New Jersey Federal Judge’s Decision Hailed as Turning Point in Campaign Against Secret Evidence

By Richard H. Curtiss

A federal district court judge’s decision in Newark, New Jersey may prove to be a major turning point in the escalating struggle to abolish the use of secret evidence by the Immigration and Naturalization Service (INS) and the Justice Department against both resident aliens and American citizens.

Human rights activists, leaders of Arab- and Muslim-American groups, and Democratic Rep. David Bonior of Michigan and Republican Rep. Tom Campbell of California gathered Oct. 28 at the House Triangle on Capitol Hill to celebrate the Oct. 20 order by U.S. District Judge William Walls that Hany Kiareldeen, a 32-year-old Palestinan immigrant, be released after 19 months imprisonment on charges neither he nor his lawyers could see, and therefore could not refute.

House Democratic Whip Bonior and Campbell, a possible election challenger to California Sen. Dianne Feinstein next year, are co-sponsors of H.R. 1212, a draft bill to ban the use of secret evidence. This practice, of which few Americans are aware, only became possible with the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 immediately after the Oklahoma City bombing. Ironically, although the bombing, in which 168 died and more than 500 were injured, was carried out by two American-born Army veterans with no foreign ties, some 30 persons against whom this hastily passed legislation has been used have been foreign-born, and all but two are Muslims.

Kiareldeen was not typical of those who have been detained under the law, in that he was not politically active and he was not an observant Muslim. But otherwise the manner in which the case against him was handled was a textbook example of the abuses possible under an ill-conceived law which deprives its victims of the very constitutional protections which most Americans believe make the U.S. legal system superior to all others.

Kiareldeen entered the U.S. from Israel in 1990 on a student visa. His marriage to an American citizen in 1994 and the birth of their daughter was followed by a bitter divorce and custody dispute. Then, after Kiareldeen remarried, he petitioned to become a permanent resident of the U.S. But instead of granting him a “green card,” the first step toward American citizenship, the INS and FBI arrested him for overstaying his student visa and sought to deport him on the basis of “secret evidence.”

“The government made no recorded efforts to produce witnesses.”

Then, in the words of Judge Walls in his written opinion, “despite repeated requests from the Immigration Judge, the government made no recorded efforts to produce witnesses, either in camera or in public, to support its allegations of terrorism. The petitioner was thus denied the opportunity to meaningfully cross-examine even one person during his extended detour through the INS administrative procedures.” As a result, according to the judge’s key ruling, “the INS actions unconstitutionally damaged Kiareldeen’s due process right to confront his accusers.”

Judge Walls was not the first justice to express impatience with Kiareldeen’s treatment. Last April, immigration judge Daniel Meisner, after viewing the secret evidence in its entirety, upheld Kiareldeen’s claim that he was eligible for a green card.

He also insisted that Kiareldeen’s lawyers, David Cole of Georgetown University; Houieda Saad, formerly with the American-Arab Anti- Discrimination Committee; and Regis Fernandez, be given at least a sketchy summary of this evidence. The principal charges were that Kiareldeen had met with one of the World Trade Center bombers, and that he had threatened the life of Attorney General Janet Reno.

Kiareldeen already suspected that the charges originated with his estranged former wife and, once the substance was known, they were easily dealt with. Regarding Reno, Kiareldeen had to ask his lawyers, “Who is this woman?”

Regarding the Trade Center bombers, his attorneys were able to prove that their client had not lived at the address at the time the alleged contact took place with him there, and could not have had the extensive telephone contacts with the conspirators alleged in the government’s case. For a person with Kiareldeen’s lifestyle, as one who not only drank alcoholic beverages but even frequented go-go bars when he was single, associations with any of the abstemious Islamist World Trade Center conspirators seemed equally improbable. Fernandez jokingly call it “the go-go defense.”

Although Kiareldeen seemed an unlikely suspect, attorney Coles, one of the foremost authorities on civil rights in the nation, nevertheless paid tribute to him for enduring imprisonment for more than a year and a half to fight against the use of secret evidence, rather than simply submitting to deportation as had other immigrants.

An Impromptu Celebration

After an impromptu celebration with his brother and sister-in-law, a friend and attorney Fernandez in the parking lot of the Hudson County jail in Newark, Kiareldeen left for his first Arabic food in more than a year and a half at his brother’s house.

Meanwhile columnist Anthony Lewis, a champion of human rights around the world, in an Oct. 26 column compared Kiareldeen’s experience to that of “Joseph K.,” the victim of undisclosed charges by faceless, nameless accusers in Franz Kafka’s classic story, The Trial.

But this year’s version had a happier ending. Two days after the Lewis column appeared in The New York Times, Kiareldeen showed up for the Capitol Hill rally. There he, his attorneys and Arab-American and human rights activists who had fought against the use of secret evidence were joined by the congressional leaders whose legislation—which already has some 50 co-sponsors—aims to eradicate, forever, more Kafkaesque experiences in America like that of Hany K.

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