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SECRET EVIDENCE
What it is and Government authorities for use

This secret evidence issue involves the use by the US government of evidence a person and their lawyer are not permitted to see, that is part of a deportation proceeding. Typically this has been used in denying bond while the government tries to deport a person. Usually the government has alleged the person is “out of status” which means they have violated some part of immigration law which then allows the government to remove them from the US. These violations can range from overstaying a visa, working while being a foreign student at a college or university in the US, lying about a factual matter as part of a visa application.

In the secret evidence cases that clustered after the passage of the 1996 Antiterrorism and Effective Death Penalty Act, the government would with great fanfare arrest a person, usually with the media present. At the time they would allege the person was a dangerous and terrorist-affiliated person. Then the person would be detained, the government would seek to deny bond in a hearing - alleging the above generic charges - and give the person no details about the allegations.

At a bond hearing before the immigration judge, sometimes the judge would be shown the information withheld from the immigrant. Other times even the judge would not be shown the details. In no case were any substantial details shared with the immigrant or his/her lawyer.

As a result of the use, people spent the entire time they contested the deportation in jail - which amounted to 3 or more years.

• Authorities:
  The US has sporadically used secret evidence in deportation proceeding and cited several early 1950s cases to justify the use. In particular, Jay v. Boyd, 351 US 345 (1956) has been cited. See David Cole’s testimony for cases used pro and con.
  
  In 1996 Public Law 104-132, the antiterrorism law, for the first time in law authorized the use of secret evidence through a special alien terrorist removal court, which then was supported by implementing regulations. As of the present moment, the court has never heard a case. Nonetheless, its creation in law stimulated increased use of secret evidence in cases where the government alleged a person had terrorist connections and violated terms of their visa. As of a INS letter from INS Acting General Council Scialabba to Greg Nojeim of the ACLU in February 1998, it claimed to have used secret evidence about 50 times since 1992.
  
• Counter Arguments:
  Critics of the policy cite the Constitution’s language - that all people in the US have due process rights - immigrants and citizens alike. Particular older cases upholding this position include: Mathews v. Diaz, 426 US 67, 77 (1976), Rafeedie v. INS 880 F2nd 506, 516, and ADC v. Reno 70 R3d 1045, 1069 (9th Cir 1995). As part of the recent effort to oppose secret evidence, judges also consistently opposed the use of secret evidence. See Cole testimony for these details as well.

Material Support for Terrorism
Humanitarian Aid

Starting with the 1996 AEDPA (AntiTerrorism & Effective Death Penalty Act), the U.S. criminalized the act of giving funds for any purpose whatsoever to particular designated organizations.

The process: The State Department in coordination with the Justice Department publishes a name of a proposed foreign terrorist group in the Federal Register. The group has 30 days to file an appeal of the designation. The US can keep secret the evidence it uses to make the designation, and all it must show is that some part of the group has committed a violent act that threatens human life and which is intended to intimidate a populace or government. Note that many demonstrations abroad fit into this definition.

If the group loses the appeal, then it is a formally designated foreign terrorist organization under AEDPA. Then no US person or group may legally give any funds for any purpose or any training to the group, under serious jail and fine penalties which have been increased under the USA Patriot Act of 2001.

The current 2003 list of designated foreign terrorist organizations can be found at: www.state.gov/s/ct/rls/fs/2003/12389.htm. The annual State Department Report – Pattern of Global Terrorism can be found at: www.state.gov/s/ct/rls/pgtrpt/2002/html.

Several groups have challenged the designation. The Humanitarian Law Project (HLP v. Reno) case asked for permission to disseminate to the Tamil Tigers fliers with the UN Declaration of Human Rights. See Cases for more information. The judge denied the right, but ruled that the training provision was vague. The PMOI – Peoples Mujahadeen of Iran – has successfully challenged the designation in the lower courts. Again, see Cases for more information.

There have been several material support criminal cases brought by the government mostly in the wake of the 2001 terrorist attacks, though not linked to them. In general, the government has obtained convictions of one or more defendants, or they have taken plea agreements.

A number of groups engaged in international support work, solidarity efforts, and some policy analysts have expressed concern at the larger ramifications of this kind of policy. The experience with the African National Congress (ANC) is often cited for historical context. While then President Reagan called the ANC a terrorist group, many US people and others around the world supported the political and not violent activities of the ANC to help end apartheid in South Africa in the 1980s. That very public and vocal political pressure is widely believed to have helped facilitate that end, whereas financial isolation of the peaceful efforts of ANC might well have slowed or stopped those efforts.

The Treasury Department’s Office of Foreign Assets Control also has the capacity to limit the donation of funds to groups and individuals. As well some Executive Orders have functioned in the same way. Mohammed Saleh’s case is a good example. For more detail on OFAC, go to: www.ustreas.gov/offices/enforcement/ofac.

Network

Our main project for the summer and fall of 2003 is the conference: Grassroots America Defends the Bill of Rights – First National Conference. It will be held in Silver Spring Maryland October 18-19. It is bringing together dozens of groups and many individuals, working locally around the country, and nationally - mostly out of Washington, DC. We will share stories and lessons learned about the local bill of rights resolution process. We will expand our contacts with local activists, national and regional groups concerned about the erosion of civil liberties broadly defined, and nationally known experts. NCPPF is facilitating this communication by serving as the umbrella group for the conference, and is in the leadership of facilitating the conference.

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