ACLU Strongly Endorses Legislation To End Use of Secret Evidence in Immigration Proceedings

WASHINGTON — Saying that no one should be deported or kept in jail on the basis of secret evidence, the American Civil Liberties Union strongly endorsed legislation introduced today establishing fair procedures for handling classified information in immigration cases.

“The use of secret evidence is a feature of totalitarian governments,” said Gregory T. Nojeim, ACLU Associate Director and Chief Legislative Counsel. “It goes against everything our country stands for. People here have the right to know the evidence against them and to have an opportunity to rebut it.”

The legislation, introduced by Reps. David Bonior (D-MI), Bob Barr (R-GA), John Conyers (D-MI) and Tom Davis (R-VA) would ensure that no immigrant is deported, detained or denied any benefit under the Immigration and Nationality Act based on secret evidence.

The bill would establish procedures for handling classified information in immigration cases that are similar to the procedures used in criminal cases to protect both the due process rights of the accused and the government’s national security interests. Instead of using secret evidence, the Government would submit to the immigration judge and the non-citizen a court-approved unclassified summary of the classified information.

In the second presidential debate, George W. Bush called for an end to the use of secret evidence, equating its use – almost always against Arabs and Muslims – to a form of racial profiling. “This bill marks a real test of the President’s commitment to ending this practice,” Nojeim said. “We hope that President Bush will embrace the same legislation that candidate Bush signaled he would support when he was on the campaign trail.”

The government currently claims the authority to detain immigrants indefinitely, and to deport them based on undisclosed classified information it submits into evidence in immigration cases. The FBI testified last year that such secret evidence was being used in eleven cases and the INS has admitted that it used secret evidence in approximately 50 cases from 1992 through 1998.

In one of these cases, the ACLU represents Mazen Al-Najjar, a Palestinian resident of the United States for 20 years who was detained for three and one-half years on the basis of secret evidence. Last year, a federal immigration judge ordered him released because the INS had failed to give him an unclassified summary of the evidence against him to enable him to respond to the government’s case against him, despite a federal court order requiring it to do so.

“We hope that this day marks the beginning of the end of the use of secret evidence to deport people,” Nojeim said. “The Secret Evidence Repeal Act tells the INS to give non-citizens a fair opportunity to see a high-quality summary of the evidence against them. We strongly support it.”