File under D for D'oh!
The information in the newly declassified documents was surprising, but not for the reasons one might suspect. There were no accusations of past terrorist activities, no allegations of plans to smuggle chemical weapons into the United States or to engage in acts of espionage against any of the six detainees. Instead, the list of allegations within the declassified FBI documents was surprisingly short, consisting of mostly unsubstantiated hearsay and conflicting testimony from unnamed "walk-in sources," many of them refugees also seeking asylum who were willing to lie about fellow refugees to secure their own passage into the United States.
Racial and cultural biases may also have played a role in the botched FBI case. Special Agent Mark Merfalen said of one Iraqi suspect at his immigration hearing, "I didn't like [his] whole demeanor when I was talking to him. He had this kind of smug look." At the same hearing, Merfalen added that people from the Middle East tend to "lie an awful lot." Another agent said, "[W]e were told -- and this I actually learned through mistakes in dealing with Arabs -- there is no guilt in the Arab world." He added that, to Arabs, "there is no guilt associated [with lying]. In other words, if I lied to you, I'd feel bad that I didn't do what I knew I should do. But ... that's part of doing business."
After the FBI investigation concluded, the information the agency had gathered was somehow erroneously classified as secret by the FBI. Some of the material was declassified only a year later, when Senators Trent Lott, Orrin Hatch, and Jesse Helms (presumably guided more by a sense of loyalty to backers of U.S. policy in Iraq than by a concern over immigrant rights) began questioning its use by the INS. The FBI claims that the second look at the documents was not the result of any political or media pressure, but simply due to a random audit.
How the documents came to be erroneously classified in the first place, however, remains a mystery. According to Niels Frenzen, lead attorney for the Iraqi Six, "We sought clarification from the INS informally and have asked the senators to talk about it, and we've just never gotten a good answer. It's not that we haven't gotten a good answer; we haven't gotten any answer."
Today, the attorneys for the Iraqi Six have many of the declassified documents, but the FBI still maintains that it has more information (legitimately classified this time) that implicates the Iraqis.
The deal signed by five of the six detainees -- deportation to a neutral country -- allows the INS to avoid a huge political and public relations nightmare in which it would have to answer for the near deportation of men who -- at their own peril -- had assisted the United States in its highly visible campaign against Iraq.
But the deal came with a big catch for the Iraqis: The five have to "admit" that they entered the United States illegally and forfeit all rights to an appeal. Some thanks.
While attention from the case has prompted a full review by the U.S. Attorney General's office of all cases involving secret evidence, the FBI has, to this date, refused to release any information about the rest of the still-classified documents on the Iraqi Six. These documents may still come back to haunt Dr. Ali Yassin Mohammed-Karim, the one holdout who has refused the INS deal and is insisting on a retrial.
Because of the complex nature of the case, the immigration judge has said the retrial could possibly take nearly a year, which means that Ali will probably remain in prison well into the year 2000. In the meantime, the other five refugees will remain under house arrest in Lincoln, Neb., subject to wiretaps, curfews, and random searches and surveillance of their homes and vehicles, until neutral countries can be found to accept them.
While Frenzen sees his clients' current situation as "tragic," he hopes that this case will have a major impact on the use of secret evidence in future immigration hearings. "There's definitely enough blame to be shared with the FBI, the CIA and the Justice Department, but the INS is the agency that took this secret evidence knowing that it was a bunch of worthless rumors and innuendoes and ran with it," he says. "They shot themselves in the foot, and have increased the likelihood that there are going to be some significant legislative changes."