- The Washington Times - Thursday, June 15, 2000

Like the Japanese perfidious attack on Pearl Harbor, the 1993 international terrorist bombing of the World Trade Center and sister conspiracy to destroy New York City landmarks triggered a well-intended but ill-conceived encroachment on cherished constitutional rights against secret evidence and anonymous accusers. Convictions are easy but highly unreliable when prosecutors conceal the incriminating evidence from the accused. Just summon the countless innocent victims of the Spanish Inquisition.
Bipartisan legislation to repeal the celebration of secret evidence under a semi-xenophobic national security umbrella embedded in the Anti-Terrorism and Effective Death Penalty Act of 1996 and its amendment is both pending in the House of Representatives and urgent. The renunciation commands the support of conservative Rep. Bob Barr, Georgia Republican, moderate co-sponsor Rep. Tom Campbell, California Republican, and liberal and chief sponsor Rep. David Bonior, Michigan Democrat, and perhaps even more liberal Rep. John Conyers, Michigan Democrat). The bill (H.R. 2121) has also enlisted in its army an iridescent carnival of political banners, ranging from the American Civil Liberties Union to the San Francisco's District Attorney's Office. A former director of central intelligence, R. James Woolsey, and the National Commission on Terrorism also have upbraided the secret evidence practices of Immigration and Naturalization Service crusaders.
The Clinton administration, however, is blindly wedded to secret evidence and unmoved by the human element, forgetting that the government's duty is not to win cases but to see justice done. Listen to the emblematic tale of Mazen Najjar, a stateless Palestinian resident in the United States for 18 years.
More than three years ago, Mr. Najjar answered a knock on the door as he assisted his wife and daughter prepare for the school day. He was immediately detained by the INS for alleged violations of the immigration laws and denied bond that would have been customary but for secret evidence. The Palestinian has been wrenched from his intimate family and community circles ever since, helpless to confront and to discredit the accusatory evidence as he subsists in a lonely detention center. From 1992-1998, approximately 50 other aliens have been subject to immigration proceedings that similarly pivot on secret evidence. The vast majority have targeted Arabs or Muslims (who were also the initial suspect groups in the Oklahoma City bombing perpetrated by home-grown Timothy McVeigh). No suspected Irish Republican Army member or collaborator has been held to corresponding secrecy unfairness. A cynic might attribute the discrepancy to the politically muscular Irish-American lobby.
The gripping human misery and unfairness inflicted by the INS love affair with secrecy seems thoroughly gratuitous to legitimate counterterrorism endeavors. The World Trade Center bombing stands as an isolated aberration in our quest to foil, apprehend and punish alien terrorists. The FBI reports no other incident of international terrorism by an alien in the United States within recent memory. As Y2K approached, arrests were made in December 1999 of foreign nationals crossing the U.S.-Canadian border allegedly bent on terrorism, but without stooping to secret evidence to justify detentions, deportations or prosecutions.
It speaks volumes, moreover, that ADEPHA authorized resort to an Alien Terrorist Removal Court to deport alien terrorists by invoking secret evidence. That draconian counterterrorism measure has slumbered for four years without even a single awakening, strong testimony to the exaggerated congressional fears of alien terrorism in the wake of the WTC tragedy.
Only the gravest national emergencies can justify secret evidence both because of its inherent unfairness to the accused and the alarming risk of falsity. Anonymous accusers may be motivated to lie by ethnic, religious or political hatreds, revenge for business or marital shipwrecks, the prospect of financial or other government rewards, or simple malice or envy. Even good-faith accusations may be erroneous because of misinterpretations of actions. As Shakespeare observed in Othello: "Trifles light as air, Are to the jealous confirmations strong, As proofs of holy writ."
The case of Kiareldeen vs. Reno (1999) is corroborative. There a federal district judge in New Jersey ordered the release of an alien detained 19 months based on secret evidence. Its suspected source was the detainee's estranged wife, inflamed by a bruising custody battle. The district judge explained: "The court cannot justify the government's attempt to allow [persons] to be convicted on unsworn testimony of witnesses, a practice which runs counter to the notions of fairness on which our legal system is founded." These observations justify the gospel that the right to confront and to cross-examine adverse witnesses is the gold standard for the discovery of truth and the vindication of justice.
Abandoning secret evidence in immigration matters admittedly creates a tiny but genuine risk of an alien terrorist crime because truthful informants or other sources might be unwilling to testify publicly for fear of retaliation. But that same risk of terrorism obtains in rejecting torture to elicit confessions or government burglaries in search of incriminating evidence.
When counterterrorism routinely trumps our time-honored liberties, the remedy has become worse than the disease.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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