On the morning of May 17, 1997, Dr. Mazem Al-Najjar, a teacher and father of three young daughters was helping his wife get his children ready for school when there was a knock at the door. Al-Najjar was seized and incarcerated without trial and without bond on the basis of secret evidence. Did this happen in a totalitarian country? It took place in Florida, and just as Al-Najjar languishes in a small cell, with rare visits from his family, so Nasser Ahmed of New York City, also a family man and a documented resident alien, has spent three years in almost continuous solitary confinement on the basis of secret evidence. Eighteen others have been incarcerated on the basis of secret evidence, all but one of them an Arab or Muslim. This situation is called “a civil liberties crisis” by Greg Nojeim, legislative counsel to the ACLU. How did it arise?
Legislation enacted by Congress in reaction to the bombing of the World Trade Center and the federal building in Oklahoma, created the “Anti-Terrorism and Effective Death Penalty Act of 1996.” That same year, Congress also passed the “Illegal Immigration Reform and Immigrant Responsibility Act” which made use of the secret evidence provision in the first act to more easily deport even lawful permanent residents as “terrorists.”
Dr. Al-Najjar is one of the most prominent victims of secret evidence. He was part of the general targeting of an Islamic think tank at the University of South Florida by The Tampa Tribune, whose mentor on the subject, Steven Emerson, is known for his controversial film, “Jihad in America,” less so for his ties with the right-wing in Israel.
New Jersey had its own accused person: Hany Kaireldeen, who this past October walked out of jail after almost 19 months in solitary confinement without charge and on the basis of secret evidence. His case, like that of the others imprisoned, suggests that secret evidence is generally synonymous with weak evidence, since its unchallenged presentation repeatedly failed to impress the judges of the ever higher courts to which the INS appealed. In Kaireldeen's case, it was finally assumed that the FBI had used the accusations of his wife, with whom he was in a custody dispute, as the basis of his incarceration.
On May 23, 2000, the House Judiciary Committee held hearings on The Secret Evidence Repeal Act, H.R. 2121, introduced by Representatives Bonior (D-MI), Campbell (R-CA), Conyers (D-MI) and Barr (R-GA) which would put an end to the use of secret evidence against non-citizens in deportation proceedings and promote the principle that non-citizens are protected by the Due Process clause of the Fifth Amendment. The bill has at least ninety sponsors.
At the hearing, witnesses arguing for the continued use of secret evidence were the Counsels of the INS and the FBI as well as representatives of the American Jewish Committee and the Anti-Defamation League (who also represented B'nai B'rith International, Hadassah, and the Jewish Council for Public Affairs), and Steven Emerson, mentioned above. Witnesses arguing in favor of the repeal were Congressmen Tom Campbell and David Bonior, Prof. David Cole of the Georgetown University Law Center, and Greg Nojeim, legislative counsel to the ACLU. The Committee, under Chairman Henry Hyde, also heard the testimony of Mrs. Al-Arian, sister of Mazen al-Najjar, imprisoned now for three years on the basis of secret evidence, and of Hani Khaireldeen, recently released from prison in New Jersey.
The ACLU's attorney pointed out that the Immigration Reform Act makes use of the court set up by the Anti-Terrorism Act to “expand the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists.” It also included provisions the Government relies upon to use secret evidence to deny bond to any detained non-citizen (regardless of whether the person is accused of engaging in “terrorist activity”).
According to the ACLU's testimony, “the INS has moved in dozens of proceedings to use secret evidence against non-citizens to deny them bond and relief from deportation, such as asylum. In fact, the INS attempts to use secret evidence to deny mandatory relief from deportation,” such as withholding of deportation, which has been available to non-citizens who demonstrate that their life or freedom would be threatened in the country to which they are to be deported.
On the basis of secret evidence, the INS has been denying political asylum to seven Iraqis brought by the U.S. out of Iraq after a CIA plot in which they had taken part failed and put their lives in danger. Their legal team includes former Director of Central Intelligence, R. James Woolsey who was himself denied the opportunity to see the evidence against his clients. Said Woolsey: the use of secret evidence is what “one would expect to find in Iraq, not the U.S.”
The ADL testimony urged that national security interests be balanced with individual liberty and referred to the Classified Information Procedures Act which, in criminal cases, assures the defendant of a summary of secret evidence sufficient for the non-citizen to prepare a defense. It also argued that intelligence sources providing secret evidence might be compromised by revealing it in any way to suspected terrorists. Referring to H.R. 2121, the Jewish organizations represented by the ADL urged Congress “to reject this extreme measure.”
The representative of the American Jewish Committee, on the other hand, urged that use be made of the special court originally envisaged by the 1996 Anti- Terrorism Act. The special court, to be made up of lifetime appointed federal judges, rather than immigration judges, “must approve the unclassified summary to be provided to the alien as sufficient to allow for the preparation of a defense. The defendant would have the right to appeal any adverse decision to the U.S. Court of Appeals for the District of Columbia.” The ACLU's attorney, Greg Nojeim pointed out, in his testimony that this special court, as originally established, failed to meet constitutional standards. The AJC protested the subsequent amendment to the Immigration Reform Law, which allowed proceedings without the necessity for any summary of evidence to a deportee.
Steven Emerson's testimony included lengthy descriptions of the culpability of Al- Najjar and Ahmed while declaring Kaireldeen's case in New Jersey to be the exception. Emerson protested against the argument of supporters of H.R. 2121 that aliens should be afforded the same due process rights as criminal defendents. “In dealing with matters of national security,” he declared, “even a scrap of information may contribute to protecting lives,” and proof beyond a reasonable doubt is asking too much.
ACLU counsel Nojeim testified that “Every court that has addressed the constitutional question in the last dozen years has found the use of secret evidence in immigration proceedings against a person admitted to the United States, or seeking admission as a lawful permanent resident returning from a trip abroad, unconstitutional under the Due Process Clause of the Fifth Amendment.... Though the courts have repeatedly ruled against the INS in secret evidence cases, it continues to bring such cases. The cost has been substantial: years of detention based on unknown, unverified and unverifiable allegations that all too often turn out to be too flimsy to justify such detention.”
In his advocacy of H.R. 2121, Professor David Cole of the Georgetown University Law Center testified that since 1987 he had represented 13 aliens against whom the INS had sought to use secret evidence. “At one time, the INS claimed that all 13 posed a direct threat to the security of the nation.” Today, twelve of those are free and living peacefully in the United States; the case of the thirteenth is still pending. He then set out the points in favor of repeal of the use of secret evidence.
First, it poses “insuperable challenges to the administration of justice.... It is simply not possible to hold a fair adversary proceeding where one side presents its evidence behind closed doors.”
Second, “the INS' use of secret evidence contains practically no safeguards against abuse.” Among the abuses is its use of secret evidence “where it has no affirmative statutory authority to do so, such as in detaining aliens without bond, ”and its failure “to keep any record of many of its secret evidence presentations, thereby defeating meaningful review.”
Third, the presentation of evidence which cannot be challenged has led the government “to engage in sloppy practices,” such as reliance on hearsay and simple assertions.
Fourth, “there has never been any showing that the use of secret evidence is necessary.... In criminal cases, secret evidence is never permitted, no matter how serious the charges, and no matter how much confidential or classified information the government has implicating the defendant.”
Finally, Cole testified, “the use of secret evidence is counterproductive. It poisons the truth-finding process, so we cannot even be certain of whether we have properly identified threats to national security.... It encourages cynicism, paranoia and distrust in immigrant communities, because closed-door proceedings understandably make people fear the worst. That paranoia and distrust in turn impedes the ability of law enforcement to identify true threats in immigrant communities...”
Speaking in favor of H.R. 2121, the ACLU's counsel stated that the bill did not require the release of dangerous terrorists, only the choice between revealing the evidence against a non-citizen or keeping that information “fully secret and outside of immigration proceedings and determinations.”
“The Secret Evidence Repeal Act has five simple themes,” testified Greg Nojeim. “First, the Government may not use secret evidence to deport non-citizens. It eliminates from current law the secret court established in the 1996 anti-terrorism law. It requires the Government to use the same removal proceedings against aliens accused of being terrorists that it uses to remove aliens accused of being deportable for other reasons.”
“Second, the Government may not deny immigration benefits to any non-citizen based on secret evidence.” One of these benefits is political asylum.
“Third, the Government may not deny release on bond to any non-citizen based on secret evidence.... Aliens could still be held while their removal proceedings are pending if, based on evidence in the public record, the alien is a flight risk or a danger to the community.
”Fourth, the Government may not arbitrarily deny admission to return to the United States by lawful permanent residents, people it has paroled into the United States, and asylum seekers based on çonfidential information and without independent review.
Finally, for pending cases, the Act “directs the Department of Justice to either disclose the evidence to the non-citizen or withdraw it from the record, and in either event, the case would be re-heard on the basis of evidence in the public record, unless the Government decided not to proceed.”
The ACLU's attorney concluded that “the Secret Evidence Repeal Act is not designed to help 'illegal aliens'.... It is designed to promote fairness in proceedings when a person's liberty is at stake.” On May 6, Nojeim and ACLU president Nadine Strossen visited Al-Najjar at his prison in Bradenton, Florida. “The whole situation, to be deprived of due process, is so outrageous from its inception,” said Strossen after her visit. “The more people who know about it, the more Americans' basic sense of fairness will come forward.”