The use of secret evidence is anathema to American justice. President Bush said as much in his stilted, imprecise way during one of the presidential debates. "Arab-Americans are racially profiled in what's called secret evidence." Bush said. "People are stopped, and we've got to do something about that."
What he was really referring to were the two dozen or so cases in which the government, in the name of national security, used secret evidence to detain or deport immigrants. The exercise had put more than egg on the government's face. In every case where secret evidence was used and later disclosed, the so-called proof turned out to be mistaken, utterly vague or from a discredited source. The disgrace prompted 100 members of Congress to support a bill to outlaw the use of secret evidence _ an effort that has pretty much fizzled since Sept. 11.
But the outrages of secret evidence, the way it requires an accused person to box shadows, are no different now than before the terrorist attack. The only change is a newfound deference to the government's claims of national security. Oh, and President Bush's abrupt reversal. His Justice Department is now gearing up to use secret evidence in a case against an Islamic charity.
In December, the government froze the assets and confiscated all the business records of the Chicago-area Global Relief Foundation on the basis of a suspected link to the al-Qaida terrorist network.
The 10-year-old charity, which claims to have provided more than 700,000 poor Muslims with food, medicine and vocational training, categorically denies it is involved with terrorism and has asked the government to show the proof. But the government has demurred, saying the information is classified.
On a trip to Saudi Arabia earlier this month, Treasury Secretary Paul O'Neill assured the Saudis that shuttered Muslim charities in the United States would be given the chance to rebut allegations of terrorist ties. Not true. You can't respond without knowing the specifics of the accusations against you, and here the United States is staying mum.
Not surprisingly, Global Relief filed suit to get its assets and reputation back. But even in litigation, the group may not get an answer to why it was targeted. In a letter to U.S. District Court Judge Wayne Andersen, the presiding judge in the case, the Justice Department has declared its intention to use secret evidence to defend the summary actions taken against Global Relief _ evidence that only the judge may see.
Okay, now is a good time to recount some of the sorry history of our government's recent use of secret evidence:
Secret evidence was used to keep Hany Kiareldeen improperly jailed for 19 months. The Palestinian resident of New Jersey was suspected of hosting a meeting with one of the World Trade Center bombers in his apartment. When the damning evidence was finally disclosed, Kiareldeen was able to establish that he had been out of that apartment for more than a year when the meeting took place. The FBI had relied on information from his ex-wife with whom he was in a child custody battle.
And secret evidence is what nearly got Hashim Hawlery, an Iraqi Kurd who had cooperated with the CIA's failed campaign against Saddam Hussein, deported back to Iraq to face almost certain execution. After he was imprisoned in a detention facility for nearly a year, evidence of his terrorist ties was finally declassified. The suspect organization with which he was claimed to have associated turned out to be non-existent. An FBI interpreter had mistakenly created the acronym KLM in refering to the Kurdish liberation movement groups Hawlery had been part of. Because the CIA had no record of this (interpreter-created) group, Hawlery was considered a threat as part of a "secret" society.
Had the evidence not ultimately been made available to the defense, these mistakes would have ruined if not ended lives. And mistakes are legion in the FBI when dealing with people from Muslim countries. Former CIA director James Woolsey, who was a consultant in the Hawlery case, testified before Congress in 1998 that federal agents simply don't have the understanding to find their way through "the wilderness of mirrors that is the Middle East." He described federal employees who couldn't distinguish Iran and Iraq, and an FBI agent "who apparently could not tell a Kurd from a ziggurat."
Secret evidence turns our civil legal process into a farce. If we allow its use, especially at a time when every Muslim enterprise is viewed with suspicion, we are setting the stage for one injustice after the next. Global Relief is an American nonprofit organization that has been destroyed without a hearing or trial, and the government won't tell it why. Who is next?