It Can Happen Here  

December 1, 2001  

By ANTHONY LEWIS  

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
wife 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
many 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 prohibit 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.  

  http://www.nytimes.com/2001/12/01/opinion/L01LEWI.html?ex=1008239003&ei=1&en=7ca748c36b267b34