Secret Trial Process Set to Begin Yet Again in Which Neither the Accused nor His Lawyer is Allowed to See "Evidence" (if indeed "evidence exists)
Charkaoui and his family need our support. Please read on to see what you can do.
(Apologies for the length of this e-mail. There have been many requests for lots of background information to the security certificate. We have tried to break it down into specific sections)
BELOW YOU WILL FIND:
1. Brief info. on the case to date
2. Who is CSIS and What is a Security Certificate (which triggers the secret trial process) This section includes some remarkable comments by a Federal Court judge who is fed up with secret trials.
3. What YOU Can Do to Demand Due Process and Fairness and Support Mr. Charkaoui and his family
4. Info on the Campaign to Stop Secret Trials in Canada
5. Relevant Sections of Legislation pertaining to Security Certificate
6. Relevant judicial decisions from U.S. courts on secret evidence
On May 16, a warrant was issued for the arrest of Adil Charkaoui, a Montreal man originally from Morocco. Charkaoui is a Montreal PhD Art student who is married with one young child. Mrs. Charkaoui is currently pregnant. The warrant was approved by Solicitor General Wayne Easter and Minister of Citizenship and Immigration Denis Coderre.
This was done in the name of the Security Certificate, issued under the Orwellian "Immigration and Refugee Protection Act." When detained under this certificate,. there is no chance of bail, detention can be indefinite, and neither the person detained nor a defence lawyer is allowed access to the heart of the "evidence" on grounds of "national security." It's the basis of a secret trial, the ultimate result of which could be deportation.
Broadcast News reports that CSIS and the RCMP had Charkaoui under surveillance for at least 10 days.
The timing of the arrest is suspicious, coming as it does 6 full days after the warrant was issued. If CSIS and the RCMP had been monitoring him for at least 10 days, and he was a "threat" to security, why did they wait until something in the news could be "associated" with the arrest of Charkaoui, thereby pinning guilt-by-association allegations through the usual scare stories in a hyperactive media?
Sure enough, the raising of the "terror alert" in the U.S. and the bombing in Casablanca provided the perfect backdrop for this stage-managed arrest, and offered another opportunity for Canada to show the U.S. that we are "serious" about cracking down in the "war on terror," more aptly a war on democracy.
In a similar "coincidence," on December 10, 2002, an Ottawa man, Mohamed Harkat, originally from Algeria, was also arrested on a security certificate, so that headlines reading "Canadian tied to al-Qaeda arrested" were everywhere as Solicitor General Wayne Easter went to Washington the next day to tell the Americans how much Canada was doing to stop alleged "terrorists." Harkat, whose hearing comes up in July, has been in solitary confinement in an Ottawa detention centre ever since.
According to media reports, Charkaoui, on his way back from Morocco, was stopped by government agents at Dorval airport in 2001, told he was "suspected of knowing certain people" and told to spy on members of Montreal's Muslim community. In a jailhouse interview yesterday, Charkaoui said, "I have no links to Al-Qaeda. This is a new form of McCarthyism, a new witch hunt. There's no proof, only suspicions. If they have proof they should show it."
This follows a classic CSIS pattern. Others who have been arrested on the security certificate report a similar pattern: demands from CSIS to spy on members of specific communities are made, and if not accepted, the security certificate comes down as punishment.
CSIS and the RCMP are actively harassing members of Canada's Muslim communities, focusing specifically on individuals of Middle Eastern and Arabic heritage. In a little-publicized report released last week by the International Civil Liberties Monitoring Group (ICLMG), it was reported that in "hundreds" of instances, people in Canada "are being visited for interviews by security forces without warrants, and taken away for interrogation. Although the full extent of Bill C-36 [so-called "anti-terror" legislation hurriedly passed by Parliament in 2001] was not implemented in these cases, it has been used as a threat to 'encourage' voluntary interviews by citing the risk of preventative detention allowed under the Act. Victims of such police conduct have been afraid to come forward publicly for fear of further retaliation." (The ICLMG is composed of many groups including the Council of Canadians, Canadian Arab Federation, Greenpeace, David Suzuki Foundation, United Steelworkers of America, and many others).
The Canadian Islamic Congress reports that hate crimes against Muslims have increased 1600% since Sept. 11, 2001.
The media has fanned the flames of intolerance as well. Even a report on Canadian census figures featured bizarre scare headlines, such as the Globe's May 15 shocker that "Muslims Outnumber Jews in Canada." Well, Christians still outnumber Jews and Muslims and Buddhists, but THAT doesn't make the news.
Anti-Islam bias in Canadian media is rampant. The Canadian Islamic Congress identifies what it calls "image distortion disorder," a condition that arises from the constant repetition of key phrases in the media, from "Islamic-inspired terrorist attacks" and "Islamic militant" to "Muslim militant" and "Islamic fundamentalist." This distortion of Islam's adherents "inevitably leads to discrimination, hate-mongering, acts of vandalism, and false accusation by authorities. Young Muslim Canadians of dark complexion, especially women with hijabs (traditional head coverings), or males with full beards, are particularly vulnerable to anxiety, fear and discrimination because of society's perception that their religion is violent, backward, restrictive, fundamentalist, and intolerant of opposing or alternative viewpoints." (For the full report visit www.canadianislamiccongress.com)
Imagine that you have been arrested, held without charge, told you are a threat to Canada's national security, and neither you nor your lawyer is allowed to know why. You face deportation back to your country of birth, where you face possible arrest, detention, torture and execution. This is done in the name of defending "democracy."
Imagine as well that the spy agency which puts together the document labelling you a threat is a scandal-ridden group that has, according to a recent expose on CSIS (Covert Entry by Andrew Mitrovica), "routinely broken the law, treating the rights and liberties of Canadians as no more than a nuisance...[it is] riddled by waste, extravagance, laziness, nepotism, incompetence, corruption and law-breaking." There is a culture of impunity at CSIS, whose agents often refer to a Ways and Means Act: "if you have a way to get things done, the means -- legal or not -- are justified."
When all civilian flights were rerouted to Canada on September 11, 2001, hundreds of individuals of Middle Eastern and Arabic heritage were seized from those planes and forced into Canadian jails. After spending sometimes weeks behind bars, most were released, but we still have not been told who was jailed, why they were jailed, how many were swept away, and how many are still there. That such an act of mass disappearing can take place in a "democracy" is frightening. That we are not told details of this round-up shows the extent to which a democratic system is not working.
But such abuses of democratic process, especially when they relate to people who do not enjoy the privileges of white skin, are logical outcomes of a system which engages in the medieval-style "security certificate" process, begun in 1992 with the help of the Canadian Security Intelligence Service, or CSIS. (CSIS is a Canadian secret police agency, what one journalist calls a Canadian combination of CIA and FBI. It was founded in 1984 after the disbanding of the RCMP Security Service, an organization riddled with massive corruption, criminal scandals, and a long record of civil rights violations. Billed as a "civilian" spy agency, CSIS essentially recruited many of the members of the discredited RCMP Security Service. Some even kept their old desks)
On the word of CSIS, individuals can be declared a security threat, arrested and held without bail, denied an opportunity to see evidence against them (or to have their lawyers see that evidence), and deported to a country where they could face prison, torture and execution.
There is no judicial check against the formidable power the "security" agencies have in such situations, making the courts an investigative tool of CSIS without any judicial balancing to protect the rights of the individual in question.
Once in court, the facts of the case are not what is judged. Rather, all a judge has to determine is whether the certificate is "reasonable." In the "Suresh" security certificate case, for example, the judge stated, "I am here to determine whether there exists sufficient evidence for me to conclude as to the reasonableness of the certificate signed by the ministers. It is not for me to determine whether the ministers were correct in their assessment of the evidence."
In the Mahjoub security certificate decision, the judge stated that all that is necessary for CSIS and the government to prove are " 'reasonable grounds to believe certain facts' as opposed to the existence of the facts themselves."
Even the Federal Court judges before whom the secret trials are conducted are apparently unhappy with the process. Federal Court Justice James K. Hugessen recently made these remarkable statements at a conference in Montreal last year:
"All the national security functions which are laid on the Federal Court have this in common: they involve at one stage or another and sometimes throughout the piece a judge of the Court sitting alone in what are called hearings, but they are held in the absence of one of the parties.. That is to say ex parte so that the judge may, if he or she sees fit, take communication of the evidence, the information which is said to be too sensitive to be allowed to be revealed to the person concerned and not only evidence, but also argument which may rely on the evidence or may deal with matters which may be too sensitive to be revealed to the public.
"This is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this function. Often, when I speak in public I make the customary disavowal that I am not speaking for the Court and I am not speaking for my colleagues but I am speaking only for myself. I MAKE NO SUCH DISAVOWAL THIS AFTERNOON. I CAN TELL YOU BECAUSE WE TALKED ABOUT IT, WE HATE IT. WE DO NOT LIKE THIS PROCESS OF HAVING TO SIT ALONE HEARING ONLY ONE PARTY AND LOOKING AT THE MATERIALS PRODUCED BY ONLY ONE PARTY AND HAVING TO TRY TO FIGURE OUT FOR OURSELVES WHAT IS WRONG WITH THE CASE THAT IS BEING PRESENTED BEFORE US AND HAVING TO TRY FOR OURSELVES TO SEE HOW THE WITNESSES THAT APPEAR BEFORE US OUGHT TO BE CROSS-EXAMINED.
"If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do that. We do not get to prepare our cases because we do not have a case and we do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. WE HATE HEARING ONLY ONE PARTY. WE HATE HAVING TO DECIDE WHAT, IF ANY, SENSITIVE MATERIAL CAN OR SHOULD BE CONVEYED TO THE OTHER PARTY. WE HATE, OR I CERTAINLY DO, I AM NOT SURE EVERYBODY FEELS THE SAME ABOUT THIS, SITTING IN A BUNKER, IN A SEALED WINDOWLESS COURTROOM DEEP IN THE BOWELS OF A BUILDING IN OTTAWA WHERE THE AIR IS TERRIBLE, THE ONLY THING THAT IS GOOD IS THE COFFEE, BUT WE HATE IT. I DO NOT THINK IT MAKES US DO OUR JOB PARTICULARLY WELL. We greatly miss, in short, our security blanket which is the adversary system that we were all brought up with and that, as I said at the outset, is for most of us, the real warranty that the outcome of what we do is going to be fair and just."
Hugessen later says, "If you have a case that is only being presented on one side, you are not going to get a good case.... It does occur to me, however, that it might be helpful if we created some sort of system somewhat like the public defender system where some lawyers were mandated to have full access to the CSIS files, the underlying files, and to present whatever case they could against the granting of the relief sought. I am told that this already happens within the CSIS, that within the CSIS the case has to be made for concealment and has to carry over a case presented by other CSIS officers who have access to all the material. But, if that is the case, then I am not sure what the judges of the Federal Court are doing in this picture and if I may be forgiven for using the expression, I sometimes feel a little bit like a fig leaf."
The flimsy nature of the information that grounds the security certificate is reflected in criticisms of CSIS made by its oversight committee, the Security Intelligence Review Committee (SIRC), which is traditionally a committee that tries its best not to be too critical of CSIS. Nevertheless:
* SIRC's 1999-2000 report raises questions "about some beliefs the Service has about the nature of the threat. We are of the opinion that these beliefs are sometimes overdrawn."
* The SIRC report points out one instance, likely illustrative of many more, in which a CSIS application for warrant powers contained "a number of overstatements."
* In another case, "information put forward was more than a decade old and the information adduced was derived from one source's 'feelings.'
* "One source's speculation was quoted. Some assertions that the target engaged in 'suspicious activities' appeared to us to be misleading or exaggerated."
* "For another person targeted, [CSIS] failed to include in the affidavit significant information of which it was aware which contradicts its own position on the person."
* In yet another case, a hyperactive CSIS treated as a threat activity that "seemed to be routine diplomatic behaviour," while in another case, "with little corroborating information, CSIS ascribed intelligence gathering motives to apparently normal consular contacts."
* SIRC concludes we need the best possible national security advice "unencumbered by unfounded speculation."
In addition, CSIS agents are generally not as knowledgeable as they make themselves out to be. Witness the incompetence of CSIS displayed in the following exchange from the hearing of Mahmoud Jaballah, originally printed in Saturday Night:
"David,", a self-described expert on Middle East terrorism, was asked by Jaballah's lawyer, Rocco Galati, what constituted an Arabic country, to which "David" replied, "More often than not, countries in the Middle East."
Galati then asked whether Iran were an Arabic country.
"I would say it is Arabic, but I'm not an expert in Iranian affairs," David said.
"You are completely wrong, Iran is as far from being Arabic as Germany is," Galati replied.
Galati continued, "If I suggested to you that your experience is anemic and that you need some re-education, what would you say to me?"
David said, "I would say that the Service goes to great effort to make sure that their people are properly trained and culturally sensitized. We do have training in that area."
Galati followed up by asking, "Can you name me the Arabic countries along the North African coast?"
David could not.
"Could you tell me the population of Egypt?" Galati asked the "expert" "David."
David could not.
Finding Someone to Blame
CSIS is a spy agency in search of enemies. To justify its massive budget increase following Sept. 11, 2001, it needs to come up with new "threats" to maintain its new funding levels.
Mr. Charkaoui and his family are not alone right now in Canada. Others are currently fighting the certificate process, including Mahmoud Jaballah, a father of six kids, who was arrested in 1999 and held seven months before he was released in an unprecedented move, in which the Federal Court found that Jaballah was credible and CSIS was not. A year later, a disgruntled CSIS brought a new certificate against Jaballah, admitting in court they had no new evidence, only new "interpretations" of "evidence' already found not credible by the court.
Muhammad Mahjoub (two children) has been in jail since June, 2000 on a certificate. Hassan Almrei has been in jail since October 2001, and Mohamed Harkat since December 10, 2002.
Interestingly, the security certificate was used against Holocaust denier Ernst Zundel recently. Although Zundel has a right to know the case against him as well, one has to wonder whether CSIS is using the certificate (when other, less harsh legal measures to deal with Zundel are available) to show it is being "evenhanded" in repression.
Homes not Bombs has been engaged in a campaign to stop secret trials in Canada for two years. We have provided support to families affected, organized walks, demonstrations, vigils, courtroom support, and much more. This fall, we plan a nonviolent direct action at CSIS headquarters in which costumed trick or treaters by the hundreds will demand full disclosure on all these cases, an end to the security certificate and an end to the ongoing harassment of Muslims and Canadians of Arab or Middle Eastern heritage.
We are also exploring legislation, similar to that proposed in the U.S., to outlaw the use of secret evidence.
1. Write letters to the two ministers listed below (and CC your MP and Homes not Bombs at PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0, firstname.lastname@example.org). Encourage organizations to write similar letters of protest demanding a full, fair, open hearing for Mr. Charkaoui. IF YOU ARE NOT IN CANADA, Letters are still very welcome, to show the government that the country's image is affected abroad as well as at home by such draconian measures.
2. Meet with your Member of Parliament to inform them about what is going on. Most have no clue, and some may be interested in helping out)
3. Hold a public vigil at an MP's office, at a federal building, or at the jail where Charkaoui is being held. Remember as well that any public action you take in Charkaoui's name could reflect back on him.
4. Be prepared to attend court.
5. Financial support for the Charkaoui family (we do not have details on this as yet, but as they become available, we can provide them. Contact email@example.com for those details)
Please write to the two ministers who signed the certificate, Solicitor General Wayne Easter, and Immigration Minister Denis Coderre, and demand that a full, open, public hearing of all the facts be allowed. Let them know we are following this case and demand that the secret trials of the security certificate process be stopped. It appears that this arrest could be motivated in part by a desire of the Canadian government to prove to the Bush administration that it is "serious" about security issues.
For those who sometimes feel (not without justification!) that letters to the government are thrown into the waste basket, remember that CSIS and the security apparatus in Ottawa are very paranoid about any type of oversight, whether governmental or from the public. The act of writing these letters, demanding an end to an unjust process and for full disclosure of whatever facts may or may not exist in the Charkaoui case, makes the spooks quite jittery and can only have a positive effect.
MINISTERS AND ADDRESSES
Wayne Easter, Solicitor General
House of Commons
318 Justice Building
Fax: (613) 995-7408
Denis Coderre, Immigration Minister
House of Commons
Ottawa, ON K1A 0A6
Fax: (613) 995-9755
(Section 9, Immigration and Refugee Protection Act (IRPA) (Note, the certificate used to be issued under section 40.1 of the old immigration act)
76. The definitions in this section apply in this Division.
``information'' means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, >from the government of a foreign state, from an international organization of states or from an institution of either of them.
« juge »
``judge'' means the Associate Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Associate Chief Justice.
Referral of certificate
77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court-Trial Division, which shall make a determination under section 80.
Effect of referral
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
78. The following provisions govern the determination:
(a) the judge shall hear the matter;
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;
(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act.
tion that certificate is reasonable
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
tion that certificate is not reasonable
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
tion not reviewable
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
Effect of determina-
tion - removal order
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1).
Detention of permanent resident
82. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.
Review of decision for detention
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
Order for continuation
(3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release >from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed >from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.
Application for non-disclosur e - Immigration Appeal Division
86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.
(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to ``judge'' be read as a reference to the applicable Division of the Board.
Consideration During Judicial Review
Application for non-disclosur e - Court
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.
Supreme Court Justice Frankfurter in Joint Anti-Fascist Refugee Comm. v. McGrath:
"No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to popular government, that justice has been done." (Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-172 (1951) (Frankfurter, J., concurring)).
Supreme Court Justice Jackson in Knauff v. Shaughnessy:
"The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected." (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (Jackson, J., dissenting)).
Federal Appeals Court for the District of Columbia on Secret Evidence in Rafeedie v. INS:
"... Rafeedie -- like Joseph K. in Kafka's 'The Trial' -- can prevail ... only if he can rebut the undisclosed evidence against him, i.e. prove that he is not a terrorist regardless of what might be implied by the government's confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden ." (Rafeedie v. INS, 880 F.2d 506, 516, (D.C. Cir. 1989))
Federal Appeals Court for the Ninth Circuit, on Secret Evidence in ADC v. Reno:
"One would be hard pressed to design a procedure more likely to result in erroneous deprivations."
"Because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the ... balancing [test adopted by the Supreme Court to determine whether INS conduct violates a non-citizen's due process rights] suggests that use of undisclosed information in adjudications should be presumptively unconstitutional." (American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1069; 1070-71 (9th Cir. 1995)).
Federal District Court in New Jersey in Kiareldeen v. Reno:
"Here, the government's reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United States, citizens and resident aliens alike."
"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. The INS' actions unconstitutionally damaged Kiareldeen's due process right to confront his accusers. The quality of the evidence offered by the government as the basis for petitioners' continued detention does not attain that level of reliability sufficient to satisfy the constitutional standard of fundamental fairness. Even the majority opinion of the Board of Immigration Appeals, which overruled the [immigration judge's] decision to release the petitioner on bond, noted: 'Like the Immigration Judge and the dissent, we have some concerns about the reliability of some of the classified information.' The court finds that to be an understatement."
"Here, the court cannot justify the government's attempt to 'allow [persons] to be convicted on unsworn testimony of witnesses -- a practice which runs counter to the notions of fairness on which our legal system is founded.' " [citation omitted] (Kiareldeen v. Reno, 71 F.Supp.2d 402, 414; 418; 419 (D.N.J. 1999)).
Federal Court for the Eastern District of Virginia in Haddam v. Reno:
"The use of secret evidence against a party, evidence that is given to, and relied on, by the [immigration judge and the Board of Immigration Appeals] but kept entirely concealed from the party and the party's counsel, is an obnoxious practice, so unfair that in any ordinary litigation context, its unconstitutionality is manifest." (Haddam v. Reno, 54 F. Supp.2d 588, 598 (E.D. Va. 1999)). (The Haddam court did not address the constitutional issues arising from the use of secret evidence).
Donn Livingston, Immigration Judge, In In Re Nasser Ahmed:
"The INS seems to be asking the court to abdicate its statutory and regulatory duty to decide the respondent's asylum claim based on the evidence presented at the hearing. The court will respect the expertise of law enforcement personnel and their dedication to protecting our country. But the court will not defer to their credibility findings, their weighing of the evidence or their interpretations of law. ... [T]hese issues are to be resolved by the [immigration] court which will make its own findings and conclusions based on the evidence presented."
"It appears that some of the classified information could be gathered >from non-confidential sources. If the information could be presented in open court as coming from an unclassified source, the respondent would be able to confront the evidence against him. This is certainly a desirable feature of any court proceeding. Indeed, the court is concerned about the possibility for abuse in this area. Imagine, for example, an agency which has two sources of evidence of a particular fact. One source is classified and the other source is public. If the agency chooses to present the information through the public source, the respondent will have an opportunity to confront the evidence. However, if the agency chooses to present the evidence through a classified source, the evidence could remain unassailable. Imagine further the situation where an agency has classified information of a certain fact, but does not yet have a public source for that fact. If the agency knows it can present the classified information in camera, what is the incentive to expend investigatory resources on developing a public source for that evidence?"
"Virtually all of the secret information is hearsay not subject to any exception to the hearsay rule. Most of this information is double or triple hearsay. Of course, hearsay evidence may be admissible in deportation proceedings [citation omitted]. However, hearsay may be relied upon only if it is probative and its use would not be fundamentally unfair [citations omitted]."
"The government's failure to respond to the credibility questions leaves the court utterly unable to assess the reliability of the government's hearsay evidence. The FBI urges the court to defer to its assessment of credibility. ...However, the FBI has refused to provide the court with evidence from which the court could make an independent evaluation of the credibility of its sources. In light of that refusal, this court must reject the secret information as being of unproven reliability."
(In Re Nasser Ahmed, No. A90 674 238 (7/30/99)).
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