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In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center Wednesday. Although the court did not directly address the constitutionality of the 1996 law that allows the use of so-called “secret evidence,” the unanimous three-judge panel strongly endorsed the government’s right to defend the law’s constitutionality. As a result, the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were “substantially justified” even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge. “In immigration matters, the government may not always be able to prove its case by clear, convincing and unequivocal evidence, but this should never deter its assiduous search to weed out from our midst those who would destroy us,” Senior 3rd Circuit Judge Ruggero J. Aldisert wrote. The face of the opinion in Kiareldeen v. Ashcroft bears an eerily significant date. The case was submitted Sept. 10, just one day before the terrorist attacks on the World Trade Center and the Pentagon. The events of Sept. 11 are mentioned several times in the decision, but it’s impossible to determine if they had any effect on the outcome of the case. The ruling does not affect Kiareldeen’s status because the government opted not to appeal the trial judge’s decision to grant him a writ of habeas corpus on the grounds that the U.S. Immigration and Naturalization Service had failed to prove its case for deporting him. Kiareldeen is an ethnic Palestinian and Israeli citizen who entered the United States on a student visa in April 1990. He then violated the specific terms of his visa by remaining in the United States after completing his studies in 1994. In March 1998, the INS moved to deport Kiareldeen for failing to comply with the terms of his visa. He was ordered held without bond pending the outcome of his deportation hearing. Kiareldeen admitted that he violated the terms of his visa, but sought an adjustment of status based on his marriage to a U.S. citizen. The INS opposed the adjustment of status with evidence that Kiareldeen had filed a false birth certificate with the immigration judge. Government lawyers also submitted classified evidence to the immigration judge, in camera and ex parte, alleging that Kiareldeen was a member of a foreign terrorist organization; that he was involved in a meeting planning the 1993 attack on the World Trade Center one week prior to the actual attack, at which a suicide bombing was discussed; and that he later threatened to kill Attorney General Janet Reno for her role in convicting those responsible for the 1993 bombing of the World Trade Center. The INS provided Kiareldeen with several unclassified summaries of the FBI’s classified evidence against him. Kiareldeen responded to the accusations with character witness testimony from family and friends, and evidence that he said rebutted some of the claims in the unclassified summaries. An immigration judge granted his application for adjustment of status and awarded Kiareldeen conditional permanent resident status. The Board of Immigration Appeals stayed Kiareldeen’s release, but later upheld the immigration judge’s decision, finding that Kiareldeen’s due process rights were violated by the government’s reliance on classified information, which denied him both meaningful notice and an opportunity to confront the evidence. Kiareldeen had also filed a petition for a writ of habeas corpus, and U.S. District Judge William H. Walls of the District of New Jersey ruled that the government had failed to prove its case. Walls also awarded Kiareldeen $110,743 in attorney fees after finding that the government’s position was not substantially justified. Now the 3rd Circuit has ruled that Walls abused his discretion in awarding the fees because the government was justified in moving for Kiareldeen’s deportation and in defending the constitutionality of using classified or “secret” evidence. Judge Aldisert, in an opinion joined by 3rd Circuit Judges Carol Los Mansmann and Marjorie O. Rendell, stressed the only issue before the court was the grant of attorney fees and costs. As a result, Aldisert said, the only issue in the appeal was whether “the position of the United States was substantially justified.” The government argued that it was justified in seeking Kiareldeen’s removal from the United States because of the evidence presented by the FBI’s Joint Terrorism Task Force. In prosecuting its case, the government relied on the alleged statements of Nidal Ayyad and Sheikh Omar Abdel Rahman in order to implicate Kiareldeen in the 1993 bombing. Aldisert found that the events of Sept. 11 showed that the FBI’s information was “eerie, if not prescient.” “In light of the pummeling that the FBI received following the Sept. 11th tragedy for not possessing sufficient intelligence materials, consider the … information revealed by its sources in 1998, dealing with a meeting at which Kiareldeen was allegedly present,” Aldisert wrote. An FBI source reported that one week before the 1993 bombing of the World Trade Center, Kiareldeen was present at a meeting with several individuals who were talking about plans to bomb the WTC. The meeting took place at Kiareldeen’s residence in Nutley, N.J. According to a source, Nidal Ayyad, who was later convicted for his role in the 1993 bombing, was present at this meeting. The source also said Ayyad suggested to the sheikh that a suicide bombing should be attempted on the World Trade Center. Aldisert found that the FBI’s information “understandably created apprehension on the part of the Joint Terrorism Task Force, alerting the government to take all necessary action to investigate all leads and assure the defense of our nation.” On Sept. 11, 2001 — slightly more than two years after the government supplied the information to both the INS and the trial judge in Kiareldeen’s case — Aldisert found that “the convicted terrorist’s suggestion became a reality.” In the appeal, Kiareldeen argued that his detainment was unlawful because it was based solely upon classified evidence. He also said he was denied the due process rights of meaningful notice and opportunity to respond. Aldisert disagreed, saying, “The favorable outcomes in both the administrative and district court proceedings severely dilute the efficacy of this contention.” The government supplied Kiareldeen with several unclassified summaries of the information, Aldisert noted, and Kiareldeen used them to mount a successful defense. “In light of this favorable outcome, it seems rather disingenuous to now assert that the classified summaries the government provided were insufficient to adequately respond to the allegations,” Aldisert wrote. Walls, in awarding Kiareldeen attorney fees, attacked the credibility of the summaries directly, describing them as “lacking in either detail or attribution to reliable sources.” Aldisert was harshly critical of Walls’ reasoning. “That the FBI would be unwilling to compromise national security by revealing its undercover sources, is both understandable and comforting. That a court would then choose to criticize the FBI for being unwilling to risk undermining its covert operations against terrorists is somewhat unnerving,” Aldisert wrote. Walls also criticized the government for its apparent unwillingness to also bring criminal charges against Kiareldeen, saying, “Even the government does not find its own allegations sufficiently serious to commence criminal proceedings.” Aldisert lashed out again, saying, “This statement illustrates both a simplistic and entirely uninformed view of the processes by which the Justice Department investigates and deals with suspected terrorists within our borders. It completely disregards the often complex determinations involved in releasing confidential counter-terrorism intelligence into the public arena through its introduction into both administrative hearings and court proceedings.” Such a criticism, Aldisert said, “implies that the government may only utilize information against an individual in a civil context, such as in deportation procedures, if it also intends to commence criminal proceedings against that same individual. Such a fettering of the executive branch has no support in either case law or statute.” ATTORNEY FEES Aldisert also rejected Walls’ decision to award attorney fees, saying courts must not “assume that the government’s position was not substantially justified simply because the government lost on the merits.” Such rulings, Aldisert said, could “force lower-level supervisors in anti-terrorist investigations to utilize a cost/benefit analysis in deciding which cases to pursue. Rather than simply pursuing individuals and groups against which the government had the strongest case, they might be reluctant to pursue any case in which a sizable fiscal loss could result.” Aldisert said Walls “understandably felt shackled by the government’s unwillingness to provide Kiareldeen the names and addresses of its counter-terrorism personnel, both in uniform and in civilian clothes.” Despite that fact, Aldisert said, “the public fisc should not lightly be exposed to financial penalties when the war on terrorism is transferred from the domestic battlefield that our country has become, to the vacuum-sealed environment of a federal courtroom, with such civilized accouterments as burdens of proof and axioms of evidence.”

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