Secret Evidence and the Hypocrisy of U.S. Democracy

"Secret evidence" is more than an oxymoron that has made history in the United States. The evils that its use can sprout are too many to count. In short, it flouts the rule of law, chills free speech, dents democracy and erodes the rational foundation of society. Yet, the U.S. government is in no hurry to repeal the provisions of the 1996 Immigration Act and other legislative measures that sanctify the use of secret evidence.

A basic tenet in any due process of law is the right of an accused person to challenge the claims against him/her. Nasser Ahmed, an Egyptian Muslim engineer who immigrated to the United States in the 1980s, was denied this right during the past three and a half years that he has been held in prison. Eventually, when allowed, he refuted the evidence charges as bogus, and two successive immigration courts ordered Ahmed's release.

Yet, surprisingly, U.S. Attorney General Janet Reno invoked an extraordinary power to order his imprisonment continued until she reviews his case. This decision to block Ahmed's release shows that Reno is not only the ultimate prosecutor but also the penultimate judge no matter what a jury or judges decide. Her twin role as prosecutor and judge is an absurdity for the rule of law.

Nasser Ahmed is not just a lone or bizarre case. There are dozens more people suffering continued imprisonment as a result of indefensible secret evidence. And an overwhelming majority of them (more than 90 percent) are Arab/Muslim immigrants. Although crimes, terrorism and manslaughter are endemic in the United States, primarily Muslim/Arab immigrants are targeted for prosecution based on secret evidence.

This obvious discrimination and the floating threat of secret evidence have had a chilling effect on American Muslims' right to free speech. I have seen this chilling effect in action. For example, the authorities at a Southern California mosque hesitated for weeks before allowing an announcement for prayer/donation for the victims of the Russian carnage in Chechnya. The mosque authorities said, "The FBI is watching us," fearing that based on secret evidence they could be indicted for supporting the Chechens that the Russian government characterize as "terrorists."

Beyond chilling free speech, the use of secret evidence cripples the justice system as it seeks a brainwashed (as opposed to informed) verdict from a judge. Eventually, it translates into downright persecution, which shakes the very foundation of democracy as a system of governance for, by and of the people.

As Anthony Lewis pointed out in a recent column published by several newspapers, the kind of material produced in the case of Nasser should never have been classified in the first place. In his case, the revealed secret evidence was "double or triple hearsay." Similarly, in the case of Semi Al-Arian, the University of South Florida professor who was reinstated last year after a prolonged forced leave from his position, the secret evidence was a fictional accusation written by some bigot.

Since the secret theories of "guilt by association" or the empty rhetoric of "security risk" proved ultimately indefensible, expediency is perhaps the only the defense for the use of secret evidence by the U.S. government. Yes, expediency is the cat that essentially came out of the bag in the testimony of an unnamed F.B.I. agent's testimony in Ahmed's case. The agent argued that Ahmed should be kept in prison because his release would make him ''more well known, lending to his credibility.'' Anthony Lewis has rightly called this an outrageous argument because it seeks to only spare the government a well-deserved embarrassment.

Persecution resulting from secret evidence is an evil, an injustice. Reno and Company has forgotten what some heroes in American history have said. For example, Theodore Roosevelt said in 1900, "No man is justified in doing evil on the ground of expediency;" and Martin Luther King, Jr., said in 1963, "Injustice anywhere is a threat to justice everywhere."

Most of all, the irrationality of defense of secret evidence by the U.S. government threatens the rational foundation of society. Almost all civilizations have a rational base. It is the foundation of modernity. At the time of the birth of U.S. democracy, the European philosophers theorized reason (as opposed to superstition) sacrosanct. Modern men, they said, were "free men who know no other master than their reason."

Now, as the most advanced vanguard of modernity -- the U.S. government -- acts irrationally, what conclusions can one make? Until the U.S. government repeals the laws providing for secret evidence, you must hold your tongue lest one fine morning the U.S. Gestapo picks you up for detention or deportation to a hostile land. However, don't let this puzzle your will.