Secret Evidence: What The Courts Are Saying...

SECRET EVIDENCE

What the Courts Are Saying…

May 23, 2000

Supreme Court Justice Frankfurter in Joint Anti-Fascist Refugee Comm. v. McGrath:

“No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to popular government, that justice has been done.” (Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-172 (1951) (Frankfurter, J., concurring)).

Supreme Court Justice Jackson in Knauff v. Shaughnessy:

“The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.” (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (Jackson, J., dissenting)).

Federal Appeals Court for the District of Columbia on Secret Evidence in Rafeedie v. INS:

“… Rafeedie — like Joseph K. in Kafka’s ‘The Trial’ — can prevail … only if he can rebut the undisclosed evidence against him, i.e. prove that he is not a terrorist regardless of what might be implied by the government’s confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden? .” (Rafeedie v. INS, 880 F.2d 506, 516, (D.C. Cir. 1989))

Federal Appeals Court for the Ninth Circuit, on Secret Evidence in ADC v. Reno:

“One would be hard pressed to design a procedure more likely to result in erroneous deprivations.”

“Because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the … balancing [test adopted by the Supreme Court to determine whether INS conduct violates a non-citizen’s due process rights] suggests that use of undisclosed information in adjudications should be presumptively unconstitutional.” (American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1069; 1070-71 (9th Cir. 1995)).

Federal District Court in New Jersey in Kiareldeen v. Reno:

“Here, 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.”

“Despite repeated requests from the Immigration Judge, the government made no recorded efforts to produce witnesses, either in camera or in public, to support its allegations of terrorism. The petitioner was thus denied the opportunity to meaningfully cross-examine even one person during his extended detour through the INS’ administrative procedures. The INS’ actions unconstitutionally damaged Kiareldeen’s due process right to confront his accusers. The quality of the evidence offered by the government as the basis for petitioners’ continued detention does not attain that level of reliability sufficient to satisfy the constitutional standard of fundamental fairness. Even the majority opinion of the Board of Immigration Appeals, which overruled the [immigration judge’s] decision to release the petitioner on bond, noted: ‘Like the Immigration Judge and the dissent, we have some concerns about the reliability of some of the classified information.’ The court finds that to be an understatement.”

“Here, the court cannot justify the government’s attempt to ‘allow [persons] to be convicted on unsworn testimony of witnesses — a practice which runs counter to the notions of fairness on which our legal system is founded.’ ” [citation omitted] (Kiareldeen v. Reno, 71 F.Supp.2d 402, 414; 418; 419 (D.N.J. 1999)).

Federal Court for the Eastern District of Virginia in Haddam v. Reno:

“The use of secret evidence against a party, evidence that is given to, and relied on, by the [immigration judge and the Board of Immigration Appeals] but kept entirely concealed from the party and the party’s counsel, is an obnoxious practice, so unfair that in any ordinary litigation context, its unconstitutionality is manifest.” (Haddam v. Reno, 54 F. Supp.2d 588, 598 (E.D. Va. 1999)). (The Haddam court did not address the constitutional issues arising from the use of secret evidence).

Donn Livingston, Immigration Judge, In In Re Nasser Ahmed:

“The INS seems to be asking the court to abdicate its statutory and regulatory duty to decide the respondent’s asylum claim based on the evidence presented at the hearing. The court will respect the expertise of law enforcement personnel and their dedication to protecting our country. But the court will not defer to their credibility findings, their weighing of the evidence or their interpretations of law. … [T]hese issues are to be resolved by the [immigration] court which will make its own findings and conclusions based on the evidence presented.”

“It appears that some of the classified information could be gathered from non-confidential sources. If the information could be presented in open court as coming from an unclassified source, the respondent would be able to confront the evidence against him. This is certainly a desirable feature of any court proceeding. Indeed, the court is concerned about the possibility for abuse in this area. Imagine, for example, an agency which has two sources of evidence of a particular fact. One source is classified and the other source is public. If the agency chooses to present the information through the public source, the respondent will have an opportunity to confront the evidence. However, if the agency chooses to present the evidence through a classified source, the evidence could remain unassailable. Imagine further the situation where an agency has classified information of a certain fact, but does not yet have a public source for that fact. If the agency knows it can present the classified information in camera, what is the incentive to expend investigatory resources on developing a public source for that evidence?”

“Virtually all of the secret information is hearsay not subject to any exception to the hearsay rule. Most of this information is double or triple hearsay. Of course, hearsay evidence may be admissible in deportation proceedings [citation omitted]. However, hearsay may be relied upon only if it is probative and its use would not be fundamentally unfair [citations omitted].”

“The government’s failure to respond to the credibility questions leaves the court utterly unable to assess the reliability of the government’s hearsay evidence. The FBI urges the court to defer to its assessment of credibility. …However, the FBI has refused to provide the court with evidence from which the court could make an independent evaluation of the credibility of its sources. In light of that refusal, this court must reject the secret information as being of unproven reliability.”

(In Re Nasser Ahmed, No. A90 674 238 (7/30/99)).