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It Can Happen Here
1 December 2001
Boston - On the basis of secret evidence, the government accuses a non-citizen of connections to terrorism, and holds him in prison for three years. Then a judge conducts a full trial and rejects the terrorism charges. He releases the prisoner. A year later government agents rearrest the man, hold him in solitary confinement and state as facts the terrorism charges that the judge found untrue.
Could that happen in America? In John Ashcroft's America it has happened. Mazen Al-Najjar, a Palestinian, came to the United States in 1984 as a graduate student and stayed to teach at a university. The Immigration Service moved to deport him for overstaying his visa — and asked an immigration judge, R. Kevin McHugh, to imprison him. Secret evidence, the government lawyers said, showed that Mr. Al-Najjar had raised funds for a terrorist organization, Palestinian Islamic Jihad. In June 1997 Judge McHugh issued the detention order.
Mr. Al-Najjar's lawyers went to federal court and challenged the use of secret evidence against him. The court held that he must at least be told enough about the evidence to have a fair chance of responding to it.
Judge McHugh then reopened the case in his immigration court. In a two-week trial the government's lead witness, an Immigration agent, admitted that there was no evidence of Mr. Al-Najjar contributing to a terrorist organization or ever advocating terrorism. At the end Judge McHugh found that there were no "bona fide reasons to conclude that [Mr. Al- Najjar] is a threat to national security."
Judge McHugh, a former U.S. marine, wrote a 56-page decision that evidently carried much legal weight. The Board of Immigration Appeals rejected a government appeal. And Attorney General Janet Reno, who had the right to step in, refused to do so. A year ago Mr. Al-Najjar rejoined his wi fe and three daughters.
Last Saturday immigration agents arrested Mr. Al-Najjar again. The Justice Department issued a triumphant press release saying that the case "underscores the department's commitment to address terrorism by using all legal authorities available." Mr. Al-Najjar, it said, "had established ties to terrorist organizations."
That flat, conclusory statement was in direct contradiction to the findings made by Judge McHugh after a full trial. And the department did not claim, this time, to be relying on undisclosed information. It said the detention was "not based on classified evidence."
It seems to me shocking that the United States Department of Justice should state as a fact something that a judge has found to be untrue. The whole press release had the ring not of law but of political propaganda. That is not the department of respected lawyers that I have known over man y years.
Mr. Al-Najjar is not only back in prison, he is being treated with exceptional severity, indeed cruelty. He is in solitary confinement 23 hours a day. He is not allowed to make telephone calls, and he may not see his family. Only his lawyer is permitted to visit him.
Because Mr. Al-Najjar is stateless and no country will accept him, he probably cannot be deported. So if the Justice Department view that he is a security risk prevails — in the teeth of the judge's finding — he could spend the rest of his life in prison.
Why is Attorney General Ashcroft using his office to punish this man so severely? At a time of national anxiety about Arabs and Muslims, Mr. Al-Najjar is a useful target: a Palestinian Muslim. More broadly, Mr. Ashcroft has claimed power to detain non-citizens even when immigration judges order them released.
It could be, too, that Mr. Ashcroft wants to use this case to establish the right to use secret evidence against aliens. The practice had been all but abandoned by the Justice Department after several judges frowned on it and more than 100 members of the House co-sponsored legislation to proh ibit it.
With all the extreme measures taken by the administration in recent days — detaining hundreds of people, ordering thousands questioned, establishing military tribunals — Mr. Ashcroft and President Bush have assured the country that they will enforce the measures with care, and with concern for civil liberties. Their motto is, "Trust us."
The Al-Najjar case shows that there is no basis for trust.