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Dangers of secret evidence too great

Posted: Friday, November 24, 2000

The following editorial appeared in the Chicago Tribune Wednesday, Nov. 22.

It's the sort of thing that might happen in Iran or North Korea or Cuba: You're arrested, thrown in jail, and accused of serious wrongdoing - and then, when you ask for evidence of your guilt, you're told it's a secret. But under a 1996 federal law governing deportation cases, it also happens right here in the land of the free. Among the victims is Mazen Al-Najjar, a Palestinian who has been detained for three years based on secret evidence that his lawyers have not been allowed to see.

Many experts think the provision is unconstitutional, and it may very well be. The American Civil Liberties Union says that "every court to address the constitutional question in the last dozen years has found the use of secret evidence in immigration proceedings against a person admitted to the United States, or seeking admission as a lawful permanent resident, unconstitutional" as a violation of due process.

But critics in Congress are not willing to wait for a court to undo what should never have been done. In October, a bipartisan group of House members persuaded the Judiciary Committee to approve a measure requiring that foreigners accused of posing a national security threat be given summaries of the secret evidence so that they have some chance to defend themselves.

The dangers of abuse are immense. When the Immigration and Naturalization Service was ordered by a judge to produce information supporting its case against Al-Najjar, there was not much to produce.

The defendant had supposedly raised money for a terrorist group, but after more than a week of hearings, Judge R. Kevin McHugh found "no evidence that he engaged in fundraising for any organization" and no reason "to conclude that Mr. Al-Najjar is a threat to national security."

Requiring the government to furnish such information can be inconvenient and in some instances could compromise sources of intelligence. But similar problems exist in criminal cases involving American citizens, and they don't justify the use of secret evidence. What is fundamentally illegitimate in those cases is also impossible to excuse in deportation cases.

Despite the Judiciary Committee action, the House may not get around to addressing this terrible injustice. It should, and soon. Punishing people for things they may not have done on the basis of evidence they can't see may have a place in some countries, but not this one.



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