Counterterrorism Blog

A few comments following Jeff Breinholt’s excellent article concerning “secret” evidence in counter-terrorism cases, particularly since I was one of the prime-time players in the Al-Arian, et al caper that generated so much heat on the topic during the 1990s.

Jeff’s background and analysis is right on the mark. I would like to add, however, that related to such evidence in immigration proceedings, the fallout from the deportation case against Al-Arian’s brother-in-law Mazen Al-Najjar (also a PhD) was especially noteworthy. Professor David Cole was one of Al-Najjar’s defense attorneys in the deportation case. And by the way, neither Al-Arian nor his brother-in-law are US citizens; however, that did not stop either of them from registering to vote in Tampa, Florida and, in Al-Arian’s case, actually voting in one election. The two PhDs claimed it was all a big “misunderstanding”...they were “confused” by the system.

Quick background: Al-Najjar was originally placed under deportation proceedings as an alien who overstayed his student visa status in the early 1980s. Those proceedings were suspended when he failed to appear for a hearing in North Carolina (he moved to Tampa to be with Al-Arian). INS at the time made no effort to locate him. Al-Najjar became involved with Al-Arian running support front operations in Tampa for the Palestinian Islamic Jihad. That was exposed publicly by Steve Emerson in his PBS documentary “Jihad in America” in 1994 and by Tampa Tribune reporter Mike Fechter in 1995. After “Jihad in America” in November 1994, INS launched an initial inquiry into Al-Arian that became a criminal fraud investigation that ultimately became part of a task force terrorism investigation with the FBI and other agencies that ultimately resulted in the disposition against him that exists now. Al-Najjar was identified in that investigation and his deportation proceedings reopened.

Al-Najjar was not taken into custody, however, until an Immigration Judge ordered him deported in May 1997. It was only at that point that INS sought to utilize classified evidence, in part, to keep Al-Najjar detained while he appealed his already issued deportation order. That process is what fueled the media and special interest firestorm concerning “secret evidence” from 1997 onward. Al-Najjar was ultimately deported in 2002. It took that long for the immigration appeals process (Immigration Court, Board of Immigration Appeals, US District Court and US Circuit Court of Appeals) to be completed. Ironically, the underlying immigration violation was a “simple” charge that he overstayed his student visa status. It took nearly two decades, millions of dollars and thousands of man-hours to deport one overstay student. That is the state of “immigration justice” in far too frequent circumstances. Al-Najjar, contrary to the stance of his many apologists, had his many days in court.

The use of any classified evidence in the Al-Najjar case was strictly limited to the issue of his detention, a discretionary request for relief from him, after he had already been found deportable by the court. That use, as Jeff Breinholt correctly describes, has been long established in US law. Beyond that, it was seldom utilized. It was the Al-Najjar case, and a handful of others during that same time period, that drew the attention of various persons and groups protesting this process who lobbied for its elimination. As Jeff notes, the law and regulations have survived.

That said, technical survival does not necessarily mean the process has thrived. The hue and cry against the use of “secret evidence,” as misdirected as it was, still had an effect on the High Command of the Reno Justice Department during the late 1990s. Very restrictive review procedures for the use of classified evidence in immigration proceedings were implemented by DOJ. Those procedures were so cumbersome they rendered the process virtually useless. The new regime at DOJ under the Bush Administration did not change those procedures, either.

Ironically, this same time period saw the development of a potentially powerful counter-terrorism weapon in the Government’s arsenal directly tied to the use of classified evidence. The Anti-Terrorism and Effective Death Penalty Act of 1996 authorized the creation of the Alien Terrorist Removal Court (ATRC). The Court was technically constituted in late 1996. The Court is comprised of several special US District Court Judges selected by the Chief Justice of the United States (Chief Justice of the Supreme Court). These special judges are granted the requisite Top Secret+ security clearances. Under special and limited rules, the ATRC is allowed to hear deportation cases against alien terrorist suspects and consider classified evidence in the merits portion of the case...the portion wherein the decision concerning to deport or not is made. ATRC cases require literal Attorney General review and approval before being submitted to the Court, and procedural rules are closely monitored by the Judges and subject to certain appellate review, as well.

The law creating the ATRC is contained in Titled V of the Immigration and Nationality Act. As of 2002, there had not been a single case brought before the ATRC and it is likely there have been no cases ever brought before the Court. Some argue procedural flaws have prevented any effective case presentation. Others believe the negative publicity generated by the Al-Najjar deportation case left senior Government decision-makers gun-shy. Having lived through the literal trials and tribulations generated by the fallout from much of that negative publicity, the political influence sought by those seeking restrictions on the use of “secret” evidence in immigration proceedings may have realized some degree of success.