ADC Press Release:
Washington D.C., June 1, 2000 – Yesterday, May 31, U.S. District Judge Joan A. Lenard of the Southern District of Florida in Miami ruled that the use of secret evidence in denying bond to Dr. Mazen Al-Najjar is a violation of his due process rights. Al-Najjar is among a number of persons, almost all of Arab ethnicity and/or Muslim religious affiliation, who have been held in jail without charge on the basis of evidence withheld from them, their attorney’s and the public. Dr. Al-Najjar has just started his fourth year of imprisonment under such conditions. The case against him is secret, but appears to be entirely based on his associations and not his activities.
Al-Najjar will be granted a new hearing to determine eligibility for bond in front of an Immigration Judge (IJ), but will remain in detention until the hearing. Judge Lenard vacated earlier findings of the Board of Immigration Appeals (BIA) and
the IJ, holding their reliance on "classified evidence that neither Petitioner nor his counsel were able to review, compromised the fundamental fairness of Petitioner’s hearing by denying him notice of the evidence against him and a meaningful opportunity to defend against that evidence." She found that the inability to be able to cross examine such evidence "posed a substantial risk that the IJ and the BIA could reach an erroneous or unreliable determination" that Al-Najjar should be detained.
Hence, Judge Lenard limited the use of secret evidence, but refused to prohibit it outright for consideration of bond. The ruling holds that the government must provide Al-Najjar with a fundamentally fair hearing that provides him notice and an opportunity to confront the evidence. The Judge held the government’s interest in national security must be balanced with the individual’s right to due process and to rebut allegations made against him or her. The Judge also ruled that "Mere association with a known terrorist organization is not sufficient in and of itself to support a finding of a threat to national security for bond purposes." In the hearing ordered by Judge Lenard, the government must show "more than mere membership or association but rather meaningful association or a ‘degree of participation’ of activities posing a threat to national security" in order for the Immigration Judge to deny bond to Al-Najjar.
ADC President Hala Maksoud said "Once again a court has ruled that secret evidence detentions violate fundamental constitutional and human rights. Clearly the Justice Department has no business locking people up without charge on the basis of secret evidence. We again call upon the Attorney General to release Mazen Al-Najjar, who has suffered through more than three years of this abuse, and to end the use of secret evidence by the Justice Department."
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