The Secret Evidence Canard

By Jeffrey Breinholt

In one of the 2000 Presidential debates, Gov. George W. Bush bemoaned the fact that secret evidence was sometimes used in American immigration proceedings. Later, it was suggested that this reference was the result of lobbying by American Muslim organizations whose leaders included Professor Sami Al-Arian, whose brother-in-law was then a poster child for evils of secret evidence.

Fortunately, once elected, President Bush did not give these groups what they wanted. When the Holy Land Foundation was designated as a terrorist financier in December 2001, U.S. Treasury officials had to sit through complaints about how ungrateful the Bush Administration was to the Muslim groups which, they claimed, had put him over the top in Florida, where Al-Arian lived and was politically active. Fortunately, these officials withstood the political pressure, which was not the least bit subtle.

These days, Al-Arian sits in prison, which is a far cry from the White House, and his brother-in-law is under indictment and a fugitive. It’s doubtful that they will be able to play a role in the current election, which is a good thing. Last I checked, neither was an American citizen, which means they are not allowed to vote. Why should they be able to exert political pressure on Presidential candidates?

Inexplicably, one of Al-Arian’s causes survived. Now, almost eight years later, we are once again hearing about the unfair use of secret evidence. I want to put the issue into perspective so the current crop of Presidential candidates and American voters will not be fooled again, and so the public might view these bogus claims with sufficient skepticism. Hopefully, the issue of secret evidence will not be one which a candidate deigns to mention.

The secret evidence canard in 2000 was based on the occasional need for government lawyers in immigration proceedings to present classified intelligence, to oppose an alien’s request for discretionary relief from deportation. When this happens, the aliens have already been ruled deportable. That is, the parties are beyond the merits stage of the litigation, and aliens are seeking to stay in the U.S., despite having no legal right to remain here, by showing that they are not bad people. The government’s right to present classified information for this purpose was first established over 50 years ago, in the case of Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919 (1956)(denial of suspension of deportation was not unlawful because based on confidential, undisclosed information).

Despite the efforts of immigrant advocacy groups to enact legislation to bar this practice, the authority remains in place today. Still, the use of secret intelligence in immigration proceedings is a fairly rare occurrence. In the waning days of the Clinton Administration, then-Attorney General Janet Reno asked that all of these cases be collected for review. They totaled about two dozen, of the many thousand pending deportation actions.

Of course, plenty of criminal prosecutions are initiated on the basis of classified intelligence. However, there is no such thing as a “secret evidence” criminal prosecution; all of the evidence the prosecution plans to affirmatively present must be declassified and authenticated, in order to be admitted under the rules of evidence.

Sure, there are occasionally cases where the government possesses classified information that is arguably disclosable by the criminal defendant. When this happens, prosecutors invoke the Classified Information Procedures Act (CIPA), and seek a court ruling on whether the information must be turned over. If the court says yes, the government must either produce an acceptable unclassified summary of the information (generally placed in a format so that its disclosure will not jeopardize sources and methods), declassify the intelligence and provide it to the defense, or risk the case being dismissed. This was the procedure that caused the prosecution of Zacarias Moussaoui to be considered twice by the Fourth Circuit Court of Appeals. It has been consistently upheld, in the face of claims that it is unconstitutional.

If this is the law, why do critics continue to push the secret evidence claim? I have come to believe that they do so for self-serving reasons - the complaint seems to resonate with Americans, who have a tradition of distrusting their government, and makes the complainants seem relevant like Paul Revere. In addition, these critics represent people who are now coming to terms with the fact that the government has their number, and they have no way of continuing to pull the wool over the eyes of generous Americans they have been defrauding.

I am referring to the growth of criminal prosecutions of charities who concealed that they were formed for a different purpose than they publicly acknowledge, and were directed by foreign actors. The problem occurs where these charities enjoy tax-exempt status, under 26 U.S.C. §501(c)(3), a benefit that requires these organizations to file an application and annual informational returns, all under penalties of perjury. Some charities realize that they cannot maintain this tax-exempt status - a government subsidy, necessary if they are to offer their donors the benefits of tax deductions - if they tell the truth, because they are tied to some unsavory foreign characters. Accordingly, they lie. This means the government can prosecute them for perjury, in prosecutions that might not require the disclosure of as much classified information as, say, a prosecution for providing material support to terrorism.

A perjury prosecution might be a strategic decision based on a legal assessment of the cost of disclosure necessary in the litigation. The resulting case might not involve the crimes of the century, but there are plenty of good collateral consequences, like the revocation of tax-exempt and immigration status. It is a strategy (streched to include false statements made for immigration benefits) apparently employed in the cases of CARE International in Boston, Al Haramain Foundation in Oregon, Soliman Bihieri in Virginia, Fawaz Damra in Ohio, and most recently Yasser Bushnaq in Virginia.

This strategy has some Muslim charities plenty hot and bothered. I know this because there are a number of journalists sniffing around the “story,” and an increase in public chatter in the private counterterrorism community about “secret evidence.” Of course, none of the complaints that have been fed to these friendly reporters - judging from their questions - seem to be credible.

Should prosecutors be allowed to rely in classified information to guide their charging decisions? On that question, we already crossed the Rubicon, when the PATRIOT Act finally tore down the wall that previously prevented FISA-derived information from being shared with law enforcement personnel. Apart from a small group of radicals and libertarians, few question whether this was a good idea, and there is no large movement to roll it back. Most believe that federal prosecutors having security clearances which permits them to review classified information makes for better charging decisions, and ultimately a better criminal justice system. Are law enforcement decisions not better when prosecutorial discretion is exercised with the best information in the government’s possession? Surely, that’s a better way to choose how to target limited prosecutorial resources than, say, a coin toss. Moreover, people who are truly selected for prosecution for improper reasons are entitled to have their indictments dismissed, irrespective of their guilt. This remedy serves to protect against abuses.

So far, no Muslim charity has succeeded in a selective prosecution claim, in part because most charities (both Muslim and non-Muslim alike) are not in the business of sending things abroad for purposes of promoting violence or enriching terrorist groups, and these prosecutions were not initiated because of religious beliefs of the charities' operators. Picking on Muslims? Hardly. You find me a case in which a fundamentalist Christian charity is furtively sending funds to violent operatives hoping to take control of Old City Jerusalem, or a radical Jewish non-profit is secretly scheming to violently evict Muslims from the Temple Mount, and I will find you plenty of American prosecutors who salivate at the prospect of putting those charities in the dock.

So what happens when the people who complain about secret evidence are, due to increased public awareness, left without a legal argument? They try to turn the facts on their head. They might argue that there is a giant conspiracy between the government and the courts to prevent them from knowing what the constitution requires. Of course, in order to maintain this claim, they must take liberties with the truth, in hopes that no one will be aware enough to notice.

This seems to be the tact of Georgetown Professor David Cole, a leader of the Secret Evidence Repeal Club whose legal career includes the representation of Sami Al-Arian. Here is what he said (verbatim) at a public event last year:

… And so we had an executive order issued by President Truman that required the loyalty inquiry boards to investigate the political ideologies and affiliations and magazine subscription practices of virtually everybody who worked for the federal government, and it went even beyond the federal government, so that many private business that worked with federal government also had to undertake these loyalty inquisitions. We had congressional hearings, HUAC, of course, and we had a sort of combination between public and private in which HUAC would out people as communists and then private industry, notably Hollywood, would blacklist those individuals from getting any jobs. And literally, millions of Americans were affected, and the history of that time is, I think, well accepted that that was a mistake; that guilt by association was wrong, that it touched many, many people who posed no threat whatsoever to the United States, and that it was an overreaction in the name of prevention.

Today, we face a different threat, the threat of terrorism, not communism. But we see I think a remarkably similar process in place. Instead of targeting association simpliciter, per se, we target material support for a terrorist organization. But the essential features of this prohibition are the same. We have a broad - extremely broad, criminal substantive standard --material support as I'll talk about in a moment, is defined extremely broadly. So you basically can't do anything that you would do in association with a group without it constituting material support. And giving it money is the most obvious example of material support, but any volunteering of one's time also constitutes material support. We not only have a broad criminal statute, but we also have administrative schemes for implementing this prohibition. We have the secretary of state, which through administrative process designates foreign terrorist organizations and, we have the secretary of the treasury, who through another administrative process identifies another list of proscribed terrorist groups-- and I'll talk about that process as well.

. . . .

So let me just talk briefly about the material support scheme and the kinds of challenges that it poses through constitutional principles. And I think it's-- and again, it's just a -- it's a subspecies of this broader problem of when you go into this preventive mode, you put tremendous pressure on the basic values of the rule of law.

With the material support statute, there are really two -- sort of ends, which problems arise. At the outset, there is the designation process. Who gets designated, how does a group get designated, what kind of procedure is there to challenge the designation? And at the other end, at the sort of backend, there is the criminal penalty which then applies, if somebody so much as provides, you know, an hour of their volunteer time to an organization that has been put on one of these lists. The listing process -- there are several lists, but in general, the listing process is a secret administrative process. Groups first learn that they have been designated as a terrorist group by subscribing to the federal register. And the federal register, every week or so, they announce another number of groups that have been labeled terrorist. You can then --if you find yourself on the terrorist list, you can bring a challenge to your designation in court.

The only problem is that you can't introduce any evidence in that challenge, and you can't see the government's evidence, because the government is permitted to rely on classified evidence that it presents to the judge behind closed doors. So you're not only having a one-sided process in which all the evidence is the government's evidence, but you can’t even see the evidence that is being used against you.

Right now, there is a case going on in Texas against the Holy Land Foundation -- at one time, the largest Muslim Charity in the United States, accused of supporting Hamas -- shut down through the administrative process right after 9/11. Well, now they are on in a criminal case where they actually have to put their evidence on the record, and it turns that they have no evidence that Holy Land Foundation actually ever supported Hamas, the entity. Instead, their claim is, well, you supported these charitable entities in each of the little towns in the West Bank. And we maintain now that those entities were a part of, or associated with Hamas, and therefore even though you didn't give money to Hamas, you gave money to these organizations and even though we never designated these other organizations as terrorist organizations, you are now permanently liable for having supported Hamas.

Are these claims factually correct? Not by a long shot. How can he get away with them? Perhaps it was because I was not present at the event where he made this speech. The event organizers, it turned out, could not find anyone from the Department of Justice or the Treasury Department of the FBI to argue the other side, which is probably our fault as much as anyone’s. If I were there, and the event took place today, our exchange might have gone something like this.

Professor Cole: That concludes my remarks. Are there any questions? Let’s see…. Yes, you sir.

Me: Do you have any REO Speedwagon albums?

Professor Cole: What? Is that a serious question?

Me: Well, you seem to be about my age, which means we went to high school during the same era. I was just wondering whether we had anything in common. Besides, this is my dream, so I can ask whatever I want. I just thought maybe … oh, never mind. Actually, I do have a serious question. You claim that there was no evidence that Holy Land Foundation gave any money to Hamas. Yet, the government put on such evidence in a public trial in Texas, and the Holy Land Foundation claimed that the evidence was not good enough to go to the jury. The judge denied their motion, finding that the government had indeed presented evidence that should go to the jury. This indicated that there was evidence. How do you explain this?

Professor Cole: Just because there was evidence did not mean it was credible. The government ultimately lost the case.

Me: I thought the jury in Texas could not reach a unanimous verdict, which does not mean that the Holy Land Foundation guys were acquitted. That’s what would have happened if, as you say, there was no evidence. In fact, by your characterization, the case would never have gone to the jury. Yet the judge in Texas found the evidence sufficient to be submitted to them. In fact, this case is going to be re-tried in a few months.

Professor Cole: I mentioned the criminal case in passing. Most of my remarks were devoted to the Holy Land Foundation’s designation, and the unfair civil process for challenging it.

Me: Did the court in the civil case find that there was no evidence of any connection between Holy Land Foundation and Hamas, as you claim?

Professor Cole: I did not see any.

Me: In fact, I have a copy of the court’s opinion, which is dated June 20, 2003. It can be found at 333 F.3d 156. It says, “The ample record evidence … establishing HLF's role in the funding of Hamas and of its terrorist activities is incontrovertible.”

Professor Cole: That does not mean that the court was right. In fact, the D.C. Circuit Court of Appeals was seriously wrong.

Me: I understand that’s your opinion, but I’m considering the factual accuracy of what you have said here today - that there was no evidence. That’s not what the court said. It said quite the opposite. What about your claim that the Holy Land Foundation’s lawyers in the civil case were not given an opportunity to present evidence on their client’s behalf. That’s what I thought you said. Here is what the court opinion says: “There was no plausible evidence presented which showed that these ties had been severed,” ”Holy Land was then given thirty-one days to respond to the redesignation and the new evidence,” and “HLF had every opportunity and incentive to produce the evidence sufficient to rebut the ample evidence supporting the necessary conclusion that it was a funder of Hamas but could not do so.” It sounds like your colleagues did have the opportunity you claim was not afforded, but theylost. Maybe I’m just confused, but I’m having a hard time squaring the facts, as described in a court opinion, with what you’re saying here today.

Professor Cole: You can’t believe everything you read, and that’s my point. Of course the court said that, because courts do whatever the government wants. I know what the truth is. You should trust me, and not what you read in some court opinion.

Of course, I made this whole exchange up - it is entirely a figment of my imagination, though the facts in the court cases I cite are real. The last remark by Professor Cole would probably only occur in my wildest dreams. (Breaking a witness like this through cross-examination happens maybe once in a litigator's career.) Still, these are the questions I would have asked. Cole is a very smart guy, and would certainly be better at defending himself than I made him. My point is this: I do not see how his claims can be harmonized with facts that have been recited by the court, and which are consistent with what plenty of people know Holy Land Foundation’s designation and prosecution.

Secret evidence? The Holy Land Foundation designation was remarkable because the government made the decision to declassify an extensive affidavit of Assistant Director Dale Watson, a decision which allowed the public to see for itself exactly what the FBI knew about the Holy Land Foundation and its connection to Hamas. The Watson affidavit ran several hundred pages, and described a 1993 meeting in Philadelphia at which the parties were caught on tape deciding that the Holy Land Foundation would be the official Hamas fundraiser within the U.S. In this way, the designation Professor Cole bemoans was based on little “secret evidence,” even though the government has firmly established the right to rely on classified information in making decisions on imposing economic sanctions and in immigration proceedings. This makes the Holy Land Foundation a strange case to make the secret evidence argument.

My sense is that people like David Cole may be frustrated because they are now coming to terms with the fact that the Department of Justice has a very real chance of ridding the U.S. philanthropic community of its worst transgressors, thereby leaving greater spoils to the cleanly-run charities who compete for American charitable donations so massive that, if they went into the coffers of a new country, it would immediately have the 20th largest GNP total in the world. If charities are required to be open about what they are doing on forms signed under penalties of perjury, they cannot very well complain that it is unfair to prosecute them for lying, or that this is somehow a constitutional (or moral) issue.

Of course, they can vigorously defend themselves on the merits, and this is exactly what they should do in in an adversarial process. That is quite different from impugning the motives of the nation's law enforcers, and arguing that these cases are so unfair that the American people should be outraged. If anything, these cases are exactly what we should expect from our prosecutors. This strategy might allow the problem of U.S. charities secretly facilitating violence to be redressed without an unpalatable amount of disclosure of sensitive source and methods, in a completely constitutional way. (Think charities do not fund terrorists? Read the 9/11 Commission Report, on where Al Qaeda got its operating budget. It was not the Bin Laden family fortune.) If and when this goal is achieved, there may be less of a demand for people who sincerely believe that the government acts unconstitutionally in most of its exercises. What will be left to complain about? Prosecutors playing the evidence card?

(As always, the views expressed in this article are the author's own, and do not reflect those of the Department of Justice.)

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