Blind Decisions Come to Court; What Happens When a Defendant Is Denied Access to the Evidence against Him?

Article excerpt

A little over a year ago, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. At nearly the same moment, Immigration and Naturalization Service officials in New York City arrested Nasser Ahmed, a 37-year-old Egyptian man, claiming that he was a security risk because of his ties to Sheik Omar Abdel Rahman, who had been convicted in October 1995 on charges of seditious conspiracy to commit terrorist bombings. While Ahmed's case is governed by immigration law that predates the Antiterrorism Act, the government's treatment of him is a disturbing sign of what can be expected as the new law takes effect.

The two most troubling provisions of the Antiterrorism Act authorize the government to deport immigrants based on secret evidence not disclosed to the immigrant or his attorney, and to impose criminal and immigration sanctions on those who provide humanitarian aid to a foreign or-ganization labeled "terrorist" by the Secretary of State. The I.N.S. has not yet implemented either provision, but its actions against Ahmed illustrate the dangers of both.

Ahmed, whose three children are U.S. citizens, is a member of a Brooklyn mosque that Sheik Abdel Rahman frequented, and served as a court-appointed paralegal and translator during the sheik's trial. Ahmed has never been charged with a crime, and the I.N.S. did not accuse him of criminal conduct when it arrested him. It merely claimed that he had overstayed his visa.

Yet Ahmed has now spent more than a year in solitary confinement in a New York City detention center. He was denied bail on the basis of confidential information that neither he nor his lawyers had a chance to see. On May 5, Immigration Judge Donn Livingston ruled that although he had "no doubt" that Ahmed's political associations "will likely result in his torture if he is returned to Egypt," and although Ahmed was entitled to political asylum based on the evidence in the public record, he was nonetheless compelled to deport him to Egypt on the basis of secret evidence about his political affiliations.

Judge Livingston was clearly troubled. It cannot be easy to deport a man to a country where you have "no doubt" that he is likely to be tortured. …