Man Held On Secret Evidence

(CBS)  A bail hearing for a man held in Florida since 1997 on evidence he has never seen took a strange twist Monday, when a witness for the detainee took the fifth amendment 99 times during testimony.

Mazen Al-Najjar has been held by the U.S. immigration agency since 1997 on a visa violation.

He has never been charged with a crime but has been held without bail after U.S. government attorneys convinced a judge that classified evidence shows that Al-Najjar is a threat to national security.

Al-Najjar is seeking bail while he awaits a determination on his immigration status, and the judge, R. Kevin McHugh, is being asked to reconsider after a Miami federal court ruled earlier this year that to hold Al-Najjar based on secret evidence is a violation of his rights.

But at the bail hearing, Al-Najjar's brother-in-law, Sami Al-Arian, would not respond to questions posed by government attorneys about his association with suspected terrorists. He invoked his U.S. constitutional right to avoid self-incrimination 99 times.

Al-Arian, who headed a Palestinian think tank at the University of South Florida that investigators believe aided the militant Palestinian Islamic Jihad, would only answer questions no more probing than his address and his relationship to Al-Najjar.

Daniel Vara, an attorney for the immigration agency, presented a series of photographs taken at think tank conferences in the early 1990s showing Al-Arian and Al-Najjar seated at a table with suspected terrorists.

One 1991 photo depicted Sheik Omar Abdel-Rahman, who was later convicted and sentenced to life in prison without parole for plotting the 1993 World Trade Center bombing.

Al-Najjar's attorney, David Cole, objected to showing the photos, saying that the government was attempting to taint Al-Najjar without showing any evidence that he participated in terrorist activities.

"If he can't even be charged with a crime, how can he be a threat to national security?" Cole said.

Al-Najjar's attorneys had asked that the government turn over a declassified summary of its evidence against him, but the judge did not order the government to do so.

"We are fighting in the dark here, your honor," Cole pleaded.

But Vara said that the government has to balance national security interests with Al-Najjar's rights. Further, Vara said, Al-Najjar already knows what the government has learned about him.

Al-Najjar, an Arabic instructor at the university, is one of several immigrants held on secret evidence nationwide.

An Egyptian in New York, a Palestinian in New Jersey and an Iraqi in California were released after they were able to rebut allegations they were terrorists.

The use of secret evidence was sanctioned by the 1996 Antiterrorism and Effective Death Penalty Act, which said "information…collected for national security purposes, shall not be authorized if disclosure would present a risk to the national securty of the United States."

But the law does require that secret evidence be described to the defendant, as the INS attorney, Vara, says it was in Al-Najjar's case.

However, the 1996 law also stated that "an alien subject to removal under this subchapter shall not be entitled to suppress evidence that the alien alleges was unlawfully obtained."

Criticism of the use of secret evidence is growing in Washington, and coming from both sides of the aisle.

In 1999, a Secret Evidence Repeal Act was introduced in Congress.

This year, Congress voted to knock $173,480 — what it costs the INS to detain a person for one year — from the U.S. Justice Department appropriations bill as a symbolic gesture protesting the use of secret evidence.

Senator Daniel P. Moynihan, D.-NY, recently referred to the practice as "Kafka-like."

Rep. Tom Campbell, R.-Calif., a leader of the effort to forbid the use of secret evidence, argues that, "If there is evidence that an individual who is in this country is dangerous to our country, then make that case on the basis of evidence that is presented to the individual, so he or she can confront the evidence and present a defense."

According to the Arab American Anti-Discrimination Committee, "Almost all victims of secret evidence have been of Arab ethnicity and/or Muslim religious affiliation."