[Congressional Record (Bound Edition), Volume 145 (1999), Part 20]
[Senate]
[Pages 29739-29740]
[From the U.S. Government Publishing Office, www.gpo.gov]




           USE OF SECRET EVIDENCE IN DEPORTATION PROCEEDINGS

 Mr. MOYNIHAN. Mr. President, on November 6, Nat Hentoff 
devoted his ever insightful column to the Kafka-like use of secret 
evidence by our Federal government in deportation proceedings. Once 
again, Mr. Hentoff has highlighted yet another distressing aspect of 
the 1996 Anti-Terrorism and Effective Death Penalty Act. I ask that Mr. 
Hentoff's column be printed in the Record.
  The column follows.

                [From the Washington Post, Nov. 6, 1999]

                        Prosecution in Darkness

                            (By Nat Hentoff)

       Around the country, 24 immigrants, most of them Muslim or 
     of Arab descent, are being detained--that is, imprisoned--by 
     the Immigration and Naturalization Service, which intends to 
     deport them.
       None of them, nor any of their lawyers, has been allowed to 
     see the evidence against them or to confront their accusers. 
     This denial of fundamental due process is justified on the 
     grounds of national security.
       In 1996, the president signed the Anti-Terrorism and 
     Effective Death Penalty Act, which authorized secret 
     evidence. A federal district judge in Newark, N.J., William 
     Walls, has now described this as ``government processes 
     initiated and prosecuted in darkness.'' (The use of secret 
     evidence, however, goes back to the 1950s).
       Although many active lawsuits, in various stages, are 
     attacking this use of secret evidence, Judge Walls is the 
     first jurist to flatly declare the use of such evidence 
     unconstitutional.
       His decision was in the case of Hany Mahmoud Kiareldeen, a 
     Palestinian who has been in this country for nine years, 
     managed an electronics store in New Jersey and is married to 
     an American citizen.
       First arrested for having an expired student visa, he later 
     was accused of meeting in his New Jersey home, a week before 
     the 1993 World Trade Center bombing, with one of the men 
     convicted in that attack. He also was accused of threatening 
     to kill Attorney General Janet Reno.
       The source of this classified evidence is the FBI's Joint 
     Terrorism Task Force. But, as Judge Walls has noted, the INS 
     failed to produce any witnesses--either from the FBI or from 
     the INS--or ``original source material'' in support of these 
     charges. Therefore no witnesses could be cross-examined at 
     the hearings.
       At the hearings, Kiareldeen produced witnesses and other 
     evidence that he was not living in the town where he is 
     supposed to have met with bombing conspirators. And an expert 
     witness, Dr. Laurie Myleroie, appeared for him. She is 
     described by James Fox, former head of the FBI's New York 
     office, as ``one of the world-class experts regarding Islam 
     and the World Trade Center bombing.'' She testified that no 
     evidence showed that the accused had any connection with that 
     bombing.
       The government's evidence, said the judge, failed ``to 
     satisfy the constitutional standard of fundamental 
     fairness.'' The INS--part of the Justice Department--denied 
     Kiareldeen's ``due process right to confront his accusers . . 
     . even one person during his extended tour through the INS's 
     administrative procedures.''
       These due process protections, declared the judge, ``must 
     be extended to all persons within the United States, citizens 
     and resident aliens alike. . . . Aliens, once legally 
     admitted into the United States are entitled to the shelter 
     of the Constitution.'' The judge went even farther. Even if 
     the government's reliance on secret evidence has been 
     provably based on a claim of national security, Judge Walls--
     quoting from a District of Columbia

[[Page 29740]]

     Court of Appeals decision, Rafeedie v. INS--asked ``whether 
     that government interest is so all-encompassing that it 
     requires that the petitioner be denied virtually every 
     fundamental feature of due process.''
       In Rafeedie, Judge David Ginsburg noted in 1989 that the 
     permanent resident alien in That case, in this country for 14 
     years, was ``like Joseph K. in Kafka's `The Trial' in that he 
     could only prevail if he ware able to rebut evidence that he 
     was not permitted to see.''
       Kiareldeen is now free after 19 months, but Judge Walls's 
     decision that secret evidence is unconstitutional applied 
     only to the state of New Jersey. The INS did not pursue its 
     appeal because it wants to avoid a Supreme Court decision. 
     The INS continues to insist it will keep on using secret 
     evidence.
       One of the victims of these prosecutions in darkness still 
     in prison is Nasser Ahmed, who has been in INS detention for 
     3\1/2\ years.
       Congress has the power to bring in the sunlight by passing 
     the Secret Evidence Repeal Act of 1999 (H.R. 2121)--
     introduced in June by Rep. David Bonior (D-Mich.). It would 
     ``abolish the use of secret evidence in American courts and 
     reaffirm the Fifth Amendment's guarantee that no person shall 
     be deprived of liberty without due process.''
       Will a bipartisan congress vote in favor of the 
     Constitution? And then, will the president allow the removal 
     of the secret evidence provisions of his cherished 1996 Anti-
     Terrorism Act?

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