Secret Evidence Keeps Suspects Behind Bars

Nasser Ahmed has spent the last three years in a federal jail in Lower Manhattan, often in solitary confinement and always wondering why.

Ahmed, 38, a Muslim once closely associated with radical blind cleric Sheik Omar Abdel-Rahman, hasn’t been put on trial. Nor has he been charged with any serious crime. Until now, at least, his fate has been decided behind closed doors.

“This case is Kafkaesque, to say the least,” said Ahmed’s attorney, Abdeen Jabara. “Nasser’s been grossly mistreated.”

Thanks to a recent ruling by a New York City immigration judge, Ahmed--an Egyptian seeking asylum in the United States--could soon be free. But civil liberties and Arab-American groups contend the Immigration and Naturalization Service is unjustly holding as many as two dozen other Arab suspects nationwide without ever allowing them to see the evidence against them.

In a case earlier this year, a Palestinian named Hany Mahmoud Kiareldeen was jailed after the government claimed he was plotting to kill Atty. Gen. Janet Reno. A Newark, N.J., judge declared in April that the secret evidence--which his lawyers say was based on testimony from a disgruntled ex-wife--was insufficient to hold or deport Kiareldeen. Still, an INS appeal has kept him behind bars.

In another case, a Los Angeles judge released five exiled Iraqi military officers in June after they had been jailed for 2 1/2 years. The case was based on secret evidence, part of which now has been revealed, alleging they were spies for Saddam Hussein. They are to be deported, but the judge ruled they must remain under INS supervision until then.

Former CIA Director James Woolsey, now a private lawyer who helped defend one of the Iraqis, has called the Los Angeles case “a stain on the honor of the United States.”

Like Woolsey, supporters of Ahmed argue that secret evidence violates due process.

“Frankly, it’s un-American,” said David Cole, a law professor at Georgetown University who is on Ahmed’s defense team. “One of the most basic principles of our legal system is that the government can’t take action against you unless it puts its cards on the table. . . . Without that, it’s impossible to defend yourself.”

U.S. officials say laws and appellate rulings counter that assertion. They argue that judges deciding asylum and deportation cases can consider classified evidence presented in their chambers by federal agents investigating terrorism.

Disclosing such evidence in open court--or even privately to defendants and their attorneys--could endanger counter-terrorism intelligence sources and threaten national security, they say.

“It involves weighing the potential risk to society against the rights of a person who is not a citizen,” INS spokesman Russell Bergeron Jr. said. “There are times when we have to come down on the side of American society.”

Bergeron estimates that of the thousands of cases INS judges hear each year, only about a dozen involve secret evidence. Those cases are then reviewed by the Justice Department, he says.

But Jabara insists the government “is overreaching in its so-called war on terrorism. . . . It’s unfairly targeting Arabs.”

Casting himself as a political prisoner, Ahmed has gone on several hunger strikes. His family and supporters have demonstrated outside the Metropolitan Correctional Center in Manhattan--to no avail. He describes his experience as both baffling and distressing.

“They’ve treated me like I’m the most dangerous criminal,” he said in a brief phone interview from jail. “I never did anything wrong.”

Unlike some terrorism suspects lurking in the shadows of society, Ahmed did nothing to hide his devotion to Islam or even the sheik.

Ahmed was born in Cairo and reared in Alexandria. He was trained as an engineer. He entered the United States in the 1980s and settled in Brooklyn, where he and his wife, Salwa, started a family and became active in a local mosque.

At the mosque, Ahmed became a follower of Abdel-Rahman, described by authorities as the spiritual leader of Egypt’s largest militant group, Al-Gamaa Al-Islamiya. Ahmed served as a translator and paralegal for Abdel-Rahman when the sheik was tried and convicted in 1995 for conspiring with nine others in a plot to blow up the United Nations and other New York landmarks.

During the sheik’s trial, Ahmed was arrested on charges he overstayed his work visa. He was released on $15,000 bail, but was arrested again in 1996 and held on secret evidence while the government tried to have him deported.

The government’s case amounts to little more than guilt by association, says Louis Bograd, a staff lawyer with the American Civil Liberties Union who has monitored the secret evidence cases. Basically, he says, it was Ahmed “is a devout Muslim who knows the sheik and therefore must be a terrorist.”

Ahmed first sought bail in 1996. But INS attorneys successfully blocked him while arguing that revealing the evidence against him would pose a threat to national security.

A year later, Ahmed asked for asylum, and Immigration Judge Donn Livingston ruled he was qualified. If deported to Egypt, he said, Ahmed might be detained and tortured by the government, which considers Abdel-Rahman a bitter enemy. Character witnesses described Ahmed as someone who hates violence and loves his new country.

In the end, however, Livingston denied asylum based on secret evidence that Ahmed was associated with a “known terrorist organization.”

Prodded by the ACLU’s lawsuit, federal officials began voluntarily declassifying some information. One early summary of the evidence described Ahmed as an associate of Al-Gamaa Al-Islamiya and the sheik, but it did not accuse him of being directly involved in any terrorist acts.

The officials also later disclosed that Ahmed had visited Abdel-Rahman in prison and implied that Ahmed had relayed a message from him that resulted in the killing of a group of tourists in Cairo; that Ahmed was an unindicted co-conspirator in the terrorism case against the sheik; and that Ahmed had attempted to obtain bomb-making manuals to send overseas.

Complicating Ahmed’s case, federal prosecutors charged him last year with making false statements in the late 1980s on an application for temporary residence. A jury convicted him earlier this year; he is awaiting sentencing.

But Ahmed won a major victory in July when Livingston ruled he should be freed and opened the way for him to receive asylum in the United States.

In a 15-page decision, the INS judge found that, “Armed with a better understanding of the government’s case, the respondent was successful in rebutting most of the factual allegations.”

Moreover, Livingston challenged the use of secret evidence in general.

“The respondent has been detained for more than three years while the court and counsel wrestle with the issues of classified information in a court setting,” he wrote. “Although some may believe that this procedure is a valuable tool in fighting terrorism, this tool is unsuited for courtroom use. . . . Despite the professionalism of counsel appearing in this case, the poisonous atmosphere created by secret accusations is impossible to completely eradicate.”

INS lawyers filed an appeal of Livingston’s decision that could take weeks to resolve. Ahmed’s lawyers hope to see him released and eventually have a higher court rule on the constitutionality of using secret evidence.

Ahmed said his main interest is going home to his three children, ages 5 to 10.

“I lost my best years with them,” he said.