Washington Report on Middle East Affairs, September 1999, pages 17-18

Special Report

Using “Secret Evidence” Based on Translation, Transcription Errors, U.S. Orders Two Iraqi Kurds Deported

By Betty Molchany

In October 1996, over 6,500 Iraqis were flown by the U. S. government to Guam, and then in March 1997 to California, to escape President Saddam Hussain after U.S. Central Intelligence Agency efforts to build up an anti-Saddam network in Iraqi Kurdistan collapsed with the appearance of Iraqi troops in the area. Upon their arrival in Guam, the U.S. Immigration and Naturalization Service (INS) imprisoned some of these same Iraqis, despite their having worked with the CIA, and put them through exclusionary proceedings, based upon secret charges, secret evidence, and secret witnesses. Among these imprisoned Iraqis were two brothers who were subsequently ordered to be deported to Iraq, where both have been sentenced to death.

Background Prior to Arrival in the United States

Dr. Ali Yassin Mohammad Karim and his brother, Mohammad Yassin Mohammad Karim, Iraqi Kurds, were brought to California in March 1997 by the United States government and placed in an immigration detention center there, where they continue to be imprisoned.

In Iraq, Dr. Ali Karim had served with the Iraqi National Congress (INC), a group formed and working with the CIA to depose and replace the president of Iraq. Dr. Karim provided medical care to the INC and the CIA. He also wrote and delivered daily political commentary on the INC radio broadcast system, of which he was the manager. Never in his life did he carry or use a firearm, nor did he serve in any military capacity.

Mohammad Karim, not being in a profession, was compelled to serve in the Iraqi military, but as a non-combatant. During the Iraq-Iran war, he witnessed atrocities committed against fellow Kurds. He was so traumatized by his experiences that his family had him given eight electrical shock treatments which ultimately caused the loss of much of his memory. He suffers from severe clinical depression and is now more like a child who needs continued medical care and the assistance of another. He and “Dr. Ali” are fluent in English.

Both brothers have death sentences outstanding against them in Iraq: Mohammad because he defected three times from the Iraqi military, and Dr. Ali because of his involvement with the Iraqi National Congress (INC) and his reports accusing President Hussain of using poison. After their arrival in the U. S., their father was put in prison in Baghdad for Dr. Ali’s acts described above.

The INS and Secret Evidence

The INS alleges that Dr. Ali and Mohammad are both security risks to the U.S. The immigration court Judge D. D. Sitgraves presided over a hearing, in camera, against each. That is, Judge Sitgraves listened to witnesses, took testimony and “evidence,” and heard all charges against Dr. Ali out of Dr. Ali’s presence and that of his attorney. Neither was permitted to know the charges, the evidence, or the identity of the witnesses to be used against him. Even after the entry of James Woolsey, who was director of the CIA during President Bill Clinton’s first term from 1993 to 1995, as counsel to Dr. Ali and six other Iraqis (all of whom came to be known collectively as “The Iraqi Six”), the INS would not reveal any evidence, despite Woolsey’s having had the highest security clearance in the nation.

Through persistent requests by Congressman David Bonior (D-MI) directly to the president, to National Security Adviser Sandy Berger, and to U.S. Attorney General Janet Reno, the Department of Justice agreed to review certain cases involving the use of secret evidence. Senators Spencer Abraham (R-MI), Ted Kennedy (D-MA), Trent Lott (R-MS), Jesse Helms (R-NC), and Orrin Hatch (R-UT) and Congressmen Bonior, John Conyers (D-MI), and Dennis Kucinich (D-OH), among others, also wrote to the Justice Department questioning the use of secret evidence in pending cases against these and other persons, all but two of whom are Muslims. The resulting decision was that approximately 90 percent of the evidence against the Iraqi Six had been improperly classified and the transcripts of this evidence were provided to their attorneys of record.

Both brothers have death sentences outstanding against them in Iraq.

These transcripts revealed errors in translation, in understanding Iraqi names and terms, and other factual errors. In a Senate hearing chaired by Sen. Jon Kyl (R-AZ) and joined by Sen. Dianne Feinstein (D-CA) on Oct. 8, 1998, the senators were advised that no FBI investigation had ever been ordered or taken place and that the testimony of the FBI agents was based on their informal conversations with members of various opposition groups as to who was at fault in the discovery by Saddam Hussain of plans for their uprising. Many, of course, accused each other. The Iraqi Six is made up of three members of the INC and three of the Iraqi National Accord (INA), competing opposition groups. Warren Marik, the CIA supervising official in Iraq in 1996, who knew Dr. Ali and other members of the INC, was never asked by the INS or the FBI for his opinion, his information, or his testimony.

Following are the arguments against and on behalf of Dr. Ali:

1. INS argues that Dr. Ali is a double agent acting on behalf of President Hussain. The “evidence” is that an unnamed person made such an allegation to the FBI.

Dr. Ali’s response is that he and his Kurdish family have always been opposed to President Hussain, as a consequence of which his maternal uncle, Dr. Abdul Majid Hakki, was murdered in 1985 by order of Saddam Hussain. A paternal uncle, Dr. Jafar Mohammad Karim, was one of three founders of the Kurdish Democratic Party in 1946. Another uncle, Habib Mohammad Karim, served as general secretary of the KDP from 1964 until 1975. Dr. Ali’s mother, Zakia Hakki, was the founder and the president for many years of the Union of Women of Iraqi Kurdistan, and she was the only woman member of the Central Committee of the KDP from 1970 until 1975. Dr Ali’s behavior has been that of one loyal and faithful to the cause of the Kurdish people, the INC, and to replacing Saddam Hussain’s regime with a democratic form of government. As evidence of that,

a. He wrote and distributed public reports against Saddam Hussain accusing him of using a poison against others.

b. He served as the medical doctor for the INC, the CIA, and the U.N. forces in northern Iraq (Iraqi Kurdistan).

c. When Warren Marik, supervising CIA official in Iraq in 1996, appeared before the House Subcommittee on Terrorism and Governmental Information on Oct. 8, 1998, Senator Feinstein asked him if he knew any of the Iraqi Six and what he knew about their trustworthiness. Mr. Marik said he knew the three INC members and believed them to be trustworthy. He added that Dr. Ali had ample opportunity to harm CIA staff and officials while providing medical care to them but did nothing adverse to their well-being.

d. Ahmed Chalabi, head of the INC, supports Dr. Ali’s release and wants him to resume his work with the INC. Given the INC’s need to have trustworthy members, it would not be supporting Dr. Ali and wish to have him continue with the organization if it had any thoughts or beliefs that he is or was a double agent.

e. As stated previously, Dr. Ali is under death sentence in Iraq and his father was imprisoned in Baghdad because of Dr. Ali’s activities against President Hussain.

2. INS put on testimony that Dr. Ali dropped his last name and that his real last name is Al-Ufayli. Al-Ufayli is a distortion of the Fayli dialect of the Kurdish language and neither Al-Ufayli nor Fayli is used as a last name. Rather, Iraqis must use their grandfather’s name or a tribal name.

3. Dr. Ali is also accused of being a double agent because of his familial relationship to his cousin, Aras Habib Mohammad Karim. His cousin was granted asylum in the United Kingdom and in 1999 spoke to an FBI agent in London on behalf of another Iraqi. This cousin also has a brother, Ahmed Habib Mohammad Karim, who is the adopted son of Zakia Hakki and who lives with her in Virginia. Ahmed, who was granted asylum and never accused of being an agent by reason of his relationship to his brother, Aras, came to the U. S. in September 1998.

4. Dr. Ali and Mohammad are accused of coming to the United States illegally and without visas. As stated above, their entry into the U. S., first through Guam, was legal. It was U. S. government officials who brought them into the United States and everything about their entry was legal. Only after their arrival on Guam did the FBI have informal conversations with various members of the opposition groups, but even then, the U. S. brought Dr. Ali and Mohammad to California. To say they arrived illegally is, of course, false. It is true that they did not have visas inasmuch as the U.S. did not provide visas at the time it brought them. Their entry into the U. S. is substantially different from others who enter as illegal aliens.

5. One of a number of factual and determining errors in the decision of Immigration Judge D. D. Sitgraves, to deport Dr. Ali to Iraq is this: She said Dr. Ali went to Kabul several times. To the contrary, Dr. Ali went to Al-Khaboor, which is a checkpoint at the Iraqi-Syrian border. Al-Khaboor is a small village inside Iraqi territory and is under the KDP authority. The purpose of going to this border checkpoint is to receive permission from the Syrian authorities to cross the border from Iraq to Syria. Judge Sitgraves confused Al-Kaboor with Kabul, the capital of Afghanistan, which is more than three thousand miles from Al-Kaboor. Had Dr. Ali and his legal counsel been able to hear this testimony, they would have been able to cross-examine the witness and to rebut such “evidence.”

What Dr. Karim and Mohammad Karim ask for is access to all the evidence and the names of the witnesses against them. They ask for a fair and open trial with the rights and ability to cross-examine witnesses and to rebut the testimony or other evidence against them. Had this been available to these brothers and to others, evidence fabricated by persons with ulterior motives, uncorroborated, or otherwise factually incorrect, could have been challenged and exposed. In their long years of suffering and struggle against systematic genocide, atrocities, and ethnic discrimination by the Ba’ath Party of President Hussain, these Kurdish brothers sought equality and human rights. Now, in the United States, they are asking again for equality, human rights and due process.

One way of helping them is by expressing support for H.R. 2121, The Secret Evidence Repeal Act of 1999, introduced into the House of Representatives in June 1999.

Betty Molchany is an attorney-at-law in Alexandria, VA.