Bruce Shapiro | The Nation

"The government destroyed my life," Mazen Al-Najjar said with both anger and wonder. "Slandered me with secret evidence. And all that time, they were after the wrong man. While I was in jail, the terrorists were loose."

A few days before Thanksgiving Al-Najjar sat across a coffee table from me, explicating the relationship between T.S. Eliot and contemporary Palestinian poetry, repeating a Ramadan joke he'd heard at his mosque the night before, pensively analyzing what he called the "terrible crime" of September 11 and how its perpetrators could best be fought. But mostly Al-Najjar talked about the three and a half years he spent in jail, based on still-secret evidence alleging terrorist associations. He stayed locked up until a no-nonsense federal judge declared his detention unconstitutional in May 2000, and an immigration judge, in a new and more fair proceeding, declared the charge unfounded and last December ordered his release. Neither of us had an inkling that just a few days later, Mazen Al-Najjar would end up as one of the post-September 11 "disappeared."

On the morning of November 24, Al-Najjar left his apartment near the University of South Florida, where he used to teach, to get quarters for the laundromat. His wife was at work, his three daughters still in bed. Federal agents arrested him. A Justice Department press release, repeating the same allegations that had been thrown out of court last year, described his arrest as an effort to "address terrorism by using all legal authorities available."

I sought out Al-Najjar before his unexpected second incarceration because the case of this Gaza-born, US-educated PhD is a bellwether challenge to the constitutionality of secret-evidence antiterrorism trials. He had attracted supporters ranging from Republican Congressman Bob Barr to Democrat David Bonior. Yet here was Al-Najjar arrested again, once more labeled a terrorist, locked up for yet another Ramadan. Has the Justice Department uncovered new evidence linking him to Palestinian Islamic Jihad, the group he was once accused of aiding? Or to the September 11 plot?

According to the Justice Department, there is no new evidence. Al-Najjar's latest arrest is ostensibly on technical grounds. Although freed by court order of terrorism charges, he still is under a deportation order for overstaying his student visa. Although he is contesting that deportation (in mid-November he lost a case before the US Court of Appeals for the Eleventh Circuit, which he plans to take to the Supreme Court), the INS may hold someone under a final deportation order for up to six months while it seeks to deport him--but only if he poses a danger to the community or a risk of flight, neither of which the INS has been able to establish.

But the visa issue is just a smokescreen. In fact, Al-Najjar's latest detention appears to be the leading edge of an alarming strategy by John Ashcroft's Justice Department to resuscitate and expand secret-evidence trials and to prepare the way for the imprisonment of noncitizens for virtually unlimited terms.

Until September 11 the use of secret evidence in immigration cases appeared to be finished: All but one of the noncitizens held on the basis of secret evidence had been freed, a Congressional bill restricting the practice had passed the House Judiciary Committee and last year candidate George W. Bush himself denounced secret-evidence trials, after hearing complaints from Arab-Americans in Michigan. But now his Justice Department is seeking broader secret-trial powers than ever--with Mazen Al-Najjar a convenient guinea pig.

Al-Najjar's case aroused strong emotion in Florida even before he became a civil liberties cause célèbre. He arrived in the United States in 1981 after living in the United Arab Emirates. While earning a PhD from University of South Florida and teaching there, Al-Najjar helped establish an Islamic studies center that invited to its conferences a wide range of scholars and speakers from the Muslim world--some of whom espoused controversial views on Israel. In 1995, Al-Najjar's co-editor at the center's journal disappeared and later turned up in Syria as general secretary of Palestinian Islamic Jihad. As a result, the FBI--apparently convinced the center was a front-- seized its computers, videotapes and files and froze its accounts; USF, under intense media scrutiny as "Jihad U," conducted its own independent investigation.

Both inquiries cleared the center of any connection to terrorism--it was, a federal judge would later declare, "a reputable and scholarly research center." But local FBI officials arrested Al-Najjar, its executive director, anyway and detained him on secret evidence. What lay behind the charge was never made public, but court papers hint that agents decided, on murky evidence, that he helped raise money for Palestinian Islamic Jihad and Hamas.

Al-Najjar now believes the FBI may have been hoping to make him an informant. "But I hadn't done anything," he insists. "I hate violence. I have never been a paramilitary. I have never raised money for killers." Finally, last fall, Immigration Judge R. Kevin McHugh heard two weeks of evidence allegedly supporting the government's claim--and promptly slammed the Justice Department for a case "devoid of any direct or indirect evidence" to support imprisonment of Al-Najjar. He refused to rely on secret evidence, because the government did not provide a summary that offered Al-Najjar a meaningful opportunity to respond. Janet Reno, after a personal review of the record, open as well as secret, declined to bar Al-Najjar's release.

Facing the collapse of its terrorism case, the only face-saving course for the INS was to deport Al-Najjar through conventional channels. He had indeed overstayed his student visa. But deportation is no simple matter: Many of the logical destinations for Al Najjar--Egypt, Saudi Arabia--have grown hostile to stateless Palestinians. The INS ostensibly plans to deport him to the Emirates, but his attorneys (including Nation legal affairs writer and Georgetown law professor David Cole) believe it unlikely that the Emirates would welcome him back. Even as the INS is seeking his deportation, Al-Najjar has applied for political asylum, claiming he would face persecution in any of his former homes.

All this still leaves the matter of Al-Najjar's arrest a mystery. Even if the government intends to deport him, why jail a man who repeatedly demonstrated that he is not a flight risk and whose name has been cleared by an Attorney General and a federal immigration judge? Why issue a press release that resurrects allegations already thrown out of court?

The answer may lie, in part, with an accident of geography. Al-Najjar may not be a terrorist, but he is guilty of living in the territory covered by the Eleventh Circuit, one of the most notoriously pro-prosecution, law-and-order appellate benches in the country. Arguments presented by Ashcroft aide Douglas Ginsburg at a November 8 circuit court hearing on Al-Najjar's case suggest a specific goal: establishing a blank-check policy for terrorism prosecutions. Ginsburg argued that even though Al-Najjar has no connection to the September 11 attacks, those attacks should convince the appellate court to set aside a district court ruling that his detention on secret evidence was unconstitutional and simply grant the Justice Department virtual unreviewable power to bring secret-evidence cases. Clearly, Justice thinks that in this courtroom it has perhaps the strongest chance in the nation of securing a new secret-evidence precedent.

At the same time, Mazen Al-Najjar's case plays into a little-noted Justice Department change in policy with sweeping implications for Palestinians and other stateless or unpopular migrants. In mid-November Ashcroft quietly issued a new regulation allowing indefinite detention of noncitizens under a final deportation order if they are deemed to be national security risks and if no country can be found to accept them. Call it Mazen's Law: Should the Eleventh Circuit hand the government its secret-evidence authority, under this new regulation Al-Najjar, a man never indicted or convicted of a crime, would once again be labeled a terrorist and face imprisonment without end.

During his first 1,307 days in prison, Al-Najjar came to believe, he said, that "the government's intention all along was to detain me, not deport me." His new arrest, and Justice's cynical use of discredited charges, suggests that he's right. This time Justice appears determined to keep him far away from the press and his Tampa supporters: Instead of a nearby immigration jail, he's been shipped to solitary confinement in Coleman federal penitentiary seventy-five miles away and may not make phone calls or receive visits from his family for thirty days. The latest--perhaps indefinite--imprisonment of Al-Najjar deeply calls into question the factual and moral basis for the Justice Department's ongoing dragnet.

Viewers of the old spy spoof Get Smart will remember the Cone of Silence--that giant plastic hair-salon dryer that descended over Maxwell Smart and Control when they held a sensitive conversation. Today, a Cone of Silence has descended over all of Washington: From four-star generals to lowly webmasters, the town is in information lockdown. Never in the nation's history has the flow of information from government to press and public been shut off so comprehensively and quickly as in the weeks following September 11. Much of the shutdown seems to have little to do with preventing future terrorism and everything to do with the Administration's laying down a new across-the-board standard for centralized control of the public's right to know.

The most alarming evidence of the new climate emanates from the Justice Department. Investigators still hold in custody 150 of the 800 people rounded up in the aftermath of the attacks. (One detainee died in custody in New Jersey.) No charges have been filed, no hearings convened. The names of nearly all those still held remain classified, as do the reasons for their incarceration. Lawyers for some of the hundreds cleared and released have told reporters of questionable treatment of their clients--food withheld, attorneys blocked from access. Of the 150 who remain detained, only four presumed Al Qaeda suspects have been publicly named. FBI agents frustrated at the lack of progress in their interrogations of those four now mutter in the Washington Post about using sodium pentothal, or turning the suspects over to a country where beatings or other torture is used. The government's stranglehold on information about other arrests makes it impossible to know just how far agents have already gone down that road, or whether the dragnet was mainly a public-relations exercise.

Just as damaging as these detentions is an October 12 memo from Attorney General John Ashcroft reversing longstanding Freedom of Information Act policies. In 1993 then-Attorney General Janet Reno directed agencies to disclose any government information upon request unless it was "reasonably foreseeable that disclosure would be harmful." Ashcroft reverses this presumption, instead calling on agencies to withhold information whenever the law permits: "You can be assured that the Department of Justice will defend your decisions," he writes. Ashcroft is in effect creating a "born secret" standard; in the words of the Federation of American Scientists, the order "appears to exploit the current circumstances" to turn FOIA into an Official Secrets Act.

One after another, federal agencies are removing public data from their websites or restricting access to their public reading rooms. Caution is understandable, but OMB Watch and Investigative Reporters and Editors have both documented egregious examples that seem at best tangentially related to terrorism and more likely designed as butt-coverage for mid-level bureaucrats. The Energy Department has removed information from its web-posted Occurrence Reporting Program, which provides news of events that could adversely affect public health or worker safety. The EPA removed information from its site about the dangers of chemical accidents and how to prevent them, information the FBI says carries no threat of terrorism. More relevant than Al Qaeda, it appears, was hard lobbying by the chemical industry, which found the site an annoyance. The FAA pulled the plug on long-available lists of its security sanctions against airports around the country--depriving reporters of their only tool for evaluating the agency's considerable failures to enforce its own public safety findings. At the Pentagon, news has been reduced to a trickle far more constricted than anything during Kosovo, which in turn was more restrictive than during the Gulf War. So comprehensive is the shutdown that on October 13, presidents of twenty major journalists' organizations declared in a joint statement that "these restrictions pose dangers to American democracy and prevent American citizens from obtaining the information they need."

In the short run, the Cone of Silence did most damage at the Centers for Disease Control. Could the two (at this writing) Washington, DC, postal workers who died of inhalation anthrax have been protected by earlier treatment? Did any of the CDC's doctors or scientists recommend a course of antibiotics for postal workers along the trajectory of anthrax-laden letters? Who knows? With the CDC's staff muzzled, the public and postal workers alike were left with politicians as the conduits for contradictory and inadequate information about the risk.

The uncertain dimensions of the Al Qaeda threat make equally uncertain which information the government publishes might contribute to another attack and what to do about it. But it should be noted that the World Trade Center and Pentagon attacks apparently involved data no more confidential than an airline schedule. The Administration's response has been to treat all information and press access as suspect--an approach that will subvert public confidence and undercut legitimate media scrutiny more than it will damage Al Qaeda. During Vietnam, the famous credibility gap resided at the Pentagon, with briefings and Congressional testimony at odds with battlefield evidence. Just weeks into this war, the Bush Administration is risking a new credibility gap roughly the size of the District of Columbia.

Jitters are not among the clinical symptoms of anthrax.

The Administration is using September 11
to curtail our civil liberties.

A world effort to force an end to the US death penalty is gaining strength.

George W.

Strange as it may seem, Timothy McVeigh and George W. Bush shared the same analysis of McVeigh's execution Monday morning, June 11, in Terre Haute. The Oklahoma City bomber, intoned Bush, "met the fate he chose for himself six years ago"--the perfect mirror of McVeigh's own vision of himself as "the master of my fate," in his citation of William Ernest Henley's "Invictus."

The notion of "fate"--a predetermined outcome--sanitizes state-sponsored killing even as it fulfills McVeigh's megalomaniacal delusions. But fate had nothing to do with it. Death sentences are a matter of caprice rather than legal predetermination, as evinced by the twenty-one of twenty-three federal death-row inmates remaining in Terre Haute whose "fate" was to be born nonwhite. Myth: "The severest sentence for the gravest of crimes," as Bush declared that Monday, employing McVeigh as a handy fig leaf for a federal death row even more racially out of kilter than its state counterparts. Reality: The capital trial norm remains "the death penalty not for the worst crime, but the worst lawyer," in the words of litigator Stephen Bright.

One salient political and legal fact received scant consideration Monday: Because it was a federal execution, McVeigh's killing was the first in two generations on behalf of all of us. But "all of us," or even the majority of us, no longer support the death penalty. The government has gone back into the killing business at the very moment when the national capital punishment consensus has eroded, as indicated by polls showing support for death sentences slipping below 50 percent if replaced by life terms without parole. McVeigh's execution was supposed to turn this trend around. Instead, the FBI's documents blunder and the generally sordid spectacle from Terre Haute only fed public unease.

Sanitizing was pretty much the universal order of business Monday. The news media made much of their sensitivity to Oklahoma City's survivors. But only the Daily Oklahoman consistently noted the diversity of survivor opinion on McVeigh's execution, and among broadcasters only KWTW, an Oklahoma City station, reported that nearly a third of the 325 people who had reserved chairs for the closed-circuit telecast elected not to show up. And only the Chicago Tribune has bothered to report--in an interview with an anesthesiologist shortly before McVeigh's original execution date in May--that lethal injection deaths like McVeigh's are often far more painful than they may appear to witnesses. The closed-circuit telecast of McVeigh's killing also offered powerful ammunition against the argument from some leading abolitionists that public broadcasts of executions would lead to widespread outrage against them. "It was such a peaceful death. That made it more palatable," witness Archie Blanchard said on NBC, after confessing that before the telecast it had been "hard to think about being there."

Also missing from press coverage was any recognition of McVeigh's forgotten conspirators. Not John Doe #2, but the wide range of "mainstream" right-wing politicians and broadcasters and publishers and gun lobbyists who exploited the Branch Davidian deaths in Waco with wild conspiracy theories, ratifying McVeigh's delusional rage and naming his enemy. Just a few of those sharing collateral guilt: the National Rifle Association, which not long before Oklahoma City called the Bureau of Alcohol, Tobacco and Firearms "jack-booted government thugs, federal agents wearing Nazi bucket helmets and black storm trooper uniforms to attack law-abiding citizens"; Representative Helen Chenoweth, who declared that America's national parks had been taken over by the United Nations; Senator Bob Smith, who temporarily dropped his GOP affiliation in favor of the paranoid, antigovernment populists of the US Taxpayers Party; and antichoice fanatics who pointed the way to Oklahoma City with their abortion clinic bombings in the early nineties. It is easier to treat Tim McVeigh as an inexplicable aberration who can be evicted from history than to recall just how widely evident were obsessions like his.

President Bush and Attorney General Ashcroft now turn their attention to Juan Raul Garza, scheduled for execution on June 19. In between, Bush traveled to Europe, arriving in Spain, which was in an uproar over a falsely convicted Spanish citizen recently released from Florida's death row. America's death penalty has for years baffled our European partners, but it is only now becoming a serious diplomatic and political issue. France is refusing to extradite Buffalo abortion doctor shooter James Kopp until prosecutors agree to spare him from capital charges, and Germany is suing the United States over the execution of a German national who was never informed of his consular rights. In Ireland, voters on June 7 overwhelmingly approved a referendum permanently abolishing capital punishment from the country's Constitution. Capital punishment now isolates the US abroad as it divides Americans at home. The McVeigh execution, instead of marking a new era of federalized capital punishment, may turn out to be the high-water mark before the long-overdue retreat of the capital punishment tide.

For more information, see our Death Row Roll Call.

For more information, see our Death Row Roll Call.

There is probably no punishment more painful to Timothy McVeigh than the great joke just played by the cosmos. In his fantasy life McVeigh has fancied himself a sort of stoic samurai, avenging himself on the FBI for Waco and then committing hara-kiri by halting appeals. In one letter McVeigh referred to his impending execution as a version of "suicide by cop"; he has planned as his last words William Henley's war horse "Invictus": "I am the master of my fate/I am the captain of my soul." It's taken another spectacular FBI blunder to puncture McVeigh's grand delusion. Now Attorney General Ashcroft promises that McVeigh will be executed in Terre Haute on June 11 come hell or high water, but don't bet on it. McVeigh's game is to control his story by any means possible, and he may still play the only Invictus card left in his deck by initiating the appeals he previously rejected.

In the weeks leading up to the May 16 execution date, pundits predicted that McVeigh's execution would restore popular confidence in capital punishment. Instead, we have gotten a national teach-in on one of the defining evils of capital trials: the fallibility and corruption of law enforcement. If the FBI can "misplace" a cache of documents in the most notorious death-penalty case since the Rosenbergs, is it any wonder that nearly 100 factually innocent people have ended up on death row in recent years?

While McVeigh's case has in many ways been historically unique, in this respect it is typical. Back-drawer evidence is part of the everyday landscape of capital punishment in America. According to Columbia University professor James Liebman's remarkable study "A Broken System" (available online at justice.policy.net/jpreport), vital suppressed evidence has led to dismissal of one in five capital cases since 1973. (More than half of capital cases, Liebman found, are dismissed or retried for "grave constitutional error.") When it comes to capital punishment, the last-minute "oops" is the norm, not the exception. That so many executions go ahead anyway is only because of the current Supreme Court's cavalier attitude toward evidence discovered after a death sentence is pronounced. Justice Rehnquist complains of the "enormous burden that having to retry cases based on stale evidence" would demand.

Why did President Bush and Attorney General Ashcroft delay McVeigh's execution? To "protect the integrity of our system of justice," in Ashcroft's words, which he defined as "a more important duty than any single case." In other words, official malfeasance, undisclosed evidence and public uncertainty all demanded a timeout. Fair enough.

In reality, though, in capital cases "the integrity of the system of justice" is already nonexistent. Just since January, judges in Louisiana, Texas, New York and Massachusetts have ordered the freeing of two innocent death-row inmates and four innocent lifers--their stories full of coerced confessions, doctored documents and suppressed evidence. Consider Ronnie Burrell, released from Louisiana's Angola State Penitentiary in January, who came within two weeks of execution in 1996 for a murder he didn't commit. He had been arrested by a small-town sheriff trying to distract attention from his own corruption and was convicted on the purchased testimony of a career con man. All this came out only because his appeal was taken up by a Minnesota corporate lawyer in search of pro bono work who had a family connection to Louisiana.

Unlike Burrell, McVeigh's factual guilt is not in doubt (although the bomber's degree of culpability and mental state could yet form the basis for appeals of his death sentence). If the FBI's suppression of documents in his case, intentional or not, justifies a timeout, what about the rampant errors in dozens of frame-ups like Burrell's? Doesn't the systemic accumulated record of lost evidence, law-enforcement misconduct and outright factual innocence demand a timeout on all executions? In the final irony of the McVeigh case, which so often has managed to pull the system inside out, George W. Bush and John Ashcroft have now offered one of the best arguments yet for a national death-penalty moratorium.