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Publication Date

Fall 1999




Georgetown University




More than two dozen immigrants' in the United States are facing deportation2 or removal 3 proceedings based primarily on evidence that the Immigration and Naturalization Service ("INS") has refused to disclose because it is "classified.", 4 The use of secret evidence in deportation proceedings is the most powerful tool in an apparently systematic attack by U.S. governmental agencies on the speech, association and religious activities of a very defined group of people: Muslims, Arabs, and U.S. lawful permanent residents of Arab origin residing in this country. Evidence emerging from these cases indicates that the government is spending thousands of U.S. taxpayer dollars on prosecuting and attempting to deport Arabs and Muslims under the rubric of "terrorism," when the "classified evidence" used to charge them is apparently nothing more than hearsay, innuendo, and, at most, guilt by association. 6 Using secret evidence to deport Arabs and Muslims appears to be the latest manifestation of a war waged by various government agencies against these ethnic and religious groups; a war waged ostensibly to combat "terrorism," but which raises the disturbing specter of ideological bias. Ideological exclusion7 reached its height in the McCarran-Walter Act" years. Although that Act has been essentially repealed, its most troubling provisions continue to be applied almost exclusively against aliens of Arab nationality or origin.9

This, the most recent in a long history of attempts by the U.S. government and its agencies to exclude or deport aliens solely on the basis of their beliefs or associations, is, unfortunately, the most likely to succeed. Arabs and Muslims are vulnerable as immigrants or non-immigrants residing in the United States because of the negative stereotyping equating them with terrorists; they also have negligible political muscle and have been the specific target of much legislative and executive activity directed to silence, exclude, deport and restrict them.' °

This article focuses on the government's use of secret evidence in the deportation, exclusion and removal cases currently pending against the more than two dozen Arab and Muslim aliens mentioned above. It examines the extent to which the government's strategies seem clearly designed to curb the free speech, association and religious rights of these individuals residing in the United States, a proposition that is supported by the histories of, and tactics used, in the cases themselves. Aside from the fundamental question of whether the use of classified evidence in deportation proceedings-or, for that matter, in any proceedings in our court system-offends American notions of fair play and substantial justice," these cases raise troubling questions of constitutional and procedural irregularities 12 that appear to be immune to serious challenge or judicial review. Furthermore, the article reviews the government's strategies in the "secret evidence" cases; raises the question whether these strategies are designed to chill the free speech and association rights of Arabs and Muslims in particular in this country; and suggests that, for a number of reasons, the government's tactics are likely to succeed in these cases despite the resounding defeat given similar ideological exclusion efforts in the past. Review of the cases themselves requires a hard look at the motivations behind the strange congruence of factors allowing the INS virtually free reign to trample the rights of a clearly targeted group of individuals with either the encouragement, or at least complicity, of the executive, judicial and legislative branches of government.

Part II reviews the historical and political background of ideological exclusion in the United States. Part III provides background information regarding the use of secret evidence in ideological exclusion cases. Part IV examines the government's tactics and strategies in six of the two dozen secret evidence cases currently being litigated, the spurious nature of the government's "classified evidence" emerging from the cases, and evidence in the cases of institutionalized bias against Arabs and Muslims. Part V examines the factors in the legislative and judicial branches which allow Arabs and Muslims to be targeted for their unpopular beliefs and associations, and ensure limited checks and balances on the INS' ability to carry out this strategy. Part VI concludes by pointing out some of the possible sources of this institutionalized bias, and the dangerous consequences it has on the civil liberties of Arabs and Muslims in the United States.

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