- The Washington Times - Friday, October 20, 2000

Hany Kiareldeen was a nonresident who had lived peacefully in the United States for almost 10 years and was married to an American citizen when he was arrested in 1998 under suspicion of being a terrorist. The charges were made by his vindictive ex-wife and completely insupportable. Because the information that led to his arrest was classified, Mr. Kiareldeen spent 19 months in jail without knowing what the actual charges were or who had made them. When finally he learned the charges and mounted a defense, he was completely acquitted and is now a permanent resident of the United States.

Mr. Kiareldeen's case exemplifies what critics call the star chamber powers of the Immigration and Naturalization Service (INS). Those powers allow the INS to deprive noncitizens of liberty and due process based on secret evidence evidence that the accused can neither know about nor defend against. Although fewer than 20 of the 300,000 immigration court proceedings each year involve the use of such evidence, the individuals affected are denied one of the most sacred rights in the judicial canon, the right to due process. Disproportionate numbers of minorities are the subject of such proceedings, say critics.

One ostensible solution to this problem is HR 2121, the "Secret Evidence Repeal Act," which would make it illegal for secret evidence to be used in immigration hearings. Specifically, the bill would prohibit the government from using undisclosed classified evidence to deport someone, to deny him admission to the United States or block requests for asylum, permanent residence and citizenship.

Appealing as the proposal may be, opponents argue the legislation could compromise the right of a sovereign state to protect its citizens. One must balance individual rights against those of national security, and in that regard, HR 2121 may not be the best tool to fulfill those two somewhat contradictory goals. The bill would actually grant suspected terrorists greater rights than those accorded other aliens facing removal or seeking immigration benefits, including the right to cross-examine all witnesses presented by the government. It would also compel the government to hold bond hearings on the record, a practice which is not accorded other categories of detainees. Passage of HR 2121 might also compel the government to release individuals who are legitimate terrorist threats in order to protect otherwise classified sources, such as agents-in-place and tenuous informational ties.

The fact is that sometimes sources of critical, life-saving information may require the protection that absolute anonymity provides. As demonstrated by terrorist actions such as the World Trade Center bombing and the attack on the USS Cole, American citizens are worldwide targets. To what extent should the United States be required to provide information that may wind up helping terrorists?

Fortunately, solutions that honor both due process rights and the protection of the citizenry are already in use. For example, when national security concerns play a role in the trial of a U.S. citizen, a judge is permitted to prepare an unclassified summary of the evidence, which must be sufficient for an adequate defense to be made. Other solutions may also be found. The "Secret Evidence Repeal Act" is not the place to find one.

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