< Exhibit A: The Press

Transcript

Friday, June 24, 2005

BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone. Recent deportation cases in the country's immigration courts have lawyers concerned about what they call the government's latest tool in the war on terror - journalism. From KPCC in Los Angeles, reporter Rob Schmitz has the story.

ROB SCHMITZ: On July 27th of last year at 4:45 in the morning, Entisar and Abdel Jabar Hamdan were sleeping.

ENTISAR HAMDAN: And I heard the doorbell ring, so I thought maybe I'm dreaming or something. Then I heard it again. So, you know, I start getting up. Then, start banging on the door, you know.

ROB SCHMITZ: They hurried downstairs and asked who it was. The FBI, a man replied. Entisar grabbed a scarf to cover her head.

ENTISAR HAMDAN: So we opened the door, and nine of them came in the house, and at that moment, you know, like you're in a movie or something.

ROB SCHMITZ: She says the agents pointed their guns at the couple, told them to sit down, and then searched the house. They told Mr. Hamdan to take off his wedding ring and his watch. They handcuffed him, told Mrs. Hamdan to have a nice day, and then left. An immigrant from Jordan who has lived in the U.S. for 25 years, Hamdan has been held at a federal detention facility in San Pedro for nearly a year, declared a national security threat. The government says Hamdan's former employer, the Dallas-based Holy Foundation, raised money for the terrorist group Hamas. It accuses Hamdan of knowing about the connection. ACLU lawyer Ranjana Natraajan says while preparing Hamdan's defense, she noticed something peculiar about the exhibits the government was using as evidence.

RANJANA NATRAAJAN: The government used dozens upon dozens of newspaper articles in their case, and for example, they had many, many articles talking about terrorist incidents in Israel that had nothing to do with Mr. Hamdan, with the Holy Land Foundation or any of the allegations in the case.

ROB SCHMITZ: It's common knowledge among legal scholars that in a criminal court, journalism normally is regarded as hearsay. Judges rarely allow it to be entered as evidence for what Natraajan calls good reason.

RANJANA NATRAAJAN: Newspaper articles are notoriously unreliable, and they're not, for example, sworn testimony that you get in a court, and that's why they're almost never used.

ROB SCHMITZ: That is, in criminal court. But journalism does show up in immigration cases, now more than ever. According to the American Immigration Lawyers Assocation, since 9/11, the government has increasingly used journalism to bolster deportation cases against people accused of ties with terrorism. Denise Sabah is the general counsel for the association.

DENISE SABAH: For instance, if it was Hamas, and they think that the person was involved with Hamas, then there is a tremendous amount of articles about Hamas, but there isn't articles about the individual that's related to Hamas, and it appears that the purpose of these articles is to talk about the terrorist organization but not really talk about the nexus of the individual's activities with that organization.

ROB SCHMITZ: University of Southern California immigration law professor Niels Frenzen sees the increased use of journalism in these cases as one way the government can avoid having its evidence or its witnesses scrutinized.

NIELS FRENZEN: They recognize there are holes in that information, or even worse, they know that there is exculpatory information that their intelligence agents might have, and they simply do not want to make that available in immigration court so that that officer would be cross-examined.

ROB SCHMITZ: Instead, claims Frenzen, the government uses a newspaper article with similar information, knowing full well a journalist will most likely resist a subpoena.

NIELS FRENZEN: They know they couldn't get away with this in criminal court, and they would never be able to convict this individual, so they're trying to do what they can't do in criminal court, in immigration court, where the rules are just so much more relaxed.

ROB SCHMITZ: It's true that rules of evidence are less stringent in immigration courts but Temple law professor Jan Ting says that doesn't mean anything. Ting is a former assistant commissioner of the INS, and he says it's up to an immigration judge to take all the evidence into consideration when making a decision. A few sensational allegations written up in a newspaper story, he says, won't swing a case the government's way.

JAN TING: The immigration judge is much less likely than a lay jury to be unduly swayed by journalism. So I honestly cannot see what the problem here is.

ROB SCHMITZ: Laurie Rosenberg, now retired, served as a judge on the Bureau of Immigration Appeals for seven years, the nation's highest immigration court. She says the government's use of newspaper articles in these cases is disturbing.

LAURIE ROSENBERG: I think that the purpose that these are being provided is to say to the judge, look at how bad these groups are, look at how much violence, death, disregard for human life, mistreatment of civilians they have engaged in, although that doesn't really say anything about the respondent, so it is a guilt by association technique. There's no question about it.

ROB SCHMITZ: And if government prosecutors are relying on guilt by association in cases where they're trying to establish something as serious as terrorism, Rosenberg says it won't really protect the security of U.S. citizens in the long run.

LAURIE ROSENBERG: I also have a problem with it because I think it leads to incredible injustices, and it's not just something that's developed since 9/11, but we've seen situations throughout history where the whole idea of guilt by association has ruined people's lives needlessly. I mean, I think back to the McCarthy era, when I'm seeing this.

ROB SCHMITZ: In Hamdan's case, lawyer Natraajan says the evidence the government used to establish Hamdan's organization as a terrorist group was another example of guilt by association. In 2001, the Holy Land Foundation was put on the government's list of terrorist groups. The Foundation challenged this designation in federal court, citing a lack of sufficient evidence. Almost one half of the exhibits the government entered into evidence was made up of 90 newspaper articles, including one written by former USA Today reporter Jack Kelley. Kelley was later fired by the newspaper in a scandal that revealed he had fabricated and plagiarized numerous stories for the paper, including the story the government used to establish the Holy Land Foundation as a terrorist organization. Manny Van Pelt is a spokesman for the Department of Homeland Security. He says the evidence against the Holy Land Foundation was challenged all the way up to a federal court of appeals, and at each stage, the Holy Land Foundation lost. As to Hamdan's case, he says the government's case for deporting an immigrant rarely hinges on newspaper articles. Moreover, immigrants themselves use the same kind of evidence when seeking asylum in the U.S.

MANNY VAN PELT: Well, you know, you have to remember that the aliens and their attorneys enter news articles, video footage, you know, State Department reports, advocacy reports and other public documents all the time.

ROB SCHMITZ: One journalist whose work was used in the case to attempt to deport Hamdan and at least three other people since 9/11 is Steve McGonigle with the Dallas Morning News. In 1996, he wrote about potential ties the Holy Land Foundation had with Hamas.

STEVE McGONIGLE: I did not write these stories for the government. I did not write these stories for the Holy Land Foundation or its employees. I wrote these stories for, you know, general readership purposes, and I think for any journalist, having your stories used in a, in a prosecutorial way is unsettling.

ROB SCHMITZ: While legal experts and journalists debate this issue, Abdel Jabar Hamdan sits in a cell at a federal detention facility in San Pedro. He's entering his 12th month there, as his lawyers appeal his case to the Board of Immigration Appeals. Hamdan says he and his wife came to the United States and raised their six children here because people in Jordan have limited rights. Despite his situation, he says he still hasn't lost faith in America's justice system. For On the Media, I'm Rob Schmitz in Los Angeles. [MUSIC]