Use of Secret Evidence by INS Assailed

While a judge weighs a decision in his case, Ali Mohammed-Karim is still waiting to hear the evidence against him.

Along with hundreds of other Iraqis who worked with the Central Intelligence Agency in a failed effort to oust Saddam Hussein, he fled northern Iraq last year and sought political asylum in this country.

Upon his arrival, he and 12 other refugees were thrown in jail, accused by the Immigration and Naturalization Service of posing a “danger to the security of the United States,” an allegation the agency has refused to explain.

The case of the Iraqi refugees is the latest front in the widening legal battle over the INS’ use of classified evidence.

In the proceedings against the refugees, the INS has argued its case and questioned its witnesses--one of whom is employed by an agency it will not identify--behind closed doors. Lawyers for the refugees were not present. They had to put on a defense based essentially on guesswork.

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“It’s completely frustrating,” said Niels Frenzen, an attorney with Public Counsel, who represents the eight Iraqi men who are jailed in San Pedro. “How are we doing? We don’t know. Have we guessed the secret evidence? We don’t know.”

Both sides have rested their cases and are awaiting immigration Judge D.D. Sitgraves’ decision. She has indicated that she may not rule until early 1998 on whether six of the men jailed in San Pedro are security risks.

Sitgraves already has ruled that two others are not, but they remain incarcerated while they seek political asylum. Another group of Iraqis faces similar proceedings in Northern California.

In a telephone interview from the INS detention facility in San Pedro, Mohammed-Karim, 35, said he is a doctor who was excited about starting a new life with his family in the United States. He said he once treated an American CIA operative in Iraq for a migraine headache, and denied that he was an agent for Hussein.

“I was never a single agent,” he said. “How could I be a double agent?” He added that the allegations against him are “just illusions.”

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Although the use of secret evidence is prohibited in criminal courts, the INS says its use of such information to deny political asylum is permitted under Supreme Court decisions dating from the 1950s. And under new legislation, the immigration service is allowed to use secret evidence to deport residents suspected of associating with terrorists.

David Cole, a Georgetown University law professor who is suing the federal government over its use of secret evidence in a New York immigration case, says the Iraqi men were evacuated and transported to this country by the government and are entitled to due process.

“Even the most minimal due process protection would invalidate the use of secret evidence,” Cole said.

But the INS has refused to reveal the nature of its suspicions about the Iraqis. INS officials noted that national security is typically used as a basis for keeping out spies or potential terrorists, and has been used to block members of the Irish Republican Army from staying in the country.

Before being flown to the United States, the jailed Iraqi men worked for their country’s two main resistance groups: the Iraqi National Congress and the Iraqi National Accord. Those groups produced newspaper articles and radio broadcasts critical of Hussein, and mobilized soldiers to battle his forces.

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Many experts believe that despite the CIA’s support, the resistance was never strong enough to pose a serious threat to the Iraqi leadership, in part because the groups were riven by internal political disputes. And even the resistance leaders concede that Hussein’s spies may have infiltrated the groups.

In August, Iraqi military forces rolled into northern Iraq and crushed the resistance effort. U.S. forces evacuated more than 6,000 Iraqis and Kurds to a NATO air base in Turkey before flying them to Guam.

During their five-month stay in Guam, the refugees were taught American civics--including, Frenzen notes with irony, the right to face one’s accuser in court. They also submitted to FBI interviews.

Frenzen contends that disgruntled resistance workers, motivated in some cases by petty personal disputes with his clients, intentionally misled the FBI about their backgrounds.

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But because the FBI’s reports of those interviews are classified, federal authorities will not disclose why the refugees are considered potential threats to national security. The INS has granted asylum to their wives and children.

The proceedings--at least the portion that was open to the public--have shed little light on the evidence. Sitgraves has repeatedly stopped the Iraqis’ lawyers from probing too deeply into classified evidence, forcing them to essentially guess what in their clients’ background raised red flags for the FBI.

In a typical exchange recently, FBI Agent Mark Merfalen testified that he interviewed one of the refugees about his experience with chemical weapons, his service in the Iraqi military before he deserted to join the resistance and his earlier request for political asylum filed in Saudi Arabia.

But Merfalen, a counterintelligence specialist assigned to the FBI’s Oakland office, did not indicate what information led him to conclude that the man, Mohammed Al-Ammary, posed a security threat.

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“I don’t have enough facts” to form an opinion about whether Al-Ammary represented a threat, Merfalen said at one point.

A key witness for the accused was Ahmad Chalabi, president of the Iraqi National Congress, who testified by telephone from an INS office in Arlington, Va.

“I do not believe that any of them is an agent for the Iraqi government,” Chalabi said. He said the congress conducted background checks on its members, and that he was also assured that the men were not spies for Iran, Syria or Turkey.

“It is inconceivable to the Iraqi people why these people are jailed,” he said.