Washington Report on Middle East Affairs, October 2001, page 53
National Coalition to Protect Political Freedom Holds Fourth Annual Convention
By Kristin Szremski
Over the past five years, nearly 30 people in the United States have been denied due process, and a number of those have been imprisoned because of the government’s use of secret evidence. They were held without charges and were not privy to the evidence prosecutors said they had linking them to alleged terrorist activities.
Today, only Harpel Singh Cheema remains incarcerated. The rest were released once prosecutors were forced to reveal that the secret evidence in most cases amounted to nothing more than second- and third-party hearsay.
The National Coalition to Protect Political Freedom (NCPPF) has been an ardent opponent of the use of secret evidence. Member organizations have fought vigorously to have the practice outlawed, as well as for the release of those wrongfully detained. NCPPF also defends First Amendment rights of political expression, Constitutional rights to due process, and Sixth Amendment rights to confront witnesses, for speedy and public trials, and to be informed of the nature and cause of accusations.
NCPPF members held their annual conference July 27 and 28 in Washington, DC, gathering to assess their accomplishments in the four years since the group’s inception, and to focus on its future direction. “We’re a ragged little band and we’re not a powerhouse in terms of money,” Kit Gage, the coalition’s national coordinator, said in her opening remarks. “We are a powerhouse in terms of experience and the sharing of information that makes us really unusual. We’re increasingly nationally recognized. The government sees us coming.”
Gage went on to quickly summarize the coalition’s past year to the 20 or so members in attendance: “We’ve won a number of cases. We fought off the Clinton administration [on its use of] secret evidence. We slam-dunked them out of there.”
Following the opening remarks, the media were excused from the remainder of the conference because of the sensitivity of some of the pending legal cases members were there to discuss. Most of the information for this report was obtained from press releases and post-conference interviews.
The coalition, with members from some 35 diverse political, legal and ethnic organizations—such as the National Lawyers Guild, Tampa Bay Coalition for Justice and Peace, Irish Northern Aid Committee, the American Muslim Council, and the American-Arab Anti-Discrimination Committee—was formed in 1997 in reaction to the passage of the 1996 Anti-Terrorism and Effective Death Penalty Act. Following the Oklahoma City bombing, the bill gained momentum and passed. The government has increased its use of secret evidence in detaining people who have visa problems. Prior to (and since) that legislation, the federal government had used case law to deport and detain non-U.S. citizens who are suspected of having connections to “terrorist” organizations.
Immediately upon the implementation of that law, immigration lawyers and First Amendment activists knew that trouble was brewing, and they began joining forces to battle the consequences of the act. It wasn’t long before their predictions proved correct, as people increasingly were arrested and incarcerated with evidence that neither they nor their lawyers were allowed to see. Indeed, said NCPFF president Sami Al-Arian, by the time the group was formed in 1997, cases of intimidation and arrests had increased in the wake of the anti-terrorism act.
Almost ironically, one month before the coalition’s June 1997 inception, Mazen Al-Najjar, a Florida university professor—and Al-Arian’s brother-in-law—was arrested for suspected “terrorist” ties. Al-Najjar was held for 43 months.
Al-Arian said he never expected that a member of his family would personally be affected by the anti-terrorism law’s resultant witch-hunt. He wasn’t surprised, however, that people—mainly Arabs and Muslims—were so quickly being targeted. “We knew at the time that some people would be affected by it and our community would be targeted,” he said in a telephone interview.
In April of 1996, 29 people were targets of secret evidence charges, and of those, Al-Arian said, 28 were Muslims.
Operating as a steering committee until its incorporation as an independent non-profit last year, the coalition’s activities initially were driven by the increased use of secret evidence. Circumstances dictated their actions: “We had to free whoever was in prison,” Al-Arian explained.
Many of those active in the coalition also lobbied vigorously against the use of secret evidence. In addition to Al-Najjar’s, other high-profile cases aided by the NCPPF include Hany Kaireldeen, held for 19 months; Anwar Haddam, imprisoned for more than four years; and Nasser Ahmed, incarcerated for more than three years. All have been released from prison as a result of the efforts of their lawyers, their communities, and NCPPF. “The coalition has been the organizational vehicle that has spoken out against these cases,” Gage noted.
Al-Arian also was involved in the Tampa Bay Coalition for Justice and Peace, which was formed in response to Al-Najjar’s arrest and belongs to the NCPPF. The Tampa Bay Coalition networked with area churches in Florida and, in March of 1998, invited then-Attorney General Janet Reno to a meeting with 800 people to discuss the government’s use of secret evidence. Reno did not attend, but did send a representative. As a result of that meeting and other pressure, Al-Arian said, the government decided that the deputy U.S. attorney general would have the authority to sign off on the use of secret evidence. Before then, the decision to admit secret evidence was allowed at the INS level.
No new secret evidence cases reportedly werebrought between 1998 and 2000, and activists were hopeful that the new Bush administration would continue that trend. Attorney General John Ashcroft’s June 6 testimony before the House Judiciary Committee seemed to reinforce that hope. “We have not to date in this administration used such evidence.”
One of the most important ways the coalition fought the use of secret evidence was through the creation of an extensive legal network. This enables lawyers from across the country to share information and strengthen the cases of their clients who were being detained on the basis of secret evidence.
Coalition legal co-directors Gail Pendleton, Houeida Saad and Nancy Chang put together legal teams as resources for lawyers who suddenly found their clients embroiled in cases virtually impossible to argue, because of the lack of disclosed evidence. Since incarceration and pending deportation based on secret evidence is not a “typical” immigration case, defense attorneys often were at a loss as to how to proceed. Each time a new secret evidence case came forward, however, the coalition’s legal teams went to work pairing the local defense attorneys with other lawyers and legal experts who have had experience in these types of cases, and who provided briefs, background information and guidance, Gage said. She credited the legal firm of Latham & Watkins in particular with supplying the coalition with immeasurable help in fighting the numerous secret evidence cases.
Despite the fact that no new secret evidence cases have been brought since 1998, last spring a Dallas, Texas immigration lawyer found herself facing the possibility that the Immigration and Naturalization Service (INS) was going to add secret evidence to a deportation case she was handling. Four Palestinian men are being targeted for expulsion because of their connection to two Islamic organizations—the Holy Land Foundation and the Islamic Association for Palestine—that long have been under scrutiny by the U.S. government.
Karen Pennington, who asked that her client not be named, said she immediately called the coalition, which in turn supplied her with information on how to combat each move the INS made. “I got all kinds of guidance,” Pennington said in a telephone interview. “I received advice and cooperation from two different law professors,” one from the University of Southern California and the other from Georgetown, she said.
Pennington said that secret evidence cases are “extremely difficult” to prepare for because there is no one body of information to use as a resource. “These regulations are not at one place in the law,” she said. The help she received from the coalition allowed her to get a handle on her client’s situation. “It keeps it from being a nightmare,” she explained. “The involvement of the coalition is essential for lawyers to represent our clients to the best of our abilities.”
When the Dallas case surfaced in April, the coalition flew into action, calling on Ashcroft to uphold the administration’s promise not to use secret evidence. “We got to Bush and Ashcroft through surrogates,” Gage said. “We let them know that the INS was initiating a secret evidence case.”
The INS has since backtracked, and decided in August not to add secret evidence to the case of Pennington’s client, according to a NCPFF press release. “By backing off a new secret evidence case in Texas... the U.S. seems to be sending immigrants a signal that due process matters,” Gage said in the release. “We hope this trend continues and secret evidence will never again be used in the U.S. It’s impossible to defend against, prone to abuse and unconstitutional.”
Repeated calls to Ashcroft’s public affairs office were not returned.
The fact that secret evidence is “on the way out,” according to a written summary of NCPPF activities available at the conference, doesn’t mean the coalition’s workload has decreased. It’s just changed. Member organizations still are lobbying for congressional passage of the Secret Evidence Repeal Act, which made it out of committee last year, but did not come up for a House vote before the session ended. The bill has been reintroduced this year as HR 1266. According to information passed out at the conference, the House Judiciary Committee is willing to bring the bill straight to markup in the full committee, rather than require additional hearings. As of July 21, HR 1266 had 103 co-sponsors, including former Judiciary Committee chairman Henry Hyde (R-IL). Movement on the bill is awaiting direction from the Bush administration.
At their July conference, Gage said in the telephone interview, coalition members agreed on the need to focus on another Anti-Terrorism Act provision—material support for terrorism—that the government seems to be invoking now. “Instead of going after criminal activity, [the federal government] is going after organizations, [and] going after the First Amendment,” she said. “They are criminalizing diapers going to an orphanage, if that orphanage happens to be controlled by Hamas.”
Gage was alluding to a list of 30 groups that are on the government’s list of “terrorist” organizations. Hamas, an Islamic organization that, in addition to its military wing, also provides humanitarian and educational services, is on that list. Under the material support for terrorism provision, a person can be arrested for giving humanitarian aid to any group on the government’s list.
One of the most recent additions to the list is the Real IRA, which, according to the State Department, has two alias groups, one of which collects support for the families of Irish political prisoners. Material support charges help to “shut down people whose politics you don’t like,” Gage said. This new trend in targeting certain communities has broad ramifications, according to Gage. Merely attending a meeting at which a member of one of the listed “terrorist” organizations was in attendance could result in charges of material support for terrorism. Gage likened the broad interpretation of the law to the poisonous suspicions of the McCarthy era.
While the country isn’t experiencing the hysteria of that earlier era, Gage pointed out that, because of information technology, the damage done to a person under scrutiny today can be far greater than that suffered by victims of McCarthyism.
“I feel as though we’re still suffering from the McCarthy era,” she said. “People are afraid of being called a liberal, afraid to go public about their political beliefs...We have to avoid the climate of fear that could take over this country again.”
Both Al-Arian and attorney Pennington mentioned fear as a motivating factor in continuing the fight against material support for terrorism cases. “Every American, every resident should have the right to support all humanitarian aid on earth,” Al-Arian said. “We don’t think we should criminalize aid for human suffering.”
Currently, the NCPPF is watching, and offering technical assistance to, two material support cases: one brought in California against Iranian Americans, and the other in North Carolina against Lebanese Americans.
In addition to outlining the secret evidence and material support cases, and the impact NCPPF has had on these, a written summary of the coalition’s past year also included information on an April 5 awards ceremony at which the “champions of the abolishment movement against secret evidence” were honored. Mazen Al-Najjar, Nasser Ahmed, Hany Kiareldeen, Anwar Haddam, Dr. Ali and Mohammad Karim, and Harpal Singh Cheema (in abstentia) received awards for enduring the pain of imprisonment while fighting against the use of secret evidence. Congressman David Bonior (D-MI) and former Congressman Tom Campbell (R-CA) were honored for their efforts in trying to repeal secret evidence. Many lawyers received plaques as well. Greg Nojeim of the ACLU, filmmaker Hazim Bitar, and Grover Norquist of Americans for Tax Reform received awards for their assistance.
The summary also mentioned the law firm of Latham & Watkins for their unflinching support in many matters, including helping the coalition achieve their tax-exempt status.
Kit Gage continues to serve as the NCPPF’s national coordinator, and has taken over as executive director of both the First Amendment Foundation and the National Committee Against Repressive Legislation (NCARL), both of which belong to the NCPPF.
Kristin Szremski is a news editor with a suburban Chicago newspaper.