Washington Report on Middle East Affairs, September 1999, pages 16, 120, 136

Congress Watch

House Bill to Repeal Use of Secret Evidence Gets 19 Sponsors as National Awareness of Abuses Grows

By Richard H. Curtiss

Getting co-sponsors for the “Secret Evidence Repeal Act of 1999” is about like trying to get support for abolishing testing suspected witches by throwing them in chains into rivers to see whether they float or sink. The Constitution bars the use of secret evidence in the United States, fellow congressmen keep telling the bill’s original four ideologically diverse co-sponsors, House Democratic Whip David Bonior of Michigan, Rep. Tom Campbell (R-CA), Rep. Bob Barr (R-GA) and Rep. John Conyers (D-MI). So “if it ain’t broke, don’t fix it.”

Unfortunately, the “Anti-Terrorism and Effective Death Penalty Act,” passed by Congress in 1996, did break that protection. As a result, quite a number of people have found themselves in the Kafka-like situation of not knowing why they have been arrested, what crime they are accused of committing or who made the accusation. Some have been deported as a result and others have been held in prison for months, or years, while they and their lawyers sought in vain to learn what it is they are accused of. More than 20 people in the United States remain in this situation today.

Nor are the lawmakers alone in their ignorance of this ongoing abuse, as I learned recently from FBI officials who seemed equally unaware of it. It was at a regional get-acquainted luncheon of American Muslim Alliance members with local officials: two FBI representatives, a mayor, and local prosecutors representing both the state attorney general’s office and the federal Department of Justice.

After the scheduled speakers completed brief introductory remarks, the meeting was opened to questions from members of the largely Muslim audience. As each brought up his concerns about the use of secret evidence to arrest and jail resident aliens, in some cases for more than two years without charges, the two FBI officials sitting at opposite ends of the dais exchanged puzzled glances.

Then, as yet another secret evidence horror story was recounted from the floor, one of the FBI officials whispered to the writer, seated next to him, “Do you know anything about this?”

“Yes,” I replied, “every one of the examples you’ve heard is valid and, so far as I can determine, all but one of the people with charges based on secret evidence pending against them are Arabs, and of those presently being held in jails around the country, all are Muslim.”

The FBI official then said to the audience, “I don’t want to seem unresponsive to your concerns, but since these seem to be Immigration and Naturalization Service cases involving non-U.S. citizens, is it possible that the FBI isn’t involved in them?”

There was a moment of confusion for the obvious reason that in cases where the evidence, its sources, and sometimes even the nature of the charges are secret, it’s pretty hard to say who is or isn’t involved.

“In the case of an American citizen, Mohammad Salah, it’s the FBI that has seized his house in Chicago on the basis of ‘secret evidence,’” the writer told the FBI official. “I visited him, his wife and their young sons there only two weeks ago. It wasn’t an INS case and, since he is an American citizen, the action was based upon an executive order signed by President Clinton.”

A look of incredulity came over the faces of the two FBI officials. I have seen that same look on the faces of all Americans when they first learn that it is possible for federal authorities to arrest people in the United States, interrogate them, and hold them in jail for months or years without ever telling them exactly what they are charged with or allowing them or their lawyers to see the evidence against them or learn who made the charges.

It gets even more “un-American,” not to mention downright silly, in the rare cases when the “secret evidence” has been declassified or summarized and shown to the accused. At that point, time after time, it has turned out that the allegations are based upon misunderstandings of place or party names or extremely questionable accusations by political or business rivals or estranged spouses.

An excellent example is the case of Dr. Ali Yassin Mohammad Karim (described in detail in an article by attorney Betty Molchany on p. 17 of this issue of the Washington Report). He has been one of the “Iraqi Six,” all members of groups which were recruited by the CIA to help overthrow Iraqi President Saddam Hussain and who then were evacuated to the U.S. when Iraqi troops overran the Kurdish areas from which they were operating. After the group retained former CIA Director James Woolsey as their attorney, on the assumption that his security clearance was high enough to permit him access to the “secret evidence,” Dr. Karim was allowed to see summaries of the secret evidence against them.

It accused him of making secret visits to “Kabul,” in Afghanistan. This was a mistranscription of “Al-Khaboor,” an Iraqi border crossing into Syria, into which his work took him. He also was accused of membership in “the KLM,” a “secret terrorist organization.” This was a mistranscription of “KDP,” the initials of one of the two major Kurdish parties in Iraq whose leaders have been regular official visitors to the U.S. over two generations.

In the end five of the six Iraqis have agreed to deportation to some country other than Iraq (even though their families have been granted asylum and are living in Nebraska), but Dr. Karim has not.

In cases where, instead of such obvious and simplistic errors, the charges are based upon things the accused actually has done, the actions invariably involve exercising First Amendment rights such as joining a specific organization, distributing its publications, writing an article in support of that organization’s goals or, incredibly, merely associating with someone accused of exercising those First Amendment rights. None of these actions are crimes if committed by an American citizen. Since when did they become crimes if carried out by people who aren’t?

I’m sure I wore the same look of incredulity when I arrived in Tampa two years ago at the invitation of Dr. Sami Al-Arian to hear the story of his brother-in-law, 42-year-old Dr. Mazen Al-Najjar, who was arrested at his home in early 1997 and taken to the Manatee County jail in Bradenton, Florida, where he has remained ever since.

In Tampa I met Dr. Al-Najjar’s wife, Fedaa, his three U.S.-born daughters, Yara, 10, Sara, 8, and 4-year-old Safa, who can’t remember ever seeing her father except on visits to him in jail, and hundreds of members of the mosque which he served as prayer leader, teacher and accountant.

It’s still not at all clear why mild-mannered Dr. Al-Najjar was arrested. His offense, if it can be called that, seems to be guilt by association. Some University of South Florida faculty members, including his brother-in-law, Dr. Sami Al-Arian, were associates in a think tank called the World and Islam Studies Enterprise (WISE), which brought speakers from the Middle East and also took them to meet U.S. journalists.

One of the WISE associates from 1991 to 1995 was Ramadan Shallah. In 1995 he left Florida without explanation and after the Israeli assassination of Fathi Shakaki, leader of the terrorist organization Islamic Jihad, Shallah became his successor.

What does that have to do with Mazen Al-Najjar? Nothing, apparently. But a self-defined “terrorism expert,” Steven Emerson, with connections both to the Israeli government and to pro-Israel organizations in the United States including the American Israel Public Affairs Committee (AIPAC), Israel’s principal lobby in Washington, DC, has sought to implicate WISE in his charges of a world-wide terrorism network. And Michael Fechter, a reporter for the Tampa Tribune, after a visit to the newspaper by Israeli diplomats and making extensive use of material taken from Emerson’s video, “Jihad in America,” and other Emerson writings, has sought to keep those charges alive.

The Miami Herald and the St. Petersburg Times have called the Emerson and Fechter reports biased, and former American Bar Association President William Reese Smith has reported that what happened in Tampa was First Amendment-protected activity. (The Al-Najjar case has been covered in articles by Paul Findley in the December 1997 Washington Report and by John Sugg in the July/August 1998 Washington Report. The Al-Najjar case and some of the others mentioned in this article also are extensively documented in the July-August 1999 issue of The Link, obtainable from Americans for Middle East Understanding, 475 Riverside Drive, Room 245, New York, NY 10115-0245, Tel. (212) 870-2053.)

Unlike most WISE associates, Gaza-born Dr. Al-Najjar, who was raised in Saudi Arabia where his Palestinian parents lived, had no passport other than the identification papers issued to Gaza residents by the Egyptian government. He came to the U.S. on a student visa and earned a master’s degree and a Ph.D. degree in U.S. institutions. Therefore, since he was not in the United States on an immigration visa, he was vulnerable to deportation.

Normally when such a situation arises with a person who has held a job for some time in the U.S., has broken no laws, and has American citizen relatives as does Dr. Al-Najjar (all of whose children are U.S. citizens), the INS is flexible in adjusting the subject’s status to that of resident alien. This has not happened with Dr. Al-Najjar.

Instead, he alleges, he has repeatedly been told that the only way he can obtain his freedom is to testify against his brother-in-law, Dr. Sami Al-Arian, who has been suspended from his teaching appointment at the University of South Florida since Emerson’s and Fechter’s media accusations against WISE were launched. However, no charges have been made against Dr. Al-Arian, who has launched a nation-wide campaign to publicize the incarceration for more than two years of Dr. Al-Najjar.

At this point it appears that Dr. Al-Najjar, against whom no charges have been lodged, is being held largely because of INS fear of dropping a case in which journalistic supporters of the Israeli government have taken such an interest. This is despite the fact that Bob Blitzer, the FBI’s recently retired chief of counter-terrorism, has stated categorically to John Sugg, senior editor of the Weekly Planet, the alternative weekly newspaper in the Tampa Bay area, that although the Muslim scholars at the USF-supported Palestinian causes, “no federal laws were broken.”

When the Tampa Tribune defended its reporting by saying that everything it had published about Al-Najjar was supported by the record of his immigration hearing, Florida resident Joseph A. Mahon, a retired petroleum executive who worked for more than 30 years in the Middle East, read the entire 2,000 pages of transcripts, submissions and depositions.“The trial record does not support the allegations made by the Tampa Tribune,” he charged. “If you read the whole thing, you’ll find there is nothing there.”

Mahon subsequently led a delegation to meet with Department of Justice officials in Washington, DC to protest Al-Najjar’s imprisonment on secret evidence and “special ‘Catch 22’ type rules designed for Arabs in general and Palestinians…in particular.”

In fact the use of “secret evidence” seems very closely related to political, not criminal, considerations. In 1986, at the height of the Cold War when the Soviet Union was the enemy, seven Palestinians and the Kenyan wife of one of them were arrested in Los Angeles on charges of furthering the efforts of the Popular Front for the Liberation of Palestine (PFLP), a Marxist-oriented Palestinian group sometimes supporting and sometimes opposing the Palestine Liberation Organization. Many U.S. government officials suspected that the PFLP was receiving help from the Soviet Union, Arab states with left-wing governments, or both.

The charges against what became known as “the LA Eight” still have not been dismissed 13 years later, although fortunately none of the group (who include the only two Christians against whom such secret-evidence based charges are pending) were detained for long after their arrests, and federal courts have refused to deport them under the still-pending INS charges.

Since the collapse of the Soviet Union in 1989 the spotlight has shifted to activities by Muslim groups and organizations, and all of the pending cases brought since then on the basis of secret evidence have been against Muslims. Perhaps the best-known of these is Dr. Anwar Haddam, who was elected to the Algerian Parliament on the ticket of the Islamic Salvation Front (FIS) in December 1991. He became a refugee when a military coup the following month prevented a democratically elected parliament from being convened. He traveled first to Morocco and then to the U.S.

Although three of his four children are U.S. citizens and the applications of his wife and remaining daughter have been approved for U.S. asylum, Mr. Haddam’s request for political asylum in the U.S. has been denied and he has been held in federal detention centers since 1996 on secret evidence allegedly based on wiretap transcriptions from his telephone.

After two and a half years in jail, most recently in Hopewell, Virginia, he still has not been charged with anything related to national security. Further, the U.S. Department of State has confirmed that there is no basis for Algerian warrants against Haddam, that his detention is against U.S. interests, and that he should be granted asylum. (A more complete account of Dr. Haddam’s detention by columnist Mauri’ Saalakhan is on p. 93 of this issue of the Washington Report.)

Democratic Whip David Bonior has spoken to President Clinton about the problem of secret evidence, and also to National Security Council head Sandy Berger, and in late April to U.S. Attorney General Janet Reno. The attorney general said she would get back to him within two months, which now have expired. At a recent meeting of congressional legislative assistants with Arab-American and Muslim-American leaders, it was reported that Reno has made similar promises on the same subject to other members of Congress.

At this writing the four original House sponsors of the Secret Evidence Repeal Act of 1999 report that their numbers have grown to 19. Besides the four previously named House members, the 13 additional Democrats and 2 additional Republicans who have signed on or who have indicated they are prepared to sign on as co-sponsors include: Alcee Hastings (D-FL), Rush Holt (D-NJ), Patrick Kennedy (D-RI), Dale Kildee (D-MI), Dennis Kucinich (D-OH), Ray LaHood (R-IL), Gregory Meeks (D-NY), Cynthia McKinney (D-GA), Jim Moran (D-VA), Nick Rahall (D-WV), Lynn Rivers (D-MI), Ciro Rodriguez (D-TX), Tom Sawyer (D-OH), Debbie Stabenow (D-MI), and John Sununu (R-NH).

So far no comparable legislation has been introduced in the Senate, but Senate aides say that individual senators have told Attorney General Reno that it was at the insistence of members of her staff that the secret evidence provision has remained in the Anti-Terrorism act despite its doubtful constitutionality.

Therefore Washington Report readers are welcome to use one of the postcards facing p. 39 of this issue to contact their representative in the house asking him or her to co-sponsor the House resolution. The other two postcards may be used to contact the attorney general and President Clinton expressing support for repealing the use of secret evidence. Readers may wish also to contact their two senators to suggest that a Senate version of the Secret Evidence Repeal Act also be introduced.

Richard H. Curtiss is the executive editor of the Washington Report on Middle East Affairs.