Courts Growing Wary of Government's Use of "Secret Evidence" in Deportation Cases

August 3, 1999 12:00 am

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WASHINGTON — For the third time this year, a federal immigration judge has rejected government use of “secret evidence” in deportation proceedings, the American Civil Liberties Union said today.

The latest ruling came on July 30 in the case of Nasser K. Ahmed, a 38-year-old Egyptian man held for more than three years based on evidence that immigration authorities refused to reveal to Ahmed’s lawyers or even disclose privately to the court.

In a 15-page opinion, federal immigration judge Donn Livingston said the use of secret evidence creates a “poisonous atmosphere” and “potential for abuse” by government authorities. After reviewing a great deal of evidence rebutting the government’s case, the judge granted political asylum to Ahmed, agreeing with the ACLU’s argument that he is not a threat to national security and should not be deported.

The ACLU applauded the ruling, saying this decision further demonstrates that the government’s use of secret evidence violates fundamental due process rights.

Ironically, the ACLU said, the Immigration and Naturalization Service has justified its use of secret evidence by claiming that the courts act as an effective safeguard against governmental abuse. But in this case and others, the INS has refused to provide the court — even behind closed doors — with information on the identity and credibility of its sources.

Moreover, the INS has refused to provide the court with a justification for keeping the evidence secret. Indeed, a “persistent concern of the court,” Judge Livingston said in his opinion, was that much of the government’s so-called classified information could have been gathered from non-confidential sources, thus allowing Ahmed to confront the evidence against him.

Louis M. Bograd, an ACLU staff attorney who worked on the case, agreed. “Forcing people to defend themselves against secret charges is truly Kafkaesque,” he said.

Recently, in two separate but similar deportation cases, immigration judges in Detroit and New Jersey ultimately found the government’s secret evidence unconvincing and ordered the release of the Arab men under detention. In the New Jersey case, as in Ahmed’s, immigration officials declined to answer questions about secret evidence during confidential meetings with the court, Bograd said.

A recent decision by a federal court in Virginia “sums up the situation aptly,” Judge Livingston said in his ruling, citing that court’s opinion that the use of secret evidence “is an obnoxious practice, so unfair that in any ordinary litigation context, its unconstitutionality is manifest.”

The use of secret evidence has risen dramatically in recent years, the ACLU said. Currently, more than two dozen individuals around the country — all of them Arabs — are being detained by the INS on the basis of secret evidence.

“During the Red Scare of the 1950’s, people from Communist countries found themselves being deported based on secret evidence,” Bograd said. “With today’s terrorism hysteria, it’s people from Arab countries. The question people should be asking themselves is, who will it be tomorrow?”

Ahmed, a resident of Brooklyn and father of three, has been held in custody longer than any other person facing secret evidence charges, despite the fact that he has never been implicated or charged in any acts of terrorism.

He was serving as a court-appointed translator and paralegal to Sheik Omar Abdel-Rahman, the Muslim cleric convicted of plotting terrorists acts, when INS officials arrested him in 1996. Ahmed had also attended a mosque in Brooklyn where the Sheik gave occasional lectures and sermons.

Shortly after Judge Livingston granted Ahmed’s freedom, the government secured a temporary stay blocking his release. A ruling on the stay is pending.

In addition to its legal work on the issue of secret evidence, the ACLU is part of an effort to fix three 1996 laws that have already deprived thousands of immigrants of their civil and constitutional rights.

The campaign — Fix ’96: Restore America’s Tradition as a Nation of Immigrants and a Nation of Just Laws — was launched at a July 28 news conference by a diverse collection of national organizations. In addition to the ACLU, groups that have endorsed the campaign initiated by the National Immigration Forum include the U.S. Catholic Conference, the Leadership Conference on Civil Rights, the Anti-Defamation League and dozens of others.

Further information about the campaign can be found on the ACLU’s Freedom Network Website at /features/fix96.html.

The principal attorneys in the Ahmed case are Louis M. Bograd of the ACLU; David Cole, a Professor at Georgetown University Law Center; and Abdeen Jabara and Lawrence W. Schilling, attorneys in private practice in New York.

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