A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration System

Abstract:     
This article addresses two of the most pressing issues facing our society today - rights violations in anti-terrorism efforts and dysfunction in the immigration system - through a case study of the use of secret evidence in immigration proceedings. Cataloguing the government's repeated presentation of unreliable and inaccurate information in support of its efforts to deport suspected terrorists, the paper outlines the individual, societal, and global harms resulting from this misuse of secret evidence. It then discusses relevant human rights law, which offers a particularly appropriate mechanism to address these harms through its careful balancing of national security interests and due process rights. The article advocates the use of human rights law as a guidebook and a yardstick to reform the administrative immigration process through statutory interpretation, regulation drafting, and institutional culture creation.

Keywords: immigration law, international human rights law, secret evidence, convention against torture, refugee, administrative law, terrorism, due process

JEL Classifications: K33, K49

Accepted Paper Series