U.S. Court Decisions Strengthen Case against Use of Secret Evidence

By Clemente, R. | Washington Report on Middle East Affairs, February 28, 2000 | Go to article overview

U.S. Court Decisions Strengthen Case against Use of Secret Evidence


Clemente, R., Washington Report on Middle East Affairs


U.S. Court Decisions Strengthen Case Against Use of Secret Evidence

Nasser Ahmed, an Egyptian national imprisoned in New York for more than three years on allegations based upon secret evidence purportedly linking him to terrorist actions in the United States and abroad, was released from jail Nov. 30. His release followed withdrawal by the Immigration and Naturalizaton Service (INS) of its earlier request to Attorney General Janet Reno to overrule a Board of Immigration Appeals decision of Nov. 22 to release Mr. Ahmed.

The decision, which has historic implications for the use of secret evidence in the U.S., results from a finding last July by Immigration Judge Donn Livingston in New York that Armed had successfully refuted charges that his request for political asylum in the U.S. should be denied because he allegedly had engaged in illegal activities and terrorism while working for Sheikh Omar Abdel Rahman, a blind Egyptian cleric who was convicted with nine others in 1995 of conspiring to blow up the United Nations building and other New York landmarks.

Judge Livingston initially found in 1997 that on the open record Mr. Armed qualified for political asylum because he was an outspoken critic of the current government in Egypt who probably would be imprisoned if he returned there. However, the judge ruled, on the basis of secret evidence presented to him by the FBI, Ahmed also could be considered a danger to U.S. national security.

Ahmed's lawyers then challenged in federal court the process of imprisoning people on the basis of charges which they could not see and therefore could not refute. In response, the INS unexpectedly supplied the lawyers a declassified version of the secret evidence.

"Armed with a better understanding of the government's case," Judge Livingston ruled last July, Ahmed "was successful in rebutting most of the factual allegations." Warning against "the possibilities for abuse" in the use of secret evidence, the judge then ordered Ahmed released from detention. However, the INS prevented his release while it appealed to the Board of Immigration Appeals. In November the board upheld Judge Livingston, but Commissioner of Immigration Doris Meissner asked Attorney General Reno to overrule the appeals board and keep Ahmed in prison.

Nasser Ahmed's release may be a second turning point in the struggle against the use of secret evidence, on the basis of which between 20 and 30 people are awaiting heatings all over the United States. Of those so charged, all but two are Muslim Arabs. The exceptions are a Christian Arab and the Kenyan wife of another of the accused members of the "L.A. 8," all the rest of whom are Muslims.

The first turning point came with the Oct. 20 order by New Jersey U.S. District Judge William Walls that Hany Kiareldeen, a 32-year-old Palestinian immigrant, be released after 19 months' imprisonment on charges neither he nor his lawyers could see, and against which he therefore could not defend himself.

The favorable decisions in both cases strengthen the campaign of House Democratic Whip David Bonior of Michigan, the second-ranking Democrat in the House of Representatives, and Republican Rep. Tom Campbell, who is planning to run for a California Senate seat in the year 2000 elections, in favor of House Resolution 2121, a draft bill to ban the use of secret evidence. The legislation had not been brought to a vote when Congress adjourned for the remainder of 1999.

But Bonior and Campbell, who already have some 50 co-sponsors, plan to reintroduce the bill to outlaw the use of secret evidence, of which few Americans were aware until recently. Such use only became possible with the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996, immediately after the Oklahoma City bombing. Ironically, although the bombing, in which 168 died and more than 500 were injured, was carried out by two American-born U.S. Army veterans with no foreign ties, the emergency powers it grants to the U. …

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