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Frequently Asked Questions in the Secret Evidence Case
Is the government ever allowed to use secret evidence against someone?
Yes, however only under certain narrowly spelled out circumstances. One of these situations is outlined in the Immigration and Nationality Act (INA), which provides that the Immigration and Naturalization Service (INS) may exclude aliens entering the U.S. on the basis of secret evidence. Additionally, the INA also provides that where someone is facing deportation or other forms of "removal" from the United States, such as Dr. Al Najjar, the INS may only use secret evidence if it proceeds in a special removal court for "alien terrorists." In this special court, additional procedural safeguards must be adhered to and specific rules apply which were devised to ensure that standards of fundamental fairness are maintained.
Why shouldn't the government be allowed to use secret evidence against people who aren't citizens of the United States?
As the United States Supreme Court has explained, in Matthews v. Diaz (1976), the Fifth and Fourteenth Amendments embody fundamental rights ensuring that all persons, whether citizen or alien, are guaranteed the chance to know what they are being charged with as well as the right and opportunity to confront their accusers. Fairness can rarely be obtained by secret, one-sided determination of facts.
What is a petition of habeas corpus?
A petition, or writ, of habeas corpus is a procedure for obtaining a judicial determination of the legality of an individual's custody or detainment. Dr. Al Najjar filed a petition for habeas corpus in federal court in order to challenge the constitutionality of his confinement by the INS.
What is "hearsay" evidence?
Statements and other information which are not made under oath, but are made out of court, are characterized as hearsay evidence and generally may not be used against someone in court proceedings. The credibility of a particular witness or piece of information is the key ingredient in weighing the truth of a particular statement. When a statement is made out of court, a person's demeanor cannot be observed and there is no opportunity for cross-examination. Therefore, because there is generally no basis for determining whether the out-of-court statement is in fact true, it is not allowed to be presented in court. Although Dr. Al Najjar has not been privy to the substance of the charges against him, much of this evidence likely consists of hearsay information which should not be taken into account.
Doesn't the First Amendment only protect speech?
No. While the First Amendment mainly works to safeguard pure speech, other forms of expressive conduct, such as actions or beliefs symbolizing one's religious and political beliefs for example, are also protected. It is important to note that immigrants living within the United States are protected by the First Amendment.
What exactly does "due process of law" mean?
The phrase "due process of law" generally refers to the concept of fairness in that the government may not deprive an individual of life, liberty, or property unless certain rules and procedures required under the law have been followed. More specifically, "procedural due process" refers to the notion that all people are entitled, at minimum, to notice and a fair hearing before the government attempts to take away a particular interest, such as one's freedom. Thus, in Dr. Al Najjar's case, because neither he nor his attorneys have ever been informed as to the specific charges against him, and because the INS has utilized secret court proceedings to detain him, Dr. Al Najjar's constitutional right to due process has been violated.
