are dubious; the Bush administration is now pushing a bill that would allow the government more power to detain and deport immigrants without charging them with a crime.