Prof. David Cole to Address Human Rights Workshop on the Use of Secret Evidence, Nov. 9
David Cole has represented thirteen Arab immigrants detained by the Immigration and Naturalization Service (INS) on secret evidence. Some of these clients spent years in jail, ignorant of the charges against them, not even knowing who accused them.
The INS has the authority--strengthened by a 1996 anti-terrorism law--to hold individuals deemed threats to national security without disclosing accusations or proof when the evidence is classified. However, Cole points out that all thirteen of his clients, held for these very reasons, were eventually released without any criminal charges being brought against them.
With this record, it is clear why Cole has "concerns . . . about ways our government has responded to the terrorist threat, particularly vis-a-vis immigration." He continues, "I have seen an enforcement policy . . . that has failed to differentiate between the innocent and the guilty."
Cole says that the cases against his clients were all based on the same reductive approach. "Their charges were essentially nothing more than guilt by association." One man, Mazen Al Najjar, a college professor, was held on charges that turned out to be based on his academic associations.
And for Cole, the "most troubling provisions" in the recent USA PATRIOT Act, passed since the terrorist attacks on September 11, are its immigration provisions. Attorney General John Ashcroft has announced a drive based on the act to block entry to and deport people who support terrorist activities based on their affiliation with one or more of forty-six officially designated terrorist groups.
The increased use of secret evidence and guilt by association is particularly troubling now, because before the attacks there had been a movement in public opinion against these two practices. Both President George Bush and Attorney General Ashcroft had expressed concerns about the use of secret evidence in the previous year, and a Secret Evidence Repeal Act had significant support in congress.
Cole asserts that these prosecutorial tactics are attractive to law enforcement because it is much easier to prove association with an outlawed group than to prove criminal conduct. However, he maintains that they violate constitutional standards of free association and individual responsibility. "If we sacrifice our most basic principles of freedom in the name of saving our country, what have we saved?" he asks.
And he adds one additional, pragmatic concern. The targeting of an entire ethnic community tends to alienate its people and breed extremism. Cole suggests that a better way to promote security is to "build bridges to the majority of law-abiding citizens in the community."
The Human Rights Workshop is sponsored by the Orville H. Schell, Jr., Center for International Human Rights at Yale Law School.