Courthouse News Service reports that U.S. District Court Judge George Daniels “has ordered Israel’s top informant against Palestinian militants, who was the son of a Hamas founder, to turn over copies of his secret communications with the Israeli government, his application for political asylum in the United States and materials he used to write a memoir about working as a spy.” And who has the informant been ordered to turn over this information to? The Palestinian Authority, of course, which is one of the organization that might persecute him if he returns to Palestine. If this report is accurate, it would represent an outrageous violation of an asylum seeker’s right to confidentiality.
First, a bit of background. Mosab Hassan Yousef is the son of Sheikh Hassan Yousef, a founding member of Hamas. The younger Yousef converted to Christianity, worked undercover to stop terrorist attacks against Israel, and wrote a book about his experience. An Immigration Judge granted his application for asylum last year and he has been living in the U.S. ever since. I’ve written about him before, here and here (sorry for misspelling his name!).
The subpoena was filed in a case called Sokolow v. Palestinian Liberation Organization and Palestinian Authority, which is currently pending in the Southern District of New York. The plaintiffs claim that the PLO and the PA were responsible for terrorist attacks that killed their family members. The defendants in the case filed a subpoena seeking information from Mr. Yousef, including “All documents related to Mosab Hassan Yousef’s application for political asylum in the United States of America.” Presumably, the defendants hope that Ms. Yousef has information exonerating them in the terrorist attacks.
I am but a humble immigration lawyer, and so I don’t often deal with things like subpoenas. But I remember from my days as a litigator that there is such a thing as a motion to quash, which can be used to nullify a subpoena in certain instances. It seems to me that there are several bases for such a motion here:
First, asylum applications are confidential. Mr. Yousef’s application may contain the names of witnesses or other people who still live in Palestine, and who could face retaliation if their names became known. Further, Mr. Yousef himself might face problems if the details of his case is revealed to the same government that he fears (not to mention the fact that this would set a terrible precedent for all asylum seekers).
Second, the possibility that Mr. Yousef would have information about the specific terrorist attacks in question seems pretty remote. While discovery in civil cases is quite broad, it is not unlimited. Here, unless there is some reason to believe that Mr. Yousef knows about the attacks, this request looks like a “fishing expedition” (as we litigators say).
Finally, for obvious policy reasons, we want people to report possible terrorist attacks to the authorities. Again for obvious reasons, such people would be less likely to report planned attacks if they believed their names might become public after the fact. If this subpoena is allowed, it will discourage others from reporting possible attacks, so it is clearly bad from a public policy standpoint.
Based on the Courthouse News Service report, it appears that the Judge approved the subpoena, but there is nothing mentioned about a motion to quash by Mr. Yousef. For the sake of Mr. Yousef and others like him, I hope that he will respond with a motion to quash, which the Judge will duly grant.
Though once in a while a very special and extraordinary circumstance might occur that can override the principle of confidentiality (such being told directly the whereabouts of a currently kidnapped victim by a non-English or limited English speaker ), all must bear in mind that this cannon is one of the foremost importance.