Since the attacks on New York and the Pentagon, the Bush administration has urged Congress to expand the Justice Department’s authority to detain and deport suspected terrorists. But the government handed similarly vast powers to immigration officials only a few years ago when terrorism flared up, and regret set in soon after.
Before Sept. 11, the push in Washington was to restrict the powers of immigration authorities, not extend them. Courts, legislators and even President Bush had criticized federal agents about their use of classified or secret evidence, called “poisonous” by one judge and “obnoxious” by another. The Immigration and Naturalization Service has detained about two dozen suspected terrorists for months and even years while refusing to disclose the evidence against them. Most were subsequently freed and allowed to remain in the U.S.
Spurred by the 1995 Oklahoma City bombing and the 1993 World Trade Center bombing, secret evidence was sanctioned by Congress in two laws passed in 1996. But federal judges in three states have since called such evidence unconstitutional, and even some high-ranking government terrorism experts have denounced its use.
In Senate testimony, former CIA director James Woolsey said INS procedure in such cases “is to collect rumors and unfounded allegations, not investigate them, submit them [privately] to the immigration judge, and then demand that the individual in question be held [as] a threat to national security if he does not succeed in refuting the charges of which he is unaware.”
A reversal
In March, legislators introduced a bill that attracted more than 100 co-sponsors to repeal most uses of secret evidence. In June, U.S. Atty. Gen. John Ashcroft told Congress that Bush had “expressed his discomfort” with secret evidence, and that so far his administration had not used it. But after Sept. 11, the talk of reining in INS powers turned to granting new ones. Ashcroft returned to Capitol Hill, this time asking for enhanced authority to detain and deport non-citizens.
“The ability of alien terrorists to move freely across our borders and operate within the United States is critical to their capacity to inflict damage on our citizens and facilities,” Ashcroft told Congress.
The bill backed by the administration would expand the grounds for deportation, permit the INS to detain suspected terrorists perhaps indefinitely, and prevent the judiciary from reviewing the government’s evidence to see if it is reliable.
The proposed changes triggered immediate alarm for attorneys and legislators already critical of the INS.
They say the bill would permit someone to be held indefinitely if the attorney general has “reason to believe” that the suspect poses a threat, and that determination would not be subject to judicial review. Such powers would be unprecedented in modern times, they say.
“My heart sank when I saw those proposals,” said Susan Akram, a Boston University law professor.
David Cole, a Georgetown University law professor and immigration law expert, told Congress that the bill’s definition of terrorist activity is so broad it “draws no distinction between the hijacker, the humanitarian and the barroom brawler.”
And Juliette Kayyem, a former Justice Department attorney who runs a counterterrorism program at Harvard University, said the INS already has abused its authority to use secret evidence. Any law authorizing indefinite detentions would simply exacerbate the problem, she said.
“It’s sort of a 180-degree turn from what people were thinking before Sept. 11,” Kayyem said. “Before, they had secret evidence. Now, it would be the no-evidence rule.”
Immigration attorneys estimate there have been about two dozen cases in which the INS has tried to remove a suspected terrorist while refusing to disclose the basis for its allegations. The use of classified evidence is intended to protect national security by concealing U.S. intelligence sources and surveillance techniques, but it also prevents suspects from confronting their accusers.
INS spokesman Russ Bergeron said the agency’s use of secret evidence meets a congressional mandate. “Don’t take a cheap shot at INS for meeting our obligations under the law,” he said.
Although the Constitution provides broad legal protections, there are times when the government’s “responsibility to protect its citizens outweighs any one individual’s protection,” Bergeron said.
The INS uses classified evidence sparingly, Bergeron said. And without providing a number, he said there have been some cases in which such evidence helped remove someone who posed a threat.
But immigration lawyers say most, if not all, of the immigrants who have launched serious challenges to such evidence have prevailed in the courts.
In some cases the government has been pressured into disclosing its grounds for detaining a suspected terrorist, only to reveal flimsy evidence.
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Egyptian Nasser Ahmed, who is married and the father of three young children, spent more than three years in a federal jail in New York, much of the time in solitary confinement, after he was accused of being a danger to U.S. security. Abdeen Jabara, one of Ahmed’s lawyers, said: “He was just locked up and [the government] said, `We can’t tell you why.’ How can a lawyer be a lawyer if he can’t find out the evidence?”
Under pressure from the American Civil Liberties Union, the government declassified much of its evidence, which Ahmed’s attorneys then debunked. In 1999 an immigration judge ordered Ahmed’s release. The judge rejected the INS allegations point by point, saying, for example, that the government had failed to properly distinguish al-Gama’a al Islamiyya, an alleged terrorist organization, from al-Gama’ at al Islamiyya, a collection of hundreds of groups that include social welfare, health and community organizations.
Federal agents also have faced criticism in other immigration cases for improperly translating interviews and documents, or for failing to find their way in what Woolsey has called “the wilderness of mirrors that is the Middle East.”
Testifying before a Senate subcommittee in 1998, Woolsey decried the government’s “appalling” incompetence in deportation cases, describing federal employees who confuse Iran and Iraq, and an FBI agent “who apparently could not tell a Kurd from a ziggurat.”
Another critic of the secret-evidence provision is Philip Wilcox, former director of the U.S. State Department’s counterterrorism office.
“It was certainly an infringement on the traditional right to cross-examination,” Wilcox said. As an anti-terrorism tool, he said, it hasn’t been “terribly important.”
Wilcox said he was unaware of anyone who was released after being held on secret evidence and “subsequently carried out acts of terrorism.”
Violating due process
Attorneys representing sus-pected terrorists have chal-lenged the constitutional-ity of the 1996 laws and their authorization of secret evi-dence. In individual cases, federal judges in New Jersey, Florida and California have ruled that such evidence violated due process. The U.S. Supreme Court has not directly addressed the secret-evidence provisions of the 1996 laws, but did uphold the use of classified evidence in opinions handed down in the 1950s.
By sanctioning the use of secret evidence against suspect-ed terrorists, the two 1996 laws resurrected a practice that goes back more than a half century. Federal officials used classified evidence in the 1940s to exclude or deport would-be immigrants, but in the ’80s the practice came under increasing scrutiny and began to disappear.
From the outset, such evidence proved problematic.
Ellen Knauff, a German national, was stopped at Ellis Island in 1948 and detained for three years based upon classified evidence suggesting she was a threat to national security. When Congress demanded to know why Knauff was being held, the government’s evidence turned out to be little more than a false rumor started by a former lover of Knauff’s husband.
The more recent case of Hany Kiareldeen, a Palestinian who faced deportation, developed along similar lines. A federal judge ordered hisrelease in 1999 after 19 months in jail, saying secret evidence violated due process and was uncorrobo-rated.
Kiareldeen suspected that the accusations against him originated with his former wife, and he produced evidence that he had been arrested about six times based upon false accusations of domestic violence that she had made against him.
In one of last year’s presidential debates, Bush condemned the use of secret evidence. And in the past year and a half, removal proceedings involving such evidence have all but disappeared.
But Cole of Georgetown said he expects to see many immigrants detained on secret evidence. “As with so many things,” Cole said, “Sept. 11 has changed the whole field.”