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What is Secret Evidence?
The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists. It also included provisions allowing the government to use secret evidence to deny bond to all detained non-citizens and to deny various discretionary immigration benefits such as asylum to all non-citizens, including those not accused of being terrorists. Though the secret evidence court has not yet heard a case, the INS has moved in dozens of other proceedings to use secret evidence against non-citizens to deny them bond and relief from deportation, such as asylum. In fact, the INS attempts to use secret evidence to deny mandatory relief from deportation, such withholding of deportation, even though it has no statutory authority to do so. Virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab. The ACLU represents one such non-citizen, Nasser Ahmed, a 37-year old Egyptian who was denied bond, asylum and withholding based on secret evidence. The immigration judge who heard the evidence said that he had "no doubt" that Mr. Ahmed would be tortured if returned to Egypt. If the decision in his case had been based only on the evidence in the public record -- evidence that Mr. Ahmed had the chance to challenge -- Mr. Ahmed would be a free man today. Instead, he was held in solitary confinement for over three years, and is still being detained, without being told why and thereby given a change to refute the accusations against him. (Please note: since this article was first written, Mr. Ahmed has been released from prison, however, he still may be deported). Secret evidence is also being used to detain in Florida without bond Mazen Al-Najjar, a stateless Palestinian. One day at breakfast with his wife as he helped his daughters get ready for school, he answered a knock on the door. This 18-year resident of the United States was immediately detained for alleged violations of the immigration laws. When he asked for release on bond -- which is commonly granted similarly-situated non-citizens who are likely to appear for their immigration hearings because of their strong family and community ties -- his request was denied, based on secret evidence. Two years has elapsed and Mr. Al-Najjar still does not know the basis for his detention. The INS is also using secret evidence in cases involving seven Iraqis airlifted by the U.S. from Northern Iraq because they were part of a failed CIA plot to destabilize the regime in Iraq headed by Saddam Hussein. The INS is denying them political asylum based on secret evidence. A legal team including former Director of Central Intelligence R. James Woolsey represents them. Mr. Woolsey, who was himself denied the opportunity to see the evidence against his clients, commented that secret evidence is what "one would expect to find in Iraq, not the U.S." Five of the seven recently agreed to be deported in exchange for release from custody with certain limitations on their liberty while they search for a foreign country that will accept them. Copyright 2000, American Civil Liberties
Union
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