> Secret evidence denies man's rights, judge says
>
> By JODY A. BENJAMIN [Ft. Lauderdale Sun-Sentinel]
> Web-posted: 11:13 p.m. May 31, 2000
>
> MIAMI -- A federal judge ruled Wednesday that the use of
> secret evidence against an Arab-American professor accused
> of links to terrorists compromised his right to a fair trial.
>
> U.S. District Judge Joan A. Lenard stopped short of
> ordering the immediate release of defendant Mazen
> Al-Najjar, a former Arabic language professor at the
> University of South Florida in Tampa. But her ruling raised
> the possibility that after being held nearly three years in
> detention, he could be released by an immigration judge.
>
> Al-Najjar, 42, previously has been denied bond based on
> secret evidence that immigration officials say shows he has
> ties with a known terrorist group, the Palestinian Islamic
> Jihad.
>
> In her 72-page decision, the judge found that holding him
> on the basis of secret evidence denies Al-Najjar's
> fundamental rights. She ordered that he be given an
> opportunity to respond to the evidence against him.
>
> "The introduction of classified information =8A without the
> benefit of an adversarial check on its reliability posed a
> substantial risk that [a court] could reach an erroneous or
> unreliable determination," wrote Lenard. "The manner in
> which the immigration judge conducted [the bond
> proceedings] deprived [Al-Najjar] of his rights."
>
> Miles away, Al-Najjar's family members said the ruling
> gave them hope he soon would be released. But his wife
> despaired that the ruling only further delayed her husband's
> freedom.
>
> "How much longer will I have to wait? Six months? A year?"
> said Fedaa Al-Najjar, breaking into tears. The couple has
> three daughters. "Everything the judge said supports his
> release, so why didn't she just do it? Time is very important
> for me."
>
> In her ruling, the judge stopped short of banning the use
> of secret evidence altogether, saying that it may be
> necessary in some situations. But if secret evidence is
> necessary, Lenard said, the government should establish
> procedures that protect an individual's due process rights.
>
> The judge mulled the issue for five weeks before issuing
> Wednesday's ruling. She said earlier that she would not look
> at the secret evidence against Al-Najjar in making her
> decision.
>
> A Justice Department spokeswoman said the government
> had not yet formed its response to the ruling. "We will review
> the judge's order and take appropriate action after that
> review," said Justice Department spokeswoman Carole
> Florman.
>
> INS attorneys had argued that Al-Najjar was not entitled to
> due process when it came to being released from jail
> because an immigration court said he should be deported.
> The government argued he was a threat to national security
> because of his ties to the terrorist group. However, Lenard
> said that the government had not sufficiently shown that
> Al-Najjar was active in that group. Government evidence thus
> far only pointed to the professor's "association" with the
> group, said Lenard, and that evidence was not enough to
> keep him detained.
>
> "[Al-Najjar's] mere association with the Palestinian Islamic
> Jihad is not a reasonable foundation for the immigration
> judge's decision to deny bond and continue to detain [him]
> as a threat to national security," wrote Lenard.
>
> Al-Najjar's attorneys said they counted the ruling as a win.
>
> "We would have preferred he be released immediately,"
> said Al-Najjar attorney David Cole, a Georgetown professor
> who previously won the release of several other immigrants
> held on secret evidence. "We are confident that if he is given
> a fair hearing, he will be released."
>
> Al-Najjar has been held in INS detention in Bradenton
> since 1997, when INS agents arrested him at his Tampa
> home for overstaying a student visa. Born in Gaza, he
> moved to Tampa in 1981.
>
> Lenard's ruling comes on the heels of two other federal
> court decisions in New York and New Jersey finding the use of
> secret evidence to be unconstitutional. Both defendants in
> those cases were subsequently freed.
>
> Lawyers for the American Civil Liberties Union celebrated
> the ruling, saying government use of the practice may be on
> the way out. Lenard's ruling makes it harder for courts to
> detain people on that basis, said Howard Simon,
> ACLU/Florida's executive director.
>
> Jody A. Benjamin can be reached at
> jbenjamin at sun-sentinel.co or 954-356-4530.