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Less than three weeks after hearing the case of Mazen Al-Najjar, a three-judge panel of the 11th U.S. Circuit Court of Appeals sitting in Miami has declined to rule on the federal government’s use of secret evidence in Al-Najjar’s case. In a 28-page opinion released Wednesday, the judges reasoned that a Nov. 13 mandate affirming Al-Najjar’s deportation, issued by another 11th Circuit panel in Atlanta, made the Muslim cleric’s plea before the Miami panel moot. Last month, Al-Najjar’s lawyers had argued before the 11th Circuit in Miami that the federal government had no right to detain their client without providing him with the evidence it allegedly possessed that warranted his detention. The government had sought a judicial stamp of approval for its use of secret evidence in detaining and deporting illegal aliens like Al-Najjar. Thus the Miami panel’s refusal to accept jurisdiction could be seen as a loss for the government. “At issue here is whether our government can lock up human beings without affording them a meaningful chance to defend themselves,” David Cole said after oral arguments in November before the court. Cole, of the Georgetown University Law Center, is Al-Najjar’s lead counsel. The latest ruling follows Al-Najjar’s arrest last month by Immigration and Naturalization Service agents outside his Tampa apartment. It’s the second time Al-Najjar, a Palestinian Arab who once taught Arabic at the University of South Florida near Tampa, has been arrested. A native of Gaza, Al-Najjar was detained in May 1997 by the INS after he was found to be in the United States illegally and that he had suspected ties to the Palestinian Islamic Jihad, a known terrorist organization. He was jailed for three and a half years before U.S. District Judge Joan Lenard ruled last December that his detention was unconstitutional. The 11th Circuit panel on Wednesday declined to address the issue of secret evidence. It noted in its order that the Nov. 13 ruling that affirmed Al-Najjar’s deportation gives the U.S. attorney general “unambiguous authority” to detain him “without regard to confidential information allegedly linking him to terrorist organizations.” Therefore, the court reasoned, the question before the court was moot. “Because the attorney general now has the unfettered power to detain Al-Najjar. it is utterly unnecessary to take up the question” as to “whether classified information can be used to deny bond,” the court said in its opinion. Randall Marshall, legal director of the American Civil Liberties Union in Miami, says the final order of deportation creates “a different set of standards” that the government can use to detain Al-Najjar and “it has nothing to do with secret evidence.” Marshall, who is one of a team of lawyers representing Al-Najjar, says they are considering other options for appeal. “It’s still our position that to the extent that the government is claiming that he is now being detained because he is a threat to national security, that still raises an issue that needs to be looked at by the federal district court,” Marshall says. Al-Najjar’s other lawyers have indicated they plan to ask the U.S. Supreme Court to hear Al-Najjar’s deportation case. Al-Najjar has been taken to a maximum security prison in Tampa where he remains in isolation awaiting deportation. One of Al-Najjar’s lawyers, Ira Kurzban, a partner at Kurzban Kurzban Weinger & Tetzell in Miami, contends that the decision to hold him there is “purely punitive.” Martin B. Schwartz, a solo Tampa immigration lawyer who has represented Al-Najjar since 1997, says his client is “physically and mentally worn down.” The U.S. government is working to secure Al-Najjar’s entry into the United Arab Emirates where he lived before he came to the United States in 1981. But Kurzban isn’t so sure they will take him; if that’s the case he could remain behind bars indefinitely. Meanwhile, Schwartz says, Al-Najjar’s wife, who also faces deportation for having an expired visa, is trying to support herself and her three daughters.

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