Disclosure of Classified Opinion in Immigrant Deportation Case Reveals Paucity of "Secret Evidence"

November 10, 1999 12:00 am

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Disclosure of Classified Opinion in Immigrant Deportation Case Reveals Paucity of “Secret Evidence”

FOR IMMEDIATE RELEASE

WASHINGTON — Newly disclosed “secret evidence” used to jail an Egyptian national reveals that much of the government’s information was based on second- and third-hand hearsay and came from Egyptian authorities, who are likely to torture and persecute him if he is returned, the man’s attorneys charged today.

The disclosure, which came in response to a “Freedom of Information Act” (FOIA) request by the man, 39 -year-old Nasser Ahmed, is a declassified version of an opinion issued by the judge in his case last July.

Since March 1996, Ahmed has been jailed based on the government’s assertion that he is a threat to national security because he belongs to an Islamic group in Egypt and is associated with Sheik Omar Abdel Rahman.

But the opinion released through FOIA reveals why Immigration Judge Donn Livingston found the government’s secret evidence unreliable and why he ruled that Ahmed is not a threat to national security.

Although the judge ruled that Ahmed should be freed, he nevertheless remains incarcerated because the Board of Immigration Appeals stayed his release at the request of the Immigration and Naturalization Service, which is appealing the ruling.

Specifically, the newly declassified opinion — much of which is heavily censored — reveals that:

  • Most of the secret evidence is “double or triple hearsay,” some of it from sources whose credibility even the FBI doubts.
  • The INS and FBI have abandoned their central claim that Ahmed was responsible for transporting a letter from Sheikh Omar Abdel Rahman in prison that allegedly led to an attack on tourists in Cairo.
  • When the immigration judge, who has a security clearance, sought to question FBI sources privately, the government refused to produce the witnesses or to answer questions about the credibility and reliability of those sources.
  • According to the judge’s opinion, despite the “very real danger that the Egyptian government may seek to silence Sheik Rahman by persecuting” Ahmed, government officials refused to answer questions about the Egyptian government’s “role in assembling evidence and providing it to the FBI.”
  • In secret testimony, an FBI agent argued that Ahmed’s detention should be continued because his incarceration has increased his potential credibility and stature as a political leader in the Egyptian expatriate community if released.

“As we suspected all along, the opinion reveals that one of the principal sources against Ahmed is the Egyptian government, the same government that threatens to persecute and torture him if he is returned,” said Louis Bograd, a Senior Staff Attorney in the American Civil Liberties Union’s National Legal Department and one of Ahmed’s counsel. “These documents demonstrate, as if more proof were needed, the perversity of the government’s reliance on secret evidence in asylum proceedings.”

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.

David Cole, professor at Georgetown University Law Center and another of Ahmed’s counsel, noted that, “as in these other recent secret evidence cases, disclosure of the evidence here only reveals how weak the government’s case has been all along.”

“The fact that all of this evidence has now been revealed, three-and-a-half years after Ahmed was thrown in jail, illustrates that the evidence shouldn’t have been secret in the first place,” he added.

Abdeen Jabara, another of Ahmed’s attorneys, said he found it “outrageous that the FBI went so far as to argue that Ahmed’s detention should be continued because its own decision to incarcerate him has made him a martyr in the community.”

The case, In the Matter of Nasser Ahmed, File Number A90 674 238, is in the Immigration Court.

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