Letter to President Bush on the Use of Secret Evidence in Immigration Proceedings

President George W. Bush
The White House
1600 Pennsylvania Ave., NW
Washington, DC 20500 

Dear Mr. President: 

We are writing to thank you for your willingness to speak out against the use of secret evidence against individuals, almost all of whom have been of Arab or Muslim background, in immigration proceedings. 

The American Civil Liberties Union strongly opposes the use of secret evidence in immigration proceedings. A basic tenet of any fair legal system is that no evidence may be used which is kept secret from the accused. As Supreme Court Justice Felix Frankfurter wrote in Joint Anti-Fascist Refugee Committee v. McGrath, "Secrecy is not congenial to truth seeking. ... No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it." Experience has proven Justice Frankfurter right. Judges have determined that the secret evidence used in recent cases is inherently unreliable, and the federal courts have determined that the use of such evidence violates due process rights. 

The use of secret evidence dishonors our country. As you know, in one such case, R. James Woolsey, a Washington attorney and former Director of Central Intelligence, represented six Iraqi refugees who worked for the Central Intelligence Agency in Northern Iraq. After Saddam Hussein's forces invaded Northern Iraq, the United States government helped them escape and come to the United States. Yet -- based on what turned out to be nothing more than rumor -- these individuals were then imprisoned by our government on secret evidence charges. Shocked, Mr. Woolsey said this was "a process one would expect to find in Iraq, not the U.S." 

Your leadership is essential if this nation is going to end the shameful use of secret evidence. In the second televised presidential debate, you noted your opposition to the use of secret evidence. You explained your opposition in more detail in a written statement, entitled "Governor George W. Bush's Record of Inclusion":

"On the issue of secret evidence -- another creation of the Clinton/Gore Justice Department -- I am also troubled by the disturbing stories of how this policy is being implemented. More and more, new immigrants, often Arab or Muslim immigrants, face deportation or even imprisonment based on evidence they've never seen and never been able to dispute. That's not the American way. Here, too, the security of our country and of our people is of course the foremost consideration. Yet that doesn't justify a disregard for fairness, dignity, or civil rights. As President, I will work with leaders like Senator Spence Abraham and Congressman Henry Hyde to ensure respect for the law -- and for all law-abiding citizens."

We agree. Secret evidence is not "the American way" and, while issues of national security must be addressed, those considerations cannot "justify a disregard for fairness, dignity or civil rights." We welcome your pledge to work with sponsors of the Secret Evidence Repeal Act (SERA), and we believe the active support of the White House can help make SERA a reality this year. 

We are also gratified that your Attorney General has recently made clear, in testimony before the House Judiciary Committee on June 6, 2001, that the Justice Department intends to immediately implement Administration policy regarding secret evidence. General Ashcroft stated at that hearing that "we have not to date during this administration used such evidence." We believe such a moratorium is essential if further innocent individuals are not to be victimized by the INS on account of their ethnicity or political views and associations while Congress considers reform. 

Unfortunately, however, the use of secret evidence continues. According to the Executive Office of Immigration Review (EOIR), nine "secret evidence" cases remain pending, and attorneys for the government continue to actively pursue appeals in those cases. In addition, the ACLU has received disturbing information that the INS is even now seeking permission to use secret evidence in new immigration proceedings in Dallas, Texas, in direct contravention of your and Attorney General Ashcroft's policy. Our coalition has provided information to the Attorney General and relevant Congressional staff members concerning these developments. 

Again, we appreciate the efforts of this Administration to end secret evidence and wipe away the stain on the nation's honor that has resulted from the use of secret evidence against the Arab and Muslim communities in the last Administration. No one should be victimized by this violation of rights. We would be honored to work with you to end this heinous practice. 

Sincerely, 

Laura W. Murphy
Director, Washington National Office 

Timothy H. Edgar
Legislative Counsel 

Cc: Attorney General John Ashcroft 
Hon. David E. Bonior
Hon. Bob Barr
Hon. John Conyers, Jr.
Hon. Thomas M. Davis III