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Jewish World Review March 20, 2000 /13 Adar II, 5760
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http://www.jewishworldreview.com
TOTALITARIAN GOVERNMENTS, not the United States, generally come to mind when
one hears about secret evidence in judicial proceedings. But current law
allows non-citizens involved in immigration cases to be detained indefinitely
without seeing the evidence against them, often in cases where the defendant
is suspected of terrorist activity.
Proposed legislation in Congress would eliminate the use of secret evidence
completely, but Jewish groups are urging a more nuanced approach. They say
that while secret evidence should rarely, if ever, be used, national security
interests may occasionally warrant such measures.
The bill has garnered support from the American Civil Liberties Union and a
coalition of American Arab and Muslim groups. Hussein Ibish, communications
director for the American-Arab Anti-Discrimination Committee, said not many
people are detained because of secret evidence — five at the present time,
although Ibish said there have been about 35 total during the past few years.
But, he said, “all involved Arabs who are also Muslims” suspected of
terrorist activity.
Ibish also pointed out that in two recent cases, prisoners detained on the
basis of secret evidence have been released. In one, the judge saw the secret
evidence and ruled “it didn’t amount to anything.” In the other, the
prisoner, allowed to see a declassified summary of the secret evidence, was
able to defend himself successfully.
“We take seriously the due process issues” and are “not defenders of the
status quo,” said Foltin. The problem is that the proposed legislation, by
forbidding the use of secret evidence, “is a hatchet when what’s needed is a
scalpel,” he said.
Foltin said making an unclassified summary of the secret evidence available
to the defendant is, in virtually all cases, sufficient to enable that
defendant to mount a proper defense. He noted that the 1996 Alien Terrorist
Removal Act set up a special court that requires this type of procedure to be
carried out for non-citizens in deportation cases, although the government
has not used the court as of yet. In addition, the Classified Information
Procedures Act (CIPA), which has upheld legal challenges, mandates similar
rules for the use of secret evidence in criminal cases.
The Anti-Defamation League, along with B’nai B’rith International, the Jewish
Council for Public Affairs and Hadassah, agrees that a reasonable compromise
should be crafted. “There is no reason to force government to choose between
endangering sources or letting terrorists go free,” as Bonior’s bill would
require, said Stacy Burdett, ADL’s associate director.
Attorney General Janet Reno promised last May to issue new regulations
governing the use of secret evidence, which could deal with the problem while
bypassing the legislative process. So far, she has failed to reveal them.
A hearing was held earlier this month on the legislation in the House
Judiciary Subcommittee on Immigration and Claims, but the chairman of the
committee, Rep. Lamar Smith (R-Texas), opposes the bill and does not plan to
move it out of his committee. A spokesperson for Bonior said, though, that
the chairman of the House Judiciary Committee, Rep. Henry Hyde (R-Ill.),
plans to put the bill on the “fast track” and would like to see it brought to
the House floor. If the Secret Evidence Repeal Act is not successful, Ibish
said that his organization could support a compromise along the lines of what
Jewish groups are proposing.
“To replace secret evidence with a CIPA-style [law] would be a vast
improvement,” he said. “It would rise to the level of constitutionality and
By Eric Fingerhut
Washington Jewish Week
The Secret Evidence Repeal Act, introduced by House Minority Whip David
Bonior (D-Mich.) and co-sponsored by Reps. John Conyers (D-Mich.), Tom
Campbell (R-Calif.) and Bob Barr (R-Ga.), is a sweeping law that would
abolish the use of secret evidence in all immigration proceedings. Secret
evidence currently is not allowed to be used in deportation cases, but is
permitted in other immigration-related matters, such as jailing a defendant
until his deportation case is heard or deciding whether someone may be
legally admitted into the United States.
Guaranteeing that whenever possible, anyone detained on the basis of secret
evidence be able to see a declassified summary of the evidence against him
strikes Jewish groups as a reasonable compromise that balances the competing
interests of national security and due process. But the Bonior legislation
would go much further and alter that balance, according to Richard Foltin,
legislative director and counsel for the American Jewish Committee. 
“Classified evidence is shabby,” Burdett said. But sometimes law enforcement
“needs to conceal its sources and methods,” because fully disclosing
information could result in “lethal bodily harm” to an informant, for example.
To ensure that prosecutors were using secret evidence only when absolutely
necessary, Burdett said, oversight by senior Justice Department officials
would also be a welcome step.
Eric Fingerhut is a staff reporter for
Washington Jewish Week. Comments by clicking here.
