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The Fifth Amendment vs. Secret Evidence

Arab American Institute

The Fifth Amendment guarantees that no person shall be "deprived of life, liberty, or property, without due process of law." The right to confront your accusers and the evidence against you is one of the most basic elements of due process. However, the INS has dusted off some immigration regulations dating back to the 1950s that it says allow it to use secret allegations to deny political asylum and bond in deportation cases.

The use of secret evidence is based on the Anti-Terrorism Act of 1996, which allows the INS to arrest, detain and deport non-citizens on the basis of evidence the source and substance of which is not revealed to the potential deportees or their lawyers. This bill was enacted with other legislation at a time of a short-lived backlash against illegal immigration.

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act also provided courts with greatly expanded authority to deny bond to non-citizens facing criminal charges or deportation. The combination of secret evidence deportations and denial of bond has resulted in over two dozen persons, almost all of Arab ethnicity and/or Muslim religious affiliation, spending long periods in jail without charge or the ability to mount any form of effective defense.

Since 1996, at least five federal district courts have ruled that secret evidence incarcerations are a violation of the due process rights of defendants guaranteed by the Fifth Amendment to the U.S. Constitution.

Secret Evidence & the Arab American Community

Secret evidence has disproportionately targeted Arab and Muslim immigrants. Of the more than 20 individuals who faced deportation or exclusion from the United States on the basis of secret evidence, most of them were Arab or Muslim. Three of them, Nasser Ahmed and Dr. Anwar Haddam and Mazen al-Najjar were held for years in prison without having criminal charges filed against them.

When Stereotypes Become Policy

Secret evidence has included rumors, innuendo, racist stereotyping, faulty translations, and the testimony of a vindictive ex-spouse or girl friend. One judge has complained that much of the "secret" evidence was public information and strongly warned of the dangers of abuse that secret evidence invites.

Need for Legislative Solution

Arab American, Muslim American and civil rights groups have fought the use of secret evidence on several fronts. Individual cases proceeded at a snail's pace through the court system. In almost every hearing INS judges or Federal District Court judges would rule against the use of secret evidence only to have the INS pursue stays, appeals and even last-resort rulings from the Attorney General.

Because Congress legislated the use of secret evidence, the best way to deal with this unconstitutional abuse is for Congress to restore basic constitutional protections. In June 1999, a bipartisan group of Representatives sought to do just that by introducing the Secret Evidence Repeal Act (H.R. 2121). Sponsored by Republicans Tom Campbell (CA) and Bob Barr (GA), and Democrats David Bonior (MI) and John Conyers (MI), the Act seeks to eliminate the use of secret evidence in immigration, deportation, exclusion, bond, and related measures. The bill garnered more than 130 cosponsors and a companion bill was introduced in the Senate by Senator Spencer Abraham (R-MI) and Paul Wellstone (D-MN) Russ Feingold (D-WI) Rod Grams (R-MN) Edward Kennedy (D-MA).

In 2000, the Secret Evidence Repeal Act received a hearing in the House Judiciary's Subcommittee on Immigration. During that event, subcommittee members had harsh words for secret evidence. Rep. Howard Berman (D-CA), noted that "The more I think about secret evidence, the more I dislike it." The committee's ranking minority member Sheila Jackson Lee (D-TX) said that in cases involving foreign informants secret evidence becomes a "tool of the persecutor." Obviously disturbed by the use of secret evidence, Rep. Edward Pease (R-IN) asked the Department of Justice whether or not aliens were "persons" in terms of the Fifth Amendment-a right the DOJ acknowledged applied to aliens for the first time at that hearing. Representative Joe Scarborough (R-FL) said that even one case of secret evidence is too many.

One year after the introduction of the Secret Evidence Repeal Act, the House voted 239-173 to cut $173,000 from the Bureau of Prisons detention budget - the cost of detaining victims of secret evidence for one year. While the amendment did not directly affect the release of any secret evidence victims, it put the majority of the House on record opposing the practice.

 
http://www.aaiusa.org/secret_evidence.htm