A federal judge returns the case to immigration court, scolding the judge.
A federal judge Tuesday ordered the case of a man jailed on secret evidence back into immigration court, scolding the presiding judge for not following her orders, yet failing to dictate what should happen next.
The latitude in the ruling by U.S. District Judge Joan A. Lenard could further delay a decision on whether Mazen Al-Najjar, a former University of South Florida teacher, gets bail after being held more than three years without formal charges. He is accused of being a friend of terrorists.
In May, Lenard ordered a Bradenton immigration court to reconsider bail for the Tampa man. She said his constitutional right to due process was violated in 1997 when he was first denied release.
But the rehearing, held over three days in August, abruptly ended when Al-Najjar's attorneys said he was still not getting a fair shake. Lenard ordered the government to give Al-Najjar an early summary of the secret evidence so he could defend himself, but at the hearing the government signaled its intent to share secret evidence only with immigration Judge R. Kevin McHugh.
Al-Najjar's attorneys went back to Lenard, who returned the case to immigration court Tuesday.
An attorney on Al-Najjar's legal team said Tuesday that Lenard's order is a message to McHugh.
"I read it as a strong directive: You have a job to do and I've told you what's included in that job," said Randall Marshall, legal director of the American Civil Liberties Union of Florida. "(McHugh) needs to be concerned about the federal Constitution when he continues the proceeding."
Although Lenard said no secret evidence can be used until the public portion of the hearing is finished, her Tuesday decision did not say when a summary of the secret evidence must be shared with Al-Najjar.
His attorneys want it immediately so they can decide whether it is adequate to prepare a defense. If not, they say secret evidence should not be used at all.
Al-Najjar, a 43-year-old father of three, has been ordered deported for overstaying a student visa; he is appealing. He is jailed because the government says he is a security threat for support of the Damascus-based Palestinian Islamic Jihad. At the hearing in August, the government failed to show that Al-Najjar advocated violence, raised funds or affiliated himself with the group, which is on the State Department's list of designated terrorist organizations.
The proof, says the government, is in the classified evidence.
Al-Najjar says he is innocent and the victim of political prejudice.