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Legal Issues in the Secret Evidence Case
The ACLU, the Center for Constitutional Rights (CCR), and the Nationalities Service Center (NSC) assert that the INS's use of secret evidence against Dr. Al Najjar is unauthorized by the immigration laws of the United States and unconstitutional. While federal immigration statutes currently allow for the use of secret evidence in certain narrowly tailored circumstances, the Constitution of the United States provides citizens as well as immigrants with a number of fundamental rights which cannot be readily abridged.
Due Process Considerations
The Fifth and Fourteenth Amendments protect all persons living in this country, whether citizen or alien, from being deprived of life, liberty, or property without due process of law. Due process of law requires that no person may be lawfully jailed without first having notice of the charges leveled against him or her. Additionally, due process further requires that all individuals be given a meaningful opportunity to defend themselves, which includes the right to know the evidence against them and an opportunity to confront their accusers.
Here, however, Dr. Al Najjar has not enjoyed the benefit of any of the requisite and very basic process due him under the law. The INS's use of undisclosed information to detain him without bond has created a one-sided process by which the normal protections of our adversarial process have been rendered ineffective. Dr. Al Najjar's right to be free from unlawful detention cannot be taken from him without a fair and evenhanded process. In securing Dr. Al Najjar's detention, the INS presented secret evidence to an immigration judge, outside the presence of either Dr. Al Najjar or his attorneys, and no record of this evidence was ever maintained. The substance of this hidden evidence apparently consists of hearsay statements which Dr. Al Najjar can neither cross-examine nor refute. As a result, Dr. Al Najjar's detention controverts the most elementary notions of due process and fairness under the law and is therefore unconstitutional.
Freedom of Speech and Association
Whenever the government seeks to punish or restrict speech or associational activities, the freedoms guaranteed by the First Amendment require heightened procedural safeguards.
Because the First Amendment precludes guilt by mere association, any religious or political affiliations which Dr. Al Najjar has should not serve as the basis for his detention. Thus, the government may not lawfully detain him on the basis of his alleged associations unless there is evidence that Dr. Al Najjar specifically intended and took actions to further terrorist ends.
Moreover, the United States Supreme Court has recognized for some time that where First Amendment freedoms are at issue, proceedings undertaken outside the presence of one party, or that party's attorney, are patently unconstitutional. Therefore, because the INS utilized covert procedures to ensure that Dr. Al Najjar would be detained, and because the government failed to allege any "specific intent" on Dr. Al Najjar's part to engage in any criminal conduct, the First and Fifth Amendments necessitate his release.
Federal Immigration Laws
The Immigration and Nationality Act (INA) authorizes the INS to use secret evidence to detain aliens while deportation proceedings are pending, but only after the INS has invoked specific "alien terrorist removal court" procedures contained in the INA. However, because the INS did not invoke these specialized procedures, which provide additional procedural safeguards, Dr. Al Najjar's detention has no legal foundation under U.S. immigration law.
