NAHLA A. AL-ARIAN
BEFORE THE HOUSE JUDICIARY COMMITTEE
ON THE USE OF SECRET EVIDENCE AND
IN SUPPORT OF
H.R. 2121 (SECRET EVIDENCE REPEAL ACT)
MAY 23, 2000
Mr. Chairman, the Honorable Henry Hyde, Ranking member, the Honorable John Conyers, Honorable members of the Committee, I thank you for inviting me to testify in support of HR 2121 and against the use of secret evidence in immigration proceedings.
My name is Nahla Al-Arian and Iím a proud American citizen of Palestinian descent. Iím also a mother of five and the proud sister of Dr. Mazen Al-Najjar, who has been deprived of his freedom for 1100 days today, because of the use of secret evidence. This past Friday, my brother entered his 4th year of incarceration without knowing why.
On May 19, 1997, Mazen was handcuffed in front of his three young daughters and taken to a detention facility for supposedly a visa violation. The FBI and INS agents who arrested him brought with them a photographer from a local newspaper, so his picture with his hands cuffed would be published on the first page the next morning. We thought that he would be released on bail in a day or two, like thousands of other similar cases. However, our hopes were quickly dashed when the government used secret evidence against him.
We subsequently found out that my brother was first taken to the FBI office in Tampa, where he was offered by them residency and citizenship if he would "cooperate" and act as an informant. My brother said that he was a researcher and an academic and was not in the line of working as an FBI informant. The insinuation was that he would be punished and would not get bail. At first, they said that he was a flight risk. When they were told that he had a house and a family in Tampa and had no other country that he could to go, they said that they would use secret evidence. The immigration Judge in the hearing said that my brother is respected socially, religiously, and professionally and has strong family and community ties. He then continued that had it not been for the secret evidence, he would have granted him bail.
Needless to say, it was impossible for my brother to defend himself against these Kafkaesque proceedings. He was denied the right to face his accusers, to cross-examine them, and to present evidence on his behalf that would establish his innocence. It was like fighting ghosts. This is what the issue before us today is, pure and simple. My brother is facing an almost indefinite sentence without any charges or indictment, trial, conviction or sentence! Not only has he not faced his accusers, but also he does not even know what the accusation is. There have been numerous examples that proved beyond the shadow of a doubt that when the so-called evidence is cross-examined, the accused immigrant was easily able to dismiss it. The cases of Hani Kaireldeen and Naser Ahmad, who both were imprisoned on secret evidence and subsequently freed after 19 and 43 months respectively through court actions, are just two examples of how this process is flawed. They were also labeled as threats to national security. But they were easily able to defend themselves after obtaining even a small part of the secret evidence that was used against them. When judges hear one side of the story they will rule on the cautious side, but when they hear both sides they render justice. Thatís what our Constitution has guaranteed to all of us. Thatís why we are proud of our system. It should also be noted that the overwhelming number of victims of secret evidence cases are Muslims and/or Arabs. The former CIA director, the Honorable James Woolsey, noted this prejudice in his testimony before the Senate Judiciary committee in July 1998.
When my parents learned of my brotherís incarceration, they were deeply affected, to say the least. My motherís health, in particular, has suffered since. She frequently breaks into tears when she remembers the horrible situation my brother and his family are in. My parents always had high hopes that Mazen, their eldest son, will be there to support them in their old age. Unfortunately, they are now faced with taking care of their son and supporting his family. The pain they feel when they visit their educated, respected, kind, and loving son in the detention facility he is kept in cannot be described.
This spring, I took my 66-year-old father and 63-year-old mother to attend the oath ceremonies, in which they became citizens of this great country. On these joyous occasions, my parents and I felt sad that my brother, Dr. Mazen Al-Najjar, could not be with us to celebrate one of the happiest days in their lives.
Everyone who knows Mazen knows that he is a very peaceful man, who has never been charged with anything, not even a traffic violation. Believing in the principles of freedom and democracy our country upholds, he was eager to come here to continue his higher education and be a benefit to the society.
On December 11, 1981, while I was giving birth to my second child, Mazen arrived in the U.S., and hence I was reunited with my older brother, who has always been a source of wisdom, guidance, and knowledge, not only to me but also to everyone around him. As a pastor to his mosque, Mazen was always there to help and comfort those in need, and to establish tolerance and understanding between the Muslim community and the society at large. As a scholar, Mazen pursued his education and received his masters and doctor of philosophy degrees in Industrial Engineering and Management. In addition, Mazen played an important role in the academic world by establishing a dialogue between Muslim and Western scholars. He was also a teacher at the University of South Florida and was loved dearly by all his students. In addition, over 50 editorials and columns have condemned the use of secret evidence and have called on the government to abolish this un-American procedure including the Washington Post, the New York Times, The L.A. Times, the Boston Globe, The Detroit Free Press, the Miami Herald, the St. Petersburg Times, USA Today, Forbes Magazine and numerous other newspapers and magazines. Not a single respectable mainstream or alternative newspaper or magazine has called for the use of secret evidence.
Nonetheless, Mazenís most rewarding achievement was in raising his three beautiful American-born daughters: Yara (11), Sara (9), and Safa (5). Mazenís unfair detention was devastating to these young girls psychologically, emotionally, and academically. They have been traumatized by this horrible experience. During the 1100 days of Mazenís unjust incarceration, they were only allowed to hug him 4 times! This, my brother told me was the hardest thing in this ordeal- the fact that "his daughters have to live almost like orphans." When he was taken away, his youngest daughter, Safa, who was barely 2 years old at the time, refused to eat dinner for many days without her fatherís presence. She told her mom she was waiting for her dad to come home. The middle child, Sara, had nightmares for weeks, while the oldest, Yara, had withdrawal symptoms that affected her personality and behavior. Last week, I talked to her schoolís psychologist who shared with me a deeply troubling assessment of her. She has told that Yara has grown very angry even towards her own family. There is a lot of resentment and confusion inside her, and that she has been extremely distrustful of everybody. Mazenís daughters are growing up father-less, during a time in their lives when they need him most. Why should three innocent little girls be deprived of their fatherís love and guidance, when he has committed no crime? When they ask why their father isnít with them and what secret evidence means, we, family members and friends, find ourselves trying to explain the unexplainable. To these girls and to all of us, the use of secret evidence that deprives the accused of the right to face the accusation against him and the accusers is unconscionable. This is what happens in far-away places but not here, we all thought. President Clinton, on June 29, 1998, chastised the Chinese at the University of Beijing because of their use of secret proceedings. How can we lecture others about this despicable act while we practice it here at home? It is inimical to the universal principle of human rights. My brother, for the past 1100 days, has lost his freedom without being charged with a single crime! Other victims such as Dr. Anwar Haddam in Virginia, Dr. Ali Karim in California, as well as many others across the nation have fallen victims to this unconstitutional practice. Each victim was snatched from his family to live an unending nightmare. We can expect this to happen in a totalitarian regime, but not here, not in America, the land of the free, and home of the brave.
Some individuals, who are driven by their anti-Arab and anti-Muslim hysteria and biases, want to confuse and muddy the issue by introducing irrelevant information and unsubstantiated allegations in order to try and convict my brother, not on the basis of any facts, not on the basis of our adversarial system of justice, but at best on the basis of guilt by association, by resorting to Nazi tactics of spreading fear and suspicion against a whole community. Iíd like to state for the record that my brother, Dr. Mazen Al-Najjar, has never ever advocated violence or terrorism against any innocent civilians. No one has ever claimed that he did anything illegal nor even said anything that could be construed as support of violence or terrorism. Not a single statement of support to terrorism has ever been attributed to him, let alone an illegal act. In fact, after 5 years of intensive investigation no one has been charged with a single crime. Fear and prejudice should never win the day. Weíve come too far to allow such convoluted logic to prevail.
We believe that the repeal of the current use of secret evidence would not hinder the governmentís ability to appropriately fight terrorism and political violence. It would nearly require the government to address these issues in the adversarial legal framework, which this country has traditionally operated under.
Weíve fallen victims to an incitement campaign against Arabs and Muslims in this country, by some Islamophobes and discredited journalists or self-prescribed experts, in order to silence and intimidate our community. Itís the same tactic that was used in the 1880ís in France against the then vulnerable Jewish community at the time of the infamous Dreyfus affair. A. Engler Anderson, who is a Jewish journalist and a former student of my brother, has recently written an article in which he said: "I emphasize that during my association with him, Mazen showed nothing but the highest degree of respect for Judaism and Jewish culture. As somebody who spent more than four years of his life as a yeshiva bachur, studying Talmud, codes, Jewish philosophy and Chasidic literature, I am clearly in a position to make that assessment." He then continues to say "Mazen Ö is the Dreyfusard of our time." (attached article enclosed).
Mazen is now faced with living in an entirely different environment. The detention facility he stays in is a place where 16 inmates share a cell, the single toilet has a half-wall for privacy, and the food is inadequate, especially since Mazen is diabetic. It gets especially difficult for Mazen, a religious and pious man, during the Holy month of Ramadan, a time in which Muslim families, and the community as a whole, spend time together.
Mazen has spent three Ramadans in such intolerable conditions. How would you react if you were told that a priest or a rabbi had spent three Christmases or three Yom Kippurs in detention without committing any crime?
The U.S. has ratified the convention against torture. This honorable body has passed legislation to enforce U.S. obligations under article 3 of the convention prohibiting return against torture in the country of return. This honorable body should also recognize that the use of secret evidence to continue detention without criminal charges violates U.S obligations under article 1 and the Constitution not to engage in torture.
As a stateless Palestinian refugee, without a country to call his own, my brother Mazen believed very strongly in this country. With its great constitution and principles, he thought he would never be a victim of discrimination. But the use of secret evidence is discriminatory in nature, for if Mazen were a citizen, like his daughters, parents, and many members of his family, it would be impossible to use secret evidence against him. We must uphold our belief in the equality of all human beings. In the words of our 16th president Abraham Lincoln: "I leave you, hoping that the lamp of liberty will burn in your bosoms until there shall no longer be a doubt that all men are created free and equal."
Discrimination, fear, and suspicion are what our children see and deal with nowadays. Muslim women in the U.S., not in Afghanistan, not under the Taliban, feel their rights to be with their loved ones are violated because of this inhumane practice. We teach our children that America is a land that guarantees the freedom of expression, religion, and association, and where the right of due process is made sacred by the constitution. All these constitutional rights are today threatened by the abuse of secret evidence by government agencies. The founding father and first president of this great nation, George Washington said: "Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action."
There is an erroneous conception that Mazen could leave this country whenever he pleases and that this whole ordeal could be over. Or as some in the government would like to say that "my brother holds the key to his chains." Nothing is further from the truth. As a stateless Palestinian refugee, he has no citizenship or residency in any country in the world. In fact he has no passport from any country. He canít go back to his birthplace in Gaza. The Palestinian authority says the Oslo accords donít allow him. We contacted Egypt, the United Arab Emirates, Saudi Arabia, and Jordan, to name a few, but none was willing to take him. Moreover, no other country would take Mazen after the government permanently damaged his reputation. In December, 1998, we obtained a visitor visa to Guyana, in South America, which upon hearing that he was detained on secret evidence demanded to know what the secret evidence was, or they would withdraw the visa. When the U.S. government refused to share the secret evidence, they withdrew the visa. Indeed, he has lived in America for the past 18Ĺ years of his life, and this is where he belongs. This is the only country that his daughters can call home, and he has strong family and community ties here. In fact, when his daughters were told at one time that they might go to Guyana they refused to eat for several days. If many members of congress feel that Elian Gonzales should stay in this country, shouldnít my three American born nieces also stay united in this country with their father and mother?
In April 1998, I came with a group of 11 church leaders from Tampa, Florida, to talk to some officials at the Justice Department about my brotherís predicament. Unfortunately, their hearts were not softened by our pain and suffering. But countless fair-minded men and women of this great land offered their support in this struggle for justice. The support and love in the Tampa community and the public support we have received, have enriched our lives and taught all of us the true meaning of humanity and how to love thy neighbor. Itís heartening to note that the major civil rights, human rights, and constitutional rights organizations in this country from all political spectrum, such as Amnesty International, American Civil Liberties Union, National Lawyers Guild, Americans for Tax Reform, National Association of Criminal Defense Lawyers, American Immigration Lawyersí Association, as well as many religious organizations and affiliations from all faiths, have joined together to support HR 2121 and oppose secret evidence.
I would also like to extend my gratitude and appreciation to the original co-sponsors in the House of Representatives for sponsoring the initiative to ban the use of secret evidence, HR 2121, the Hon. David Bonior, the Hon. Tom Campbell, the Hon. John Conyers, and the Hon. Bob Barr, and also to the other 90 Congressmen and women who have since joined the effort to repeal the use of this shameful procedure. For the past year, my husband and I have talked to many lawmakers here in Congress. We are extremely grateful for living in an open political system that allows us to freely express our point of view and have access to address our concerns to the highest people in power in our country. This is whatís great about America and we must keep it as the beacon of freedom and democracy.
Mr. Chairman, President Dwight D. Eisenhower told us that nations remain great so long as they are good. On that note, I would like to urge every Congressman and woman in this honorable committee to support the Secret Evidence Repeal Act (H.R. 2121). Your vote is a vote for your conscience, for the Constitution, for the future generations, and above all for this great country. As long as my brother and others like him are imprisoned unjustly, a huge part of our lives will be missing. We are crying out for justice- but who will hear our cries?
May God protect us all. May He guide us to the straight path and in the support of true justice. And may He bless our country.
Thank you very much.