INS Must Stop Using Secret Evidence

Over the past five years, Atty. Gen. Janet Reno has allowed the Immigration and Naturalization Service the unfettered discretion to use secret evidence in immigration courts to seek to deport noncitizens. The targets of secret evidence almost always are Arabs and Muslims.

When secret evidence is used, the INS has an almost perfect track record in convincing the judges who hear immigration cases that the targeted individual is a terrorist or poses some other risk to the national security. Yet all of the secret evidence cases tracked by advocacy groups in the past several years have unraveled the moment the targeted individual either gets a glimpse of the government’s evidence or is granted a retrial in which the government cannot rely on secret witnesses or documents.

Mazen Al-Najjar, a Palestinian and a former adjunct professor at the University of South Florida in Tampa, is the latest victim to be set free. Al-Najjar spent more than three years in INS custody before his release Dec. 15. The INS has not revealed any of the evidence in his case but has insinuated that Al-Najjar belonged to political groups the INS claimed are fronts for terrorist groups. Publicly, the INS said only that Al-Najjar’s brother-in-law, also of Florida, had yelled “death to Israel” at a political meeting and that Al-Najjar refused to denounce him. The attempt to establish guilt by association is a common INS tactic in secret evidence cases.

Were it not for the tragedy of unjustly accused and jailed individuals, one could scoff at the INS’ dismal track record of prosecuting secret evidence cases. Yet these cases involve real people who face unjust prosecution. Here are some of them:

* Mehdia Al-Zubaidy: The INS detained Al-Zubaidy in Los Angeles in 1997 and sought to deport her to Iraq. When Al-Zubaidy finally figured out that the case against her was based on her former husband’s alleged intelligence activities in Syria, she pointed out that her husband was present in the U.S. with the consent of the U.S. State Department and with the knowledge of INS officials. How could she be held based on his alleged activities while the State Department allowed him to come to the United States? The case against her was dismissed.

* Hashim Hawlery: An Iraqi Kurd, Hawlery, who was held in a Los Angeles detention facility for 10 months, was released in 1998 when it was revealed that the secret and suspect organization to which the FBI and INS claimed he belonged did not in fact exist. It turned out that an interpreter used by the FBI during an interrogation of Hawlery had created an acronym as a short-hand way of referring to the several Iraqi Kurdish opposition groups with which Hawlery had been affiliated over the years. The false acronym was cross-referenced by the FBI with CIA records. When the CIA had no record of the group, the FBI suggested that Hawlery posed a high level of dangerousness because of his membership in this “secret” (i.e., unknown) organization.

When this stupid error became evident, the INS’ case against Hawlery was quickly dropped. While laughable, the misunderstanding cost Hawlery nearly a year of imprisonment, separated from his wife and children.

* Nasser Ahmed: Ahmed, an Egyptian citizen living in New York, was released last year after more than three years in detention, much of it in solitary confinement, when a judge characterized the government’s secret evidence as double and triple hearsay. Much of the evidence came from the Egyptian government, which viewed Ahmed as a political opponent. Most disturbing was the testimony of an unidentified FBI agent who, speaking in opposition to releasing Ahmed, said Ahmed’s release would make him a martyr. “He would be more well-known, lending to his credibility in the community, both inside . . . and outside the United States,” the agent testified.

* Hany Kiareldeen: A Palestinian resident of New Jersey, Kiareldeen was jailed for 19 months after being accused by the FBI and INS of hosting a meeting in his apartment with one of the World Trade Center bombers shortly before the center was bombed. When Kiareldeen was finally allowed to see the government’s key allegations, he easily established that he had not lived in the apartment building in question at the time of the alleged meeting. The source of the allegations against Kiareldeen is classified, but it is widely believed to be his former wife, with whom he was engaged in a child custody dispute.

The use of secret evidence violates one of the most fundamental tenets of the U.S. legal system: the right to confront one’s accuser. There are times when the accused may get lucky and guess what the allegations are. But someone like Kiareldeen would never have guessed that he needed to present evidence about meetings that never occurred in a place in which he did not reside; Hawlery would never have known to present evidence about a group that he had never heard of and that, indeed, didn’t exist.

In 1953, U.S. Supreme Court Justice Robert H. Jackson wrote, in a dissenting opinion criticizing the use of secret evidence, that “due process of law is not for the sole benefit of an accused. It is the best insurance for the government itself against those blunders which leave lasting stains on a system of justice.”

The INS track record over the past five years is filled with such blunders. But it is worth noting that a still-pending secret evidence case was commenced during the Reagan administration in 1987 and has continued to wind its way through the courts under the Bush and Clinton administrations.

It remains to be seen what the new Bush administration will do. During the campaign, President-elect Bush questioned the use of secret evidence in immigration proceedings. A survey conducted by the Council on American-Islamic Relations found strong support for Bush on behalf of American Muslim voters and attributed this support in part to Bush’s views on such evidence.

The incoming Bush administration’s decision whether to continue with the Reagan-era case against two Los Angeles-area residents, Palestinians Khader Hamide and Michel Shehadeh, will be an early sign whether the new administration is willing to halt the use of secret evidence.