A Palestinian cleric jailed on secret evidence and without formal charges for three years was subjected to an ``unfair'' and ``tainted'' process and must be given a new, open hearing that could lead to his release, a federal judge ruled Wednesday in Miami.

U.S. District Judge Joan Lenard sharply criticized the Immigration and Naturalization Service's reliance on classified evidence that neither Mazen Al-Najjar, now 42, of Tampa nor his attorneys were able to review or rebut.

In a passage harkening to the congressional witch hunts of Communists in the 1950s, she also ruled that Al-Najjar cannot be punished for merely associating with alleged terrorists from Islamic Jihad. She said a defendant must pose an actual threat to national security.

But Lenard refused to order Al-Najjar released on bond, as requested by his attorneys. He will remain in Bradenton's Downtown Detention Facility pending a new hearing before an INS administrative judge.

That hearing could come within a month, his attorneys said, and will be conducted under guidelines of fairness established Wednesday by Lenard. They expect those proceedings to end with Al-Najjar's release after more than 1,100 days of confinement.

``It's a partial victory,'' said his sister, Nahla Al-Arian of Tampa. ``At least now, I respect the judicial system, but I feel disappointed because I want him out tomorrow.''

INS spokeswoman Maria Elena Garcia said the agency had not yet reviewed the ruling and could not comment on it.

Al-Najjar's attorneys hailed Lenard's decision as a victory for Al-Najjar and for basic constitutional safeguards.

``Mr. Al-Najjar is a lot closer to being released,'' said Howard Simon, executive director of the American Civil Liberties Union of Florida, which participated in his appeal. ``Maybe more significantly, we're seeing one more nail in the coffin of ending the abominable process of locking people up with secret evidence.

``It's a practice that more characterizes dictatorships than a democracy.''
TERRORISTS?

Propelled by reports in The Tampa Tribune, federal authorities claimed in 1997 that Al-Najjar and his brother-in-law, Sami Al-Arian, were ``mid-level operatives'' in a Tampa-based cabal of Mideast terrorists connected to Islamic Jihad.

The only substantiation published by the newspaper or revealed by authorities: While teaching at the University of South Florida, the men knew and communicated with terrorists or alleged terrorists.

In interviews with The Herald, both men described themselves as peaceful advocates of Palestinian rights and victims of anti-Muslim and anti-terrorism hysteria. They said they did not know their associates had connections to Jihad.

``We are not granted freedom of expression in this country by the government,'' Al-Najjar told The Herald in 1998. ``I know the Constitution grants us that, but I know that we don't have it.''

Al-Arian, who was never arrested, was suspended from USF for two years, but he returned in 1998.

Al-Najjar, a full-time Muslim cleric in Tampa and a part-time teacher at USF, was arrested May 19, 1997, for immigration violations. Pending deportation, he was ordered held without bond as a security risk.

The government presented secret evidence to the immigration hearing officer. Neither Al-Najjar nor his attorney was present. They still don't know anything about that evidence, and they were unable to confront their accusers.

`PROBABLY GOSSIP'

``Like most of these cases, the evidence was probably gossip, hearsay and unsubstantiated allegations,'' Simon said.

No criminal charges were filed, but Al-Najjar has been in jail ever since. He has a wife and three children.

A decades-old law allows the INS to employ secret evidence under certain circumstances, but that law was undermined last year by a federal ruling in New Jersey.

In that case, a Palestinian man jailed for 18 months was freed after a federal judge ruled that the use of secret evidence violated the Constitution. It turned out that the ``evidence'' against him had been provided by an ex-wife and was untrue.

In addition, Congress is considering a bill that could alter or abolish the practice. Nearly 100 members of the House support the measure.

Al-Najjar's attorneys ultimately took the case to federal court, pleading for his release on constitutional grounds. The case was heard in Miami because that is the location of the INS regional office.

In her 70-page decision, Lenard said the use of secret evidence violated Al-Najjar's rights to ``confront and rebut that evidence, and [to] a fundamentally fair hearing.''

NO HEARING RECORD

She said the INS then ``compounded the deprivation of a fair hearing'' by failing to maintain a record of the hearing.

In addition, she ruled that the entire basis of the government's case might not withstand scrutiny. The government accused Al-Najjar of working at a Tampa-based think tank with a man who later emerged as a leader of Islamic Jihad.

``This court finds that the mere `association' with a known terrorist organization . . . does not constitute a reasonable foundation . . . for the conclusion that Petitioner [Al-Najjar] was a threat to national security,'' Lenard said.

Martin Schwartz, a Tampa attorney who represents Al-Najjar, said that portion of the ruling strikes at the very heart of the government's case.

``I've been arguing that there is no basis for the INS to determine that Al-Najjar is a threat,'' he said. ``She said explicitly that association does not make somebody a threat.''

Lenard ordered the INS to conduct a new hearing under conditions consistent with her ruling. Al-Najjar's lawyers said that means the agency will have to reveal its secret evidence or rely solely on its vague public comments.

That almost guarantees that Al-Najjar will be released on bond, they said.