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Washington Post on secret evidence

Tuesday, October 21, 1997 

NOTHING IS more inimical to the American system of justice than the use of secret evidence to deprive someone of his liberty. Yet that is precisely what is happening to more than a dozen Arab aliens picked up on an immigration charge, suspected of an association with terrorism but so far not charged with any actual crime. The classified information that is the basis of their detention typically comes from the FBI, is shared with the judge but is withheld from the prisoner and his lawyer.

Secret evidence is not available to be used in criminal cases, including national security cases, in American courts. But a decades-old regulatory authority allows such evidence to be introduced into certain immigration proceedings -- not those determining whether someone should be deported but whether they should receive asylum, permanent residence, naturalization or release on bond. The basis for the secrecy presumably is to protect confidential government sources. It is a convenience for law enforcement officials and conceivably a protection for the public. But it is a convenience and protection purchased at a prohibitive price to individual liberty.

In fact, terrorist incidents in New York and, of course, Oklahoma City and elsewhere have induced an incipient fever. The Clinton administration's anti-terrorism bill of last year disclosed a broad executive, congressional and popular latitude for encroachments on the rights of terrorism suspects. The Immigration and Naturalization Service, in the course of getting with the anti-terrorism program, has moved into the territory itself. The conviction -- without secret evidence -- of a number of Arabs in actual bombings seems to have lowered the standards by which other Arabs are being swept off the streets. Possibly some of them may be supporting Hezbollah and Hamas not for their criminal attacks but for the social welfare programs these groups also run. Others of the detainees may well be terrorists. All of them deserve to know the evidence against them.