Secret Evidence

0 Comments | Insight on the News, August 20, 2001 | by Catherine Edwards

The use of secret evidence as a counterterrorism tool is a violation of due process, say U.S. civil libertarians. Congress appears ready to weigh in on the matter.

In his first job as a doctor in Iraq, Adil Awadh, 26, feared he would be asked to carry out Saddam Hussein's order to cut off the ears of military deserters. He knew any refusal would result in death, so he fled to northern Iraq to join the opposition for a CIA-sponsored coup against Saddam. Now he lives in Lincoln, Neb., where he works at a nonprofit organization to help refugees open their own micro-enterprise businesses.

Six months ago Awadh could not leave Lincoln, his travel restricted by the Immigration and Naturalization Service (INS). But, in one of her last acts as U.S. attorney general, Janet Reno decided to lift these restrictions on the men known as the "Iraqi Six," who for years had been detained for reasons never revealed to them by the U.S. government.

The 1996 coup failed. And instead of thanking the doctor for his help, the U.S. government threw him into an INS detention facility with five other Iraqi opposition members. Awadh languished in jail for two-and-a-half years until he and some others accepted a government deal to live under INS supervision in Nebraska. Reno's last official act enabled Awadh and his family to travel, but they live in fear of being deported to Iraq, where they face death by torture.

During their incarceration, the prisoners never were allowed to see the secret evidence the government used against them and, unlike others in U.S. jails, they never knew why they were there. They were held on "secret evidence" that even their lawyers could not see and therefore could not try to refute.

The Secret Evidence Repeal Act of 2001, a bill sponsored by the odd couple of left-wing House Minority Whip David Bonior (D-Mich.) and right-wing Rep. Bob Barr (R-Ga.), was introduced earlier this year to overturn the law that permits such government behavior. A coalition of ethnic, legal and immigration groups from across the political spectrum -- including the American Civil Liberties Union (ACLU), the American Bar Association, Americans for Tax Reform and all major Arab and Muslim organizations -- now is lobbying the White House to support the repeal. As things stand, however, the Immigration and Nationality Act authorizes the INS to use classified information in political-asylum and deportation cases. The evidence is not disclosed to immigrants or their counsel.

The new bill would amend both this basic INS legal authority and the 1996 Anti-Terrorism and Effective Death Penalty Act. The 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 Illegal Immigration Reform and Immigrant Responsibility Act, also passed in 1996, expanded the secret court so classified evidence could be used to deport legal residents as terrorists.

Proponents of these laws say the national-security interests to detain suspected terrorists outweigh due-process rights in some cases.

Under the proposed legislation, a federal district-court judge would be presented with the government's classified evidence and then would provide an unclassified summary to the immigration judge and the defendant. No classified information would be revealed, and the defendant would have access to the same information as the immigration judge deciding the case.

"The government's evidence must stand up in court" says Timothy Edgar of the ACLU, part of that coalition lobbying the White House to repeal the use of secret evidence. "As it is, they can get things wrong. We are worried that if you don't expose evidence to the sunshine you end up with sloppiness and, unfortunately, this is what has happened in some of these cases."

Much of the evidence in the government case against Awadh, now 32, and the five other Iraqi opposition members finally was declassified. A legal team that included former CIA director James Woolsey represented them. Yet Woolsey himself was refused the opportunity to see the evidence against his clients, even with his top security clearance. Woolsey tells Insight that he thought as former director of the CIA he could be trusted with this classified information. Apparently, the government didn't think so.

"Now if I am having a bad day and need a good laugh, I go read the declassified documents that list the evidence the government had against me," Awadh tells Insight. One FBI agent had written that the doctor was a security threat because he seemed to be lying about not wanting to take part in the ear-cutting ordered by Saddam since he held such a high military rank. In truth the doctor had just completed his education at age 26 and was an entry-level military physician.

"We could not believe we had left Iraq" says Awadh. "But according to the agreement with INS, our attorney can ask for a semiannual review on our application for asylum."