Worldandnation: FBI says five held on secret evidence

FBI says five held on secret evidence

Groups fighting to free those detained count eight in jail and fear there may be others.

By SUSAN ASCHOFF

For years, the U.S. government has used secret evidence to jail immigrants considered dangerous friends of terrorists. For years, the government has declined to say how many are behind bars.

Immigrant advocates asked for a count, filing Freedom of Information requests with the Immigration and Naturalization Service. They want to ensure that no incarcerated person is without legal help.

U.S. senators asked how many. They wrote to the Justice Department wanting to know how frequently secret evidence is used.

Then, at a House subcommittee hearing this month on legislation to ban the use of secret evidence as unconstitutional, FBI general counsel Larry Parkinson gave a number.

Five.

Groups fighting to free those detained count eight men in jail, and worry there are others no one has heard about.

Rep. Lamar Smith of Texas, subcommittee chairman, touted the low number as proof the system is not abusive.

INS, when asked about discrepancies, said the government's numbers are right and any others are wrong.

INS spokesman Russell Bergeron said: "We don't really track cases based on whether secret evidence is involved. For this hearing, we researched that figure" and came up with five.

Even one case, opponents say, is too many.

"The INS has been doing this (secret evidence) for years but wasn't publicizing it," said Kit Gage, coordinator of the National Coalition to Protect Political Freedom. The coalition is a collection of ethnic, religious and political groups opposed to the practice.

"It's a travesty that it's happening at all."

The announced count comes as increasing pressure is applied to the INS, FBI and Justice Department to stop detaining immigrants as national security threats while denying them proof. More than 65 U.S. representatives have signed on as sponsors of a bill to ban secret evidence. More than 700 people attended a meeting in opposition Feb. 16 in Washington, D.C.

Immigrants in secret evidence cases are accused of ties to terrorists. They spend years in jail but no criminal charges are filed. The government says the men attend subversive political rallies, raise funds for violent extremist groups or are acquainted with convicted terrorists. The evidence of such ties is shown only to the immigration judge, and not shared with the immigrant or his attorneys.

The use of secret evidence, opponents say, denies the men their constitutional right to confront their accusers. In cases that have ended up in federal court, federal judges agreed.

Critics are also troubled that almost all of those detained are Arab or Muslim.

They include Mazen Al-Najjar, a former University of South Florida teacher whose lengthy detention inspired the bill introduced in Congress. A Palestinian who has lived in the United States since the early 1980s, Al-Najjar was arrested on a visa violation. He has been detained almost three years in a Bradenton jail on secret evidence accusing him of ties to the Palestinian Islamic Jihad.

The INS continues to decline to provide a list of detainees, citing privacy laws.

At the INS' request, the St. Petersburg Times gave the agency its list of eight immigrants detained in secret evidence cases, and asked for confirmation. Bergeron said the list is incorrect. Three Iranians from California are not secret evidence cases and should not be included, he said.

The Times' list was compiled from court documents, lawyers, media reports and advocacy groups tracking the cases. Last year the Times filed a Freedom of Information request with INS for names, dates and cities of all cases involving secret evidence against immigrants. That request is pending.

"They're playing a counting game -- the number can be anything they want it to be," said Jay Fredman of Washington, D.C., one of the immigration lawyers representing the Iranians.

In the case of his clients, he said, a Joint Terrorism Task Force labeled them terrorists and threats to national security based upon undisclosed evidence of ties to the Mujahedin-e Khalq, a group on the State Department's list of terrorist organizations.

The INS in the past has provided only estimates of the number of secret evidence cases.

In a February 1998 letter written by a former INS counsel to the American Civil Liberties Union, INS said the figure was about 50 secret evidence cases over the previous five years. INS and the Justice Department have put the number at 12 cases a year.

At the hearing before the House Immigration and Claims Subcommittee on Feb. 10, the FBI's Parkinson said his figure shows the FBI and INS employ secret evidence responsibly.

"It is important to note . . . that while the use of classified information has garnered much media attention, it is in fact quite rare" in the 300,000 total pending immigration cases, he said.

The FBI and INS must classify evidence to protect federal agents and confidential informants to deter terrorist attacks in the United States, he said.

The American Jewish Committee, in a written statement submitted at the hearing, objected to the proposed legislation, called the Secret Evidence Repeal Act, because it "fails to draw the appropriate balance between due process concerns and national security interests.

"It's a hatchet taken to a set of serious and difficult issues that require, instead, a scalpel," president Bruce Ramer said.

Gage, of the national coalition, said the government's "we'll-just-use-it-a-little" promise makes innocent people pay.

Two immigrants detained for years on secret evidence were released last fall after immigration and appeals judges rejected the government's secret evidence as hearsay in their separate cases.

The Justice Department said the outcomes prove the system works.

But the defendants spent years in jail before judges ruled they had done nothing wrong.

In addition to the five people detained, Parkinson also testified there are seven cases involving secret evidence in which the immigrants are not in jail. That number has not been verified by advocates because the government won't release names. It is nonetheless damaging to the government's protestations that these people are dangerous, said David Cole, a Georgetown University law professor who also testified before the subcommittee.

"It goes against the government's own arguments," said Cole, who has represented immigrants in secret evidence cases. "If these people are truly a threat, then they should all be detained."

Cole is one of a national team of lawyers working to free Mazen Al-Najjar. The Tampa resident's case is before a federal judge in Miami, and could go to the Supreme Court on constitutional grounds. Cole says that in 12 of the 13 cases he has been involved with, the immigrant prevailed. But the cost has been years in jail, destroyed reputations and devastated families.