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Balancing Security & Civil Liberties
LEGAL ISSUES
Throughout American history, in times of war, civil liberties are counted as the first casualties. During the U.S. Civil War, one of Abraham Lincoln's first acts was to order the suspension of the right of habeas corpus, the procedure by which a defendant can challenge a wrongful conviction. The Constitution does allow the suspension of habeas corpus in the clause that appears in Section 9 of Article I - the Article defining Congress' powers - not in Article II, where the President's powers are defined. That placement strongly suggests that Congress must grant prior authorization when habeas corpus is suspended. In 1861, Lincoln did not have such authorization.
INTERNMENT PROGRAM
On February 19, 1942, President Franklin D. Roosevelt issued Executive Order No. 9066 (7 Federal Register 1407), which recited that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities …" Essentially, the Executive Order required 120,000 Japanese Americans to leave their homes in California and parts of Washington, Oregon and Arizona. The majority went to internment camps.
In Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943) the U.S. Supreme Court upheld convictions against a Japanese-American conscientious objector of internment who was sentenced to 90 days at a work camp near Tucson, Arizona, for violating the curfew and failing to report to the internment camp while a student at the University of Washington in Seattle.
In 1980, the Commission on Wartime Relocation and Internment of Civilians was established by Congress. This commission reviewed the impact of Executive Order 9066 on Japanese-Americans and determined that they were the victims of discrimination by the federal government. On August 10, 1988, President Ronald Reagan signed the Civil Liberties Act of 1988. The Act was passed by Congress to provide a Presidential apology and symbolic payment of $20,000.00 to the internees, evacuees, and persons of Japanese ancestry who lost liberty or property because of discriminatory action by the Federal government during World War II. The Act also created the Civil Liberties Public Education Fund to help teach children and the public about the internment period.
SECRET EVIDENCE
In December 2000, Mazen Al Najjar was freed after an immigration judge held a new bond hearing and the U.S. government failed to show he was a threat to national security. In Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001)) the government is appealing the right to deport him and establish its right to rely on secret evidence.
Secret Evidence Repeal Act, H.R. 1266 establishes a process for dealing with classified information in deportation cases that protects both classified information and the rights of the non-citizen.
At the end of the last Congress, the House Judiciary Committee on a voice vote overwhelmingly approved the Secret Evidence Repeal Act, H.R. 2121. As amended, the bill permitted the use of classified information in immigration cases by means of procedures modeled after the Classified Information Procedure Act. Under that process, the government may use classified evidence in deportation proceedings, if it provides an unclassified summary of the evidence that is approved by a federal judge The amended bill was reintroduced as H.R. 1266 in this Congress, and has garnered approximately 100 co-sponsors.
Under H.R.1266, the government could hold a hearing to produce a summary of classified evidence that affords both safety for secrets and due process for the non-citizen. This approach is consistent with the views of then-candidate George W. Bush, who said that he believes secret evidence is "not the American way." Attorney General Ashcroft affirmed this position in testimony before the House Judiciary Committee on June 6, 2001, when he stated that "we have not to date during this administration used such evidence." Likewise, Commissioner of Immigration and Naturalization Jim Ziglar stated on October 30, 2001 that no present plans exist to use secret evidence against any of the individuals detained in the investigation of the attacks on September 11, 2001.
Recently, the Senate added its voice to those who recognize the importance of allowing non-citizens to receive a summary of the classified information used in deportation proceedings. On November 8, 2001, the Senate rejected on a voice vote an amendment, which was opposed by the Department of Justice, that would have expanded the use of secret evidence by deleting the requirement that a non-citizen brought before the Alien Terrorist Removal Court be given an unclassified summary of the classified information used against him.
Judges have determined that the secret evidence used in recent cases is inherently unreliable. In one case, In re Ahmed, the immigration judge said that most of the secret evidence being used to deny asylum and bond amounted to double or even triple hearsay, and may have originated with the foreign government accused of persecuting the person seeking asylum. In Kiareldeen v. Reno, a federal district court in New Jersey joined the Ninth Circuit and the United States District Court for the District of Columbia in ruling that the use of secret evidence violates due process rights. Every other federal court to examine the issue has agreed.
The serious shortcomings in the government's use of secret evidence in the past decade have also been the subject of two House hearings. The accused and their lawyers cannot defend against information they cannot see.
