Courts threaten anti-terror effort

Liberal Judges Could Force Either Release of Classified Information or Suspected Terrorists

The Immigration and Naturalization Service (INS) has come in for severe criticism-usually justified-for failing to do enough to deport aliens who are here illegally. Deportation proceedings, even when they are brought, drag on for years. And the INS, lacking sufficient resources, detains no more than a tiny fraction of those it is. trying to deport. Not surprisingly, even when the INS manages to obtain a final order of deportation, many of those illegal aliens simply skip town.

To its credit, the INS has made a real effort to detain and deport one category of illegal aliens-those it views as a serious threat to public safety. But now even those, efforts are being undermined by the judiciary. In case after case, federal courts are prohibiting the INS from detaining dangerous illegal aliens pending deportation, even in instances in which the illegals are suspected of association with terrorist groups.

In one recent case, for example, a New Jersey federal court ordered that an illegal alien be released from detention despite evidence that he may have been involved in the plot to blow up the World Trade Center in 1993.

Undetained Illegal Aliens

In another case, an illegal alien in Florida facing a final order of deportation was ordered released from INS detention, despite evidence that he may have been a major fundraiser for Palestinian Islamic Jihad (PIJ), a group certified as a terrorist organization by the State Department.

These decisions suggest that the federal courts may be primed to strike down key provisions of the anti-terrorist legislation adopted by Congress last month. Thanks to the courts, the government's ability to prevent suspected alien terrorists from roaming America's streets is in serious jeopardy.

The Florida case is particularly alarming. Mazen al Najjar is a Palestinian living in Tampa, Fla., who came to the United States in 1981 on a student visa. The INS has been trying to deport al Najar since 1985 for failing to comply with the conditions of his visa. Indeed, at his initial hearing before an administrative judge, al Najjar conceded that he was here illegally and thus was subject to deportation. He nonetheless asked that his status be adjusted to that of a permanent resident alien-that is, that he be declared a legal immigrant. He based the request for adjustment in status on a claim for political asylum and because his three children were American citizens by virtue of their birth in this country.

The case dragged on from 1985 to 1999, when the Board of Immigration Appeals (BIA) denied any adjustment in status and issued a final order of deportation. Al Najjar then sought federal court review. This past July a federal appeals court upheld the BIAs decision. Al Najjar nonetheless remains in the country while his lawyers from the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (William Kunstler's old group) plot their next move.

The matter ceased being a run-of-the-mill illegal alien case in 1997, when the INS received information that al Najjar may have been a major - fundraiser for Palestinian Islamic Jihad (PIJ), a terrorist group responsible for numerous murders of Israelis and Americans. In the late 1980s, al Najjar helped found the Islamic Concern Project (ICP), a charitable organization; and the World and Islam Studies Enterprise (WISE), a think tank ostensibly committed to educating the public about Islamic issues. Government investigators believed that ICP and WISE were used as fronts to raise money for PU and other terrorist groups. WISE's close ties to the PU were confirmed when its research director, Ramadan Abdullah Shallah, left the United States in 1995 and within months had been installed as the PIJ's new leader. Throughout this period, al Najjar served as ICP's project manager and WISE's executive director and worked closely with Shallah.

Based on its concern over Al Najjar's suspected support of terrorist activity, the INS in May 1997 took him into custody and-held him without bail on the ground that he posed a threat to national security.

Al Najjar immediately sought an administrative hearing to contest his detention. At the hearing, the INS introduced largely uncontested evidence that WISE and ICP had funneled significant funds to PIJ. Al Najjar's defense was that, despite his senior positions at WISE and ICP, he was unaware of the fundraising activity. In response, the INS introduced classified evidence regarding al Najjar's direct involvement. The classified evidence was shown to the administrative law judge but not to al Najjar. Al Najjar was informed that the classified evidence tended to demonstrate his association with PIJ.

No limits were placed on al Najjar's defense, including his introduction of evidence in an effort to show that he did not have any association with the PIJ. In June 1998, the administrative judge issued a decision that al Najjar posed a threat to national security and thus that the INS acted properly in detaining him without bond.