Hearing will pry at secret case against Tampa man

The former USF teacher's accusers, the FBI and INS, must reveal enough of their evidence that he may mount a defense, a judge says.

By SUSAN ASCHOFF

© St. Petersburg Times, published July 28, 2000

A Bradenton immigration judge Thursday ordered a hearing to determine whether a Tampa man jailed for more than three years on secret evidence should finally be freed.

The hearing, set for Aug. 11, could force the government to reveal why it wants to keep Mazen Al-Najjar behind bars.

The government says the former University of South Florida teacher must be detained as a threat because he has ties to Middle East terrorists. Al-Najjar, being held in a Bradenton jail, says he is the victim of politics.

The 43-year-old Palestinian has become a symbol in a nationwide fight against the use of secret evidence to detain more than two dozen Arab and Muslim immigrants. Al-Najjar's case has inspired pending legislation to ban the practice.

The hearing was ordered by immigration judge R. Kevin McHugh, who denied bail for Al-Najjar three years ago after reviewing classified government information alleging that Al-Najjar has ties to the Palestinian Islamic Jihad, an organization the U.S. government designates a Middle East terrorist group.

Al-Najjar's attorneys then sought his release in federal court. On May 31, U.S. District Judge Joan A. Lenard in Miami found his constitutional rights had been violated.

With no information on why he was considered a threat, and thus no way to rebut the government's accusations, Al-Najjar was denied due process, Lenard ruled.

Lenard clarified her order this week, saying that the immigration judge, not an Immigration and Naturalization Service official, should reconsider bail. A day later, McHugh set the August hearing.

"What remains to be seen is how the government will respond," said David Cole, one of Al-Najjar's attorneys, on Thursday. "At a minimum, if the government intends to proceed with classified evidence, they're going to have to provide a detailed summary" so Al-Najjar can defend himself.

Ordered deported for overstaying a student visa after coming to the United States almost 20 years ago, Al-Najjar appealed but was denied bail by McHugh on June 23, 1997. While concluding that the information presented by the government in open court was insufficient to warrant Al-Najjar's continued detention, McHugh said the classified information shared with him in chambers showed him to be a threat because of an "association with the Palestinian Islamic Jihad."

That single phrase is all Al-Najjar and his attorneys have been told about the government's case.

Al-Najjar was involved in a Tampa think tank in the early 1990s. One of its employees later assumed leadership of the Palestinian Islamic Jihad in Syria.

To protect Al-Najjar's rights, Lenard laid out a two-phase process for determining his eligibility for bond that McHugh outlined in his order Thursday.

McHugh first must decide whether the evidence presented in open court in 1997 is sufficient to prove Al-Najjar a threat. He already has said it did not. Unless the government introduces additional information in open court, McHugh said he will move to the second phase, in which the government may present classified evidence.

McHugh noted that he does not have the authority to order the INS or the FBI to disclose secret evidence. Should the government continue to use classified information, it must provide as detailed a summary as possible -- enough that Al-Najjar may defend himself -- as ordered by Lenard.

Attorneys for the INS could not be reached for comment.

Al-Najjar's attorneys say that if the government introduces any new information, public or private, they want it before the August hearing and in enough detail to remedy what the federal judge found to be, so far, an unfair fight.

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