Employing a controversial strategy, the U.S. Justice Department says it plans to use secret evidence to justify the financial sanctions it imposed on a Chicago-area Muslim charity as part of its effort to choke off terrorist funding after Sept. 11.
Bridgeview-based Global Relief Foundation has filed a lawsuit saying the government violated the Constitution in freezing the charity’s assets in December, citing suspected links to Osama bin Laden and his Al Qaeda network.
The case in federal court in Chicago appears to be the first time the government has tried to use secret evidence–which would be shared with the judge but not with the charity or its attorneys–under a provision of the anti-terrorism Patriot Act signed in October by President Bush, legal experts said.
Immigration cases are a more common venue for the use of secret evidence, which has drawn fire because it changes one of the most basic rules of the American legal system: that people get a chance to confront the evidence being used against them by the government.
Roger Simmons, an attorney for Global Relief, said the use of secret evidence to fight the charity’s lawsuit was “a very dangerous legal precedent.” On Thursday, Simmons asked the court to reject the government’s plan.
“It’s completely contrary to anything that’s ever happened in this country,” he said. “The country was founded on the idea of confronting your accuser. If they submit secret evidence or present it to the judge in such a way that we can never see it, we can’t cross-examine and we can never rebut,” he said.
Members of Congress have attempted several times to make the use of secret evidence illegal, and Bush said he would support such a law, but those efforts died after Sept. 11.
A spokesman for the Justice Department in Washington declined to comment on the government’s plan, which was detailed in a letter sent March 8 to Wayne R. Andersen, the U.S. District Court judge handling the case.
Among the evidence the government wants to present in secret are records presented to the Treasury Department’s Office of Foreign Assets Control that led to the freeze and the search-warrant application for Global Relief’s Bridgeview office.
“Both records contain information that is classified for reasons of national security,” said the letter, signed by Department of Justice trial attorney John E. Smith. The government intends to file the evidence under seal and make it available only to the judge, the letter said.
Andersen declined to comment on the letter but said, “This case has special worldwide interest.”
Although the law does not require the judge to accept the secret evidence or base his ruling on it, that is clearly what the government is striving for, said Mark Rasch, a former federal prosecutor who handled classified information cases.
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“They’re saying, `We’re going to give the court something and you’re not even going to know what it is,'” Rasch said.
Ruth Wedgwood, who handled classified-information issues at the Justice Department and now teaches at Yale Law School, said the government needs to be able to safeguard its intelligence sources while pursuing terrorists.
“I think this is going to be a hard case for a judge to turn the government down,” she said.
3 groups sue
In December, the Treasury Department froze the assets of Global Relief and another southwest suburban Islamic charity, the Benevolence International Foundation of Palos Hills, because of suspected terrorist links.
Unlike the other individuals and groups that were officially designated as supporters of terrorism and hit with financial sanctions, Global Relief and Benevolence International had their assets frozen pending an investigation of their terrorist links.
The Treasury Department has also frozen the assets of the Richardson, Texas-based Holy Land Foundation for Relief and Development, a group that is on the agency’s list of terrorism supporters for allegedly supporting Hamas, a Palestinian militant organization.
All three groups have denied involvement in terrorism and filed federal lawsuits challenging the constitutionality of the government actions. Global Relief also has argued that the government’s asset-freezing powers don’t apply to U.S. companies.
The government’s authority to present evidence secretly comes from a provision of the Patriot Act. Previously, the Treasury Department had the authority to seize assets but lacked the ability to present secret evidence if the seizure was challenged.
The act also changed the financial seizure provisions, allowing the government to freeze the assets of groups before proving they are aiding terrorists.
Immigration lawyers involved in secret evidence cases since such evidence was sanctioned by Congress in 1996 justify their concern with a list of cases in which the government’s prosecution has fallen apart under close scrutiny.
Perhaps the most notable involved Hany Kiareldeen, a Palestinian living in New Jersey who was detained after being accused of meeting with one of the men convicted of bombing the World Trade Center in 1993. Kiareldeen suspects the secret evidence against him came from his ex-wife, with whom he was involved in a child-custody dispute.
`Raises serious issues’
A federal judge questioned not only the evidence against Kiareldeen, but the process by which it was presented.
“The [Immigration and Naturalization Service’s] reliance on secret evidence raises serious issues about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of government processes initiated and prosecuted in darkness,” the judge wrote.
Niels Frenzen, a University of Southern California law professor who has represented defendants in secret evidence cases, agrees with that assessment.
“This raises all of the same concerns that everyone has had for the past six or seven years: Without exception, when the government uses this one-sided evidence, it’s gotten it wrong,” he said. “Why should anyone think they are going to get it right now?”
Haddad case
The government hasn’t disclosed its reasons for suspecting Global Relief of being connected to bin Laden. However, federal officials recently offered a hint about their evidence in an immigration case involving the charity’s chairman, Rabih Haddad, who has been detained on visa violations since the group’s assets were frozen three months ago.
In a legal brief filed earlier this month in the Haddad case, the INS cited an FBI document describing Haddad’s links in the late 1980s and early 1990s to “multiple overseas locations that housed and supported terrorist organizations” connected with Al Qaeda. The FBI document also describes “how sources place [Haddad] in the company of leaders and members” of Al Qaeda-related organizations, according to the brief.
Haddad has acknowledged that he did relief work in Peshawar, Pakistan, at a time when many Arabs, including bin Laden, had flocked to the border town to aid the Afghan war against the Soviet Union. But Simmons said that doesn’t mean Haddad or Global Relief is connected to bin Laden.