THIRD BOND HEARING IN CASE OF PALESTINIAN HELD ON SECRET EVIDENCE

This week saw further developments in the case of Mazen Al-Najjar, the Palestinian cleric and former professor who has been in INS detention for more than three years based on evidence the government will not allow him to see.  The government accuses Al-Najjar of being a terrorist, and claims that the evidence that proves this cannot be revealed for reasons of national security.  More that three years ago Immigration Judge Kevin McHugh ordered Al-Najjar detained on the basis of this evidence.

Earlier this summer a federal judge ordered McHugh to hold another bond hearing, and make a decision based on the evidence the government was willing to share with Al-Najjar and his attorneys before addressing the secret evidence.  (Covered at http://www.visalaw.com/00jun3/9jun300.html.)  A few days into the hearing, it was stopped when Al-Najjar’s attorneys filed an emergency motion with the federal court after McHugh announced his intention to examine the secret evidence before ruling on the public evidence.  (Covered at http://www.visalaw.com/00sep1/5sep100.html.)  A few weeks ago the federal judge again ordered McHugh to hear all of the public evidence against Al-Najjar before addressing the secret evidence.  (Covered at http://www.visalaw.com/00sep3/7sep300.html.)

This week Al-Najjar was given another bond hearing.  McHugh refused to order the government to release the secret evidence to Al-Najjar’s attorneys at the beginning of the hearing, leaving them in the dark as to the nature of the government’s evidence against him.  The lead attorney, David Cole, who is a professor of law at Georgetown University, argued that the federal judge’s ruling meant they should receive a declassified summary of the evidence before the hearing began.  McHugh disagreed, and without knowing what they were up against, Al-Najjar’s attorneys called former colleagues to testify as character witnesses.  They testified that Al-Najjar never discussed violence or terrorist activities, and that he is a peaceful person.

Al-Najjar’s attorneys also submitted affidavits from four people who said Al-Najjar was not associated with terrorists.  The government sought to keep the evidence out of the record, but McHugh allowed them in after Cole pointed out that it would be the “height of hypocrisy” to allow the government to base its entire case on secret evidence but not to allow the introduction of written affidavits.

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