by Enver Masud
U.S. federal agents stormed into Hany Kiareldeen's shop,
handcuffed him, and detained him for what would become 19
months in jail--all on the basis of secret evidence.
Kiareldeen, a 32-year-old Palestinian immigrant, had been
held by the U.S. Immigration and Naturalization Service
(INS) since March 1998 because the FBI's Joint Terrorism
Task Force had developed secret evidence that he had hosted
a meeting with terrorists planning the World Trade Center
bombing, and had talked of murdering Attorney General Janet
Reno.
Kiareldeen has been freed, but 20 other Muslims remain in
U.S. jails on the basis of a 1996 anti-terrorism bill
authorizing the use of secret evidence--evidence that
neither the defendants nor their lawyers have the right to
see--in deportation proceedings.
The use of secret evidence by the INS was first authorized
by the 1996 anti-terrorism bill that followed the World
Trade Center and Oklahoma City bombings.
Secret evidence has been used in about two dozen cases
around the country in which the 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 reported Lorraine Adams and David A. Vise of the
Washington Post ("Classified Evidence Ruled Out in
Deportation, Oct. 21, 1999).
Hany Kiareldeen was freed after seven judges reviewed his
case and rejected government claims that he posed a threat
to national security. But he has never seen the classified
report used to jail him.
According to the Christian Science Monitor, "The main
charges apparently came from Kiareldeen's ex-wife, who was
locked in a custody battle with him and had repeatedly made
false accusations against him. The INS evidence alleged that
Kiareldeen had hosted a meeting with terrorists in his
Nutley, N.J., apartment 18 months before he had moved
there."
Nasser K. Ahmed, jailed by the U.S. government for more than
three years on the basis of secret evidence was freed 40
days after Hany Kiareldeen, but Ahmed's case is not yet
over--he is free on personal bond pending a final ruling by
the INS Board of Immigration Appeals on whether he should be
granted asylum. Using secret evidence, the INS had sought to
deport Ahmed to Egypt after he overstayed his visa.
Ahmed was accused of belonging to an Egyptian terrorist
group of which Sheikh Abdel Rahman is said to be the
spiritual leader. Ahmed admitted to being an admirer of
Sheikh Abdel Rahman, but has denied involvement in
terrorism.
The U.S. government also sought to use secret evidence to
expel six Iraqis brought to this country by the CIA. In
another case, the government arrested and sought to deport
eight Los Angeles activists for the Popular Front for the
Liberation of Palestine on the basis of secret evidence.
For the first time, on October 20, 1999, a federal court
weighed the constitutionality of the use of secret evidence
and found it unconstitutional.
Federal district Judge William Walls held in Kiareldeen's
case that "the government's reliance on secret evidence
violates the due process protections that the Constitution
directs must be extended to all persons within the United
States, citizens and resident aliens alike."
Immigration judge, Donn Livingston, sharply criticized the
government's case against Nasser K. Ahmed, calling it
"double or triple hearsay," and questioned the reliability
of some government sources, saying he had a "very real
concern" that the Egyptian government might be the source of
secret evidence against Ahmed. Judge Livingston cited "the
very real danger that the Egyptian government" was seeking
to silence Abdel Rahman, one of its harshest critics reports
Benjamin Weiser of the New York Times ("U.S. Frees Egyptian
Jailed on Secret Evidence," Nov. 30, 1999)
Muslim and Arab groups have lobbied aggressively to repeal
secret evidence laws.
The Council on American-Islamic Relations, says "secret
evidence is unconstitutional and is used disproportionately
against members of the Muslim and Arab-American communities.
Almost all of the individuals held based on secret evidence
are Muslims and Arabs." CAIR argues that "the basic
guarantee to due process of law contained in the Fifth
Amendment should not be denied to anyone, citizen or
non-citizen. To deprive any individual in the United States
of liberty without a chance to confront the evidence used
against him is a denial of justice. It flies in the face of
American values."
The American-Arab Anti-Discrimination Committee argues,
"this practice is manifestly unconstitutional and stands in
direct violation of long-standing traditions guaranteeing
the rights of defendants to confront the evidence against
them. Moreover, since the passage of the 1996 Anti-Terrorism
and Effective Death Penalty Act, secret evidence has been
used primarily against persons of Arab ethnicity and Muslim
religious affiliation. At least three Federal judges have
ruled that it violates 5th amendment rights to due process."
Secret evidence threatens not just Arabs and Muslims, but
everyone's right to free speech--a right guaranteed by the First
Amendment to the U.S. Constitution. Representative David E.
Bonior of Michigan says it is a "travesty of justice that
this continues in our country without people having the
right to face their accusers."
While the laws remain intact, on June 22, the U.S. House of
Representatives voted to cut $173,480 in U.S. Justice
Department expenses, the estimated annual cost of detaining
people based on secret evidence.
Largely symbolic, the amendment to a government
appropriations bill, sponsored by Rep. Tom Campbell (R-CA)--
co-sponsored by Reps. David Bonior (D-MI), Ray LaHood (R-IL)
and Mark Sanford (R-SC)--does send a signal regarding
Congressional intent, and reinforces recent court decisions.
Campbell's amendment passed 239-173 following a one-hour
debate in which House members voiced their opposition to
secret evidence. Mr. Campbell also introduced legislation to
ban the use of secret evidence entirely. The Secret Evidence
Repeal Act (H.R.2121) has more than 100 congressional
sponsors.
The only organizational opposition to H.R.2121 has come from
the American Jewish Committee and the Anti-Defamation
League--also a Jewish organization. The American Jewish
Committee issued a statement voicing "deep regret" over the
June 22 vote on the Campbell amendment.
[Enver Masud is an engineering management consultant, author of "The War on
Islam," and founder of The Wisdom Fund--www.twf.org. This article was published
in England as "Fighting terrorism on hearsay," Impact International,August 2000.]
---
[Yet another federal appeals court has slammed the door on public interest
groups trying to stem the power of the government to detain, arrest, try,
and deport people in secret.--Elaine Cassel, "Secret Trials,
Nameless Defendents, Veiled Threats to Defense Lawyers," CounterPunch,
June 18, 2003]
Linda Greehouse, "Justices Allow Policy
of Silence on 9/11 Detainees," New York Times, January 13, 2004
[ . . . in the immediate aftermath of 9/11 the US government undertook the
"preventative detention" of about 5,000 men on the basis of their birthplace and
later sought a further 19,000 "voluntary interviews". Over the next year, more than
170,000 men from 24 predominantly Muslim countries and North Korea were
fingerprinted and interviewed in a programme of "special registration". None of
these produced a single terrorism conviction.--Gary Younge, "The war on terror has been about scaring people, not protecting them,"
Guardian, January 3, 2010]
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