I was channel surfing on a Monday night, trying to stay awake while finishing a big paper due the next day. An episode of “The Practice” caught my attention: Mr. Habib, an Arab man, was arrested on the basis of “secret evidence.” FBI agents charged through his home and detained Habib without disclosing the nature of the accusations against him. What ensued was a heated debate on ethnic profiling and the future of civil rights in the United States. This episode hit a little too close to home.
In May 1997, my uncle, Mazen Al-Najjar, was arrested and detained on “secret evidence,” evidence neither he nor his lawyers could see, let alone refute. For 1,307 days, Al-Najjar sat in a Florida jail cell, without ever being charged with a single crime.
Al-Najjar’s detention sparked a nationwide movement to end the unconstitutional use of secret evidence, reserved for Muslim -Arab immigrants. Government officials from Representatives David Bonior (D-Mich.) to Bob Barr (R-Ga.) worked together to draft a bill repealing the use of secret evidence in American courtrooms. Over 130 members of congress supported the legislation. During the second presidential debate, then-candidate George W. Bush voiced his concern over the procedure saying, “There [are] other forms of racial profiling that go on in America. Arab-Americans are racially profiled in what’s called secret evidence .We got to do something about that.” Reputable organizations such as Amnesty International also rallied behind Al-Najjar, dubbing him a “prisoner of conscience.” Newspaper editorial boards across the country also harshly criticized the use of secret evidence.
Three and a half years after he was detained, Al-Najjar finally got his day in court, when a federal judge in Miami ruled that his constitutional rights were violated. His case went back to an immigration judge, who ruled unequivocally that Al-Najjar was not a terrorist and has never supported terrorism. In fact, in his ruling, Judge Kevin R. McHugh wrote, “there are no factually legitimate and bona fide reasons to conclude that [Al-Najjar] is a threat to national security.” After examining his case, then-Attorney General Janet Reno ordered Al-Najjar released in December 2000. The saga does not end there, though.
Last November, Al-Najjar was once again arrested. When he was released, the government had been badly humiliated and now, by purporting to “fight terrorism,” this was finally payback time. One problem – government officials are making the same charges Judge McHugh said they failed to prove the first time. Under deportation for a visa violation, Al-Najjar, a stateless Palestinian refugee, has no place to go, leaving his detention indefinite. Though the court ruled that Al-Najjar is not a national security threat, he is now confined to a maximum-security prison in solitary confinement and strip-searched twice a day.
David Cole, a professor of Constitutional Law at Georgetown Law School and one of Al-Najjar’s lawyers, recently said, “[Americans] are not saying, `I’m willing to give up my liberty for my security.’ We’re saying, `I’m willing to give up his liberty for my security.’ That’s an easy call, but it’s not a fair call.”
As we prepare to commemorate Martin Luther King, Jr. Day next week, we must ask ourselves if we are willing to abandon the precious principles our nation was founded on justice and liberty in the fight against terror. How far will we go? It was Dr. King who once said, “Injustice anywhere is a threat to justice everywhere.” When the rights of one group are threatened, we must all be concerned. How we respond to the threat against civil rights will have enormous implications – on the future of our own nation and on the precedent we set for other countries around the world. America has certainly experienced some dark chapters in its short history, and rather than repeat these mistakes, we must learn from them. Otherwise, many more innocent men and women will be unjustly deprived of their freedom and we will need a lot more than an episode of “The Practice” to awaken us.