Civil Rights Issue: Secret Evidence in Deportation Actions
The use of classified, or “secret,” evidence in certain immigration proceedings was first authorized in 1955. Essentially, the use of secret evidence allows the Immigration and Naturalization Service of the U.S. Department of Justice to use as evidence during deportation proceedings information that is not shared with the individual facing deportation. The lack of a defendant’s access to the secret evidence makes it nearly impossible for him or her to make a defense against serious deportation charges and makes it possible for an individual with extensive family and community ties in the United States to be deported on the testimony of unnamed informants whose charges are taken as fact and cannot be challenged.
In 1996, following the World Trade Center and Oklahoma City bombings, Congress passed the Antiterrorism and Effective Death Penalty Act. Though the earlier 1955 provisions continue to be used as federal authorization for the use of secret evidence, one of the byproducts of the passage of the Antiterrorism and Effective Death Penalty Act of 1996 has been the increased use of secret evidence in proceedings against immigrants.
While court rulings have held that residents in the United States are entitled to the same constitutionally guaranteed protections afforded to citizens, secret evidence is being introduced in trials across the country. The controversial provision has been used in approximately two dozen cases in which the Immigration and Naturalization Service (INS) asserted national security concerns as the basis for depriving immigrants of the right to examine and confront adverse witnesses and evidence. All of the cases are against Arab or Muslim immigrants.
In October 1999, a federal judge ruled that the use in court of secret evidence against immigrants is unconstitutional. This was the first time a federal court weighed the constitutionality of the use of secret evidence and found it unconstitutional. U.S. District Judge William Walls in Newark, New Jersey, ordered the defendant in the case, Hany Kiareldeen, a 32-year-old Palestinian immigrant, released. Kiareldeen had been held by the INS since March 1998 pending deportation proceedings because the FBI’s Joint Terrorism Task Force had developed secret information that he had hosted a meeting at his home with terrorists planning the World Trade Center bombing. The FBI reports detailing the source of the information linking Kiareldeen to terrorists were not divulged to Kiareldeen or his attorneys. Kiareldeen, who had lived in the United States since 1990, denied the charges and alleged that they were likely to have come from his ex-wife with whom he was having a child custody dispute.
For the past three years, Mazen Al-Najjar has been in a Florida prison because the federal government claims it has secret evidence that he is linked to Middle East terrorists. The government will not disclose who the accusers are, what the nature of the evidence is, or how Al-Najjar can defend himself. U.S. government officials claim that disclosing the evidence against Al-Najjar would expose secret intelligence.
According to INS agents, Najjar’s accusers label him a “mid-level” member of a fund-raising group linked to the Islamic Jihad and Hamas terrorist organizations. Al-Najjar has a wife and three daughters living with him in the United States and has not been indicted or convicted of any crime.
Eight individuals from the Arab American community spoke to the Advisory Committee about the use of secret evidence by the INS and the pernicious effect it has on the Arab American community. A representative from the INS also spoke to the Advisory Committee.
Comments from Arab Americans on Secret Evidence
Maya Berry, Government Relations Director, Arab American Institute
Secret evidence has been in place since the 1950s in terms of immigration laws. The most recent laws, both passed in 1996, are the Antiterrorism Bill and the Immigration Reform Bill. Both contain provisions that allowed the increased use of secret evidence. It is important to note that secret evidence in these cases can and is used against legal resident aliens. Many of those accused were on their way to becoming citizens who have lived here for years, whose wives and children are American citizens. Also there is not a single case currently pending that is using the 1996 laws as passed. They are relying on the 1950s laws in terms of deportation proceedings. It is the U.S. Department of Justice that continues to use secret evidence. At every opportunity that a judge has ruled that secret evidence has not been necessary, the government still has chosen to move forward with its use.
It is important to note that Irish immigrants were the only other group apart from Arabs and Muslims in deportation proceedings where secret evidence was being used. When things went well, under Senator Mitchell’s leadership, in Ireland, all of the proceedings against Irish immigrants were dropped. It is very difficult, then, not to conclude that these cases are politically motivated proceedings targeting specific communities.
Ismael Ahmed, Executive Director, Arab Community Center for Economic and Social Services
The use of secret evidence is a serious problem as it relates to immigrants in general, and the Arab American community in particular. In the recent furor around some of the terrorist activity, laws have been passed that really are not good either in a legal sense or in a moral sense.
These laws basically leave the person being accused, anyone who is not a citizen—and for Arab Americans that is about one-third to one-half the population in the Detroit metropolitan area—without recourse to civil rights protections from some pretty drastic measures on the part of government. These include the person being jailed, discharged, and sent out of the country within a few days of notice or no notice and, in some cases, sent to what is their certain death in places where they have left a repressive situation.
Arab Americans are now being held in custody. Their situation is not known, nor is it known why they are jailed. If other voices do not join the Middle Eastern community about these civil rights violations, these laws will hold and grow and threaten the rights of all Americans.
Radwan Khoury, Executive Director, Arab American and Chaldean Council
I am a Palestinian, and in terms of secret evidence and the Palestinian community, a lot of the intellectuals are afraid to speak because if they speak up, even if they are pro-peace, they are afraid of going to jail for a couple of years because of the secret evidence situation. So a lot of people are not able to freely exercise their right to freedom of speech. This is a great concern in our community.
Abed Hammoud, Arab American Political Action Committee
I am an attorney with the county prosecutor’s office. The use of secret evidence is contrary to the Constitution. In my work, when our office alleges a criminal act, the defendant is entitled to every piece of evidence our office has and intends to use against him. It is a continuing order of discovery received from courts. Every time any piece of evidence is received, the prosecutor must contact the defense attorney and share with him or her the new evidence.
It is shocking and dismaying when I come back to being Arab American, and not a prosecutor, to accept being treated less well than criminals when it comes to deportation proceedings. I have criminals who have walked away from jail in Wayne County because we could not start the trial on time.
On the other hand there is a doctor, Dr. Al-Najjar from Florida, who has been detained for months on the basis of secret evidence. That is what happens in this country to Arab Americans. Our Constitution reads: “No person shall be deprived of life, liberty or property without due process of law.” It does not say, “No citizen.” It never specified from what national origin you have to be. Are Arab Americans less than persons? That is how I feel when I hear about secret evidence stories.
When authorities are confronted about the use of secret evidence, they always bring up the issue of national security. Those words are so important, yet so loosely used every time it comes to the Arab American community. What is national security? Everything is national security. Everything is not national security.
A concern in the Arab American community is that when the secret evidence is finally revealed, the evidence often turns out to be about the political activity of that person. This simply means that anybody in our organization, the Arab American Political Action Committee, can be called in tomorrow and questioned. When we started our organization, no exaggeration, five of our members, professionals, were contacted by the FBI within the next three months after we started.
Imad Hamad, Regional Director, American Arab Anti-Discrimination Committee
The use of secret evidence is pending in more than 20 cases around the country. It is not a local matter; it is a national issue. The local Arab American community here has witnessed two cases dealing with this provision, one for a young Lebanese gentleman who was deported. He was in jail for a year and never knew why. It ended up that he was deported based on some technicalities without having the chance to know the evidence that was used against him.
The second case was mine. I came to this country back in 1980. I tried to adjust my status for at least 12 years. Through this ordeal, the INS chose to use different tactics. It started with issues of technicalities regarding my visa status. Then it ended up by reviewing my case to see if it falls within the provisions of the use of secret evidence. And this is where, yes, my case is over but others are not. It’s still an issue and a challenge.
Still today I do not know what was the evidence against me. Regardless, the quality and the nature of the secret evidence used did not justify my ordeal for 12 years to gain my permanent residency. I lived in this country long enough. I do not have a simple traffic ticket on my record.
The challenge here is the question of due process and the Constitution of rights. It is as simple as that. Charge an individual or free him. If I were to be convicted, convict me. Put the charge forward. Prove your case. There is nothing to keep this evidence secret.
It is very chilling when you go to court and you are to be prosecuted and to be deported and separated from your family for an evidence that you don’t know what it is. You have no right to see it. You don’t have the right to defend it. It’s like you go to the court, like you’re a mute, deaf mind under the mercy of the custody of an FBI agent or an INS officer and whatever they can make the case to the judge.
Nassar M. Beydoun, Director, Arab American Chamber of Commerce
The INS attempts to deport political activists through the use of secret evidence of their alleged ties with terrorist organizations. The government has also brought extradition proceedings based on unsubstantiated charges of engaging in terrorism. This country has a history of attacking certain ethnic groups and if one looks through the history of this country, since the days of the American Indians and through the African Americans, Chinese, Italians, Irish, Jews, and Hispanics have faced discrimination. Now it is Arab Americans who face the discrimination and who bear the brunt of repression these days.
Mohammad Elahi, Islamic House of Islam
The use of secret evidence is an obvious example of discriminatory harassment against the Muslim community insofar as the victims of this law are Muslims. Nobody else suffers under this tactic except the Muslim community.
There have been some promising situations. There was a meeting between the representatives of the Muslim community and the FBI in New York, and they started dialogue to develop some mutual understanding in dealing with the cases of concern for the Muslim community.
In addition, recent legislation has been sponsored by Congressman David Bonior and other congressmen against the use of secret evidence. If it is passed, it will increase respect for the Constitution and also the civil rights and democratic values in the society.
Comments from Federal Officials on Secret Evidence
Carol A. Jenifer, District Director, Immigration and Naturalization Service
If a person is encountered in the United States by an immigration officer, he/she has several options to pursue if he/she is not in a legal status. First, the person can leave the country voluntarily. Second, the individual can request a hearing before an immigration judge and a determination is made as to whether or not the circumstances permit that person should stay or has to leave.
If the person is ordered to leave and the judge will agree, the individual can leave on his/her own volition. They do not need anything from Immigration. They have a ticket in hand and they leave. Or the person can be what INS calls “order deported,” in which case the person has to present himself or herself to Immigration, and INS may actually escort that person out of the country.
If a person does not agree with the decision of the judge, there is an appeal process. The appeal process may, again, allow additional time for the individual to stay. There are some groups who do not have options as it relates to this—groups such as criminals. If a person is a convicted criminal of an aggravated felon, by law there are two things that can happen: mandatory detention and then expedited removal. There are some options even after deportation. Once returned to a person’s home country, he/she may file for a waiver and if the waiver is granted, a visa may be granted by the State Department that would allow for reentry into the country.
In this matter, I want to state something to the Commission. I personally have been the victim of discrimination and people just not liking me because I was black and/or female. Based on the size of my staff, my mission, and just a personal conviction, I work diligently not to have discrimination in the workplace. I am not going to carry that out as a program, and I am not going to allow it. It is not the right thing to do and I will not be doing it and do not do it. There is throughout the Service and in Michigan a mechanism for complaints. There is a complaint form poster at each location and in several locations in the district office, and it has an address on it. It has the address for the supervisor, but it also has my address on it and you can write directly to me. One can also write or call the Department of Justice, Inspector General’s Office, and they will also take your complaint and investigate it, or they may forward it back to me to be investigated. And a person can do this anonymously.
“U.S. keeps man jailed on secret evidence,” Chicago
Sun-Times, May 24, 2000, p. 40.
Statement of Maya Berry to the
Michigan Advisory Committee to the U.S. Commission on Civil Rights,
community forum on “Civil Rights Issues Facing Arab Americans in Michigan,”
Dearborn, MI, Sept. 27, 1999, transcript (hereafter cited as Transcript).
Statement of Ismael Ahmed,
Statement of Radwan Khoury,
Statement of Abed Hammoud,
Statement of Imad Hamad,
Statement of Nassar M. Beydoun,
Statement of Mohammad Elahi,
Statement of Carol A. Jenifer,