SECRET EVIDENCE

By BETH LYON

To enter a strange chapter in America's history, imagine that you are a lawyer sitting in a courtroom next to your client, an indigent refugee seeking political asylum from his country's dictatorial regime. Your opponent calls the government's first witness, a police officer who is going to explain why the government believes your client is a terrorist. The government attorney, the police officer, and the judge all get up and walk into another room, leaving your client (and you) to guess what the judge is hearing and seeing. Subsequently, the judge announces that, based on the secret testimony and classified documents, your client will have to remain in jail indefinitely. In addition, large portions of the judge's written opinion explaining the decision are redacted because they contain classified information.

This anecdote evokes the McCarthy era. It is, however, a description of the procedures taking place in immigration proceedings today. Our government is able to use "secret evidence" -- information that is classified, and need not be shown to the accused -- to detain and deport non-United States citizens who are said to threaten national security. The government has used secret evidence at least 50 times in the five years since the Anti-Terrorism and Effective Death Penalty Act of 1996 greatly expanded the permissible use of secret evidence in immigration cases. The use of secret evidence has not escaped judicial scrutiny, however.

Mazen Al Najjar had received a fundamentally unfair hearing on his immigration status and continued detention. Al Najjar, a Palestinian cleric teaching at the University of South Florida, received cryptic one-line summaries of the secret evidence that has detained him for more than three years. The court ordered a reexamination of Al Najjar's case incorporating greater procedural safeguards, which is widely expected to result in Al Najjar's release and reunion with his wife and three children. One reason for this expectation is the district court judge's common sense statement that the government has to prove some "degree of participation" rather than "mere Îassociation'" with a terrorist group to justify detaining Professor Al Najjar as a national security threat.

Last year, courts forced the INS to release detainees in two highly publicized cases. Each case shows the very real threat to individual freedom and constitutional rights posed by the government's use of secret evidence, and the need to enact pending legislation supported by Democrats and Republicans that would repeal this provision of the 1996 Act.

Egyptian national Nasser Ahmed had qualified for refugee protection because an immigration judge found that he would undoubtedly be tortured if he were returned to Egypt. Unfortunately, his "refuge" was solitary confinement for more than three years, due to his claimed association with terrorist groups -- a charge supported with secret evidence, and not accompanied by any criminal charges.

Ahmed was able to obtain review of the government's secret evidence by an administrative Immigration Judge. The judge not only ordered Mr. Ahmed's release, he also criticized the Immigration and National Service (INS) for submitting as "secret evidence" information that was publicly available (the evidence was a letter from Sheikh Omar Abdel Rahman, which had been distributed to the press). The judge also noted that the secret evidence had been presented to him in the form of affidavits containing double and triple hearsay (an example of triple hearsay would be: "I was told by someone who heard that this person said . . . "). The INS and the Federal Bureau of Investigation (FBI) had refused to provide the actual witnesses for questioning, preventing Ahmed from confronting his accusers. The secret evidence did not withstand judicial scrutiny, and Ahmed was freed from detention.

The other case involved Hany Kieraldeen, a Palestinian who came to the United States in 1990 on a student visa and subsequently applied for permanent resident status. In an opinion ordering Kieraldeen's release, federal District Court Judge William Walls was quite critical of the secret evidence used to detain Hany Kiareldeen. Some of the evidence was furnished by Kiareldeen's ex-wife, who would not testify in court about her conversations with the FBI, and was shown to have made false allegations against Kiareldeen during the course of a custody dispute. Other evidence that purported to connect Kiareldeen with the World Trade Center bombing turned out to be false. Judge Walls concluded that the FBI failed to provide reliable evidence to support its allegations against Kiareldeen, and that this failure violated his Fifth Amendment right to due process. Judge Walls also dismissed the government's legal arguments in support of the use of secret evidence, pointing out that Jay v. Boyd, the 1945 Supreme Court case relied upon by the government, expressly states that the Supreme Court was not addressing the question of whether secret evidence passed constitutional muster. Recently, an appeals court upheld Judge Walls' decision.

The INS' actions in the Kiareldeen case -- the agency fought fiercely to prevent his release even after the FBI had dropped its criminal investigation -- highlight an important quirk under current law. Deportation of someone who is not a United States citizen is not considered a criminal penalty. Likewise, a non-citizen's presence in the United States without proper documentation is not a crime. Therefore, a person subject to a deportation proceeding does not enjoy the same level of protection as a defendant in a criminal prosecution, in which secret evidence is not permitted. Ironically, then, the person most likely to be detained and deported based on secret evidence is most likely the person against whom the FBI has a weak case, because the FBI cannot muster enough non-classified evidence to support a prosecution.

Another due process problem with the use of secret evidence is the government's overclassification and inadequate declassification of documents. These problems reflect a culture of excessive secrecy in the United States' security agencies that ill-qualifies them to wield unbridled power in what is supposed to be a judicial proceeding. The result is the use of evidence with few national security implications, including publicly available data, to be introduced without cross-examination or an opportunity to respond.

Finally, the use of secret evidence implicates larger concerns about bias. According to the American Civil Liberties Union, the law has had a drastically greater impact on a particular ethnic and religious minority; in fact, nearly every publicized secret evidence case in the last five years has involved an Arab American or Muslim.

The government's blunderbuss approach and the courts' sharp criticism of secret evidence have brought together Republicans and Democrats in Congress in an effort to forbid its use. The 93 co-sponsors of the Secret Evidence Repeal Act of 1999 include conservative Georgia Republican Bob Barr and Michigan Democrat David Bonior. The proposed legislation, which would effectively eliminate the use of secret evidence in immigration matters, prompted House Judiciary Committee Chairman Henry Hyde to hold hearings in May evaluating the government's use of secret evidence. To date, however, Chairman Hyde has refused to schedule a mark-up of the bill, which is the next legislative step necessary to keep the proposed measure alive.

The recent judicial decisions releasing detainees are cited by proponents of secret evidence, who say that the growing number of court decisions freeing those detained by secret evidence is proof that the system is working. After all, they note, those who were improperly detained were ultimately freed. This ignores the high price paid by Kiareldeen -- more than a year and a half in jail -- waiting for vindication in the courts.

the broad use of secret evidence. The benefit to national security of introducing secret evidence against suspected terrorists because they happen to be non-citizens is not worth the civil liberties cost. Even the recent, largely conservative report of the blue-ribbon National Commission on Terrorism endorsed increasing the due process safeguards around secret evidence. Such safeguards include keeping records of the in camera judge-and-government only proceedings and permitting detainees to hire attorneys with security clearances, who can then review the evidence for their clients, neither of which the Department of Justice has allowed in previous secret evidence cases.

At the May hearings, the Justice Department insisted that there is no need to change current law even to incorporate these safeguards, and that departmental review of pending cases, accompanied by the implementation of stricter internal controls, is sufficient to address current complaints. However, secret evidence is simply too drastic a prosecutorial tool to be corrected by bureaucratic tinkering. The institutional problems and prosecutorial excesses that landed Ahmed in jail for more than three years are unlikely to self-correct. The Clinton Administration should revisit its priorities and consider whether this minor weapon in the fight against terrorism is worth contradicting the fundamental principle on which our justice system is based: that the state will not deprive a person of liberty without first affording that person due process. Regardless of whether the executive branch can limit its use of maximum prosecutorial powers, it is time for Congress to step in. The summer is wearing on, and though the May hearings were a positive step, without a mark-up soon Congress will lose its chance to act in this session. More Members should step up to co-sponsor the Secret Evidence Repeal Act and like-minded Senators should follow the lead by introducing a parallel bill.

Another witness at the May hearings was Stephen Flatow, a man whose daughter was killed in a 1995 bomb attack in Gaza. He eloquently expressed what Americans fear most about danger to our own. But when our government places its fears above the most fundamental rights, as in the case of the Japanese-American internment camps, the nation is plunged into regret. Trade-offs that seem difficult in the moment become painfully clear. Last year, the Israeli High Court of Justice ended the use of physical methods of interrogation against suspected terrorists. The High Court acknowledged that Israel's security concerns "weighed heavy" on the Court, but that "not all means are acceptable to [democracy], and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand." The United States should take inspiration from these words. The Secret Evidence Repeal Act is the best way to close this regrettable chapter in our civil liberties history.

Beth Lyon is a Practitioner-in-Residence in the International Human Rights Law Clinic of the Washington College of Law, American University, in Washington, D.C.

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