[IMC-NYC-Print] Update on Unconstitutional Detention of Palestinian Professor in wake of 9/11

[David Pugh]

JUDGE DENIES PALESTINIAN PROFESSOR HIS FREEDOM
Judge hints that he could be released in 3 months if not deported by then


A Statement by Dr. Al-Najjar's Attorneys, Dr. Al Najjar's family and
Tampa Bay Coalition for Justice and Peace

Contact Persons: Attorney David Cole (202) 662-9078
Attorney Joe Hohenstein, 215-893-8400
Attorney Martin Schwartz, 813-269-7421
Attorney Nancy Chang, 212-614-6420
Attorney Randall Marshall, 305-576-2337 (Florida- ACLU)

February 20, 2001

Miami, Florida-
US federal district court judge Joan A. Lenard issued her ruling yesterday,
Feb. 19, 2002, denying the motion filed by Palestinian professor Dr. Mazen
Al-Najjar. The motion was filed on his behalf for habeas corpus over
2 months ago seeking his release.

Dr. Mazen Al Najjar, who spent more than 3½ years in detention based on
secret evidence, and was released from detention on December 15, 2000 after
an immigration judge ruled that there was no basis on the public record to
justify detaining him. (See excerpts from Judge R. Kevin McHugh's ruling
below.) On November 24, 2001, INS rearrested Al Najjar, where he is now
detained at the Federal Correctional Complex in Coleman, Florida.

Since Al Najjar's release in December 2000, he has been a law-abiding member
of the community. He has taken care of his three young daughters, and
volunteered at the school they attend and the local mosque. The INS makes no
claim that while on release Al Najjar engaged in activity that threatened
the national security.

Al Najjar also maintains that his detention violates the First Amendment,
because it is predicated on guilt by association. Al Najjar has never been
charged with engaging in any criminal activity of any kind, much less
terrorist activity.

Al Najjar is represented by David Cole, a professor at Georgetown University
Law Center; Nancy Chang of the Center for Constitutional Rights, Joseph
Hohenstein of the Nationalities Service Center, Randall Marshall of the ACLU
Foundation of Florida, and Martin Schwartz, an immigration attorney in
Tampa, Florida, and Ira Kurzban, an immigration attorney in Miami.

Professor Cole said, "We are very disappointed. The district court never
addressed our bsic claim, which is that the government cannot put a human
being into preventive detention unless it shows that he is a danger to the
community or a risk of flight. Here, after a two-week hearing the government
was unable to make either showing. It violates due process to deprive a
person of his liberty without any evidentiary justification, yet that is
exactly what the INS has done here.

Local Attorney Martin Schwartz said, "Although Judge Lenard denied Dr.
Al-Najjar's release now, but barring his deportation, we are conficent that
she would order his release when the 180 days are up around mid May."

A recent US Supreme Court ruling said that the government cannot keep
soneone in jail more than 6 months of the final order of deportation if it
is not able to deport him. Dr. Al-Najjar is a stateless Palestinian who does
not even have a passport. So far the US government has not been able to find
him a place to be relocated to. Attorney Joe Hohenstein said: " Dr.
Al-Najjar and his family have been fully cooperating with the US authorities
since his recent detention, but so far no country has accepted to take the
whole family."

Furthermore, the conditions of Dr. Al-Najjar's confinement have not changed.
He is still under solitary confinement and 23 hour lockdown. He is denied
almost all priviliges which are afforded to murderers, rapists and drug
dealers, such as contact visits with his wife, 3 American daughters and
other family members, TV, papers, and regular phone calls to his family. He
is only allowed one 15-minute call per week and one non-contact visit. Such
harsh prison conditions are unusaul for a person who is only in violation of
his visa status and awaiting deportation.

The Tampa Bay Coalition for Justice and Peace calls upon the authorities to
lift the harsh condotions of confinement and to treat him humanely and with
dignity. No human being, let alone an innocent man who has suffered much,
should be subjected to these inhumane conditions for 6 months.

The Hillsborogh Organization for Progress and Equality (HOPE) is organizing
an Interfaith Prayer Vigil for Justice on Monday, March 4, at 7:00 pm. The
place is Trinity CME Church 2401 N. Howard Ave. (On east side of Howard,
north of 275, south of Columbus Drive.)

All peace-loving and justice-seeking people are requested to attend and
light a candle in support of Dr. Al-Najjar's human rights.
 ____________________________________________________

Write to Dr. Al-Najjar

Since Nov. 24, 2001, Dr. Mazen Al-Najjar has been in solitary confinement at
the maximum security section of a federal correctional facility. His prison
conditions are extremely harsh and punitive as he is in a 23 hour lock down
and under 24 hour observation. Everyday, he is strip searched twice. He has
no access to the library, TV or papers. He has very limited access to phones
and has just been afforded limited non contact visits with his immediate
family members. Amnesty International has protested his arrest and prison
conditions in its report last month to Attorney General John Ashcroft.

If you want to write Dr. Al-Najjar, this is his mailing address:

Mazen Al-Najjar (# 35673-019)
SHU: C-8
Federal Correctional Complex Penitentiary
P.O. Box 1033
Coleman, FL 33521
______________________________________________________________

Background

Dr. Mazen Al-Najjar is a stateless Palestinian, who has been residing in the
US since 1981. He received his MS and Ph.D. degrees from 2 fine US
universities. Although he has no country to go to after finishing his
studies, and despite the fact that both of his parents and 3 young daughters
are US citizens, he was denied asylum in May 1997. Shortly after he was
apprehended by the INS on May 19, 1997. He was then denied bail on the basis
of secret evidence presented to INS Judge R. Kevin McHugh.

After exhausting all his administrative appeals, a habeas federal court law
suit was filed in December 1999. It was argued before federal district court
Judge Joan Lenard in April 2000. On May 31, 2000, Judge Lenard ruled that
Dr. Al-Najjar's was denied due process during his bail hearing in 1997. She
ordered that a new bail hearing be set in which the judge would reside over
a two phase process. The first phase involved an open record hearing . If
the judge concluded that Dr. Al-Najjar was not a threat to national
security, then the second phase would take place where "secret evidence", at
the discretion of the government, might be used. However, in this phase, the
government would have to provide a "meaningful summary" to the respondent in
order to allow for a meaningful defense. It's important to note that Judge
Lenard did not ban the use of secret evidence, but required the meaningful
summary in order to safeguard the due process constitutional clause.

The open record hearing phase took place before Judge McHugh in August and
October 2000. On October 27, 2000, Judge McHugh issued a 56 page ruling that
concluded that Dr. Al-Najjar was not a threat to national security. In
November 2000, Judge McHugh allowed the government to present its secret
evidence. He concluded that its presentation did not differ much from the
open record presentation. In addition, the summary was deemed insufficient
for a meaningful defense as required by Judge Lenard's decision.
Subsequently, he ordered Dr. Al-Najjar to be released on bail.

The government appealed that decision to the Board of Immigration Appeals
(BIA). After staying the release order for a few days, the BIA lifted that
stay and also ordered Dr. Al-Najjar's release. The INS asked then Attorney
General Janet Reno to block Dr. Al-Najjar's release, but the Attorney
General refused after reviewing the case. Dr. Al-Najjar was hence released
on December 15, 2000 after spending 1307 days in detention on the basis of
secret evidence.

Nevertheless, the government appealed Judge Lenard's decision that opened
the process for setting a procedure for the use of secret evidence. This
appeal was argued before the 11th circuit court of appeals
on November 8, 2001. No ruling has been issued yet on this appeal.

On November 24, the INS re-arrested Dr. Al-Najjar under the pretext of the
final order of deportation. This detention was not mandatory. It's not clear
if Dr. Al-Najjar is deportable since he lacks a travel document and so far
no country has accepted him.
______________________________________________________________________

What Judge R. Kevin McHugh said in his Ruling on Dr. Al-Najjar (October 27,
2000)

The Court finds it remarkable that out of five-hundred videotapes that were
seized, from which a thirteen-minute composite tape was created, not one
excerpt of the composite depicted Respondent engaging in fundraising for any
organization. .... Even if the Court found that the evidence demonstrated
that the ICP raised money for the PIJ at this event, it was not illegal to
do so until 1997...... However, in this case, there is still no evidence
that the Respondent raised funds for the PIJ or sent funds to the PIJ. In
conclusion, the Court finds that the evidence does not demonstrate that
Respondent engaged in fundraising for the PIJ through the ICP. page 39

The Court finds that the Service's claim that the Respondent engaged in
fundraising activities for the PIJ, through either the ICP or WISE, is
unsupported by the evidence of record. page 41

[T]he record before the Court is devoid of any direct or indirect evidence
to support the conclusion that Respondent was meaningfully associated, as
required by the Act, with the PIJ. pages 45-46

Although there were allegations that "the ICP and WISE were 'fronts' for
'Palestinian political causes,'" there is no evidence before the Court that
demonstrates that either organization was a front for the PIJ. To the
contrary, there is evidence in the record to support the conclusion that
WISE was a reputable and scholarly research center and the ICP was highly
regarded. page 48

[T]he Court finds, based on the evidence presented at the public portions of
the rema
nd bond redetermination proceedings, that there are no "facially legitimate
and bona fide reasons to conclude that [Respondent] is a threat to national
security." page 49