Secret evidence critics lose patience

Published Sept. 1, 2001|Updated Sept. 10, 2005

Nearly a year after Muslim- and Arab-Americans endorsed George W. Bush for president, they say they have tired of waiting for him to keep what they thought was a promise to end the government's use of secret evidence to jail members of their community.

Bush's intentions appear to fall short of their demand.

While Attorney General John Ashcroft said he has reservations about the practice and the administration has filed no new cases, Bush remains silent on the community's favored solution _ a bill banning secret, or classified, evidence against immigrants accused of ties to terrorists.

Experts say the hurdle is politics. Fear of appearing to be soft on terrorism, coupled with opposition from Jewish groups and law enforcement agencies, make it unlikely Bush will endorse the bill. His predecessor wouldn't, either.

"The Clinton administration found it's very difficult to defend secret evidence. It's un-American. But for politicians to stop its use is politically really difficult," says Juliette Kayyem, a former member of the National Commission on Terrorism and currently executive director of the Executive Session on Domestic Preparedness at the John F. Kennedy School of Government at Harvard University.

"I think it would be very surprising if they signed on to a complete repeal of secret evidence," she predicted. "They'll do something. No legislation, but some internal changes.

"Ashcroft and Bush will be very smart about this: They just won't start any new cases."

Last fall, a half-dozen national Arab and Muslim groups endorsed Bush for president after he objected to secret evidence during a presidential debate. They believed he also promised a more measured approach to the Middle East conflict.

In closely contested states like Florida, where an estimated 20,000 Muslims voted for Bush, the community's support proved critical.

Many voted for Bush because they believed Clinton betrayed them. During his tenure, more than 50 immigrants were jailed or denied residency based on secret evidence alleging ties to Middle East terrorist groups. The Justice Department finally ceased filing any new secret evidence cases in mid 1999 under increasing pressure from immigration groups, the American Civil Liberties Union, Congress and the media.

Those accused in secret evidence cases were often told only that they associated with terrorists. No charges were filed, but some spent more than four years in jail on visa violations.

Today, only a California man is known to still be behind bars under these conditions. The rest are free after lengthy legal challenges on constitutional grounds or to pry loose enough evidence to defend themselves.

They include Mazen Al-Najjar, a Tampa teacher who was released last December after more than three years in detention as an alleged supporter of the Palestinian Islamic Jihad. As in other cases, an immigration judge released Al-Najjar after finding the public evidence against him insufficient.

There have been signs the Bush administration is considering changes.

In July, the Justice Department dropped its appeal of the release of Al-Najjar, 44, at the Board of Immigration Appeals. The government also opted not to open a new secret evidence case _ the first since Bush took office _ against a man in Texas linked to Hamas, a group claiming terrorist attacks in the Middle East. And at a House Judiciary Committee hearing June 6, Ashcroft said he has concerns about its use.

When speculating what Bush will do, these developments are the tea leaves to be read, said George Salem, board chairman of the Arab American Institute in Washington, D.C., and an influential Republican fundraiser.

"What I know is purely circumstantial. I do believe the administration is taking a serious look at these issues," Salem said.

He and others say more than tea leaves are due.

"They need to fulfill their campaign promise," said House Minority Whip David Bonior of Michigan, who introduced the secret evidence bill.

Rep. Bob Barr, a Republican from Georgia, joined Bonior as sponsor of the legislation. Barr has twice written Ashcroft on the issue since the bill's reintroduction in March.

"The position of the Justice Department and the administration remains unclear," he wrote July 27. "I urge you to evaluate both this policy and (the bill), and please make clear exactly where the Bush administration stands on the use of secret evidence."

The government's decision to drop its appeal of Al-Najjar's release was announced in a July 30 letter to the Board of Immigration Appeals written by Chief Appellate Counsel Barry O'Melinn. About the same time, the government told Texas resident Ghassan Dahduli it would not introduce secret evidence in his deportation case.

The news came four days after Arab, Muslim and other groups met with officials at the Attorney General's Office. Discussions included Al-Najjar and Dahduli. Until then, Arab and Muslim groups said they had felt snubbed.

A letter to the president requesting he intervene against Israel in the Middle East went unanswered. A White House event in March to mark the annual pilgrimage to Mecca was canceled. Vice President Dick Cheney missed a promised appearance before the American Muslim Council's national conference in June.

Their outrage peaked June 28, when Bonior intern Abdullah Al-Arian of Tampa was escorted without explanation from a White House meeting on the president's faith-based initiative. The 20 or so Muslim and Arab leaders there walked out with him in protest.

Al-Arian is the nephew of Al-Najjar. He is the son of Sami Al-Arian, a tenured University of South Florida professor who is a national leader on Arab and Muslim issues. Al-Arian was investigated by the FBI and Immigration and Naturalization Service in the mid 1990s but never charged with a crime.

"I was guilty of being my father's son," the younger Al-Arian said. "I thought this period in our life was over."

A day later, Bush apologized.

Extensive media coverage and the community's anger over the incident increased the pressure on Bush to act, says Bonior. The Council on American-Islamic Relations has asked for a meeting between Bush and Muslim leaders to "dispel the impression that Muslims are being excluded from policymaking circles."

Bush met with representatives from Jewish groups on March 7. The American Jewish Committee and the Anti-Defamation League, among others, oppose the secret evidence legislation.

Muslim and Arab-Americans say they, too, want to meet with the president.

They had overwhelmingly voted for Clinton before picking Bush over Al Gore in November by a margin as high as 80 percent, according to polls.

There are an estimated 3-million Arab Americans and 6-million Muslims in the United States. The groups are not homogeneous. There are Christian Arab-Americans, and African-Americans make up a significant percentage of the Muslim population.

"A lot of people are saying it's a mistake we endorsed Bush," said USF professor Al-Arian. He is president of the National Coalition to Protect Political Freedom, a group lobbying for the bill.

"If he (Bush) knuckles under pressure," Al-Arian said, "then we have a problem."