[iwar] John Ashcroft is no Founding Father

From: yangyun@metacrawler.com
Date: 2001-12-02 19:21:48

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Date: Mon, 03 Dec 2001 03:21:48 -0000
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It Can Happen Here
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.

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