-Caveat Lector-
http://www.chicagotribune.com/news/nationworld/chi-0109300318sep30.storycol
l=chi%2Dnews%2Dhed
Secret evidence bill raises concerns
"They say the bill would permit someone to be held indefinitely if the
attorney general has "reason to believe" that the suspect poses a threat,
and that determination would not be subject to judicial review. Such powers
would be unprecedented in modern times, they say."
Often abused, laws called `poisonous'
By Stephen Franklin and Ken Armstrong
Tribune staff reporters
Chicago Tribune
September 30, 2001
Since the attacks on New York and the Pentagon, the Bush administration has
urged Congress to expand the Justice Department's authority to detain and
deport suspected terrorists. But the government handed similarly vast
powers to immigration officials only a few years ago when terrorism flared
up, and regret set in soon after.
Before Sept. 11, the push in Washington was to restrict the powers of
immigration authorities, not extend them. Courts, legislators and even
President Bush had criticized federal agents about their use of classified
or secret evidence, called "poisonous" by one judge and "obnoxious" by
another. The Immigration and Naturalization Service has detained about two
dozen suspected terrorists for months and even years while refusing to
disclose the evidence against them. Most were subsequently freed and
allowed to remain in the U.S.
Spurred by the 1995 Oklahoma City bombing and the 1993 World Trade Center
bombing, secret evidence was sanctioned by Congress in two laws passed in
1996. But federal judges in three states have since called such evidence
unconstitutional, and even some high-ranking government terrorism experts
have denounced its use.
In Senate testimony, former CIA director James Woolsey said INS procedure
in such cases "is to collect rumors and unfounded allegations, not
investigate them, submit them [privately] to the immigration judge, and
then demand that the individual in question be held [as] a threat to
national security if he does not succeed in refuting the charges of which
he is unaware."
A reversal
In March, legislators introduced a bill that attracted more than 100
co-sponsors to repeal most uses of secret evidence. In June, U.S. Atty.
Gen. John Ashcroft told Congress that Bush had "expressed his discomfort"
with secret evidence, and that so far his administration had not used it.
But after Sept. 11, the talk of reining in INS powers turned to granting
new ones. Ashcroft returned to Capitol Hill, this time asking for enhanced
authority to detain and deport non-citizens.
"The ability of alien terrorists to move freely across our borders and
operate within the United States is critical to their capacity to inflict
damage on our citizens and facilities," Ashcroft told Congress.
The bill backed by the administration would expand the grounds for
deportation, permit the INS to detain suspected terrorists perhaps
indefinitely, and prevent the judiciary from reviewing the government's
evidence to see if it is reliable.
The proposed changes triggered immediate alarm for attorneys and
legislators already critical of the INS.
They say the bill would permit someone to be held indefinitely if the
attorney general has "reason to believe" that the suspect poses a threat,
and that determination would not be subject to judicial review. Such powers
would be unprecedented in modern times, they say.
"My heart sank when I saw those proposals," said Susan Akram, a Boston
University law professor.
David Cole, a Georgetown University law professor and immigration law
expert, told Congress that the bill's definition of terrorist activity is
so broad it "draws no distinction between the hijacker, the humanitarian
and the barroom brawler."
And Juliette Kayyem, a former Justice Department attorney who runs a
counterterrorism program at Harvard University, said the INS already has
abused its authority to use secret evidence. Any law authorizing indefinite
detentions would simply exacerbate the problem, she said.
"It's sort of a 180-degree turn from what people were thinking before Sept.
11," Kayyem said. "Before, they had secret evidence. Now, it would be the
no-evidence rule."
Immigration attorneys estimate there have been about two dozen cases in
which the INS has tried to remove a suspected terrorist while refusing to
disclose the basis for its allegations. The use of classified evidence is
intended to protect national security by concealing U.S. intelligence
sources and surveillance techniques, but it also prevents suspects from
confronting their accusers.
INS spokesman Russ Bergeron said the agency's use of secret evidence meets
a congressional mandate. "Don't take a cheap shot at INS for meeting our
obligations under the law," he said.
Although the Constitution provides broad legal protections, there are times
when the government's "responsibility to protect its citizens outweighs any
one individual's protection," Bergeron said.
The INS uses classified evidence sparingly, Bergeron said. And without
providing a number, he said there have been some cases in which such
evidence helped remove someone who posed a threat.
But immigration lawyers say most, if not all, of the immigrants who have
launched serious challenges to such evidence have prevailed in the courts.
In some cases the government has been pressured into disclosing its grounds
for detaining a suspected terrorist, only to reveal flimsy evidence.
Egyptian Nasser Ahmed, who is married and the father of three young
children, spent more than three years in a federal jail in New York, much
of the time in solitary confinement, after he was accused of being a danger
to U.S. security. Abdeen Jabara, one of Ahmed's lawyers, said: "He was just
locked up and [the government] said, `We can't tell you why.' How can a
lawyer be a lawyer if he can't find out the evidence?"
Under pressure from the American Civil Liberties Union, the government
declassified much of its evidence, which Ahmed's attorneys then debunked.
In 1999 an immigration judge ordered Ahmed's release. The judge rejected
the INS allegations point by point, saying, for example, that the
government had failed to properly distinguish al-Gama'a al Islamiyya, an
alleged terrorist organization, from al-Gama' at al Islamiyya, a collection
of hundreds of groups that include social welfare, health and community
organizations.
Federal agents also have faced criticism in other immigration cases for
improperly translating interviews and documents, or for failing to find
their way in what Woolsey has called "the wilderness of mirrors that is the
Middle East."
Testifying before a Senate subcommittee in 1998, Woolsey decried the
government's "appalling" incompetence in deportation cases, describing
federal employees who confuse Iran and Iraq, and an FBI agent "who
apparently could not tell a Kurd from a ziggurat."
Another critic of the secret-evidence provision is Philip Wilcox, former
director of the U.S. State Department's counterterrorism office.
"It was certainly an infringement on the traditional right to
cross-examination," Wilcox said. As an anti-terrorism tool, he said, it
hasn't been "terribly important."
Wilcox said he was unaware of anyone who was released after being held on
secret evidence and "subsequently carried out acts of terrorism."
Violating due process
Attorneys representing sus-pected terrorists have chal-lenged the
constitutional-ity of the 1996 laws and their authorization of secret
evi-dence. In individual cases, federal judges in New Jersey, Florida and
California have ruled that such evidence violated due process. The U.S.
Supreme Court has not directly addressed the secret-evidence provisions of
the 1996 laws, but did uphold the use of classified evidence in opinions
handed down in the 1950s.
By sanctioning the use of secret evidence against suspect-ed terrorists,
the two 1996 laws resurrected a practice that goes back more than a half
century. Federal officials used classified evidence in the 1940s to exclude
or deport would-be immigrants, but in the '80s the practice came under
increasing scrutiny and began to disappear.
>From the outset, such evidence proved problematic.
Ellen Knauff, a German national, was stopped at Ellis Island in 1948 and
detained for three years based upon classified evidence suggesting she was
a threat to national security. When Congress demanded to know why Knauff
was being held, the government's evidence turned out to be little more than
a false rumor started by a former lover of Knauff's husband.
The more recent case of Hany Kiareldeen, a Palestinian who faced
deportation, developed along similar lines. A federal judge ordered
hisrelease in 1999 after 19 months in jail, saying secret evidence violated
due process and was uncorrobo-rated.
Kiareldeen suspected that the accusations against him originated with his
former wife, and he produced evidence that he had been arrested about six
times based upon false accusations of domestic violence that she had made
against him.
In one of last year's presidential debates, Bush condemned the use of
secret evidence. And in the past year and a half, removal proceedings
involving such evidence have all but disappeared.
But Cole of Georgetown said he expects to see many immigrants detained on
secret evidence. "As with so many things," Cole said, "Sept. 11 has changed
the whole field."
Copyright 2001, Chicago Tribune
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