SECRET EVIDENCE CASES

• Nasser Ahmed
• Dr. Mazen Al-Najjar
• Harpal Singh Cheema
• Dr. Anwar Haddam
• Imad Hamad
• The Iraqi Detainees
• Hany Kiareldeen
• The Los Angeles 8 (LA 8)
• Yahia Meddah
• Ali Termos

  ** "Other Secret Evidence Cases" by Kit Gage, from The Link

Nasser Ahmed

When Nasser Ahmed, who immigrated from Egypt in 1986, accepted the U.S. government’s appointment to serve as Sheikh Abdel Rahman’s paralegal and translator, he simultaneously became the subject of an FBI investigation. Both the FBI and INS tried to convince Ahmed to help them convict Sheikh Abdel Rahman, the most visible leader of the opposition to the Egyptian government, or face deportation. He refused and the INS arrested him on April 24, 1995 for having overstayed his visa. He was released on $15,000 bond, and continued to work with the sheikh’s defense team under court authority.

He was rearrested a year later, in April 1996. He applied both for release on bond and for political asylum as well. This time the INS introduced secret evidence claiming Ahmed was a “threat to national security,” and he remained in jail without the option of paying what is typically a nominal bond to remain free pending deportation.

Ahmed and his lawyers were not allowed to see the detailed basis of the claim. The government’s one-sentence summary of the secret evidence—a rare concession in such cases— was termed “largely useless” by the immigration judge, but the judge still felt he had to allow deportation because of the secret evidence.

Ahmed challenged the constitutionality of the immigration court’s decision in federal court and finally won his case and was released in November 1999.

David Cole served as the main attorney on this complex legal case and NCPPF worked to nationally publicize the use of secret evidence in the case.

For more information on the case of Nasser Ahmed, go to:

1999 CNN.com Article
1999 ADC Release
1999 ACLU Release
1999 Washington Post Editorial

Free Nasser Ahmed
WASHINGTON POST EDITORIAL (excerpted)

Tuesday, November 23, 1999; Page A26

ATTORNEY GENERAL Janet Reno will decide today whether Nasser Ahmed is to remain in jail longer than the 3 1/2 years he has already been held. Mr. Ahmed... has been behind bars while the government has sought to deport him as a threat to national security. The evidence that allegedly supported this claim was initially secret.... Yet after some evidence was released and the defense finally was able to challenge it, that same judge concluded the government's case had been effectively rebutted. He granted Mr. Ahmed asylum and ordered him released on bond pending any appeals.

The Immigration and Naturalization Service, however, asked the Board of Immigration Appeals to keep Mr. Ahmed locked up.... And when the BIA last week refused, INS asked Ms. Reno to overrule it.

... Mr. Ahmed's [case] seems unusual for the duration of his incarceration and the poor quality of the government's case. The FBI has contended that he was a member of the sheik's terrorist group and that he carried a letter from him that led to a terrorist attack in Egypt. But a recently declassified portion of the immigration judge's opinion reveals that the FBI itself lost confidence in the evidence... and that most of the secret evidence against him "is double or triple hearsay."

It is time for the government to let Mr. Ahmed go free while it proceeds with its appeal...[and] to rein in the use of secret evidence. In criminal cases involving classified material, the government is required to provide the defendant with an unclassified summary sufficient to enable the defense to put on a case. While immigration cases will not always provide the same protections as exist in the criminal arena, secret evidence has been shown to be so abusive and unreliable that something similar is warranted.

© Copyright 1999 The Washington Post Company

Dr. Mazen Al-Najjar

On the morning of May 19, 1997, Dr. Al-Najjar, born in the Gaza Strip in 1957, was preparing to take his daughters to school in Southern Florida when agents of the FBI, INS and the local sheriff's office handcuffed and arrested him. They took Mazzen to an INS detention facility, where he was held without bond.

[Federal authorities] claimed that WISE, founded by Dr. Al-Najjar and his brother-in-law (Dr. Sami Al-Arian, a professor at USF), was actually a front for Palestinian "terrorists." However, an investigation ordered by USF and conducted by former American Bar Association president William Reece Smith, Jr., concluded that there was no wrongdong by WISE or its officials.

Dr. Al-Najjar requested political asylum as he is a stateless Palestinian. The immigration judge found that he did not qualify for political asylum because he did not show a threat of persecution, the burden required for a grant of political asylum.

David Cole and Nancy Chang were among Al-Najjar's attorneys who pursued complex and multiple jurisdiction legal work in his case. Advocacy by Al-Najjar's family, community, and the National Coalition to Protect Political Freedom helped make his case nationally known.

Al-Najjar was released from jail on secret evidence charges in December 2000 after more than three years in detention.

Dr. Al-Najjar was detained again on November 24, 2001 as a result of continuing deportation proceedings which no longer involved secret evidence. He was finally deported to an unknown country in August 2002.

For more information on the case of Dr. Al-Najjar, go to:

2001 St. Petersburg Times Online Article
2001 ABCNews.com Article
2001 Indy Media Press Release
2000 Amnesty International Media Advisory

Harpal Singh Cheema

Harpal Singh and his wife Rajwinder Kaur were detained in California starting in the late 1990s. This is a case in which Harpal Singh was tortured by Indian authorities when he last returned to India. They were in deportation proceedings – called Sikh terrorists by the U.S. - with the US keeping them jailed and denying bond using secret evidence. Their request for asylum was denied and they appealed, citing the international Convention Against Torture. A May 16 decision by the 9th Circuit Court of Appeals required that the Board of Immigration Appeals give it the classified (secret) information on which the immigration court decided the original case, noting that (as we already know), the Court cannot make a rational decision without all the evidence.

Finally in December 2003, a federal appeals court ordered immigration officials to release Cheema who had been jailed for over seven years. Since the government offered no evidence that Cheema was actually dangerous, he was released from jail, could not be deported and became eligible for political asylum.

On June 24, 2004, the U.S Court of Appeals ruled that Cheema's wife may stay in the U.S. It recommended that the Board of Immigration Appeals look positively on granting Cheema asylum. Moreover, it declined to consider the government's secret evidence in the case.

December 2003 Sikh Times Article
July 2003 San Francisco Bay Guardian Article

(February 2000 Press Conference)

ATTORNEYS BLAST INS’S USE OF SECRET EVIDENCE AGAINST ASYLUM SEEKERS

SPEAKERS: Robert Jobe, Hilary Han, Attorneys for Harpal Singh and Rajvinder Kaur

The Immigration and Naturalization Service has appealed the decision of a San Francisco immigration judge granting withholding of deportation to Harpal Singh, a Sikh political activist from India, and asylum to his wife Rajvinder Kaur. Currently, Mr. Singh has been in jail for more than two years on the basis of classified evidence that has been withheld from him and his attorneys. This case is one of approximately 50 cases nationwide in which the INS has sought to deport aliens based on secret evidence.

Harpal Singh is an Indian national and outspoken advocate of Khalistan, an independent state sought by Sikhs in response to political and religious repression by the Indian government. He is the president of Sikh Youth of America, a top expatriate Khalistani organization. In India, Mr. Singh was the victim of brutal torture by the Indian government because of his political activities.

After an arrest in 1989, the Indian police broke Mr. Singh’s leg with wooden sticks. After twenty days without medical treatment, they were ordered by a magistrate to take him to a hospital, where a cast was applied. The night before he was taken back to court, the police re-fractured his leg by twisting it inside the cast. After fleeing the country, he returned in 1992 after hearing news that his wife was sick. Mr. Singh was again arrested at the airport in Bombay and held incognito for a month, during which he was blindfolded, tortured, and interrogated about his alleged ties to Sikh militants.

Mr. Singh and Ms. Kaur fled to the United States in 1993 and were forced to leave behind their daughter, who is now 13 years old. They were stopped by the INS at the border but were allowed to enter the country to pursue an asylum application.

During the course of deportation proceedings, the INS presented evidence to the immigration judge that, they alleged, demonstrated that Mr. Singh and Ms. Kaur are a danger to the national security. This evidence was never presented to Mr. Singh, Ms. Kaur or their attorneys. Immigration Judge Darryl Marks Keener reviewed the secret evidence and found that the INS had not established "reasonable grounds" to consider either one a national security risk. [illegible line][He then granted Mr. Singh’s withholding of deportation and Ms.] Kaur’s application for asylum.

Mr. Singh was arrested by the INS in November 1997 and remains in jail. According to his attorney Mr. Robert Jobe, [illegible line]. The only way to challenge his detention is to file a petition for habeas corpus in federal court." However, that is complicated by the fact that Mr. Singh is in "exclusion" proceedings, by virtue of his having been arrested by the INS at the time of his entry into the country. "Even though Harpal’s due process rights are clearly being violated, the Supreme Court has sharply limited those rights for immigrants in exclusion proceedings." says Mr. Jobe.

Had the INS not appealed, Ms. Kaur would have been able to file a petition for their daughter Navroup to join them in the United States. However, that is on hold as they wait for the Board of Immigration Appeals to review the judge’s decision, a process that can take upwards of two years. "Harpal and Rajvinder had missed most of their daughter’s childhood. Now, the only reason for their continued separation is an accusation of terrorism against a woman who has never had political involvement of any kind," says Hilary Han, co-counsel for the couple.

Dr. Anwar Haddam

The detention of Anwar Haddam represents one of the longest cases of political imprisonment based upon "secret evidence" in America. Dr. Haddam, an Algerian, was elected in 1991 to the Algerian parliament as part of the FIS - Islamic Salvation Front. Following the 1992 coup, the military invalidated the elections and killed or imprisoned many FIS members. Haddam first fled to Morocco, then to the U.S., to the Washington, D.C. area, where he continued to be vocal on Algerian issues. In March 1996, Haddam was tried in absentia in Algeria, first sentenced to life imprisonment, which was changed to a death sentence.

The family was granted parole - permission to reside in the U.S - with the U.S. aware of his political situation and his need to flee Algeria. Haddam was repeatedly granted permission to travel and return to the U.S. In December 1996 that parole was then revoked without proper notice and without rationale to Haddam and his lawyers. The U.S. sought to deport Dr. Haddam back to Algeria. He was arrested and detained before being notified of the change.

The Immigration Judge denied Dr. Haddam asylum only because of the secret evidence. In the Board of Immigration Appeals decision on Haddam's case dated November 30th, 2000, the BIA said the INS had not proven its case - either using public or secret evidence and that Haddam was entitled to political asylum.

Haddam's lawyer, Malea Kiblan, worked with NCPPF to publicize his case. Dr. Haddam was finally released in December 2000 and reunited with his family in Arlington, VA.

For more information on the Anwar Haddam case, go to:

December 2000 About.com article

Imad Hamad

Imad Hamad's case is interesting because his alleged "terrorist activity" occurred some 20 years ago, and because he was never detained by the INS. It was also one of the earlliest of the pre-911 secret evidence cases.

Mr. Hamad, a Palestinian, entered the United States as a student in 1980. While he was attending school in California, he allegedly attended some rallies and otherwise supported some activities of the Popular Front for the Liberation of Palestine. He was placed in deportation proceedings in 1996 when the INS denied an application for adjustment to permanent residence after his first marriage fell apart. As deportation proceedings dragged on, Mr. Hamad moved to Detroit, where he met and subsequently married his current wife.

When a deportation hearing was finally scheduled, an immigration judge dismissed the government's allegations that Mr. Hamad had engaged in terrorist activity, stating that the INS had not proved those alleged actions ever took place. Ultimately, the judge granted Mr. Hamad adjustment of status to lawful permanent resident based on his second marriage. The INS appealed this decision, as well as the judge's refusal to consider their claims that Mr. Hamad had been involved with the PFLP.

In February of 1999, Hamad was granted a green card as a result of the decision in Hamad's favor by the Bureau of Immigration Appeals affirming his right to become a citizen of the United States.

For more information on the Imad Hamad case, go to:

2003 Detroit News update
2001 CNN interview
1999 Catholic Information Network piece by Betty Molchany
1997 Arab American Institute Article

The Iraqi Detainees

During and after the Persian Gulf War, many Iraqis worked with the CIA and U.S. military as members of the U.S.-funded Iraqi National Congress/Iraqi National Accord to attempt to overthrow Saddam Hussein. When these efforts failed in 1996, roughly 6500 people were evacuated out of Iraq by the U. S. to Turkey and then to Guam and finally to the United States. After arriving in the U.S., most of the Iraqis were resettled, but in March 1997, a few were separated from their families and told that the INS was not granting them asylum. They were then detained based on a lack of a valid immigration visa. Deportation for many of these leaders would have meant torture and probable death, but the U.S. government claimed they were a threat to national security and used secret evidence to make their case. The attorneys for the men were not told what the charges were nor what evidence there was to support the charges.

In 1998, former CIA-Director James Woolsey, who maintained a security clearance and would therefore have access to the secret evidence, agreed to join Neils Frenzen to represent the final 8. In 1999, the attorneys and the INS agreed to let the men and their families remain in the U.S. (pending potential deportation to a mutually acceptable country) under the condition that they remain in Lincoln, Nebraska and stop challenging the deportation. Six of them agreed to the arrangement.

Two Iraqi brothers did not accept the settlement agreement and chose to have their exclusion proceedings reheard. The rehearing took place in 2000, and the men were able to cross-examine three FBI NSD Special Agents, had access to most of the previously classified FBI reports, and received a one-sentence unclassified summary of information from the CIA. In June 2000 the Immigration Judge found the brothers not to be security risks, granted asylum, withholding, and CAT (Convention Against Torture). INS decided not to appeal and both were released from custody. NCPPF worked with the families and attorneys to publicize the case and use of secret evidence.

For more information on the Iraqi Detainees, go to:

July 2000 New York Times Magazine article about James Woolsey and the Iraqi 6
May 2000 ImmigrationLinks.com report
September 1999 piece by Betty Molchany

Hany Kiareldeen

Hany Kiareldeen, a stateless Palestinian, came to the United States in 1990 on a student visa. In 1997, he married a U.S. citizen, and they began the process for Hany to become a legal permanent resident. In March 1998, Hany was arrested and deemed 'deportable' for overstaying his student visa. Pending the outcome of his deportation hearing, Kiareldeen was kept in INS custody and was denied bond. The INS presented "secret evidence" to the Immigration Judge (IJ) in an effort to show that Kiareldeen was a suspected member of a terrorist organization and a threat to national security. Not once did the INS present any evidence in open court.

Regis Fernandez and Houeida Saad initiated an aggressive legal challenge to the detention and use of secret evidence, in cooperation with the National Coalition to Protect Political Freedom, which publicized the case nationally.

In July 1999, the FBI closed its criminal investigation of Kiareldeen and disclosed that it did not intend to reopen the investigation unless it received new information that Kiareldeen is or was involved in terrorist activity. Consequently, Kiareldeen was never charged with violation of any criminal laws. However, despite the FBI's determination, the INS continued to detain him.

On October 20, 1999 the Federal District Court of New Jersey ruled that Kiareldeen was being unjustifiably detained and ordered his immediate release. Finally, after spending 19 months in solitary confinement, Kiareldeen was released.

This case is just one example of the danger and high degree of error that is involved in the use of secret evidence. In every case to date, where so-called secret evidence has been declassified, the government's evidence has been deemed "frivolous" or "not able to withstand challenge."

For more information on the Hany Kiareldeen case, go to:

October 1999 Washington Post article (excerpted)
October 1999 Department of Justice Statement
August 1999 New York Times article (excerpted)
August 1999 New Jersey Law Journal piece

The Washington Post
Thursday, October 21, 1999; Page A05

Classified Evidence Ruled Out in Deportation (excerpted)
By Lorraine Adams and David A. Vise
Washington Post Staff Writers

A federal judge ruled yesterday in a landmark decision that the use in court against immigrants of classified terrorism evidence that they are not allowed to see is unconstitutional.

U.S. District Judge William Walls in Newark, N.J., ordered the defendant in the case, Hany Kiareldeen... released. [He] had been held by the Immigration and Naturalization Service since March 1998 pending deportation proceedings because the FBI's Joint Terrorism Task Force had developed secret information that he had hosted a meeting with terrorists planning the World Trade Center bombing at his home....

The use of classified evidence in some immigration proceedings was first authorized by the 1996 anti-terrorism bill that followed the World Trade Center and Oklahoma City bombings. The... provision has been used in approximately two dozen cases around the country in which the INS asserted national security concerns as the basis for depriving immigrants of the right to examine and confront adverse witnesses and evidence.

The FBI reports detailing the source of the information linking Kiareldeen to terrorists were not divulged to Kiareldeen or his attorneys. Kiareldeen denied the charges and said they were likely to have come from his ex-wife, with whom he was involved in a custody dispute.

Kiareldeen had lived in the United States since 1990, when he entered from Israel on a student visa. After a bitter divorce, he remarried and petitioned to become a permanent resident. The INS and FBI arrested him for overstaying the period of his student visa and argued he should be deported on the basis of the FBI terrorism information.

"Despite repeated requests from the Immigration Judge, the government made no recorded efforts to produce witnesses, either in camera or in public, to support its allegations of terrorism. The petitioner was thus denied the opportunity to meaningfully cross-examine even one person during his extended detour through the INS administrative procedures," Judge Walls wrote in his opinion. "The INS actions unconstitutionally damaged Kiareldeen's due process right to confront his accusers."

(c) Copyright 1999 The Washington Post Company

The New York Times
August 20, 1999

Jailed on Secret Evidence, a Terrorism Suspect Sues (excerpted)
By Ronald Smothers

NEWARK -- A Palestinian native whom Federal officials have tried to deport on the basis of secret evidence that they say suggests he is linked to terrorism filed suit on Thursday in Federal court challenging the Government's use of such evidence.

The plaintiff, Hany Kiareldeen, has been detained by the Immigration and Naturalization Service for 17 months... while the agency has sought to deport him. Kiareldeen has petitioned a Federal judge for his release, saying the use of the evidence -- which he has not been allowed to see and is from sources whose identity he has not been allowed to know -- violates his constitutional rights.

But in a case that has broken legal ground at almost every turn through the deportation process and immigration courts, Kiareldeen's case has been seen as "remarkable" by opponents of the use of such evidence.

The case has even led some immigration court judges to question whether the Government's use of secret evidence is too vague.

[David] Cole and Regis Fernandez, Kiareldeen's other lawyer, are seeking his immediate release on bond while they press his constitutional challenge.

Judge William H. Walls of United States District Court here has set a hearing for Aug. 29 on the bond request.

Although a Justice Department spokeswoman, Carol Florman, would not comment on Kiareldeen's case specifically, she said that the use of secret evidence in cases of national security had been upheld over the years by Federal courts. Ms. Florman said "about 20" people, all of Arab descent, were being detained and facing deportation on the basis of secret evidence.

Kiareldeen, who has been in the United States since 1990... was picked up by Immigration and Naturalization Service officers in March 1998 for overstaying his student visa. Once he was in custody, I.N.S. officials opposed his release on bail on the basis of secret evidence, which they did not disclose.

Subsequently, ... the immigration agency has released sketchy summaries of Federal Bureau of Investigation reports that said Kiareldeen had associated with fundamentalist Muslim terrorists involved in the World Trade Center bombing, that he had uttered "a credible threat" against Attorney General Janet Reno and that he had met with one of the key bombing conspirators a week before the World Trade Center was bombed in 1993.

From the beginning, Kiareldeen has denied the charges and maintained that they were conveyed to Federal authorities out of vindictiveness by his ex-wife... In hearings, he had presented witnesses who testified that, unlike some terrorism suspects, he had no political involvements and was not very religious.

Fernandez tried to compel Kiareldeen's ex-wife to testify. When (she) refused, Judge Daniel Meisner of immigration court, who did not have the authority to compel her testimony, asked the United States Attorney for New Jersey to seek an order from Federal District Court to force her to testify.

But Faith Hochberg, the United States Attorney, declined to force Ms. Mohammed to testify, defying the immigration judge's request.

In April, working only from the summaries of the secret evidence, Judge Meisner ordered Kiareldeen released on bond. He said that, based on what had come out in the hearings, "a person of ordinary prudence and caution could not conscientiously entertain a reasonable belief that the allegations of the respondent's involvement in terrorist activities were true."

The I.N.S. appealed that ruling. Last month, in a 2-to-1 ruling, a panel of the Board of Immigration Appeals ordered Kiareldeen to remain in detention, although the majority said they had concerns about the reliability of the evidence.

The dissenting judge went further, writing that the I.N.S. and the F.B.I. had provided so little to support the allegations that he could not agree to hold Kiareldeen.

The Los Angeles 8 (LA 8)

Shortly after the Justice Department, under the Reagan Administration, formed a secret task force —the Alien Border Control Committee— seven Palestinians and one Kenyan were arrested, shackled, and taken to a maximum-security prison to await deportation. They were accused of being members of the Popular Front for the Liberation of Palestine (PFLP), a PLO group that the U.S. claimed advocated “world communism.” When the government’s attempt to deport them for PFLP membership was thrown out by the court, the INS then said the actual basis for deportation was that six of the eight had technical visa violations. However, the INS acknowledged that the underlying secret evidence about their alleged affiliations drove the deportation action.

The LA 8 were released from jail soon after their incarceration pending resolution of the case. For 13 years the federal courts repeatedly and consistently told the INS that the proceeding was unconstitutional, that secret evidence could not be used, and that the INS had violated the constitutional rights of the accused precisely because of their First Amendment activity.

All of the secret evidence—a mass of documentation—was made public. The “evidence” documented the ordinary work of community activists who had distributed pamphlets and arranged haflis (social events common in Arab-American communities) to raise funds for humanitarian causes in the Middle East. The U.S. government acknowledged that any U.S. citizen could have engaged in the same activities legally and expressed the same beliefs under the First Amendment without risk of prosecution. But the government contended it had the right to deport immigrants for these same acts and expressions.

On Feb. 28, 1999, the U.S. Supreme Court ruled in the government’s favor, without having heard a word on selective prosecution or First Amendment arguments. Its decision means that a person has to exhaust the immigration court remedies before bringing constitutional issues to a federal court, and that the INS can choose at will whom it will try to deport, without any regard for First Amendment rights.

The LA 8 remain free, but whether the government can actually deport the remaining two for First Amendment activity remains to be decided. Currently, the government, now using the USA Patriot Act, is still pursuing the deportation of the LA 8.

For more information on the LA 8, you can read:

2003 Letter From ADC President to US Attorney General urging an end to the LA 8 case
2001 Press Release by David Cole
1999 Report by Jeanne A. Butterfield

June 26, 2001
Marc Van Der Hout and Trina Realmuto- Van Der Hout & Brigagliano
David Cole- Center for Constitutional Rights

THE LA8 CASE: IMMIGRATION JUDGE THROWS OUT TERRORISM CHARGES: RULING MAY END INS’ 15 YEAR ATTEMPT TO DEPORT PALESTINIANS FOR FIRST AMENDMENT ACTIVITY

After almost 15 years of litigation before the immigration court and every level of federal court including the U.S. Supreme Court, Los Angeles Immigration Judge Bruce J. Einhorn ruled, in a decision received today, that Khader Hamide and Michel Shehadeh, the lead “respondents” in the LA8 case, cannot be prosecuted for their support of a group within the Palestinian Liberation Organization based on charges that were not even in existence at the time the two were initially placed in deportation proceedings in 1987. Since 1987, the INS has been arguing that Hamide and Shehadeh’s lawful First Amendment activities, including distributing newspapers, participating in demonstrations and organizing humanitarian aid fund raisers for Palestinians in the Middle East warrants their permanent banishment from this country.

At issue before Judge Einhorn was whether the INS could deport Hamide and Shehadeh, both long time lawful permanent residents of the U.S., for raising money for hospitals, day care centers, schools, etc., run by the Popular Front for the Liberation of Palestine, a group within the PLO but one the U.S. government deemed “terrorist”. From 1987 to 1991 the LA8 were prosecuted under the anti-communist provisions of the 1952 McCarthy-era McCarran-Walter Act for their support of the PFLP. After the LA8 successfully challenged the constitutionality of those provisions in U.S. District Court in Los Angeles , Congress enacted new “terrorism” deportation provisions through the 1990 Immigration Act which made it a deportable offense to provide material support to a “terrorist organization in conducting its terrorist activities”. The government then attempted to deport Hamide and Shehadeh under the new laws.

Hamide and Shehadeh challenged the 1990 Act charges arguing that any money raised for the PFLP was for lawful activity and that the new provisions could not be applied to them retroactively. In § 602(d) of the 1990 Act, Congress had specifically stated that the new deportation grounds could not be used against persons already in deportation proceedings.

Nonetheless, in 1992, then Chief Immigration Judge William. Robie rejected Shehadeh and Hamide’s motion to dismiss the new charges and ruled that the new deportation grounds could be used against them. The case was tied up in the federal courts for the next eight years until the Supreme Court overturned the Ninth Circuit Court of Appeals ruling that had thrown out the case on selective prosecution grounds.

In May 2000, after the case was remanded by the Supreme Court back to immigration court, Hamide and Shehadeh’s attorneys renewed their attempt to have the 1990 charges against them thrown out arguing that subjecting the two to charges that were not even in existence when the INS first placed them in deportation proceedings goes against several Supreme Court decisions that had come down since Robie’s 1992 ruling.

In a detailed and thorough 15 page decision, Judge Einhorn agreed with Hamide and Shehadeh and dismissed the 1990 Act charges. In doing so, he held that “Judge Robie’s Order [allowing the 1990 charges to stand] was an improper encroachment on the prosecutorial function, a sua sponte attempt to choose between two sets of separately filed charging documents under very different statutory schemes.” He further held that § 602(d) barred the 1990 Act charges from being applied to Hamide and Shehadeh who were in deportation proceedings for four years under the McCarran-Walter Act charges before the 1990 Act was even enacted. Judge Einhorn gave the INS until August 5, 2001 to inform the Court whether it intends to continue prosecuting Hamide and Shehadeh under the 1952 Act charges.

San Francisco immigration attorney Marc Van Der Hout of the law firm of Van Der Hout & Brigagliano, who has been representing the LA8 on behalf of the National Lawyers Guild since the case began in 1987 and who argued the case before Judge Einhorn stated:

“Judge Einhorn’s courageous decision will hopefully put an end to this shameful prosecution. The United States was founded on the right to engage in political dissent and the Justice Department’s attempts for the past 15 years to prevent lawful immigrants in this country from supporting political movements in their home countries by sending humanitarian aid to those in need has been truly disgraceful. Hopefully, the INS will now drop this case once and for all and not try to deport the LA8 on repudiated McCarthy era statutes that have already been declared unconstitutional. Now that a Palestinian state has been recognized, it is especially outrageous that the INS had been continuing in its attempts to deport the LA8. The Justice Department should now end this prosecution, the political motivation for which has been long left in history’s dust.”

Co-counsel David Cole of the Center for Constitutional Rights who has led the federal court fight against the INS’ attempt to deport the LA8 stated: “The Justice Department, through then FBI-head William Webster, has admitted from day one that had our clients been U.S. citizens, there would have been nothing to do about their lawful activities advocating for Palestinian rights and a Palestinian homeland. We call on the INS to now end this case and this ignoble chapter in American immigration history.”

---------

Pushing the Limits: Iran's Islamic Revolution at Twenty
Middle East Report 212 -- Fall 1999
Do Immigrants Have First Amendment Rights?
Jeanne A. Butterfield

Members of the LA Eight and their attorneys at a press conference.

"War on Terrorism Hits LA," the headline of the Los Angeles Herald Examiner screamed on January 27, 1987. The Los Angeles Eight, as the seven Palestinians and a Kenyan came to be known, are still fighting deportation today. Dangerous security risks? The INS said so.

International terrorists? The Immigration and Naturalization Service (INS) still argues that the Eight were members of the Popular Front for the Liberation of Palestine (PFLP). These charges were partly based on secret evidence, including photos showing the Eight distributing a "subversive" magazine published in Damascus entitled Democratic Palestine.

The twists and turns of this case are Kafkaesque. The toll on the lives -- of the Eight and their by-now 18 spouses and children -- is incalculable. The most incredible part of the story is that the case persists. After several circuit and district court victories for the Eight, a major defeat in the Supreme Court this year sent the case back to Immigration Court to begin all over again. The government is trying to prove its charges that the PFLP is a terrorist organization and that these eight people, by association, should be deported as "alien terrorists."

The Arrests
On January 26, 1987, in the wee hours just before dawn, INS/FBI swat teams swooped down on the homes of seven Palestinian activists and a Kenyan activist married to one of them. The Eight were arrested at gunpoint and held in shackles in solitary confinement at Terminal Island, a maximum-security prison. The INS opposed their release on bond. The charges in the "Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien" evoked the McCarthy hearings of the 1950s: "You have been a member of or affiliated with the Popular Front for the Liberation of Palestine, an organization that advocated the economic, international and governmental doctrines of world Communism through written and/or printed publications, issued on or under the authority of such organization."

The Eight -- Amjad Obeid, Ayman Obeid, Khader Hamide, Julie Mungai Hamide, Bashar Amer, Naim Sharif, Michel Shehadeh and Iyad Barakat -- were students, activists and parents living and working in Los Angeles. They had all entered the United States legally on valid visas. Two, Hamide and Shehadeh, had been lawful permanent residents of the US for years prior to their arrests. The others were present on student visas.

The INS claimed to have secret evidence that justified the continued detention of the Eight. In the first of many court victories for the Eight, however, an INS judge refused even to hear the government's secret evidence and ordered their release from detention three weeks after the arrests, on February 18, 1987.

The FBI revealed that it had been conducting extensive surveillance on most of the Eight for at least three years. In fact, they had planted an agent in an apartment adjoining that of Khader and Julie, spying on them through a hole cut in their bedroom wall. Despite this extensive effort, the FBI reported that it had found not a shred of evidence of any illegal activity and could not find any basis to initiate criminal charges against the Eight. Enter the INS.

The INS Contingency Plan
It quickly became clear that the LA Eight case was not an isolated aberration, nor was it an example of a renegade INS district office run amok. A secret document leaked to the press revealed the overall game plan and significance of the case. Entitled "Alien Terrorists and Undesirables: A Contingency Plan," the leaked document outlined various methods the INS could use to deport nationals of seven Arab countries and Iran. The document included a plan to round up immigrants and hold them in a massive detention camp in Oakdale, Louisiana. A 1000-acre site for the camp had already been prepared with sanitation facilities and fencing. The document outlined plans to initiate a wholesale "registry and processing procedure," modeled on the registration of Iranian students in 1979. The document conceded that a weakness of the registry plan was that it "indiscriminately lumps together individuals of widely differing political opinions solely on the basis of nationality."

To avoid "recurring problems of the above nature," the Investigations Division of the INS recommended "limited targeting." That would include directing the CIA, FBI and other law enforcement agencies to "immediately provide the INS with lists of names, nationalities and other identifying data and evidence relating to alien undesirables and suspected terrorists." Limited targeting would also include the implementation of deportation charges under the "anti-Communism" provisions of the Immigration and Nationality Act (INA). The "Contingency Plan" document notes that the INS should be directed to supplement political charges with additional technical immigration violations, so that "in those cases where the charge cannot be established and a lesser charge is used, such as the overstay provisions, the government has a ‘fallback' position on which to rest."

Last but not least, the document stressed the need to "routinely request the immigration judge to invoke the provisions of 8 CFR 242.16 (immigration regulations) relating to the exclusion of the general public from the hearings on the basis of the national security," to "routinely hold any alien so charged without bond," and to "introduce any material necessary to sustain the government's position…to the immigration judge in camera for inspection and use in arriving at a decision favorable to the government."

The methods outlined in the INS contingency plan were exactly those used to prosecute the LA Eight case.

Political and Legal Challenges
If the INS had chosen its targets believing that they were isolated individuals who could easily and quietly be intimidated, prosecuted and deported, they chose incorrectly. The LA Eight were not only accomplished and articulate political activists in their own right, they were also part of a broader progressive movement that quickly organized in their support. Peace activists, civil libertarians and defenders of the First Amendment joined forces with Palestine solidarity activists to publicize the case and recruit attorneys for the legal defense effort. The National Lawyers Guild, American Civil Liberties Union and the Center for Constitutional Rights quickly provided legal support. Activists formed a "Committee for Justice" to organize public support of the LA Eight.

While the case was still pending with various motions and appeals, Congress acted to repeal the infamous McCarran-Walter Act provisions that had been incorporated into immigration law in the early 1950s at the height of the McCarthy hysteria. The ideological grounds of exclusion and deportation were not totally eliminated, however. The anti-Communist provisions were merely replaced with new anti-terrorism provisions. One could no longer be deported for advocating "world Communism," but one could still be deported for membership in a terrorist organization according to changes in immigration law enacted in 1990.

Undeterred, the INS merely substituted the old, now-repealed anti-Communist charges with new ones, arguing that the PFLP was a terrorist organization and the LA Eight were affiliated with it, so that still made them deportable under US immigration law.

While the government continued to prosecute its deportation case against the LA Eight, the American Arab Anti-Discrimination Committee (ADC) became the named plaintiff in a counter-suit. While defending the Eight against deportation charges, ADC argued that charges should be completely dismissed because they were illegally brought as the result of a politically motivated selective prosecution. The ADC v. Reno case, as the selective prosecution case became known, chalked up significant victories in the courts. Yet following each victory for the Eight, the government appealed.

As the LA Eight case continued, Reagan and then Bush left office. The Clinton Justice Department refused to meet about the case in late 1993, citing concerns that the case was pending a critical court decision in Los Angeles. Time passed, and the Administration continued to refuse to back off from its vigorous prosecution of the case.

Finally, the Ninth Circuit Court of Appeals ruled that the Eight had indeed been singled out for prosecution based on their political beliefs and activities and the exercise of their first amendment right to free speech. The government appealed this decision to the US Supreme Court.

The LA Eight Still Face Deportation
In a stunning reversal of lower appellate court decisions, the Supreme Court ruled in the government's favor on February 23, 1999. In a decision reminiscent of the Japanese internment cases decades ago, the Court sent a chilling message to immigrant communities across the United States by holding that, "as a general matter -- and assuredly in the present case -- an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation." What the decision boils down to is one simple, clear message: immigrants have no First Amendment rights. The US Supreme Court sent the LA Eight back to immigration court where the government will soon begin to prosecute their deportation case once more. They can pay taxes and serve in the US military, but they cannot speak out and defend their own rights.

Justice David Souter, writing the sole dissenting opinion, took issue with the majority. He pointed out that selective enforcement cannot be used to target tax evaders against whom the government is prejudiced. Nor can it be used to target particular criminal defendants whom the government is out to get. The constitutional guarantees of equality and liberty are just as important in the deportation context, Souter wrote.

The effect of the Supreme Court decision in ADC v. Reno is to send the LA Eight back to immigration court, where the government will shortly begin prosecuting their deportation case once again.

First experts will be called to testify that the PFLP is a terrorist organization. Then the INS will bring out their tapes and photos of solidarity and Palestinian community events in order to prove that the Eight supported the activities of the PFLP and raised money for it. The Eight will argue that they were expressing political opinions, exercising First Amendment rights guaranteed to every person under the US Constitution.

The case will undoubtedly go all the way back up to the US Supreme Court.

More Secret Evidence, New Secret Court
While the LA Eight case has been going on, Congress enacted yet new legislation [AEDPA P.L. 04.132] that gives unprecedented powers to prosecutors. Sanctioning and codifying the use of secret evidence, Congress created new procedures for an "alien terrorist removal court." While this new court has not yet heard a case, the government continues to use regulatory authority to introduce secret evidence in regular immigration court. In recent years, the INS has initiated deportation proceedings against several individuals of Arab and Iranian descent and is attempting to use secret evidence to deny bond and convince immigration judges to deny discretionary relief. In many of these pending cases, immigrants have been held in detention for two and three years. The arguments in the government's briefs were honed in the LA Eight case.

There are some glimmers of hope, however, as activists and advocates argue these cases in the press and in the courts. By rejecting the government's secret evidence in one recent case, the Board of Immigration Appeals (BIA -- the administrative appellate body that rules on these cases before they proceed to the Circuit Courts of Appeals) has hinted at the shoddy nature of the evidence and the "guilt by association" arguments of the government: "We find that the association with the PFLP is unproven. The evidence presented is vague, lacking in specificity and uncorroborated… The FBI report…shows that the respondent participated in a demonstration in 1982 and he assisted at a fund-raising dinner in 1985. These activities do not associate him with any particular organization. Nor does his testimony that he participated in fund-raising events for several organizations (some of which were sympathetic to certain elements of the PFLP program, and he could not be certain exactly what happened to every donation), constitute an admission of fund-raising for the benefit of the PFLP. The classified information provided in camera may arouse suspicion, but would require much greater details to convince the members of this Board that the respondent is in any way a supporter of a terrorist organization."

Yahia Meddah

Yahia Meddah fled Algeria after family members were killed by the Armed Islamic Group (GIA) which is on the U.S. government’s list of terrorist organizations and eventually came to the United States in 1993.

Meddah lived in West Virginia and married a U.S. citizen. He was hospitalized in August 1996 after an assault by his step-daughter's boyfriend and was then detained by INS agents and turned over to their custody. He was transferred to facilities in Pennsylvania and held in solitary confinement for months.

In September, 1997, an immigration judge allowed the government to introduce information neither Meddah nor his lawyer could see that went to "prove" that Meddah was affiliated with "terrorist organizations." Using that information, the judge denied Meddah's political asylum claim. No accusation of criminal activity was raised. The lawyers appealed both the denial of bond and political asylum.

Yahia Meddah’s case was among those highlighted in the October 1998 Human Rights Watch report on the treatment of immigrants in detention. "When he is given at least minimum treatment and care in mental health hospitals, he markedly improves,” the report said. “But every time INS returns him to detention, he becomes extremely upset and suicidal."

Meddah escaped in October 1998 from a psychiatric hospital in Miami. Published reports have claimed he is now in Canada.

Regarding the secret evidence, there was some indication that the source of the information against Meddah was his estranged wife. If this had been true, it certainly would have been useful to be able to argue the veracity of the evidence. But this was never confirmed, and today it is moot.

Ali Termos

Ali Termos, a Lebanese citizen, entered the U.S. on a student visa in January of 1986. The visa expired in 1991, but he remained in the U.S. and married a naturalized U.S. citizen in June 1996 at which time he began the long process of becoming a permanent legal resident. Four months later, Termos was arrested at his workplace, a gas station, with the INS seeking his deportation on the grounds that he had overstayed his student visa and was working without authorization.

People seeking to become permanent legal residents who are married to U.S. citizens usually are allowed to remain in the U.S. during the process and to continue their normal lives. Instead, the INS sought to have him remain in jail without bond.

The FBI questioned him while he was in jail about his knowledge of the Detroit Arab community, Islamic religious groups, and any connection between any of them and groups the U.S. has labeled “foreign terrorist groups,” such as Hizballah, headquartered in Southern Lebanon.

Termos acknowledged that he had sent small amounts of money annually, less than $300 in all, to the “Martyrs Foundation,” an Hizballah-run orphanage, to help support two orphaned relatives. Further, Termos told the FBI that he had spoken publicly in opposition to Israel’s military occupation of Southern Lebanon. Simply put, his admissions were humanitarian aid to help a relative and First Amendment activity.

Termos was denied bond and jailed. His attorney appealed that decision to an immigration judge. At the bond hearing, the FBI joined the INS, and presented information only to the judge—secret evidence—supporting holding Termos without bond as a “security risk.” Further, as in about half the known cases, the government refused even to provide an unclassified summary of that “evidence.” In this case he saw nothing and was charged with nothing.

During the deportation hearing, the INS agreed for the record that Termos had not committed a crime, and that it understood that his wife was a U.S. citizen. Despite these acknowledgments, the U.S. ordered him deported. The attorney filed an appeal while Termos, by then 31, remained in jail. The appeal was denied and Termos, after a year in prison, was deported back to Lebanon on October 6, 1997 never knowing why he was a “security risk.”

"Other Secret Evidence Cases" by Kit Gage, from The Link

A guide to reading these cases:

• Immigration and Naturalization Service (INS). An agency of the Department of Justice that controls the entry of foreigners into the U.S., their residency status, and the citizenship process. The INS has its own courts and judges.
• Permanent legal resident. An individual granted the right to live permanently in the United States (sometimes referred to as a green-card holder). A legal resident may, by fulfilling certain requirements, become a citizen, but need not do so to continue to live and work in the U.S. Depending on an immigrant’s personal circumstances, acquiring permanent residence can take from one to five years. Foreigners who are legally in the U.S., but are not permanent residents, are governed by the terms of their individual visas.
• Out-of-status. A violation of the terms under which a foreigner was admitted to the U.S. by the INS. The more common and minor of these infractions—overstaying a visa or working while a student—are often referred to as technical visa violations.
• Exclusion/deportation. Barring a foreigner seeking entry is termed exclusion. Once admitted, removal is sought in a deportation proceeding.
• First Amendment activity. The first ten amendments to the Constitution comprise the Bill of Rights. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
• Antiterrorism and Effective Death Penalty Act of 1996. In this law, Congress established a new system for allowing secret evidence to deport permanent residents suspected of terrorist associations. The legislation provides for a special court in which a potential deportee and his or her lawyers would be allowed to see an unclassified summary of the evidence that would be sufficient, supposedly, to permit them to rebut the evidence hidden from them. The court has not heard a single case. Possibly it serves the government’s intent better as a threat than as a reality, or maybe the government is waiting for truly egregious cases that will elicit less public outcry.
• Secret Evidence Repeal Act of 1999 (HR 2121). If passed, this bill would prohibit the use of secret evidence in current and future immigration proceedings. It was introduced in the House of Representatives on June 10. Co-sponsors are Reps. David Bonior (D-MI), Tom Campbell (R-CA), John Conyers (D-MI), and Bob Barr (R-GA).
• Rights of non-citizens. Civil liberties activists, supported by many legal scholars, argue that the language of the Constitution protects all people in the United States, not just its citizens. In “A Guide to Naturalization,” the INS acknowledges that “the Constitution gives many rights to citizens and non-citizens living in the United States.” The Supreme Court has been inconsistent on what rights non-citizens enjoy, although it dealt a serious blow to immigrants’ rights with its February 1999 decision in the LA 8 case.

Other Secret Evidence Cases
BY KIT GAGE

• The Los Angeles 8 (LA 8)
  This remarkable case is more than 13 years old. It connects the old anti-Communist era laws with today’s antiterrorism laws in a virtually seamless fabric. It began as a secret evidence case.
  During the Reagan Administration, the Justice Department created a secret task force—the Alien Border Control Committee—and asked it to determine how to deport “PLO activists who have violated their visa status . . . while protecting classified information.” This could be the template for the subsequent secret evidence deportations. The only difference is that the “PLO activists” were viewed as communists, not terrorists, and were to be deported under the old McCarran-Walter anticommunist era laws.
  
  Shortly after the secret task force was formed, seven Palestinians and one Kenyan were arrested, shackled, and taken to a maximum-security prison to await deportation. They were accused of being members of the Popular Front for the Liberation of Palestine (PFLP), a PLO group that the U.S. claimed advocated “world communism.” When the government’s attempt to deport them for PFLP membership was thrown out by the court, the INS then said the actual basis for deportation was that six of the eight had technical visa violations. However, the INS acknowledged that the underlying secret evidence about their alleged affiliations drove the deportation action.
  
  Fortunately for the LA 8, they were released from jail soon after their incarceration pending resolution of the case. For 13 years, until this February, the federal courts repeatedly and consistently told the INS that the proceeding was unconstitutional, that secret evidence could not be used, and that the INS had violated the constitutional rights of the accused precisely because of their First Amendment activity.
  
  All of the secret evidence—a mass of documentation—was made public. The “evidence” documented the ordinary work of community activists. They had distributed pamphlets and arranged haflis (social events common in Arab-American communities) to raise funds for humanitarian causes in the Middle East.
  
  The government had treated the pamphlets as if they were explosives and portrayed the LA 8 as dangerous aliens. But, in the plain light of day, the documentation supported none of these sinister allegations. Any citizen could have engaged in the same activities legally and expressed the same beliefs under the First Amendment. But the government contended it had the right to deport immigrants for these same acts and expressions.
  
  The 9th Circuit Federal Court of Appeals stopped the government in two areas. The Court said that the LA 8 could not be singled out for deportation for their First Amendment activity when others with the same technical visa violations would not be deported. The Court also held that the LA 8 need not complete the immigration court process before constitutionally challenging the whole proceeding in federal court. This decision validated the complex legal defenses mounted over a 13-year period in fighting a very dogged INS.
  
  The fact that the LA 8 prevailed through this period is nearly miraculous. The LA 8 had little money and were aided by lawyers and activists who worked pro bono. David Cole, cooperating attorney with the Center for Constitutional Rights, and Marc Van Der Hout, an attorney affiliated with the National Lawyers Guild, were the main lawyers throughout, and the Center and Guild were among the principal support organizations.
  
  Then came the Supreme Court. The U.S. appealed the 9th Circuit’s two-part decision to the Supreme Court, which announced last summer that it would hear only the more narrow issue—whether the LA 8 had to exhaust their immigration court proceedings before going to federal court with constitutional questions.
  
  The lawyers were not allowed to present arguments about the First Amendment issue of selective prosecution. Yet this was the main issue, one with far-reaching ramifications affecting many individuals and groups—and lots of case law. Also, while the courts tend to give great latitude to the government on the issue of selective enforcement, rarely upholding appeals, this particular case was a straight out First Amendment challenge.
  
  Then on Feb. 28, 1999, the court ruled in the government’s favor on both issues, without having heard a word on selective prosecution. Its decision means that a person has to exhaust the immigration court remedies before bringing constitutional issues to a federal court, and that the INS can choose at will whom it will try to deport, without any regard for First Amendment rights.
  
  Years can pass in immigration courts before the point is reached where key facts can then be taken to a federal court. Witnesses can disappear, die, forget, or move. Documents disappear—or are lost, to put it kindly. The government can pursue a case forever without regard to money or staffing, but people fighting deportation are not provided with legal services or a public defender and must represent themselves (ludicrous considering the complexity of immigration law) or convince a lawyer to take on a case for relatively little money and an open-ended time commitment.
  
  To highlight the point, the Supreme Court then refused to “rehear” the case. As it had not heard the main issue before deciding it, refusing again made it clear that the top court of the nation views immigrants as second class subjects when it comes to Constitutional protections, and they are fair game for prosecution because of their associations and politics. The LA 8 remain free, but whether the government can actually deport them for First Amendment activity remains to be decided.
  
  
• Ali Termos
  Ali Termos entered the U.S. as a Lebanese citizen on a student visa in January of 1986. He finished his electrical engineering studies in 1991, and his student visa expired. He remained in the U.S., a common technical violation, but the INS made no move to deport him at that time.
  Termos married a naturalized U.S. citizen in June 1996, and, in a typical scenario, began the long process of becoming a permanent legal resident. Four months later, Termos was arrested at his workplace, a gas station, with the INS seeking his deportation on the grounds that he had overstayed his student visa and was working without authorization.
  People seeking to become permanent legal residents who are married to U.S. citizens usually are allowed to remain in the U.S. during the process and to continue their normal lives. Instead of routinely allowing Termos to remain free on bond, even while the deportation process meandered, the INS sought to have him remain in jail without bond.
  Why was Termos being treated differently? The FBI questioned him while he was in jail about his knowledge of the Detroit Arab community, Islamic religious groups, and any connection between any of them and groups the U.S. has labeled “foreign terrorist groups,” such as Hizballah, headquartered in Southern Lebanon.
  Termos acknowledged that he had sent small amounts of money annually, less than $300 in all, to the “Martyrs Foundation,” an Hizballah-run orphanage, to help support two orphaned relatives. The children’s father had been killed in an Israeli raid in Southern Lebanon. Further, Termos told the FBI that he had spoken publicly in opposition to Israel’s military occupation of Southern Lebanon. Simply put, his admissions were humanitarian aid to help a relative and First Amendment activity.
  Termos was denied bond and jailed. His attorney appealed that decision to an immigration judge. At the bond hearing, the FBI joined the INS, and presented information only to the judge—secret evidence—supporting holding Termos without bond as a “security risk.” Further, as in about half the known cases, the government refused even to provide an unclassified summary of that “evidence.”
  Termos freely admitted to giving money to help orphaned relatives. This admission might have been considered a criminal violation under the Antiterrorism Act because the orphanage was considered to be controlled by Hizballah, which is on the State Department’s list of “foreign terrorist organizations.” But Termos was not charged under this provision and was not called before the special court created under the Antiterrorism Act. There, at least, he and his lawyer would have received an unclassified summary of the evidence, and that would have been the evidence considered by the judges. In this case he saw nothing and was charged with nothing.
  During the deportation hearing, the INS agreed for the record that Termos had not committed a crime, and that it understood that his wife was a U.S. citizen. Despite these acknowledgments, the U.S. ordered him deported. The attorney filed an appeal while Termos, by then 31, remained in jail. The appeal was denied and Termos, after a year in prison, was deported back to Lebanon on October 6, 1997 never knowing why he was a “security risk.”
  
  
• Imad Hamad
  Imad Hamad, a Palestinian born in Lebanon, came to the United States on a student visa in 1980. While he was in California as a student, he apparently attended political rallies and showed support for some of the activities of the Popular Front for the Liberation of Palestine.
  When he applied for permanent resident status in 1991, his first marriage to a U.S. citizen had collapsed, and the INS denied his request for adjustment for that reason. It had initiated deportation proceedings two years earlier alleging that he was affiliated with the Popular Front for the Liberation of Palestine. The government claimed it had evidence that Hamad had participated in various demonstrations and fund-raisers (like the LA 8). Then in 1997, the government added that it had classified evidence against him as well.
  As is typical, the deportation process dragged on. In the meantime, Imad moved to Detroit and married a second time. At the second deportation hearing, the immigration judge threw out the government’s allegations that Hamad had engaged in terrorist activity, or even that he was a member of the PFLP, saying that the INS had failed to prove its case.
  The immigration judge saw the secret evidence, which Hamad and his lawyer did not. The government then declassified some of this secret evidence. In an ironic but not all that unusual twist when it comes to classified material, the secret evidence was apparently the same non-secret evidence (photos from a rally, etc.) that the government had previously shown to Hamad in its 1989 deportation effort. So the information had originally been public, then was classified, then declassified, all in the same deportation case over a 10-year period.
  In 1997, the immigration judge granted Hamad “adjustment of status” to permanent legal residence. The government appealed to the Board of Immigration Appeals, which on Feb. 19, 1999 agreed with the immigration judge. It said that the evidence was “vague, lacking in specificity and uncorroborated.” So in this case the Board did not challenge the use of the secret evidence, nor note its chameleon-like condition, but rather ruled that it was not sufficiently convincing or detailed to prove what the government alleged. The government did not appeal.
  
  
• Nasser Ahmed
  As of April 25, 1999, Nasser Ahmed had spent three full years in jail, held in solitary confinement virtually the entire time. This is the longest incarceration for any immigrant being deported on the basis of secret evidence. There is compelling evidence that the U.S. is seeking to deport him and his wife precisely because of his refusal to be an informant for the FBI.
  Nasser Ahmed had been living in New York City with his wife and three U.S. citizen children since 1986 when he had immigrated from Egypt. He worked as an engineer and helped run a large summer school. He worshiped at the Abu Bakr Mosque in Brooklyn and was a respected member of the community.
  Abu Bakr is the same mosque to which Sheikh Omar Abdel Rahman and other Islamic scholars were invited to speak about human rights abuses in Egypt, Bosnia and Palestine. Abuses in Egypt, including torture and indefinite detention, are well documented by independent human rights organizations, even as the U.S. provides very substantial military and economic aid to Egypt. Sheikh Abdel Rahman is the most visible leader of the opposition to the Egyptian government.
  Sheikh Abdel Rahman was tried and convicted of seditious conspiracy to bomb tunnels and buildings in New York City. Seditious conspiracy is a charge the government can use to implicate people who have little or no connection to a particular crime—“intellectual author” is sometimes the characterization. Long before the trial, the FBI had the mosque, and of course the sheikh, under surveillance for expressions of political opposition to the Egyptian government.
  Ironically, when Ahmed accepted the U.S. government’s appointment to serve as Sheikh Abdel Rahman’s paralegal and translator, he simultaneously became the subject of an FBI investigation. Both the FBI and INS tried to convince Ahmed to help them convict Abdel Rahman or face deportation. He refused and the INS arrested him on April 24, 1995 for having overstayed his visa. He was released on $15,000 bond, and continued to work with the sheikh’s defense team under court authority.
  
  He was rearrested a year later, in April 1996. He applied both for release on bond and—fearing recriminations if deported to Egypt for having worked on the sheikh’s defense team—for political asylum as well. This time the INS introduced secret evidence claiming Ahmed was a “threat to national security,” and he remained in jail without the option of paying what is typically a nominal bond to remain free pending deportation.
  Ahmed and his lawyers were not allowed to see the detailed basis of the claim. The government’s one-sentence summary of the secret evidence—a rare concession in such cases— was termed “largely useless” by the immigration judge. Why? It said the government had information about his “association with a known terrorist organization.” What organization? The government didn’t say. What association? Again, nothing.
  Donn Livingston, the immigration judge, agreed with Nasser Ahmed and his attorneys that Ahmed did have a “well-founded fear” of persecution because of his political associations if he were deported to Egypt. The judge said he had “no doubt” that Ahmed faced prison and likely torture, and agreed that this made a good claim for political asylum. Despite being persuaded by the strong defense, the immigration judge felt he had to deny the claim and allow deportation because of the secret evidence.
  
  Ahmed challenged the constitutionality of the immigration court’s decision in federal court. Again, typically, the INS then declassified some of the secret evidence. The alleged associations were with al-Gama-al-Islamiya (the Islamic Group) and the sheikh. Of course Ahmed associated with the sheikh; he was a paralegal and translator for him at the court’s behest.
  The summary did not charge that Ahmed had engaged in or supported any illegal activity. Following the public release of this evidence, the judge and the INS admitted that his (supposed) association with al-Gama-al-Islamiya alone is not and should not be the only rationale to hold him in jail, refuse to grant him political asylum or deport him.
  Ahmed’s lawyers used the new information to argue that he had not been a member of al-Gama, and said that in any event al-Gama was basically a coalition. Judge Livingston himself noted that the group appeared more like the “anti-war movement” of the 1960's and 70's in the U.S. than a specific organized group.
  
  After the immigration judge rules in Ahmed’s case, it will go to federal court in the Southern District of New York for a determination of whether the use of secret evidence violated his due process rights under the Fifth Amendment.
  Nasser Ahmed’s health has suffered from his detention in solitary confinement. He initiated a hunger strike to protest being held, during winter, in an unheated jail cell at New York’s Metropolitan Correctional Center (MCC).
  There have been two demonstrations outside the MCC in New York and, after the last rally, Ahmed was transferred to a federal prison two hours away. These and other efforts by activists, including contacts with the media, have put the government on notice that many people in the local area are following this case and are concerned about Ahmed’s condition. As a result of publicity in the New York area and nationally, many Americans are at least aware of the extent to which the U.S. will pursue individuals with innocent, happenstance connections to terrorist criminal acts. In this case, Ahmed is twice removed from those convicted of the World Trade Center Bombing—the court-appointed trial translator to someone who was respected by those convicted of the actual crime.
  
  
• Dr. Anwar Haddam
  Dr. Anwar Haddam’s case is unusual in that he remains under a death sentence in his home country, providing him with the soundest of grounds for seeking political asylum.
  Dr. Haddam, an Algerian, was elected in 1991 to the Algerian parliament as part of the FIS—Islamic Salvation Front. Following the 1992 coup, the military invalidated the elections and killed or imprisoned many members. Haddam first fled to Morocco, then to the U.S. (Chicago, then to the Washington, D.C. area), where he continued to be vocal on Algerian issues. In March 1996, Haddam was tried in absentia in Algeria and subsequently sentenced to death.
  
  He and his family members were granted parole—permission to reside in the U.S.—and Haddam was repeatedly granted permission to travel and return to the U.S. In December 1996, parole status was revoked without proper notice and he was arrested and detained before being notified of the status change. The INS sought to deport him back to Algeria.
  The INS told immigration judge (IJ) John Milo Bryant that it had secret evidence. Bryant refused to consider the secret evidence—“fundamentally unfair,” he said—but he also denied defense motions for the INS to produce it.
  Dr. Haddam’s phones had been tapped (initially authorized by the Department of Justice, then by the federal court). INS attorneys confirmed in writing that the “secret evidence” was the transcription of the phone taps.
  The IJ denied asylum to Dr. Haddam on the basis that he had persecuted others as a result of his silence in the face of violence in Algeria as well as his “condonation” of terrorism.
  
  On appeal, the Board of Immigration Appeals (BIA) in October 1988 said there was no evidence on the record not to grant asylum. On the persecution allegation, the BIA found no basis on the record for that charge, but sent the case back to the IJ to see if the allegation was supported by the secret evidence (which the BIA did not have).
  A new IJ, Joan Churchill, took the BIA’s remand, or referral, on which action was to be completed in 15 days, according to BIA instructions. Yet a decision is outstanding more than six months later.
  Haddam’s attorneys have sought to compel the IJ’s decision, and have filed writs of habeas corpus seeking to release him from prison. At the same time the INS is pursuing Haddam, it has not charged him with terrorism or anything else related to national security. Further, the U.S. Department of State has consistently confirmed that there is no basis for Algeria’s warrants against Haddam, that his detention is against U.S. interests, and that he should be granted asylum.
  Haddam has been in jail two and a half years and has been moved three or four times. He was put in isolation when he went on a hunger strike. Now he is jailed in Hopewell, Virginia, four hours away from his wife and four young children—three of whom are U.S. citizens.
  
  
• Yahia Meddah
  Meddah, an Algerian, fled from Algeria to escape a group on the U.S. list of “foreign terrorist organizations,” the Armed Islamic Group (GIA). He eventually arrived in the U.S. in 1993, after much of his family had been murdered in Algeria, reportedly by GIA supporters. He moved to West Virginia and married a U.S. citizen.
  But that life was hardly peaceful. Following his hospitalization in August 1996 from an assault by his wife's daughter's boyfriend, he was detained by the INS. While in custody he was questioned by the FBI, during which he was denied representation. The INS then transferred him to York County Prison in Pennsylvania where he was held in solitary for months.
  
  Unable to find a lawyer in the area, Meddah—not fluent in English and with no legal training—represented himself at a bond hearing in November 1996. The judge denied bond because the INS claimed he had been in an altercation while in detention. Finally Meddah found a lawyer, who sought to get him released on bond and also filed a political asylum claim. That second bond request was denied in August 1997.
  
  Here comes the secret evidence. In September, the immigration judge allowed the government to introduce information neither Meddah nor his lawyer could see that went to "prove" that Meddah was affiliated with "terrorist organizations." Using that information, the judge denied Meddah's political asylum claim. No accusation of criminal activity was raised. The lawyers appealed both the denial of bond and political asylum.
  
  Meddah's life in detention was a nightmare. He was bounced between various jails and medical facilities. One doctor who evaluated him indicated that holding Meddah in solitary confinement triggered post traumatic stress syndrome by inducing recall of his horrible experiences in Algeria when he feared for his life. Meddah had repeated psychotic episodes and made several suicide attempts.
  
  Unlike some of those suffering in anonymity, Yahia Meddah’s case was among those highlighted in the October 1998 Human Rights Watch report on the treatment of immigrants in detention. "When he is given at least minimum treatment and care in mental health hospitals, he markedly improves,” the report said. “But every time INS returns him to detention, he becomes extremely upset and suicidal."
  
  The BIA sat on Meddah's lawyers' appeal of the denial of bond. In July 1998 a federal judge refused to make the BIA move on the request. As the lawyers were considering other legal maneuvers to at least get more treatment for him, Meddah escaped in October 1998 from a psychiatric hospital in Miami. Published reports have claimed he is now in Canada.
  The Washington Post of Sept. 19, 1998, had carried a startling report quoting a government source as claiming that Meddah was "an assassin for a radical Islamic group in Algeria." That was the first that Meddah or his lawyer, Joe Hohenstein, had heard the slightest specificity of the charges, and here it was in the pages of the Post.
  Hohenstein was outraged. The government had not charged Meddah with any crime, had disclosed no information on the reason for his detention, and had kept him imprisoned for over two years. Then it chose—in the most public way possible—to accuse an already suicidal man of being a heinous criminal. If the government truly thought Meddah to be a paid assassin, why try to deport him instead of pursuing a criminal prosecution?
  There was some indication that the source of the information against Meddah was his estranged wife. If this had been true, it certainly would have been useful to be able to argue the veracity of the evidence. But this was never confirmed, and today it is moot.
  
  
• Hany Kiareldeen
  Hany Kiareldeen, now 30, was born in the Gaza Strip. He moved to the U.S. in 1990, and is married to a U.S. citizen. He has a 4-year-old child from an earlier marriage in the U.S.
  Like other secret evidence detainees, Kiareldeen was charged by the INS in March 1998 with overstaying his student visa. He and his brother Ghassan were told by four INS agents that they would be "taught a lesson." And from that time Hany has been in detention in New Jersey.
  He was denied bond using secret evidence. He did receive an unclassified summary of the evidence, a page-long document claiming he is a "suspected member of a terrorist organization," has "associated" with a person involved in the World Trade Center bombing, and made a "credible threat" against the life of Attorney General Reno.
  Defense attorneys strongly suspect that the source of these allegations is his ex-wife, Amal Mohamed, who had previously accused him on six occasions of domestic abuse and child abuse, charges of which he was entirely exonerated. Kiareldeen's relatives have reported that Amal Mohamed’s first husband was deported based on information she gave to the government.
  Ms. Mohamed was reluctant to testify publicly at Kiareldeen's hearing. She refused to answer questions about her relationship with the FBI and INS. The immigration judge asked the U.S. Attorney to obtain a subpoena from a federal judge to force Ms. Mohamed to testify. The U.S. Attorney spurned the immigration judge's request, instead requesting that Ms. Mohamed respond only to written questions not having to do with her relations with the government. In response, Kiareldeen's lawyers themselves applied to U.S. Judge Barry to subpoena Ms. Mohamed.
  On April 2, 1999, IJ Daniel Meisner threw out the deportation case against Mr. Kiareldeen, saying that the secret evidence did not prove what the government alleged. The government immediately appealed the case, leaving Kiareldeen in jail. His lawyers are continuing their legal efforts to obtain his release during the appeal, and to challenge the use of secret evidence.
  
  
• The Iraqi 7
  These seven were among 6,000 Iraqi Arabs and Kurds brought to the U.S. after their U.S.-backed effort failed to overthrow Saddam Hussein. The group was eventually brought to Guam by the U.S., where they received cursory screening by the FBI preparatory to being granted asylum in the U.S. During this process, 20 men were separated out, jailed and told they would be denied asylum and deported back to Iraq—to face almost sure death.
  
  The U.S. detained eight of these Iraqis in Southern California, where they obtained lawyers. There the government alleged that seven were "security risks" to the U.S., based on secret evidence neither they nor their lawyers could see in this exclusion proceeding. The judge's decision also was classified, making an appeal ludicrous.
  
  Then James Woolsey, former CIA director and now an attorney in private practice, joined in the appeal. He had headed the CIA in the government’s attempt to use the Kurds to overthrow Hussein. He was furious at the treatment some of the Kurds were now receiving from the same government that, through the CIA, had recruited, trained and funded them—and then pointed them toward Saddam. When the plot was crushed and the project abandoned by the U.S., the Kurds involved most certainly would have been executed had they not been removed to Guam. Now the government, in a second act of bad faith, sought by deportation to reverse the stay of execution their rescue to Guam had provided.
  
  Woolsey was outraged at the process by which the seven were selected for exclusion, at their incarceration, and at the use of secret evidence. Woolsey, who retains the highest security clearance, asked to look at the evidence for the purpose of representing the Iraqi 7 in court. The U.S. said it did not trust Woolsey to keep the information from the Iraqis. Here was the INS saying it did not trust in a simple exclusion proceeding the man entrusted with the nation's deepest secrets.
  Following this intense pressure, the government released 500 pages of secret evidence. It substantiated arguments that Woolsey had made—that translations from Arabic to English were botched, that interviews were replete with the ethnic and religious stereotyping of the interviewing agents themselves, and that fierce rivalries among Kurdish groups had probably resulted in deliberate misinformation that the government accepted at face value.
  
  Examples of the tarnished and sloppy evidence is the quote by FBI agent John Cosenza (“There is no guilt in the Arab world. It’s only shame.”) and the identification of “KLM” as a terrorist group’s acronym when the original reference was to a generic “Kurdish liberation movement.”
  
  Even with its credibility badly damaged, the government only grudgingly accepted overtures from some of the Iraqi 7, who used Woolsey as intermediary, that they be released and deported to a country other than Iraq. On June 11, 1999, the Los Angeles Times reported that five of the seven Iraqis “will be freed to be deported to a third country, leaving the allegations unresolved.”
  
  The government listed 74 countries—not including Iraq—as potential recipients of the five Iraqis. Until final arrangements are made, the five men will live in Nebraska, where their family members—having been granted political asylum—reside. As part of the bargain, the men will be confined to their homes at night and had to agree that the government could monitor their telephone calls and search their residences at will.
  [Editor’s Note: One of the group, Dr. Ali Yasin Kareem, has announced that he will continue to fight the allegations against him rather than accept deportation to a third country. See photo caption on this page.]
  
  How the Government Views Secret Evidence
  
  Even before the 1996 legislation that specifically authorized secret evidence in deportation cases, the Immigration and Naturalization Service asserted that it had legal, if not legislative, authority to employ such evidence, citing the Supreme Court’s 1956 Jay v. Boyd decision. In a 5 to 4 vote (with Chief Justice Warren and Justices Black, Frankfurter and Douglas dissenting) the Court sided with INS District Director Boyd who, on the basis of secret evidence, had denied Jay, a citizen of Great Britain, discretionary relief from a deportation order.
  
  To date, the INS claims to have used secret evidence in about 50 cases, approximately 24 of which are currently active. Whether these cases invoke an overly broad interpretation of Jay v. Boyd is a question legal authorities continue to argue.
  What is clear, however, is that the 1996 Antiterrorism Act, by specifically authorizing the use of secret evidence, lessens the constraints of both Constitutional considerations and conscience in such cases. Although intended for use against permanent residents--and only in special courts--the very existence of a statute that condones secret evidence can serve as an umbrella to shield its current use against people who are merely out of status and whose cases are heard in the regular INS courts. Presumably, the argument goes, if the government can deport people who are here legally and have no technical problems with their visas, then surely the government can use secret evidence to deport people with technical problems and who are therefore subject to deportation proceedings.
  
  Currently, secret evidence is being used in deportations involving people who are here legally, but are in some relatively technical way “out of status.” This can mean working while students, overstaying a visa, or some other minor infraction common to large numbers of immigrants.
  
  Typically, in an out-of-status situation, if the person is married to a U.S. citizen, and is living an otherwise upstanding life, the INS will not begin deportation proceedings, and in fact will entertain motions for the person to become a permanent legal resident. However, in these political cases, the INS treats the accused as if they are extremely dangerous and connected at the top level to a foreign terrorist organization. Bond is invariably denied.
  
  Federal courts, where appeals are brought, sometimes don’t want to get in the middle of what they perceive as the INS’s business. Congress and the Supreme Court have tended to support the position that defendants should exhaust their legal efforts in one court before taking challenges to another, the rationale being that it is more expeditious and that it removes what they perceive as extraneous legal remedies.
  
  In diminishing civil rights, the Antiterrorism Act affects citizens and non-citizens alike. The FBI has the authority to investigate people because of views they express—in other words, for First Amendment activity—and the government is empowered to try citizens and non-citizens alike for their humanitarian contributions to “foreign terrorist organizations” or related groups.
  
  Organizing To Help Victims and Change the Law
  
  With few exceptions, newspapers have portrayed the secret evidence defendants relatively sympathetically. Editorials and op-ed pieces have appeared with some regularity, arguing the constitutional, procedural and fairness problems with the government’s use of secret evidence in deportations.
  
  Why has there been good press? Why do these defendants generally have the best lawyers in the country involved with their cases? The answer is by organizing. Political change doesn’t just happen. Rosa Parks, we must remember, was part of an organized movement that made sure that her singular act of defiance became symbolic of the struggle to end segregation.
  
  From the time the Antiterrorism Act was introduced in 1996, groups and individuals were meeting and speaking out about its criminalization of political activity and the impact on constitutional guarantees. Pressure from these sources slowed and slightly modified the legislation, but when it was enacted the groups that had been fighting the act re-formed to consider the effects of its passage. The National Coalition to Protect Political Freedom (NCPPF) was established in the summer of 1996.
  
  The Coalition supports the right of people to engage in political debates in the U.S., whether they are citizens or not. It argues that all people in the U.S. have Constitutional rights, including the rights of political expression and due process. The Coalition asserts that due process requires that people not be deported without seeing the charges against them and confronting their accusers, as in a criminal trial.
  
  NCPPF tries to ensure that people facing secret evidence deportations have access to legal help, including advice from national experts, and to previous legal briefs that can be adapted to their cases. The Coalition publishes newsletters, prepares case descriptions, and distributes newspaper clippings and summaries when something breaks on a case or an op-ed piece appears. It works with print, TV and radio reporters to initiate stories and helps the media contact knowledgeable lawyers and activists across the U.S. National organizations that are part of the Coalition have the resources to educate the media, lawmakers and executive branch officials on the impact of these cases and the issue of secret evidence.
  
  In most cases, a local group of activists is at work. They have done amazing work publicizing the cases, helping build local and sometimes national support to ease the plight of each individual who is detained and awaiting deportation. As members of the Coalition, these groups find it easier to communicate with each other and to coordinate with the national organization in seeking remedies at the national level.
  
  NCPPF does not endorse or support any of the causes of member organizations or individuals. The unified position is that anyone in the U.S. should be able to express political views free of the threat of deportation, jail or fine. The Coalition need not agree or disagree with the views of a member group.
  
  What we do note, however, is that the U.S. seems to be selectively deporting people who publicly disagree with its government policy and practices with respect to the Middle East. ?
  

‘My Sons Have Done No Wrong to America’
At a Washington, D.C., press conference on May 19, Mrs. Zakia Hakki, an Iraqi Kurd granted political asylum in the U.S., explained to Rep. David Bonior the circumstances under which her two sons—Dr. Ali Yasin Kareem and Mohammed Yasin Kareem—are being held in California while the INS attempts to deport them. Dr. Ali, 36, is one of the “Iraqi 7” and was part of a CIA plot to overthrow Saddam Hussein. Mohammed, 40, was severely traumatized during the Iran-Iraq war when he was forced to witness atrocities committed by the Iraqi military against Kurds in border villages. When, back in Baghdad, Mohammed became incoherent and shouted anti-Saddam epithets, his parents agreed to electroshock therapy, which had the unforeseen effect of erasing most of his memories since childhood. “He is a 10-year-old,” Mrs. Hakki told The Link. For compassionate reasons, Dr. Ali managed through subterfuge to include his brother Mohammed in the “CIA group” rescued from Iraq and brought to America through Guam. Both will continue to fight the allegations against them in U.S. courts rather than accept deportation to a third country (a “compromise” from the government’s original intent to deport them back to Iraq, where both have been sentenced to death in absentia.) “I support their decision entirely,” said Mrs. Hakki, a lawyer who practiced for 40 years in Iraq. “My sons have done no wrong to America, and they’ll be proven innocent even if we have to go all the way to the Supreme Court.”—AMEU Photo.

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