The Use of Secret Courts, in Intelligence or Immigration

By Dan Cadman on February 15, 2018

Sometimes where you stand on an issue depends on where you sit. It's all a matter of perspective.

Recently, CNN news anchor Chris Cuomo sparred on-air with Rep. Jim Jordan (R-Ohio) over whether or not the FBI abused its power and deceived the secretive Foreign Intelligence Surveillance Court (FISC, sometimes called "FISA" after the act creating it) when seeking a warrant (and then multiple reauthorizations) to surveil members of the Trump campaign. This, of course, has been a hotly debated subject for quite some time, and was fueled by release of the House Intelligence Committee memorandum by Chairman Devin Nunez.

Even declaring the winner of the Cuomo-Jordan spat was subject to debate in our hotly partisan times. The Week declared Cuomo the winner and described Jordan as "flailing". The Daily Caller, on the other hand, chose to focus on Cuomo's famously liberal views, and his connections to his brother, Democratic New York Governor Andrew Cuomo.

The possible abuse by the FBI will of course continue to be debated until the actual application(s) for the serially obtained warrants are released, although I lean toward Rep. Jordan's view that the application was skewed and deliberately obscured the reliability and overtly political source of the information used to support the warrant request. Yet I also doubt that the applications will ever see the light of day because, rightly or wrongly, they are classified, as is pretty much everything that the court deals with on a substantive basis.

But — and here is the connection to immigration matters, for those of you who are wondering — what I found interesting and curious in both Cuomo's and The Week's depictions is the genteel way that the FISC is depicted. Each are reliably "progressive" in outlook — Cuomo particularly so in matters of immigration (see here, for example).

The reason I find the reactions of Cuomo and The Week curious is because liberals are usually extremely suspicious of court matters of any kind that are withheld from the public eye, often referring to them as "Star Chambers", or Kafkaesque, or the like. Notwithstanding this, Cuomo took great exception to Rep. Jordan referring to the FISC as "secret" even though it self-evidently is a court that conducts all of its proceedings in a closed environment, well outside of the public eye, because of the classified nature of the work it oversees.

Having had several years of experience within the Immigration and Naturalization Service (INS), where I worked closely with FBI and other intelligence community officials, I'm familiar with proceedings that are closed to public view because they inherently involve the use of classified information.

One such proceeding arises in the immigration context: When aliens are accused of being removable from the United States on certain national security or terrorism grounds, it frequently arises that the proceedings must be held in a closed environment because the evidence on which those grounds are based is classified. The evidence is received "in camera", which is to say, in chambers and outside of the view of the public, and often even of the alien or his counsel, although they are instead given a general, unclassified summary of the nature of the evidence that forms the basis of the removal charge.

I can speak from personal experience when I say that such proceedings have been vilified in exactly the terms I've described, whenever they've been attempted. I can also speak from experience when I say that many attorneys general were uncomfortable with use of such proceedings, and one, Janet Reno, absolutely refused to permit several such cases to go forward in any way, shape, or form, despite the fact that removal proceedings are civil in nature, not criminal, and even though both the INS and FBI (and sometimes other agencies as well) strongly urged her to do so.

Even the incoming Bush II administration, which saw Reno replaced with another attorney general, remained highly uncomfortable with the notion of secret immigration proceedings, although post 9/11 it oversaw the creation of exactly such secret proceedings in relation to military tribunals against enemy terrorists and combatants held at the Navy brig in Guantanamo Bay.

Although the INS no longer exists, having been superseded by passage of the 2002 Homeland Security Act, the guidelines for such proceedings still exist at least theoretically, having been promulgated after creation of the Department of Homeland Security (DHS). However, I know of no case in which they have been applied.

The problem with a hesitancy in using such proceedings to take terrorists and spies into custody and deport them is that it leaves the country vulnerable because the FBI and intelligence agencies are then left with the uncomfortable situation of having to constantly electronically and physically surveil such individuals hoping to catch them right at the cusp of a criminal act (one potentially horrendous or lethal, or one in which our most closely guarded defense plans might be stolen), but before the actual harm can be done.

This is a high-wire balancing act in each and every case. Multiply the number of cases involving such suspects by the dozens, even the hundreds (and this is no exaggeration), and one is left asking why such proceedings aren't being used.

And I await the moment when they are. You can be certain that the alien's counsel will ensure that the media are alerted to this "Star Chamber" effort in an effort to sway public opinion and stir official outrage in the legislature or elsewhere.

I will be looking closely to see whether the response by Cuomo and other progressive-leaning media pundits and outlets, or those in our Congress, are consistent in their approach across all forms of "secret" courts — because they must understand that national security and public safety are no less at stake, whether in the Foreign Intelligence Surveillance Court or in classified proceedings conducted in the immigration courts of the United States.