----- Original Message ----- From: "Nathan Newman" <nathan at newman.org>
> The issue really is what we mean by "rights" - an often useless
grabbag of
> ideological arguments that mean little more than "I get to trump any
card
> you play." Almost every "right" has a limit- the real issue is
usually who
> decides where that limit should be. It is that procedural question,
not
> some absolute "right" that usually is involved.
>
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Susan R. Miller Miami Daily Business Review
November 12, 2001
Mazen Al-Najjar has been a free man since December. But if the federal government has its way, the Muslim cleric and former University of South Florida professor could find himself back behind bars.
On Thursday, a three-judge panel of the 11th U.S. Circuit Court of Appeals, sitting in Miami under extraordinarily tight security, heard oral arguments in Al-Najjar's case. Since the Sept. 11 attack on the World Trade Center and the Pentagon, his case has taken on new and greater significance.
At issue is whether the government has the right to hold immigration violators without bail and for an indefinite period of time if they are deemed to be national security threats. Even more critical to Al-Najjar's case is whether the government can refuse to tell a detainee what damning evidence it possesses to warrant detention.
Al-Najjar's case has become a lightning rod for Arab-American organizations and civil libertarians who are fighting to do away with the use of secret evidence. A ruling by the appellate court in Al-Najjar's case could have broad implications for the estimated 1,000 foreign nationals, most of them from the Middle East, who have been detained since the attack.
Civil libertarians fear that, should the court rule in favor of the government, the threshold for evidence used to keep illegal aliens behind bars could be lowered.
"At issue here is whether our government can lock up human beings without affording them a meaningful chance to defend themselves," says David Cole of the Georgetown University Law Center, Al-Najjar's lead counsel. Cole argues that Al-Najjar's release last year shows that he never posed a true threat to national security.
In a packed courtroom filled with lawyers and Al-Najjar supporters who had to clear two metal detectors before they could enter, the judges expressed concern over whether the case even belonged before them. Al-Najjar, they noted, already had been ordered deported by the Immigration and Naturalization Service.
That order is on appeal.
Judge Frank Hull asked why the government has failed to strike a balance between withholding evidence from Al-Najjar on national security grounds and his constitutional right to be advised of the evidence against him.
Justice Department attorney Douglas Ginsburg responded that the courts are not equipped to determine matters of national security. He declared that facts that might "seem innocuous" to a judge could be regarded as more significant to a government agent who wants them kept secret to protect an investigation.
Under a new anti-terrorism law that took effect last month, the attorney general has been given broad discretion to detain non-citizens indefinitely if he certifies them to be national security threats. But the new law, notes Cole, does not give the government authority to detain people based on "secret evidence."
Al-Najjar's problems began long before any terrorist threats consumed the minds of Americans. A native of Gaza, Al-Najjar was detained in May 1997 by the INS after it determined he was in the United States illegally and that he had suspected ties to the Palestinian Islamic Jihad, a known terrorist organization. The government contended he was involved in fund raising for the Jihad.
Al-Najjar was jailed for three and a half years before U.S. District Court Judge Joan Lenard ruled in December that his detention was unconstitutional. The case was heard in Miami because it was brought against the INS director there. Lenard's ruling prompted then-Attorney General Janet Reno to order his release.
"If the government believed that Al-Najjar in fact posed a threat to national security, surely the attorney general would not have released him," wrote Cole in his brief to the court.
In court Thursday, Ginsburg, the government lawyer, argued that as an illegal alien, Al-Najjar was not entitled to constitutional rights and that "the attorney general's authority to detain aliens subject to deportation ... is discretionary."
"At a time when the nation is at war with terrorism and we are under active attack," the 11th Circuit's refusal to overturn Lenard's ruling would "chill critical efforts to deny terrorists and their supporters access" to the United States, wrote Ginsburg in his brief to the appeals court.
Investigators first suspected Al-Najjar had ties to terrorists after a former colleague at the University of South Florida near Tampa returned to the Middle East and became the new leader of the Palestinian Islamic Jihad. Ramadan Abdullah Shallah worked with Al-Najjar at a university-sponsored research center called the World and Islam Studies Enterprise, or WISE. The purported goal of the organization was to bring U.S. and Middle Eastern scholars together to discuss political and economic issues.
But FBI agents suspected the center of being a terrorist support group and, in 1995, raided its offices. They collected enough information to convince immigration officials to start deportation proceedings against Al-Najjar, who was in the U.S. illegally. Al-Najjar was never charged with a crime, and government authorities refused to tell him or his lawyers what evidence they had against him, saying it was classified intelligence information.
Al-Najjar's lawyers say the government's refusal to disclose what it had against their client made it impossible to launch a defense.
"Our position is that [the government] has the right to detain him, but it must be subject to due process," Cole told the panel.
Al-Najjar's lawyers point to a Supreme Court decision in Zadvydas v. Davis, in which the court ruled that aliens have a right to due process. "Even aliens who have been finally ordered deported for serious criminal convictions," the decision says, "retain a liberty interest founded in the due process clause itself, in being free of custody."
But Ginsburg, the government lawyer, wrote in briefing papers that "the courts must defer to the political branches on national security and foreign policy matters." He noted that Al-Najjar was detained as part of the government's crackdown on illegal aliens designed to protect national security. In this case, Ginsburg said, "the government's interest in enforcing the immigration laws transcends an alien's First and Fourth Amendment interests."
Since his release, Al-Najjar has been unable to work because the government has refused to give him a permit.
"It has been misery, fear, uncertainty. I don't have any perspective of my future," he said after Thursday's hearing. "My career was destroyed. That is not a natural life."