SECRET EVIDENCE UNDERMINES THE U.S. CONSTITUTION

By Paul De Rienzo
and Joan Moossy

Picture a world where defendants are denied the right to face their accusers and even lawyers are prevented from seeing evidence used to justify a government prosecution. For example, Peru's notorious military courts feature anonymous judges wearing black hoods, and summary executions are not uncommon in Iran, but such a world isn't limited to authoritarian regimes. The United States Department of Justice has itself been deliberately pursuing the use of what the government calls "classified evidence," but what opponents say is in fact secret evidence. In about two dozen deportation cases, almost exclusively targeting Muslims and people of Arab descent, secret evidence has sufficiently alarmed a small but growing group of lawyers and judges, so that recently Representatives David Bonior (D-MI) and Tom Campbell (R-CA) signed onto the Secret Evidence Repeal Act of 1999 (HR2121). If passed, the law would prohibit the use of secret evidence in current and future immigration proceedings.

With support from only about 20 members of Congress, Bonior's law isn't given much of a chance, and last February, in a major government victory, the United States Supreme Court ruled that, in the long-running case of eight supporters of the Marxist organization Popular Front for the Liberation of Palestine, the First Amendment is not a defense for an alien fighting deportation as a "member of an organization that supports terrorism." According to Georgetown University law professor David Cole, the court's decision is a departure from previous high court rulings that said the First Amendment does not "acknowledge any distinction between citizens and resident aliens."

INS spokesperson Russ Bergeron takes issue with that analysis. He says that because the eight were in the United States in violation of their visas, the Supreme Court ruled that they could in fact be singled out and selectively prosecuted because of their association with "terrorist" organizations. Bergeron implies that the decision is a no-brainer because the Court ruled that only if "an individual is in the United States illegally, [does] U.S. law allow arrest and prosecution based on their relationship with a terrorist group." But activists from immigration lawyers to the American Civil Liberties Union say that an anti-immigrant steamroller has been put into motion at the highest levels of government that threatens the civil rights of U.S. citizens as well as immigrants. Many of the technical violations used against the immigrants targeted by the INS are minor, and in some instances charges of immigration fraud were brought only after the government had lost cases using "classified" evidence against immigrants in the lower courts. The INS claims "classified" evidence is used against no more that a dozen immigrants out of tens of thousands of immigration cases handled each year, and that the prosecutions are no threat to those living legally in the United States.

The story of Nasser Ahmed, who has spent most of the past three and a half years in solitary confinement in New York's Metropolitan Corrections Center facing deportation on the basis of secret evidence, exemplifies, to his defenders, all that is wrong with the government's unyielding insistence on the need for using secret evidence. David Cole, who is on Ahmed's defense team, says that "revealing the INS's secret evidence would not so much jeopardize national security as reveal that the cases are indeed based on nothing more that guilt by association." Immigration Judge Donn Livingston, in a July 30th ruling ordering Ahmed's release, said that "a poisonous atmosphere created by secret accusation is impossible to completely eradicate."

Ahmed attended a Brooklyn mosque where he met a blind cleric, also from Egypt, who was an occasional speaker there, and who advised Ahmed on some family problems. Sheik Omar Abdel-Rahman was a fiery advocate of Islam and a long- time opponent of the Egyptian government, then in bitter conflict with the Islamic activists. Shortly after the 1993 World Trade Center bombing, Sheik Rahman was arrested and charged with conspiring to murder Egyptian President Hosni Mubara and bomb major New York City landmarks, as well as FBI headquarters. Rahman was eventually convicted and sentenced to life in prison. During the trial, Ahmed was hired and paid under a U.S. Government program to act as a translator for the Sheik's defense team. One of Rahman's lawyers was Abdeen Jabarra, a former president of the Arab- American Anti-Discrimination Committee.

According to Jabarra, during the Sheik's trial Ahmed was picked up by agents of the Immigration and Naturalization Service, who made him an offer of informing for the FBI or facing deportation. Jabarra said that the INS agents made the ominous threat that Ahmed knew "what will happen if you are deported back to Egypt." Ahmed refused the INS overtures and was arrested, but was later released on $15,000 bond while his lawyers pursued an application for political asylum. One year later, on April 23, 1996, while entering the INS office for a hearing on the political asylum claim Ahmed was again arrested. This time, instead of going to the INS jail, he was taken to the MCC and placed in administrative detention, better known as solitary confinement. When his lawyers tried to get Ahmed out of jail, they were confronted for the first time with secret evidence.

At issue was whether Ahmed was entitled to political asylum. Jabarra remembers the defense team pleading for access to the evidence against their client--"How can we possible defend against these ghosts?-- he remembers one of the lawyers saying. The judge suggested the possibility of security clearance for some member of the defense team, but the INS refused, although lawyers in Jabarra's office had been granted clearance in other cases. Eventually, under pressure from Ahmed's lawyers, the INS relented and provided a half-page document limited to biographical information. Judge Livingston added a single sentence when he said that the secret evidence concerned Ahmed's "association with known terrorists."

INS spokesperson Russ Bergeron says the government is perfectly justified in using "classified" evidence because it's their responsibility to use the "best admissible evidence" in an immigration prosecution. He says that "classified" evidence is subject to detailed review by the Attorney General; in the case of Ahmed, Bergeron adds that the Attorney General agreed that the "evidence says he needs to be detained."

The ACLU got involved, and after years of wrangling, much of the "classified" evidence was released and the case was sent back to Judge Livingston, who was then able to hear Ahmed's rebuttal of the once-secret evidence that had kept him in jail. Judge Livingston's decision ordering Ahmed's release argued that the most troubling problem with the use of secret evidence was the government's reason for classification, since a classified source could be chosen to present unclassified information to the judge for the purpose of hobbling the defense. Abdeen Jabarra says he has the greatest respect for Judge Livingston because "there aren't many judges who are willing to go against the government or reverse themselves when they are wrong." Unfortunately, Ahmed remains in jail because the INS is appealing Judge Livingston's ruling. Bergeron says that while Judge Livingston is "entitled to his own opinion," he is an immigration judge and his decision applies to immigration law, not constitutional law.

The Florida case that moved Representative Bonior to speak out against secret evidence concerns a stateless Palestinian, Dr. Mazen Al-Najjar, who came to the United States in 1991 and was arrested by the INS in 1997, after the FBI investigated a think tank that he ran for Middle East oriented faculty at the University of Southern Florida. The Government's investigation began after the former director of the World and Islam Studies Enterprise, or WISE, left Tampa in 1995 and turned up as the overseas head of a group called Islamic Jihad. The FBI got a search warrant for the offices of WISE and the home of Al-Najjar's brother-in-law, and found fund-raising literature supporting Hamas, another militant Palestinian group. In an affidavit, the government says that the letter was signed by Al-Najjar's brother-in-law and "appeals for support for the Jihad so that the people will not lose faith in Islam."

Classified evidence was not invoked during Al-Najjar's deportation hearing. But the court heard testimony from a Federal agent who called Al-Najjar a mid-level operative in a terrorist front. After being held by the INS without bail, Al-Najjar asked an immigration judge to review the INS decision. The INS gave the judge secret evidence to review. One page that was eventually released stated simply that Al-Najjar was "associated" with Islamic Jihad.

Al-Najjar's case has attracted some powerful defenders, including Reverend Jesse Jackson, as well as Representative Bonior, who chose the anniversary of Al-Najjar's second year in jail to introduce his bill banning secret evidence. Bonior, the House minority whip, has met with President Bill Clinton and Attorney General Janet Reno to appeal for Al-Najjar's release. He says Reno was unsympathetic, expressing her "comfort" with the handling of Al-Najjar's case. Russ Bergeron of the INS says that if Congress changes the law, then the INS will "abide by that law." Meanwhile, a group of Al- Najjar's supporters have formed a community group that has been lobbying against the use of secret evidence. Deputy Attorney General Eric Holder responded to the group that the evidence is "highly relevant and therefore appropriately used."

David Pugh, spokesperson for the National Coalition to Protect Political Freedom, says that "the government is trying to set both political and legal precedents in using secret evidence, applying it to those they perceive as the most vulnerable sections of the population." Activists like Pugh point to the Anti-Terrorism and Effective Death Penalty Act of 1996. That measure, passed after the Oklahoma City bombing, originally gave the federal government broad new powers to investigate and prosecute acts of domestic terrorism. Opposition from conservatives and civil libertarians caused Congress to revise the Act by removing most provisions dealing with U.S. citizens. But one provision, which requires the secretary of State to designate groups as "terrorist," has led to one of the most serious legal assaults against the law. The Anti-Terrorism and Effective Death Penalty Act makes it illegal to "knowingly" engage in fund raising or provision of material support to a group listed as "terrorist,"even if the activity being funded is purely humanitarian. This has drawn lawsuits by groups and individuals claiming that the anti-terrorism law violates their First Amendment rights. In 1997, the Liberation Tigers of Tamil Eelam, from Sri Lanka, sued to overturn their designation as a terrorist organization. A Federal lawsuit was filed in March 1998 by the Los Angeles based Humanitarian Law Project to challenge the ban against funding the lawful activities of groups designated as "terrorist."

The INS says it's not shying away from enforcing the 1996 law, although none of the immigrants currently facing deportation under "classified" evidence are being charged under the law. Bergeron says legal residents of the U.S. may face deportation under the law if their activities are interpreted as aiding a terrorist organization. So far, Bergeron adds, the Alien Terrorist Removal Court, a special court that was created to prosecute immigrants under the 1996 law has "not been fully established." Although Chief Justice William Rehnquist has appointed judges to the panel who will hear cases brought against aliens using "classified" evidence, only those parts of the law banning financial and material support of so-called terrorist groups are being enforced. The Alien Terrorist Removal Court is modeled on the Foreign Intelligence Surveillance Court, which approves search warrants in national security cases.

The government claims that it needs a national security exemption to certain constitutional rights in order to fight terrorism, but Rep. Tom Campbell, who was a Stanford University law professor before being elected to Congress, says there should be no simple reason to suspend our rights. "Street crime is pervasive in America, domestic terrorism rare," Campbell says. "Would you give me secret evidence powers to wipe out street crime?" Abdeen Jabarra blames racism and selective prosecution, adding that the government "thinks they can do this because Ahmed doesn't have an English- sounding name." Jabarra says Americans should not throw away what "we cherish in this constitution, in the name of fighting terrorism." On that count, the jury is still out.


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