December 19th, 2001
On October 26, some two dozen reporters crammed into a conference room on the 18th floor of a concrete high-rise in downtown Newark to await the arrival of Hany Kiareldeen, a 31-year-old Palestinian man who, shortly before midnight on the previous day, had been released from the nearby Hudson County jail. An immigrant’s release from prison does not normally occasion a press conference. But this case was far from typical. Kiareldeen, for one thing, had been incarcerated for 19 months without ever being formally charged of any crime. He had been separated from his family and deemed a threat to national securityon the basis of evidence he was not allowed to see.
Kiareldeen endured this ordeal because the FBI, for reasons that remain shrouded in secrecy, came to consider him a terrorist. Were Kiareldeen a U.S. citizenlike, say, Terry Nichols or Timothy McVeighthe government would have had to prove this under normal standards of jurisprudence. Because he is an immigrant, however, and because U.S. courts have ruled that aliens are not always entitled to the rights of citizens, different rules apply. In particular, the government detained Kiareldeen and attempted to expel him from the country on the basis of evidence that remained secret, arguing that protecting national security required keeping sources under wraps.
Since the bombing of the World Trade Center in February 1993, more than two dozen U.S. immigrants have been locked away on the basis of secret evidence. Some of these prisoners are approaching their fourth year of detention. All are suspected of involvement in terrorism, and all have another thing in common: They are Arab immigrants who fit the profilesome would say the stereotypeof the typical terrorist. That these men cannot face their accusers does not mean they are innocent. It does mean they are being denied the due-process rights enshrined in the Constitution.
Kiareldeen was arrested on March 26, 1998, for overstaying his visa, despite the fact that, several months earlier, he had married a U.S. citizen and filed a request for a green card. Normally in such circumstances, immigrants are released pending the resolution of their status. When Kiareldeen arrived at his bond hearing, however, the Immigration and Naturalization Service (INS) detained him. In a two-page declassified summary of the government’s case, the INS alleged that in February 1993one week before the World Trade Center bombingKiareldeen hosted a meeting at his home in Nutley, New Jersey, that was attended by Nidal Ayyad, a Muslim extremist and convicted co-conspirator in the World Trade Center plot. The bombing was discussed at the meeting, the government claims, and Kiareldeen subsequently threatened to kill Attorney General Janet Reno for her role in convicting the World Trade Center conspirators.
Grave allegations, to be sure. But who made them, and on the basis of what evidence? The government refuses to say. “We have to maintain confidentiality when it comes to intelligence gathering on terrorist groups,” explains Paul Virtue, a lawyer who just completed a 16-year stint as deputy general counsel of the INS, where he oversaw all the current secret evidence cases. Since the World Trade Center bombing, proponents like Virtue note, not a single major act of foreign-directed terrorism has occurred on U.S. soil, despite the growing presence of a range of radical Islamic groups.
But the use of secret evidence has prompted angry objections from civil liberties groups and the Arab-American community, and these objections have grown considerably louder in recent months, as judges in several prominent cases have issued decisive rulings against the INS. This past April, after examining the secret evidence on Kiareldeen, Immigration Judge Daniel Meisner did exactly that. Based on countervailing evidence introduced by Kiareldeen’s attorneys, Meisner concluded that Kiareldeen was not even living in Nutley, New Jersey, at the time of his purported meeting with Nidal Ayyad, and that, far from a Muslim extremist, Kiareldeen is a secular person of moderate views with little interest in politics. The INS immediately appealed, but on October 16, the Board of Immigration Appeals unanimously affirmed Meisner’s decision, making Kiareldeen the first person detained on the basis of secret evidence to be set freeand casting a shadow over the government’s conduct in other cases as well.
Questionable Allegations, Secret Accusers
“I’m trying now to reconstruct my life,” says Kiareldeen as the cameras flash at his press conference. It is 2:00 p.m. and Kiareldeen, a soft-spoken man with large, doe-like brown eyes, olive skin, and closely cropped, jet-black hair, is sitting behind a long wooden table flanked on both sides by his attorneys. He’s dressed in a loose-fitting, double-breasted tan suit and seems unusually relaxed, answering questions in a calm, even voice that betrays not a hint of bitterness. Are you angry at the U.S. government, someone asks from the back of the room. “No,” says Kiareldeen quietly. Has this experience politicized you, another reporter wants to know. “Not really,” he responds.
At the time of his arrest, Kiareldeen had been working as the manager at Infinity Sounds, an electronic store in Passaic, New Jersey. He had just gotten married, for the second time, to a Catholic woman named Carmen Negron, and had moved into a modest, two-story home in Bloomfield, New Jersey. He was, by all accounts, a typically hard-working immigrant who liked America and planned to stay here.
“Hany was such an optimist,” his younger brother Ghassan told me from inside his disheveled office at Smart Electronics, a beeper and electronics store he runs on a bustling commercial strip in the town of Linden, when we met in early September, several weeks before Kiareldeen was released from prison. Crumpled copies of different English and Arabic newspapers lay in heaps upon the floor. “I’ve always been into politics,” Ghassan explained, pausing to take a drag from his Marlboro Light cigarette. “But Hany wasn’t. That’s what’s so ironic. I mean, he was just this ordinary guy living out the American Dream married, hard working, never complaining about discrimination or anything like that.”
The government’s case against Kiareldeen unraveled, in part, because so many of his acquaintances testified that he was a secular, apolitical person who was the furthest thing from a Muslim extremist. It’s possible, of course, that these acquaintances were lying, but if so, it’s curious that the INS did not present a single witnessnot even for closed-door, in camera testimonywho could speak firsthand about Kiareldeen’s hidden radical side, a fact Judge Meisner noted in his ruling.
What the government did do, Kiareldeen believes, is trust the word of his former wife Amal Mohamed, an Egyptian woman whom he married in 1993. Kiareldeen’s suspicion certainly seems plausible in light of the couple’s past. According to records from the New Jersey police, during their marriage, Mohamed filed more than a dozen complaints of domestic violence against Kiareldeencharges that were dismissed in court every time. The accusations continued after their divorce, as Mohamed had Kiareldeen arrested virtually every time he attempted to exercise his visitation rights to see their daughter Nour. In 1997 she accused him of threatening to put a bomb in her car (this charge, too, was dismissed in court). On another occasion, she informed the police that her husband had “ties to certain Islamic groups”information that was immediately passed along to the FBI, police records show.
Convinced that Mohamed framed Kiareldeen to keep him from seeing their daughter, or perhaps that she was jealous of his new wife, Kiareldeen’s lawyers subpoenaed Mohamed to testify before Judge Meisner. On the witness stand, she admitted she had spoken with the FBIbut then abruptly refused to answer further questions, claiming her life would be at risk. (Mohamed also refused to be interviewed for this story.) At that point, INS lawyer Leo Weber rushed to her defense, charging that Kiareldeen’s lawyers, in attempting to cross-examine Mohamed, were “circumvent[ing] the classified evidence.”
“It was so absurd,” says Regis Fernandez, one of Kiareldeen’s attorneys. “How could we defend Hany without knowing who his accusers were? How could we possibly get at the truth?”
It’s a question that James Woolsey, former director of the CIA, would also like to see answered. Woolsey might seem like an unlikely critic of the use of secret evidence. In 1996, however, he signed on as a defense attorney in the case of six Iraqi dissidents who had worked with the CIA on a failed attempt to overthrow Saddam Husseinand were then arrested on the basis of secret evidence shortly after being flown to America. Given that he possesses the highest security clearance in the country, Woolsey assumed he would be granted access to the secret files on his clients.
Not so. Only after he wrote repeatedly to Janet Reno, he says, did the INS eventually agree to disclose 90 percent of the material. And what did it reveal? “It was beyond belief,” says Woolsey. “There was nothing even vaguely incriminating, and the documents suggest that the government never even conducted an independent investigation of these men.” Woolsey is still shocked. “It’s not a little bit like what Joseph K. faced in The Trial,” he chafes. “It’s exactly like that.”
Imad Hamad, a Pales tinian man now living in Detroit, says his own story is equally strange. Hamad spent 12 years fending off the government’s efforts to deport him on the basis of secret evidence. Earlier this year, after a judge dismissed the INS’s case, he finally glimpsed some of the secret evidence. “It was beyond laughable,” says Hamad, who is now the Midwest regional director of the Arab-American Anti-Discrimination Committee. “There were pictures of me at rallies I had gone to as a student, back in the 1980srallies that were public, lawful events. One of the documents, from 1990, indicated that the Michigan FBI had closed its investigation on me after finding no connection to terrorists. So why was this classified all these years?”
It would be unfair, of course, to assume from these examples that all of the secret evidence cases rest upon dubious allegations. Yet in virtually every case where details about the government’s case have been revealed, doubts have surfaced as well. A few days after Kiareldeen’s press conference, I traveled to the Municipal Correctional Center, a 12-story concrete fortress in lower Manhattan, to visit Nasser Ahmed, an Egyptian immigrant who has spent over three years in prison on the basis of secret evidence, much of the time in a high-security segregation unit where prisoners are locked up in six-by-eight-foot cells, 23 hours a day. “They try to break you,” says Ahmed, a small man with deep-set brown eyes, a neatly trimmed beard, and a shaved head. He is wearing dark brown prison scrubs and blue slippers. “I have seen people try to kill themselves in the cells next to me because they couldn’t take the pressure, the isolation.”
Prior to his arrest in April 1996, Ahmed, a devout Muslim, lived in Brooklyn and worshipped regularly at the Abu Bakr Mosque, which is where Sheik Omar Abdel Rahman, the Muslim cleric convicted of conspiracy to wage a terrorist war in the United States, frequently preached. Ahmed, who later served as a court-appointed translator in the sheik’s trial, clearly remains loyal to him, telling me that the sheik is “not guilty” and would never condone violence.
Whatever one makes of Ahmed’s views, however, there are serious doubts about whether he is a terrorist. At his first trial, before Immigration Judge Donn Livingston, the INS agreed to disclose only a vague one-sentence statement alleging that Ahmed was a member of an unnamed terrorist organization. Knowing nothing more, Ahmed’s attorneys were unable to defend their client, and Judge Livingston, despite acknowledging that Ahmed would almost certainly be tortured if he were sent back to Egypt (due to his association with the sheik), ordered his deportation.
In response, however, Ahmed’s lawyers filed a federal lawsuit challenging the constitutionality of secret evidence, which prompted the INS to suddenly disclose more evidenceand enabled Ahmed to finally mount a defense. The INS’s central charge, it turns out, is that Ahmed once transmitted a message from Sheik Rahman to the international press, a message that allegedly provoked a deadly attack on a group of tourists in Egypt in 1996. Ahmed’s lawyers showed not only that there is no evidence Ahmed ever transmitted such a message, but also that the particular attack on tourists in Egyptas even the State Department acknowledgescame in retaliation for Israeli air raids in Lebanon, not due to any message from Sheik Rahman. Last July, Judge Livingston reversed his earlier decision. The government immediately appealed and, according to a newly declassified court document, actually argued that releasing Ahmed would be dangerous because his lengthy detention had turned him into a cause célèbre in the Arab-American community, making it more likely that other Arabs would “listen to him” upon his release.
Does secret evidence inevitably foster governmental abuse? In late August, the FBI, prompted by a Freedom of Information Act request, provided Kiareldeen’s attorneys with roughly 300 pages of previously classified documents on their client. One of these documents lists Kiareldeen’s various residences over the years. What it shows is that, according to the FBI’s own information, Kiareldeen was living at 207 High Street in Nutley, New Jerseythe place where he purportedly hosted a meeting just before the World Trade Center bombingfrom “11-94 to 11-95.” He lived there, in other words, more than a year after the bombing took place, which is what Kiareldeen had asserted all along.
Another document, which is undated, indicates that a search of Kiareldeen’s telephone numbers and addresses revealed that “the subject was not directly linked to the Tradebom [sic] investigation.” This would seem to confirm the judgment of Laurie Mylroie, an expert on the World Trade Center bombing who has taught at both Harvard University and the U.S. Naval War College, and who testified before Judge Meisner on Kiareldeen’s behalf. Mylroie has made a computerized list of all the phone records of the various conspirators in the World Trade Center plot. “The people involved in the bombing spoke constantly to one another,” she explains. “If Kiareldeen was involved, he should be on those records. But his phone number doesn’t appear once.”
After receiving the FBI documents, Houeida Saad, another lawyer on Kiareldeen’s case, was furious. “These documents show that the FBI and INS had exculpatory evidence in their hands,” fumes Saad. “So why did they withhold it from the court while our client was in jail?”
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Saad, who is originally from Lebanon, believes the government is detaining people not because of what they did, but because of who they are. She is not the only one. “There is clearly a pattern of Arab immigrants being targeted,” charges Congressman David Bonior, the House minority whip, who has introduced legislation the Secret Evidence Repeal Act, co-sponsored by Republican Tom Campbellthat would alter the law. Bonior became involved in this issue, he says, after learning about the case of Mazen Al-Najjar, a professor at the University of South Florida, who has spent the past two years in prison on the basis of secret evidence. “Here’s a guy who’s been in the country 18 years, has a wife, three children, is active in his community, and other than overstaying his visa, has never violated the law. Yet the INS won’t tell him or his attorney why he is in jail.”
A spokesman at the Department of Justice said the Clinton administration is concerned that secret evidence be used only in cases that clearly justify it. After meeting with leaders of the Arab-American community in 1998, the Department of Justice instituted a behind-the-scenes review of all current cases, and it now requires any new case to be approved in Deputy Attorney General Eric Holder’s office. For all the talk, however, the practice continues, and not a single case has been overturned.
National Security and Civil Liberty
Of course, the United States is not the only country to employ special measures against terrorism. In Israel, where the threat of political violence is far more extreme, the Israeli army has detained suspects without trials and has used physical coercion to extract confessionsuntil recently, that is. This past August, in a landmark ruling, the Israeli Supreme Court banned the use of torture in interrogation sessions, arguing that a “democratic, freedom-loving society does not accept that investigators use any means.” Some Israeli politicians are now pushing to ban administrative detention as well.
Might Israel jettison this practice before America does?
Greg Nojeim, a legislative counsel at the American Civil Liberties Union, argues that the United States already has sound methods for balancing the interests of liberty and security. The 1974 Classified Information Procedures Act, Nojeim notes, allows federal prosecutors to introduce classified evidence in criminal proceedings, provided that defendants are given detailed summaries of that evidence, enabling them to formulate a meaningful defense. “We have successfully prosecuted the most notorious spies, such as Aldrich Ames, and the most dangerous terrorists, such as Timothy McVeigh, through this method,” argues Nojeim. “The same procedure could work in immigration proceedings.”
Woolsey advocates a slightly different approach. “I can accept the proposition that in certain cases the government feels it needs to use classified materials,” he says. “The obvious solution is to have lawyers with security clearances who would be allowed to see the evidence and defend their clients.”
This, in fact, is exactly what Congress intended when, as part of the 1996 Anti-Terrorism Act, it established special “alien terrorist removal” courts to deport suspects on the basis of secret evidence. Within these courts, specially appointed lawyers are granted clearances to examine the secret files in each case.
This system might work, except for one thing: Since passage of the law, not a single case has come before an alien terrorist removal court. The reason? The Department of Justice says it is because the courts were designed to handle cases involving permanent residents, not immigrants. Others, however, take a more jaundiced view. David Cole, a law professor at Georgetown University and one of the attorneys on Kiareldeen’s case, explains, “The special courts that Congress created are federal courts, and judges in federal court have the authority to rule on whether the use of secret evidence is constitutional. Instead, the INS brings its cases before immigration courts, where the judges don’t have that authority.”
It’s an intriguing pointif, that is, one assumes what the government is doing violates the Constitution. Not everybody does. “These cases are not like other criminal cases,” argues Paul Virtue. “The people we’re dealing with have all overstayed their visas. So for them to remain here is not a rightit is a matter of grace.” The phrase “matter of grace” comes from the 1956 Supreme Court decision Jay v. Boyd, in which the Court indeed upheld the use of secret evidence against an immigrant who had overstayed his visa and was seeking suspension from deportation, which the courts view as a discretionary benefit (like asylum, for example) rather than a universal right.
Cole, however, notes that other Supreme Court rulings, including the 1976 decision Matthews v. Dias, have explicitly affirmed that all persons in the United Stateseven immigrants whose presence is “unlawful, involuntary, or transitory”are entitled to due-process rights. “There is a liberty issue at stake here,” he contends. “An individual’s freedom is not a matter of grace.” Last month, in response to a lawsuit brought by Cole on behalf of Kiareldeen, Federal District Judge William Walls resoundingly affirmed this argument, ruling that Kiareldeen’s detention “violates the due-process protections that the Constitution directs must be extended to all persons within the United States.” Walls ordered Kiareldeen to be releaseda request obviated by the fact that the government gave up its case following the nearly simultaneous ruling by the Board of Immigration Appeals.
As these arguments suggest, whether and how secret evidence can be used remains a deeply contested issue, and one that is hardly new. Indeed, the use of secret evidence can be traced back to the fear of communism that emerged in the late 1940sand to a case that bears striking parallels to Hany Kiareldeen’s. In 1948 a German woman named Ellen Knauff, who had married a U.S. soldier during World War II, came to America to reunite with her husbandonly to be denied entry on the basis of secret evidence. Accused of passing information to the then-Communist government of Czechoslavakia, Knauff appealed her case all the way to the Supreme Court, which, in a four-to-three decision, denied her the right to enter the country.
Government lawyers continue to cite the Knauff decision as a precedent in secret-evidence cases today. Only here is the irony: After Knauff spent three years under detention, Congress eventually did grant her a hearing, where she was able to show that the allegations against her stemmed from an unsubstantiated rumor spread by a jilted former lover of her husband’s.
Late one night in September, several weeks before Kiareldeen was released from prison, I drove with Regis Fernandez, Kiareldeen’s attorney, to visit Kiareldeen at the Hudson County jail. Along the way, we started talking about the history of secret evidence, and the Knauff case came up. Fernandez turned to me abruptly. “That,” he said, chuckling at the irony, “is Hany’s case all over again.”