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What is Secret Evidence?

Secret Evidence is any evidence used against someone in a criminal or immigration proceeding that the person being accused, nor his attorney, is able to see. The use of secret evidence was sanctioned by the 1996 Antiterrorism and Effective Death Penalty Act, which said "information…collected for national security purposes, shall not be authorized if disclosure would present a risk to the national security of the United States." The 1996 law also stated that "an alien subject to removal under this subchapter shall not be entitled to suppress evidence that the alien alleges was unlawfully obtained."

The 1996 Antiterrorism and Effective Death Penalty Act, known as the Secret Evidence Act, established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists. It also included provisions allowing the government to use secret evidence to deny bond to all detained non-citizens and to deny various discretionary immigration benefits such as asylum to all non-citizens, including those not accused of being terrorists.

In 1999, a Secret Evidence Repeal Act was introduced in Congress. In 2000, Congress voted to knock $173,480 — what it costs the INS to detain a person for one year — from the U.S. Justice Department appropriations bill as a symbolic gesture protesting the use of secret evidence.

How does it affect Muslims?

Virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab. Since 1987, 18 immigrants known to be jailed on secret evidence -- virtually all of them Arabs or Muslims -- have won their cases and been released.

The case of Dr. Mazin Al-Najjar, a Palestinian academic, was a classic example of what went wrong with the use of “secret evidence.” After going through a long and drawn out legal battle, he was released in December 2000 when U.S. Immigration Judge McHugh rejected all of the government’s assertions against Dr. Al-Najjar in a 56-page ruling. As a result, the INS appealed that decision to a 3-judge panel at the Board of Immigration Appeals (BIA). The panel, which had access to the “secret evidence,” denied the appeal and released Dr. Al-Najjar. Dr. Al-Najjar, who was originally released from INS custody on December 15, 2000, after being held on “secret evidence” for almost four years, was subsequently taken into custody by the INS after Sept. 11th, 2001 for overstaying his visa. On August 22, 2002, Dr. Al-Najjar, was deported to Lebanon after being held in solitary confinement for nine months.