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Published online by Cambridge University Press: 24 April 2015
In March 1998, Hany Kiareldeen, a 30-year old Palestinian immigrant living in New Jersey, was arrested by United States immigration authorities and imprisoned. Government officials told him that his presence in the United States threatened national security. When Kiareldeen asked why, he was told that the evidence that supported the charge was secret, and could not be revealed to him because its disclosure would imperil national security. Kiareldeen spent 19 months in prison without seeing the evidence that placed him there, until a federal judge ruled in October 1999 that his detention was unconstitutional and ordered his release. The government's principal source appears to have been Kiareldeen's ex-wife, with whom he was in a custody dispute over their child. He offered unrebutted testimony that she had made numerous false allegations against him in the course of the dispute, all of which had been dismissed by local officials. But one allegation, that he was associated with terrorists, was passed on to the FBI, and that allegation landed him in jail on secret evidence for over 19 months.
1. Kiareldeen v. Reno, 71 F.Supp.2d 402 (D.N.J. 1999). The account of Kiareldeen's case in the text is supported by the district court decision, as well as by the decisions of the Immigration Judge and the Board of Immigration Appeals See Matter of Kiareldeen, No. A77-025-332 (U.S. Immgr. Ct. Apr. 2, 1999) (Dec. of Immgr. J.); Matter of Kiareldeen, No. A77-025-332 (BIA June 29, 1999) (Moscato, J., dissenting to Dec. Denying Request to Lift Stay of Release Order); Matter of Kiareldeen, No. A77-025-332 (BIA Oct. 15, 1999) (Dec. on Deportation App.).
2. Matter of Kiareldeen, No. A77-025-332, slip op. at 9 (U.S. Immgr. Ct. Apr. 2, 1999) (Dec. of Immgr. J.).
3. See, e.g. Testimony of Larry Parkinson, Deputy General Counsel, FBI, before H.R. Subcomm. on Immgr. of the Jud. Comm., The Secret Evidence Repeal Act, Hearings on H.R. 2121, 106th Cong. 18, 22 (Feb. 10, 2000); Testimony of Bo Cooper, General Counsel, INS before H.R. Subcomm. on Immgr. Of the Jud. Comm., The Secret Evidence Repeal Act, Hearings on H.R. 2121, 106th Cong. 19, 20-21 (May 23, 2000). The government also continues to argue in the courts that it has the authority to use secret evidence in immigration proceedings. See e.g. Respts/Appellants' Br. 17, Al-Najjar v. Ashcrofl, No. 00-14947-B (pending 11th Cir. 2001).
4. See Jay v. Boyd, 351 U.S. 345 (1956) (upholding use of secret evidence to deny suspension of deportation against statutory challenge); Galvan v. Press, 347 U.S. 522 (1954) (upholding deportation based on Communist Party membership); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (striking down use of secret evidence on regulatory construction grounds because of constitutional due process concerns presented by practice); U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (upholding use of secret evidence to exclude entering alien on ground that aliens outside United States have no constitutional rights).
5. Pub.L.No. 104-132, 110 Stat. 1214-1319.
6. Pub.L.No. 104-208, Div. C, 110 Stat. 3009, 3546-3724.
7. The others are Fouad Rafeedie, Aiad Barakat, Khader Hamide, Michel Shehadeh, Nairn Sharif, Ayman Obeid, Amjad Obeid, Julie Mungai, Basher Amer, Nasser Ahmed, Imad Hamad, and Mazen Al Najjar. See case citations in footnotes to text discussing these cases infra. I have had many able co-counsel in these proceedings, including Nancy Chang of the Center for Constitutional Rights, Marc Van Der Hout of the National Lawyers Guild, Joseph Hohenstein of the Nationalities Service Center, Paul Hoffman, Carol Sobel, and Mark Rosenbaum of the ACLU of Southern California, Louis Bograd of the ACLU, Randall Marshall and Andrew Kayton of the ACLU Foundation of Florida, James Fennerty, Regis Fernandez, Abdeen Jabara, Kerry Kircher, Ira Kurzban, Michael Maggio, Houeida Saad, Noel Salah, Lawrence Schilling, Martin Schwartz, Lynne Stewart, Dan Stormer, and Len Weinglass.
8. Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992) (declaring unconstitutional INS use of secret evidence to expel a permanent resident alien and deportation provisions based on political membership); Am.-Arab Ami-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066, 1070 (9th Cir. 1995) (declaring unconstitutional INS use of secret evidence to oppose applications for legalization to permanent resident status); Kiareldeen v. Reno, 71 F. Supp. 2d 402, 414 (D.N.J. 1999) (declaring unconstitutional INS use of secret evidence to detain alien pending deportation proceedings); Al Najjar v. Reno, 97 F. Supp. 2d 1329, 1356 (S.D. Fla. 2000) (declaring unconstitutional use of secret evidence to detain alien, and holding that alien may not be detained based on mere association with terrorist group).
9. Matter of I mad Hamad, No. A26-590-203 (BIA Feb. 19, 1999) (upholding decision to grant Hamad permanent resident status, rejecting INS claim, based initially on secret evidence, that he was ineligible because of association with a terrorist group); Matter of Mazen Al Najjar, No. A26-599-077 (U.S. Immgr. Ct. Dec. 6, 2000) (Dec. of Immgr. J., refusing to consider secret evidence because not presented with adequate procedural safeguards to afford notice and meaningful opportunity to respond); Matter of Nasser Ahmed, No. A90-674-238 (U.S. Immgr. Ct July 30, 1999) (Dec. of Immgr. J., finding no basis to detain Ahmed as threat to national security); Matter of Hany Kiareldeen, No. A77-025-332, (U.S. Immgr. Ct. Apr. 2, 1999) (Dec. of Immgr. J., finding no basis to detain Kiareldeen as threat to national security).
10. See 2nd Presidential Debate Between Gov. Bush and Vice President Gore (Transcript of Oct. 11, 2000 Presidential Debate), N.Y. Times A23 (Oct. 12, 2000) (Bush criticizes use of secret evidence).
11. Respts/Appellants' Br. 17, Al-Najjar v. Ashcroft, No. 00-14947-B (pending 11th Cir. 2001).
12. Kiareldeen v. Reno, 71 F.Supp. 2d at 416; Verified Petition for Habeas Corpus Relief Ex. E, pp. 2-3, Kiareldeen v. Reno, No. 99-3925 (D.N.J. filed Aug. 19, 1999).
13. Id. at 417-418.
14. See Verified Petition for Habeas Corpus Relief ¶16, Kiareldeen v. Reno, No. 99-3925 (D.N.J. filed Aug. 19, 1999).
15. See Id. at ¶16-17, & Attachment A (reproducing INS summary provided at initial bond redetermination hearing).
16. Matter of Kiareldeen, No. A77-025-332, slip op. at 13-14 (U.S. Immgr. Ct. Apr. 2, 1999) (Dec. of Immgr. J.).
17. Id. at 14-15.
18. Id. at 8-9.
19. See Kiareldeen v. Reno, 71 F.Supp.2d at 417; Verified Petition for Habeas Corpus Relief 1122-26, Kiareldeen v. Reno, No. 99-3925 (D.N.J. filed Aug. 19, 1999) & Attachment F (reproducing Decision of Immigration Judge in Matter of Kiareldeen, No. A77-025-332, slip op. 2-3 (Apr. 2, 1999)).
20. See Matter of Kiareldeen, No. A77-025-332 (U.S. Immgr. Ct. Apr. 2, 1999) (Dec. of Immgr. J.); Matter of Kiareldeen, No. A77-025-332, (BIA Oct. 20, 1999) (Dec. on Bond Redetermination); Matter of Kiareldeen, No. A77-025-332 (BIA Oct. 15, 1999) (Dec. on Deportation Proceeding App).
21. Id.
22. Matter of Kiareldeen, A77-025-332, slip op. 15 (U.S. Immgr. Ct. Apr. 2, 1999) (Dec. of Immgr. J.).
23. Id. at 12.
24. Matter of Kiareldeen, No. A77-025-332, slip dissent 1 (BIA June 29, 1999) (Moscato, J., dissenting to Dec. Denying Request to Lift Stay of Release Order).
25. Id.
26. Id. at 1-2. The other two judges on this panel declined to lift the stay of Kiareldeen's release order pending appeal, but did not dispute Judge Moscato's characterization of the evidence.
27. Kiareldeen v. Reno, 71 F.Supp.2d at 413.
28. Matter of Kiareldeen, No. A77-025-332 (BIA Oct. 20, 1999) (Dec. on Bond Redetermination).
29. Matter of Kiareldeen, No. A77-025-332 (BIA Oct. 15, 1999) (Dec. on Deportation Proceeding App.). Under the BIA's rules, separate panels consider appeals of bond determinations and appeals of the merits of deportation proceedings. 8 C.F.R. § 3.19(d) (2000). See Gornika v. INS, 681 F.2d 501, 505 (7th Cir. 1982). See generally 8 U.S.C. § 1226 (2000).
30. See Declassified excerpts of previously classified evidence Ex. R-l, R-2, R-4 (Sept. 25, 1998 & Nov. 27, 1998), Matter of Ahmed, A90-674-238 (U.S. Immgr. Ct.) (Remanded Bond Redetermination Proceeding).
31. Matter of Ahmed, A90-674-28 (U.S. Immgr. Ct. July 30, 1999) (Dec. of Immgr. J.) and Declassified Version of Classified Attachment (June 24, 1999). See ako Cole, David, Terrorist Scare, The Nation 26 (04 19, 1999)Google Scholar.
32. Information may be classified only if its disclosure could reasonably be expected to damage the national security or the government's international relations. Exec. Or. 12958, 60 Fed. Reg. 19825, 19826 (1995).
33. See Unclassified Summary of Classified Material Previously Provided to IJ and BIA, filed as Ex. 1 to Reply Declaration of Daniel S. Alter in Ahmed v. Reno, 97 Civ. 68729 (TPG) (asserting that Ahmed is “a loyal supporter of Sheik Omar Abdel Rahman” and that Ahmed “maintained a close personal and professional association with RAHMAN both during RAHMAN's trial and after his conviction,” and “served as one of RAHMAN's paralegals”).
34. Declassified Version of Classified Attachment to Dec. of Immgr. J. 8-9, Matter of Ahmed, No. A90-674-28 (June 24, 1999); Weiser, Benjamin, F.B.I. Said Freeing Prisoner Would Aid Arab Status, N.Y. Times B1 (11 11, 1999)Google Scholar.
35. Cockburn, Andrew, The Radicalization of James Woolsey, N.Y. Times Magazine 26 (07 23, 2000)Google Scholar.
36. Weikel, Dan, INS Judge Frees Iraqi Dissident Held for 4 Years, L.A. Times, B1, B5 (08 19, 2000)Google Scholar; Weiner, Tim, At Rehearing, Iraqi Doctor Wins Round in Deportation, N.Y. Times, A19 (05 7, 2000)Google Scholar.
37. Al Najjar v. Reno, 97 F.Supp.2d at 1333-1334.
38. Id. at 1356-1357.
39. Matter of Al-Najjar, No. A-26-599-077 (U.S. Immgr. Ct. Oct. 27, 2000 & Dec. 6, 2000) (Decisions of Immgr. J. on Remanded Bond Redetermination).
40. Marquis, Christopher, U.S. to Free Palestinian Held 3 Years on Secret Evidence, N.Y. Times A12 (12 16, 2000)Google Scholar.
41. Goss v. Lopez, 419 U.S. 565, 580 (1975) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J. concurring)).
42. See, e.g., 8 C.F.R. §240.11(c)(3)(iv) (2001) (providing that the classifying agency “may provide an unclassified summary of the information for release to the alien, whenever it determines it can do so consistently with safeguarding both the classified nature of the information and its sources”) (emphasis added).
43. Matter of Ahmed, No. A90-674-228, slip op. 20 (U.S. Immgr. Ct. May 5, 1997) (Decision of Immigration Judge).
44. Id.; see also Cole, David, Blind Decisions Come to Court, The Nation 21, 22 (06 16, 1997)Google Scholar.
45. See Kiareldeen v. Reno, 71 F.Supp.2d at 417; Verified Petition for Habeas Corpus Relief ¶¶ 23-24, Kiareldeen v. Reno, No. 99-3925 (D.N.J. filed Aug. 19, 1999).
46. Matter of Kiareldeen, A77-025-332, slip op. 15-16 (U.S. Immgr. Ct. Apr. 2, 1999) (Decision of Immigration Judge); Declassified Version of Classified Attachment to Decision of Immigration Judge 10-11, Matter of Ahmed, A90-674-238 (U.S. Immgr. Ct. June 24, 1999).
47. Matter of Kiareldeen, A77-025-332, slip dissent 1-2 (BIA June 29, 1999) (Moscato, J., dissenting) (Decision Denying Request to Lift Stay of Release Order).
48. American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1070 (9th Cir. 1995) [hereinafter ADC v. Reno]; Rafeedie v. INS, 880 F.2d 506 512-513, 516 (D.C. Cir. 1989); Al Najjar v. Reno, 97 F.Supp.2d at 1356; Kiareldeen v. Reno, 71 F.Supp.2d 402; but cf. Suciu v. INS, 755 F.2d 127, 128 (8th Cir. 1985) (holding, without analysis, that use of secret evidence is consistent with due process).
As explained below, modern procedural due process jurisprudence begins with Mathews v. Eldridge, 424 U.S. 319, 335, 343-349 (1976), in which the Supreme Court defined the test that must be applied in assessing whether procedures used to deprive a person of a liberty interest conform to procedural due process.
49. The Due Process Clause protects all persons living in this country, whether citizen or alien. It protects even aliens living here unlawfully:
There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.
Mathews v. Diaz, 426 U.S. 67, 77 (1976) (emphasis added) (citations omitted). See also Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission … and those who are within the United States after an entry, irrespective of its legality.”); Galvan v. Press, 347 U.S. 522, 530 (1954) (“since he is a ‘person,’ an alien has the same protection for his life, liberty and property under the Due Process Clause as is afforded a citizen.”).
50. Greene v. McElroy, 360 U.S. 474, 496 (1959).
51. Rafeedie v. INS, 688 F. Supp. 729 (D.D.C. 1988), aff'd in part, rev'd in part, and remanded, 880 F.2d 506 (D.C. Cir. 1989).
52. Rafeedie v. INS, 795 F. Supp. 13, 23-24 (D.D.C. 1992).
53. Rafeedie, 880 F.2d at 525 (Ruth Bader Ginsburg, J., concurring) (quoting Silberman, J., dissenting, Id. at 530).
54. Rafeedie, 795 F. Supp. at 19.
55. Rafeedie, 880 F.2d at 516.
56. ADC v. Reno, 70 F.3d at 1066-1071.
57. Id. at 1070.
58. Id.
59. Marquis, supra n. 40.
60. 344 U.S. 590 (1953).
61. Id. at 600-603.
62. 351 U.S. 345, 347, 354 (1956).
63. Jay, 351 U.S. at 357 n.21.
64. 8 U.S.C. §§ 1531-1537 (2000) (authorizing use of secret evidence to deport aliens accused of terrorist activity or ties); ADC v. Reno, 70 F.3d at 1066-1071 (rejecting government's argument that it could constitutionally deny legalization, a nondiscretionary benefit, on the basis of secret evidence); Al Najjar v. Reno, 97 F.Supp.2d at 1349-51 (rejecting government argument that because release on bond is discretionary, aliens have no liberty interest in being free while their deportation proceedings are pending, so can be detained on secret evidence); Memorandum in Support of Motion to Dismiss, Ahmed v. Reno, 97 Civ. 6829 (TPG) (arguing that INS may use secret evidence to deny withholding of deportation, a nondiscretionary benefit).
65. See, e.g., Respts/Appellants' Br. 17, Al Najjar v. Ashcroft. No. 00-14947-B (11th Cir. filed Nov. 8, 2000) (pending).
66. Reno v. Flores, 507 U.S. 292, 315 (1993) (O'Connor, J., concurring) (aliens have “a constitutionally protected interest” and “[t]hat interest lies within the core of the Due Process Clause”); Foucha v. La., 504 U.S. 71, 80 (1992) (“commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”); United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception”).
67. Proponents of secret evidence also cite two other cases, from the Fifth and Eighth Circuits, but neither decision engaged in any significant constitutional analysis. They each dismissed the due process issue in a paragraph by misreading Jay v. Boyd as if it decided the constitutional issue, wholly disregarding the fact that the Court in Jay explicitly said it was not deciding that issue. See U.S. ex rel. Barbour v. Dist. Dir., 491 F.2d 573, 578 (5th Cir.), cert, denied, 419 U.S. 873 (1974); Suciu v. INS, 755 F.2d 127, 128 (8th Cir. 1985). Indeed, the court in Suciu acknowledged that “[a]s a matter of fairness and logic, the [due processj argument has considerable appeal,” but then erroneously considered it “foreclosed” by Jay v. Boyd. Suciu, 755 F.2d at 128.
68. 424 U.S. 319, 335 (1976).
69. London v. Plasencia, 459 U.S. 21, 34 (1982).
70. Testimony of Larry Parkinson, supra n. 3, at 36.
71. For an expanded discussion of the First and Fifth Amendment implications of targeting aliens (and citizens) for their associational activities, see Cole, David, Hanging With the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association, 1999 Sup. Ct. Rev. 203 (2000)Google Scholar.
72. 50 U.S.C. § 781 (West 1991) (repealed 1993).
73. See, e.g., U.S. v. Robel, 389 U.S. 258, 262 (1967) (government could not ban Communist Party members from working in defense facilities absent proof that they had specific intent to further the Party's unlawful ends); Keyishian v. Bd. of Regents, 385 U.S. 589, 606 (1967) (“[m]ere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis” for barring employment in state university system to Communist Party members); Elfbrandt v. Russell, 384 U.S. 11, 19 (1966) (“[a] law which applies to membership without the ‘specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms”); Noto v. U.S., 367 U.S. 290, 299-300 (1961) (First Amendment bars punishment of “one in sympathy with the legitimate aims of [the Communist Party], but not specifically intending to accomplish them by resort to violence”).
74. Robel, 389 U.S. at 264-266 (invalidating denial of security clearance to work in national defense facility based on Communist Party membership); Aptheker v. Sec. of St., 378 U.S. 500, 510-512 (1964) (invalidating denial of passport based on Communist Party membership); Keyishian, 385 U.S. at 606-608 (invalidating bar on employment as teacher based on Communist Party membership); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920, 932 (1982) (invalidating civil tort liability based on association); Healy v. James, 408 U.S. 169 (1972) (invalidating denial of access to college meeting rooms to student group based on association).
75. 367 U.S. 203, 224-225 (1961).
76. Id. at 229.
77. Id. (quoting Nolo v. U.S., 367 U.S. 290, 299 (1961)).
78. Eljbrandt v. Russell, 384 U.S. at 19 (citations omitted).
79. The First Amendment does not “acknowledge[] any distinction between citizens and resident aliens.” Kwong Hal Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (quoting Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring)). See also U.S. v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“resident aliens have First Amendment rights”); cases cited supra n. 49 (holding that due process applies to aliens living in the United States). In Bridges v. Wixon, 326 U.S. at 148, the Court reversed a deportation order based on association with the Communist Party, stating that “[fjreedom of speech … is accorded aliens residing in this country.” And, in Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952), the Court upheld the deportation of a Communist Party member only after finding that the government's evidence satisfied the then-prevailing First Amendment standard for citizens, set forth in Dennis v. U.S., 341 U.S. 494 (1951). In doing so, the Court implicitly declined to adopt the government's argument that the First Amendment “do[es] not apply to the political decision of Congress to expel a class of aliens whom it deems undesirable residents.” Harisiades, 96 L.Ed, at 593, 592-594 (quoting Brief for Respondent United States at 95-96).
80. First Natl. Bank v. Bellotti, 435 U.S. 765 (1978).
81. ADC v. Reno, 70 F.3d at 1053 (quoting Hearings before the Senate Select Committee on Intelligence on the Nomination of William H. Webster, to be Director of Central Intelligence, 100th Cong., 1st Sess. 94, 95 (Apr. 8, 9, 30, 1987; May 1, 1987)).
82. Joint Appendix 93 (Declaration of INS Dist. Dir. Ernest Gustafson), Reno v. Am.-Arab Anti-Discrimination Comm., 118 S.Ct. 2059 (1998).
83. Id., at 94.
84. Id. at 150-151, 172-174, 181, 184, 190-191.
85. Id. at 165.
86. Id. at 152, 142-143.
87. Matter of Ahmed, A90-674-28, Decision of Immigration Judge (July 30, 1999) and Declassified Version of Classified Attachment (June 24, 1999).
88. Al Najjar, 97 F.Supp.2d at 1360.
89. See Matter of Hamad, A26-590-203 (BIA Feb. 19, 1999).
90. In a meeting on June 29, 1998 with representatives of several Arab-American groups, including Maya Berry of the Arab American Institute, Deputy Attorney General Eric Holder told the group that of 24 pending secret evidence cases, all but one or two were against Arabs or Muslims. Conversation with Maya Berry. See also Tyson, Ann Scott, Courts and Lawmakers are Closely Scrutinizing Practice of Detaining Immigrants Without Telling Them Why, Christian Sci. Monitor 3 (06 2, 2000)Google Scholar (reporting that “about 50 [secret evidence] cases were filed between 1992 and 1998, lawmakers say, the majority involving Arab or Islamic immigrants”).
91. The INS has threatened to use secret evidence in cases against Irish immigrants alleged to have actually engaged in terrorism, but to my knowledge it has never done so in any cases where the charge was mere association, as it is in the bulk of the secret evidence cases against Arabs and Muslims.
92. Bond Proc. Tr. 383-395, 398-400, 442-443, 447-448, Matter of Al Najjar, No. A26-599-077 (U.S. Immgr. Ct. Aug. 30, 2000).
93. Matter of Al Najjar, A26-599-077 (U.S. Immgr. Ct. Oct. 27, 2000) (Decision of Immigration Judge).
94. Robel, 389 U.S. at 264.