The federal government has broken the traditional secrecy surrounding the names of foreigners seeking political asylum in the United States by inadvertently divulging the names of 3,000 Nicaraguan applicants in a court case in Florida.
This massive breach of confidentiality has terrified the asylum applicants, who fear that their family members still in Nicaragua will be endangered. It also threatens to undermine a system that is based on U.S. guarantees to protect the identities of asylum seekers and one that has helped make this nation one of the most sought-after havens by the oppressed, immigration attorneys say.
While the disclosure of Nicaraguan names is unparalleled in scope, the courtroom revelations appear to be only the latest in a series of such breaches -- some of them intentional -- by federal government officials. In what legal experts call one of the most disturbing examples, the names of Polish political asylum applicants apparently were intentionally passed on to agents of the communist government of Poland over a period of years as part of an FBI counterintelligence operation, sources say.
At the same time, there are indications that the routine processing of asylum applications has resulted in still more inadvertent leaks. Immigration attorneys report instances where federal government officials, assigned to check out the asylum claims of applicants, have openly approached officials or individuals in the applicants' home countries and informed them that the applicant has asked for political asylum.
"I see it as a spreading panic," said James Orlow, a lawyer who is investigating the Nicaraguan leak for the Association of Immigration and Nationality Lawyers. "There's a serious breakdown here. If the U.S. wanted to blow the cover of these people, it could . . . and it's just not the way you want to see the U.S. work."
At the heart of the issue is the importance of secrecy, and most experts, including Klaus Feldmann, acting North American representative for the United Nations High Commissioner for Refugees, believe it is an essential part of the process.
"We would hope and we do assume that it [secrecy] is assured," said Feldmann. "If he [the applicant] has been persecuted in the country of origin, it might be compromising his security if his country knows where he is or knows simply that he is applying. He may put himself in danger simply by applying."
Despite the traditional assurances of confidentiality routinely offered to applicants, the Immigration and Naturalization Service (INS) concedes that there are no formal regulations protecting the secrecy of the application process. U.S. laws governing privacy, which protect U.S. citizens and permanent residents from disclosure of private information to other government agencies, do not cover foreigners.
Further complicating the picture is the fact that the number of foreigners seeking political asylum in the United States has grown from roughly 3,700 a year two years ago to almost 17,000 through the first 11 months of this year, according to an INS spokesman. That dramatic increase does not include the huge numbers of Cubans who filed for asylum this year.
As a result, those familiar with the political asylum process say government agencies involved in reviewing asylum applications -- the INS, federal investigatory agencies, and the State Department -- are overburdened by the increase and often handle the information carelessly.
Sources familiar with the Nicaraguan disclosures cite that as a prime example of such carelessness. In that case, attorneys for Haitians seeking asylum in the United States argued that they could not prove their clients were being discriminated against in the application process without first seeing the political asylum applications of other nationality groups. They asked U.S. District Court Judge Alcee L. Hastings in Miami to order the Justice Department to produce the files of all Nicaraguans because the Haitians' attorneys believed their clients' situation and that of the Nicaraguans were most similar.
The Justice Department attorneys handling the case argued against disclosure of the files on the grounds that it would be too time consuming to assemble the records. The judge then ordered the government to simply allow the Haitians' attorneys to visit the various INS offices around the country where they could inspect the records at their leisure.
Four months later, an immigration attorney in New Orleans, who represents several Nicaraguan asylum applicants, learned from the local INS director that attorneys for the Haitians as well as a number of VISTA workers voluntarily assisting in the research had been allowed to read supposedly confidential files there. He immediately contacted the immigration and nationality attorneys association which demanded that the Justice Department ask Hastings to issue an order insuring the secrecy of the files.
That order was issued 12 days ago, but by then more than 3,000 files had been inspected. As it turned out, one of the attorneys representing the Haitians is also the attorney in Miami for the airlines owned by the Nicaraguan government.
While the attorney, Ira Kurzban, has denied having passed on to the Nicaraguan government the names of any of the asylum applicants whose files he read, he confirmed that the Nicaraguan officials have discussed with him how they might legally obtain the names. He said they fear that some of those applying may have been guilty of persecuting Nicaraguans during that country's civil war in 1978 and 1979 and should not as a result be granted political asylum by the United States.
Other attorneys, including Orlow, say that Kurzban has never been suspected of any wrongdoing in the matter. Rather, they say, the case illustrates how poorly the government has handled the sensitive information.
"It's not wrong that Ira should have gone after that evidence," said Orlow. "What's upsetting is that the government made no move to protect the information when Ira sought it."
Sources familiar with the reports of FBI use of Polish political asylum applicants' names say that there is evidence that the FBI passed on the names in order to enhance the stature of an FBI double agent in the eyes of the Polish government. In that case, the sources said, a dozen or more Polish asylum applicants in Chicago reported to their attorneys that they were getting calls from the Polish consulate there informing them that the Polish government knew they were asking for asylum.
One of those attorneys later learned that information about him had been passed on to the Polish government through a double agent. He has sued the FBI to learn just what additional information was transmitted.
The FBI declined to comment yesterday, citing the ongoing litigation.