- The Washington Times - Tuesday, October 31, 2000

The House Judiciary Committee has set the stage for purging secret evidence from pivotal immigration proceedings by approving HR 2121, the Secret Evidence Repeal Act of 2000. The idea has been championed by both presidential candidates Al Gore and George W. Bush, and seems assured of enactment by the 107th Congress. The civil liberties measure does justice to the Statue of Liberty and constitutional due process, marking one of the nation's finest hours on behalf of voteless, moneyless aliens.

Four years ago amidst exaggerated fears of terrorism within the United States (as distinguished from Khobar Towers, the USS Cole, or the embassy bombings in Kenya and Tanzania), Congress authorized secret evidence to prove an alleged terrorist connection in a cluster of immigration proceedings: deportation of permanent resident aliens; indefinite detention pending an immigration decision; and asylum or other discretionary immigration benefit cases. The draconian law the 1996 Antiterrorism and Effective Death Penalty Act also established an Alien Terrorist Removal Court specially tasked with deporting allegedly terrorist aliens based on classified evidence concealed from the accused. (The government is constitutionally prohibited from deporting United States citizens under the Supreme Court's Afroyim vs. Rusk (1967) decision).

For years of experience under the 1996 statute discredits its necessity; and the sorry record of the Immigration and Naturalization Service (INS) in the employment of secret evidence discredits its wisdom. The docket of the newly created Alien Terrorist Removal Court has been zero. It simply sits around like a loaded weapon ready for the hand of any would-be Tomas de Torquamada, to paraphrase Supreme Court Justice Robert Jackson in Korematsu vs. United States (1944).

The INS' incapacity for sensible and restrained use of secret evidence that could mitigate its inherent unfairness and unreliability is incorrigible. According to its own estimate, the agency resorted to secret evidence on 50 occasions from 1992-1998.

The case of an Egyptian man, Nasser Ahmed, is emblematic. He was detained by the INS for more than three-and-a-half years, mostly in solitary confinement, based on secret evidence. Last year, an immigration judge ordered the Egyptian's release after finding the evidence unreliable and the INS summary of the classified information "largely useless" in seeking to mount a terrorism defense. The government's secret incriminating evidence, the judge explained, was double and triple hearsay, and a substantial portion seemed tied to the government of Egypt, Mr. Ahmed's alleged persecutor with a pronounced incentive to fabricate.

In 1998, the INS initially employed secret evidence to exclude several Iraqis who had been airlifted by the United States to this country after joining in a failed coup sponsored by the Central Intelligence Agency against President Saddam Hussein. It was said the ostensible defectors were double agents of Saddam who had outfoxed the CIA.

Former Central Intelligence Director James Woolsey was enlisted in their asylum cause, which prompted the government to declassify more than 500 pages of previously secret evidence. One of the defectors, Dr. Ali Yasin Mohammed Karim, rebutted the declassified information and convinced an immigration judge to reverse her initial ruling and provisionally grant his asylum claim and release from detention.

The INS' irresponsible use of secret evidence is inherent in its bureaucracy. It is largely staffed by persons of good will with pedestrian minds. When I recruited law students on behalf of the Justice Department, not a single interviewee voiced ambition for an INS position. The offices of solitictor general, legal counsel and the antitrust division were the coveted entry ports. The latter, unlike the INS, are alluring stepping stones to lucrative private practice and are intellectually exhilarating. And legal brilliance generally follows profit and prestige.

Wooden minds, like those dominant at the INS, however, are too trusting of secret evidence and confidential sources. A New Jersey federal district court in Kiareldeen vs. Reno (1999) ordered the release of Hany Kiareldeen after detention by the INS for more than 19 months based on secret evidence whose apparent source was the detainee's estranged wife infuriated by a custody battle. Moreover, endless political, ethnic, racial or religious motivations might impel an informant to fabricate. A Jew might lie to implicate a Palestinian, and vise versa. Ditto with regard to Christians and Muslims in Sudan, Lebanon or Egypt, Shi'ites and Sunnis in Saudi Arabia or Iran, or Tamils and Sinhalese in Sri Lanka. Foreign intelligence agencies may feed disinformation to the United States to implicate a political foe in terrorism. Astute, worldly and Machiavellian minds, unlike those at the INS, are necessary to penetrate such potential deceptions.

The INS also risks little congressional or popular outrage by unjustified reliance on secret evidence against aliens. They are generally politically powerless and without the monetary resources needed to fight legal injustices.

Detractors of HR 2121 insist that limiting the use of secret evidence may enable alien terrorists to escape deportation. But it makes more sense to prosecute and imprison under our criminal laws terrorists guilty of killing Americans abroad such as the Khobar Towers villains then to order deportation, thereby risking more anti-American mayhem in more vulnerable foreign countries.

We should not permit the likes of cowardly Osama bin Laden to tarnish our cherished and universally admired procedural safeguards against injustice.

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

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