If All Don’t Have Rights, None of Us Do

Last week, an immigration judge in Los Angeles ruled that six Iraqis should be deported as “a danger to the national security of the United States.” The Iraqis, who were brought here by the U.S. government after their CIA-backed plot against Saddam Hussein failed, could not disprove the charges because the charges were based on secret evidence that neither they nor their lawyers were permitted to see.

How do you defend yourself against secret evidence? Happily, this is not a question that most Americans have ever had to face. The constitutional cornerstone of our adversary system is that evidence cannot be used against someone unless he or she has an opportunity to confront it. But increasingly, the government has been expanding its reliance on secret evidence in cases against noncitizens. And if we accept this process for noncitizens, it is only a short step to using it against citizens, too.

The Iraqis are not the first people ordered out of the country on secret evidence after being invited here in the first place. Ellen Knauff, a German citizen, worked for the U.S. Army during World War II and married an American serviceman. Under the War Brides Act, she was invited to immigrate to the United States. But when she arrived at Ellis Island, she was greeted by Immigration and Naturalization Service officials who, as in the Iraqi case, told her she could not stay because, based on secret information they could not reveal, she was a national security threat.

Knauff appealed her case all the way to the Supreme Court, which ruled against her, reasoning that noncitizens who have never formally entered the country are not entitled to any constitutional protections, and therefore she had no due process objection to the use of secret evidence. That decision was widely criticized, and public pressure forced Congress to require the INS to give Knauff a hearing. At the hearing, the INS revealed the previously secret evidence, which turned out to be nothing more than a false rumor sparked by a former lover of Knauff’s husband. Knauff refuted the evidence and finally was allowed to join her husband. She had been detained on Ellis Island for three years.

Unlike Knauff, the Iraqis are unlikely to get a hearing from Congress. These days, the INS is not so foolish as to use secret evidence against anyone so sympathetic as a war bride. It has increasingly used secret evidence, but it has been careful to target its efforts at noncitizens unlikely to garner public support. All of the current cases in which the INS is using secret evidence against noncitizens involve Arab Muslims. The Iraqis are only the tip of the iceberg.

In New York, Nasser Ahmed, an Egyptian, has been detained for nearly two years based on secret evidence; all the INS told him was that he was “associated with a known terrorist organization.” The INS does not claim that Ahmed engaged in or supported any terrorist act.

In Tampa, Mazen Al-Najjar, a Palestinian, has been detained for nearly a year, also based on secret evidence alleging a mere association with a “terrorist organization.” In Pennsylvania and Miami, two Algerian Muslims, Yahia Meddah and Anwar Haddam, are in detention based on secret evidence. Last year, Ali Termos, a Lebanese immigrant, was deported after spending a year in jail based on secret evidence of his political associations.

When the government uses such tactics against noncitizens, who have not formally entered the country, as was the case with the Iraqis, it can rely on the Supreme Court’s decision in Knauff’s case, which remains on the books.

But the other cases constitute a significant extension of government power, because they involve noncitizens living here, who the Supreme Court has said are protected by the due process clause just as are citizens. If the government gets away with using secret evidence in these cases, little will stop it from using secret evidence against citizens.

As Justice Felix Frankfurter said nearly 50 years ago, “Fairness can rarely be obtained by secret, one-sided determinations of facts decisive of rights.” If a single citizen were denied his liberty based on such tactics, we would not stand for it. If we accept it for immigrants, we are next.