THE CASE OF Hany Mahmoud Kiareldeen is about as thorough an indictment of the use of secret evidence as one could ever expect to see. Mr. Kiareldeen, a Palestinian who has lived in this country since 1990, was arrested in March of last year. The government has sought to deport him and has used classified evidence to oppose his application for permanent residency and to keep him detained. No judge who has examined this evidence -- and the count stands at seven -- has deemed it a credible basis for his removal; a U.S. District judge this week even held that his continued incarceration based on secret evidence was unconstitutional. Yet Mr. Kiareldeen remains in custody, and the government continues to seek temporary stays of the various orders to release him.
The secret evidence purportedly indicates that Mr. Kiareldeen was a member of a terrorist group, that he had been alleged by a single source to have hosted a meeting of the World Trade Center bombing conspirators and that a source also had claimed that he wanted to kill Attorney General Janet Reno.
Mr. Kiareldeen has never been permitted to confront his accuser. But in immigration court, he nonetheless managed to poke serious holes in this supposed evidence. He presented numerous witnesses who testified that he didn't even live in the house at which he supposedly held the illicit meeting at the time the meeting took place, for example. And he showed that his ex-wife -- who had filed a string of dubious domestic violence charges against him -- was the likely source of the allegations against him. Testimony before the immigration court suggested that, far from being an Islamic fundamentalist, Mr. Kiareldeen was not especially religious -- he drinks alcohol and is married to a non-Muslim -- and not politically active either. Back in April the immigration court ruled that he should get permanent residency status and be released on bond pending any government appeal.
The Immigration and Naturalization Service, however, got his release stayed while it appealed this ruling, and Mr. Kiareldeen's lawyers subsequently filed a habeas corpus petition. In the past week, one three-judge immigration review panel upheld the decision to make Mr. Kiareldeen a permanent resident. Another upheld the decision to release him on bond. And federal district Judge William Walls held in the habeas case that "the government's reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United States, citizens and resident aliens alike." Yet despite such consistent and total repudiation of the government's case, Mr. Kiareldeen remains detained.
This case is another in a string of examples of secret-evidence cases collapsing upon the sort of close scrutiny the secrecy is intended to avoid. It is hard to escape the conclusion that a process as antithetical to our legal system as holding someone accountable in court on the basis of material he cannot directly attack can never be legitimate.