SPEAKERS CONTENTS INSERTS
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64–352
2000
SECRET EVIDENCE REPEAL ACT OF 1999,
PART I
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 2121
FEBRUARY 10, 2000
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Serial No. 97
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
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LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
HEARING DATE
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February 10, 2000
TEXT OF BILL
H.R. 2121
OPENING STATEMENT
Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Al-Arian, Nahla
Bonior, Hon. David, a Representative in Congress From the State of Michigan
Campbell, Hon. Tom, a Representative in Congress From the State of California
Cole, David, Professor, Georgetown University Law Center
Parkinson, Larry R., General Counsel, Federal Bureau of Investigation
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Al-Arian, Nahla: Prepared statement
Campbell, Hon. Tom, a Representative in Congress From the State of California: Prepared statement
Cole, David, Professor, Georgetown University Law Center: Prepared statement
Conyers, Hon. John, Jr., a Representative in Congress From the State of Michigan: Prepared statement
Parkinson, Larry R., General Counsel, Federal Bureau of Investigation: Prepared statement
Ramer, Bruce M., on behalf of the American Jewish Committee: Prepared statement
Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
APPENDIX
Material submitted for the record
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SECRET EVIDENCE REPEAL ACT OF 1999, PART I
THURSDAY, FEBRUARY 10, 2000
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. in room 2226, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.
Members present: Representatives Lamar S. Smith, Sheila Jackson Lee, Howard L. Berman, Edward A. Pease, Bob Goodlatte, John Conyers, Jr., and Joe Scarborough.
Staff present: George Fishman, Jim Wilon, Kelly Dixon, Leon Buck, and Nolan Rappaport.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
We have the requisite number of members present. However, we have just had a journal vote call, so we are going to briefly recess, go vote on the journal, and then when we return we will resume the hearing. We will start off with Congressman Campbell and Congressman Bonior testifying on their bill.
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[Recess.]
Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene. And just to explain to you all who are present, the order of business this morning, we are first going to have a hearing on the Secret Evidence Repeal Act of 1999, a bill authored by Representative Campbell and Representative Bonior. After that hearing we will be having another hearing, separate and apart, on the Visa Waiver Pilot Program.
For those of you who are interested in the second hearing, just so you can perhaps plan your morning or afternoon, I anticipate that this hearing will be finished about 11. We will begin the second hearing at 11:00, go until 12:00, take a break and come back from 1 to 2. So we hope to be finished with the second hearing around 2 this afternoon.
We are going to proceed. I have an opening statement. I expect the ranking member, Sheila Jackson Lee, to be present momentarily, and then recognize other members for their opening statements as well.
The United States faces a growing threat from international terrorism. Twenty years ago, Americans regraded terrorism as something that only threatened other countries. But since 1983, Americans have suffered deadly attacks, including the car bombing of U.S. Marines in Beirut, the bombing of U.S. troops in a Berlin nightclub, the bombing of Pan Am Flight 103, the World Trade Center bombing, the truck bombing of U.S. troops in Dhahran, and the bombing of U.S. embassies in Kenya and Tanzania.
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These tragedies, along with close calls like the foiled Brooklyn subway bombing and the recent capture of Algerians smuggling bombs across the Canadian border, shattered the image of American invincibility to terrorism. When terrorists try to enter the United States, the INS, with help from other law enforcement and intelligence agencies, is responsible for protecting national security by excluding them. Similarly, when terrorists succeed in getting past the border, the INS must locate and deport them.
In some cases, the INS must rely on highly sensitive information that is classified for national security purposes. The evidence is presented to immigration judges presiding over removal proceedings but is not disclosed to the alien, because disclosure arguably would endanger U.S. intelligence sources and operations abroad.
Federal court cases have established the INS' right to use classified evidence ex parte to deny admission to terrorists or deny claims of relief made by illegal alien terrorists who are trying to avoid deportation. This law was codified by the 1996 immigration reforms, which also created the alien terrorist removal court, where classified evidence may be used as affirmative grounds to deport terrorists.
Classified evidence is rarely used and requires high level authorization. The Attorney General or Deputy Attorney General must personally certify that the alien is a terrorist and that the public disclosure of evidence would threaten national security. Out of 300,000 immigration court proceedings brought by the INS each year, fewer than 20 involve ex parte classified evidence.
Three criticisms have been leveled at the use of classified evidence. First, opponents say that it denies the alien the opportunity to see all the evidence against him or her. Supporters respond that deportation proceedings are not criminal trials, they are preventive measures taken to protect Americans from threats to their safety and security. Supporters also argue that the Government should not have to choose between endangering its intelligence sources or allowing terrorists to roam freely in the United States.
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Second, because almost all of the affected aliens have been from the Middle East, Arab-American organizations have questioned whether the INS is unfairly biased against Middle Eastern immigrants. Supporters of classified evidence respond that much of the terrorist threat to the United States is primarily from Middle Eastern groups.
Third, the media has reported a number of cases where alleged terrorists were detained for long periods of time based on classified evidence but then ultimately released. Questions have been raised regarding the necessity of these detentions and the quality of the classified evidence used, especially when the aliens were ultimately released.
H.R. 2121, authored by Representatives Campbell and Bonior, would prohibit the U.S. Government from using classified evidence ex parte in immigration proceedings. In addition, H.R. 2121 would prohibit the Government from using undisclosed classified evidence to deny immigration benefits, including asylum, permanent residence and United States citizenship. The bill would also prohibit the use of such evidence to deny admission to the United States.
[The bill, H.R. 2121, follows:]
106TH CONGRESS
1ST SESSION
H. R. 2121
To ensure that no alien is removed, denied a benefit under the Immigration and Nationality Act, or otherwise deprived of liberty, based on evidence that is kept secret from the alien.
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IN THE HOUSE OF REPRESENTATIVES
JUNE 10, 1999
Mr. BONIOR (for himself and Mr. CAMPBELL, Mr. BARR of Georgia, and Mr. CONYERS) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To ensure that no alien is removed, denied a benefit under the Immigration and Nationality Act, or otherwise deprived of liberty, based on evidence that is kept secret from the alien.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Secret Evidence Repeal Act of 1999''.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) No person physically present in the United States, including its outlying possessions, should be deprived of liberty based on evidence kept secret from that person, including information classified for national security reasons.
(2) Removal from the United States can separate a person from the person's family, may expose the person to persecution and torture, and amounts to a severe deprivation of liberty.
(3) Use of secret evidence in immigration proceedings deprives the alien of due process rights guaranteed under the United States Constitution and undermines our adversarial system, which relies on cross-examination as an engine of truth-seeking.
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SEC. 3. REPEAL OF SECRET EVIDENCE COURT PROCEDURES.
(a) REPEAL.—Title V of the Immigration and Nationality Act (8 U.S.C. 1531–1537) is repealed.
(b) CLERICAL AMENDMENT.—The table of contents for such Act is amended by striking the title heading, and the items, relating to title V.
SEC. 4. REPEAL OF USE OF SECRET EVIDENCE IN OTHER IMMIGRATION PROCEEDINGS.
(a) ALIEN'S RIGHTS IN PROCEEDINGS.—Section 240(b)(4)(B) of the Immigration and Nationality Act (8 U.S.C. 1229a(b)(4)(B)) is amended to read as follows:
''(B) the alien shall have a reasonable opportunity to examine all of the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine all witnesses presented by the Government, and''.
(b) BURDEN ON ALIEN.—Section 240(c)(2) of such Act (8 U.S.C. 1229a(c)(2)) is amended by striking the last sentence and inserting the following:
''In meeting the burden of proof under subparagraph (B), the alien shall have access to the alien's visa or other entry document, if any, and any other records and documents pertaining the alien's admission or presence in the United States.'''.
SEC. 5. REPEAL OF USE OF SECRET EVIDENCE TO DENY AFFIRMATIVE APPLICATIONS FOR IMMIGRATION BENEFITS.
(a) IN GENERAL.—Title I of the Immigration and Nationality Act is amended by adding at the end the following:
''SEC. 106. REPEAL OF USE OF SECRET EVIDENCE TO DENY AFFIRMATIVE APPLICATIONS FOR IMMIGRATION BENEFITS.
''No decision on any immigration benefit (including the granting of asylum, the withholding of deportation or removal, adjustment of status, naturalization, or the granting of temporary protected status) shall be made on the basis of any evidence not shared with the applicant.''.
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(b) CLERICAL AMENDMENT.—The table of sections for such Act is amended by adding at the end of the items relating to title I the following new item:
''Sec. 106. Repeal of use of secret evidence to deny affirmative applications for immigration benefits.''.
SEC. 6. REPEAL OF USE OF SECRET EVIDENCE IN BOND PROCEEDINGS AND JUDICIAL REVIEW OF BOND DETERMINATIONS.
(a) JUDICIAL REVIEW.—Section 236(e) of the Immigration and Nationality Act (8 U.S.C. 1226(e)) is amended to read as follows:
''(e) JUDICIAL REVIEW.—Notwithstanding any other provision of law, any alien against whom an order concerning detention, release on bond or parole pending or subsequent to an order of deportability, excludability, or removability shall be entitled to judicial review thereof in habeas corpus proceedings to determine whether the Attorney General is acting in violation of the laws or Constitution of the United States, or is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances of the case.''.
(b) ALIENS' RIGHTS IN BOND PROCEEDINGS.—Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following:
''(f) ALIENS' RIGHTS IN BOND PROCEEDINGS.—In proceedings under this section—
''(1) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings;
''(2) the alien shall have a reasonable opportunity to examine all of the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine all witnesses presented by the Government; and
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''(3) a complete record shall be kept of all testimony and evidence produced at the proceeding.''.
SEC. 7. REPEAL OF USE OF SECRET EVIDENCE AGAINST LAWFUL PERMANENT RESIDENTS, ASYLUM SEEKERS, AND ALIENS PAROLED INTO THE UNITED STATES.
Section 235(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1225(c)(1)) is amended by striking ''If'' and inserting: ''Except in the case of an alien who (i) is a lawful permanent resident; (ii) was granted advance parole; (iii) was paroled into the United States under section 212(d)(5); or (iv) is seeking asylum, if''.
SEC. 8. TRANSITION.
(a) APPLICATION TO DETAINEES.—Not more than 30 days after the effective date of this Act, the Attorney General shall, with respect to any alien then detained or whose liberty is otherwise restricted by the Attorney General, on the basis in whole or in part of information submitted by the Government ex parte and in camera to an immigration judge, to the Board of Immigration Appeals or to any court—
(1) provide such alien a copy or transcript of such information, and provide the alien with a redetermination of bond (or a reconsideration of the terms of custody, as the case may be) based on evidence disclosed to the alien and the alien's response to such evidence; or
(2) withdraw from the record of any proceedings involving such alien any and all evidence, testimony, or other information submitted by the Government ex parte and in camera to the immigration judge, the Board of Immigration Appeals, or to any court, as the case may be, and—
(A) release such alien if such alien is detained; and
(B) cease all restrictions on the liberty of such alien if such restrictions exist,
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unless detention is warranted solely on the basis of evidence disclosed to the alien; or
(3) release such alien.
(b) APPLICATION TO ALIENS SEEKING IMMIGRATION BENEFITS.—Not more than 30 days after the effective date of this Act, the Attorney General shall, with respect to any alien physically present in the United States whose application for an immigration benefit is or was opposed by the Government on the basis in whole or in part of information submitted by the Government ex parte and in camera to an immigration judge, to the Board of Immigration Appeals, or to any court—
(1) provide such alien a copy or transcript of such information and a reasonable opportunity to respond to such information, and grant or deny the application or reopen the proceedings and afford the alien de novo reconsideration of the application, as the case may be, based solely on evidence in the public record; or
(2) withdraw from the record of any proceedings involving such alien any and all evidence, testimony, or other information submitted by the Government ex parte and in camera to the immigration judge, the Board of Immigration Appeals, or to any court, as the case may be, and grant or deny the application or reopen the proceedings and afford the alien de novo reconsideration of the application, as the case may be, based solely on evidence in the public record; or
(3) grant the application.
(c) TERMINATION OF PROCEEDINGS.—In the case of an alien in immigration proceedings as of the effective date of this Act conducted under title V of the Immigration and Nationality Act—
(1) such proceedings are terminated as of the effective date of this Act without prejudice to the Attorney General or the alien; and
(2) the Attorney General may, in his or her discretion, commence de novo removal proceedings within 10 days thereafter under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).
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SEC. 9. REGULATIONS.
The Attorney General shall promulgate regulations, including regulations governing applications for asylum, withholding of deportation or removal, adjustment of status, naturalization, temporary protected status, and relief from deportation, exclusion, or removal to implement this Act not more than 90 days after the effective date of this Act.
SEC. 10. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to all aliens without regard to the date of arrival, admission, entry, or parole into the United States.
Mr. SMITH. H.R. 2121 would give all detained aliens the additional right to challenge their detention by filing habeas corpus petitions in Federal district court. The Government would be prohibited from using undisclosed classified evidence to prevent the release of a terrorist or other criminal alien.
This hearing will give witnesses an opportunity to address mistakes or abuses that may have occurred and discuss corrective measures that might need to be taken. Since the ranking member is not here, I will yield to the gentleman from California for any opening comments he might have.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF HON. LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
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The United States faces a growing threat from international terrorism. Twenty years ago, Americans regarded terrorism as something that only threatened other countries. But since 1983 Americans have suffered deadly attacks including the car-bombing of U.S. Marines in Beirut, the bombing of U.S. troops in a Berlin nightclub, the bombing of Pan Am flight 103, the World Trade Center bombing, the truck-bombing of U.S. troops in Dhahran, and the bombing of U.S. embassies in Kenya and Tanzania.
Those tragedies, along with close calls like the foiled Brooklyn subway bombing and the recent capture of Algerians smuggling bombs across the Canadian border, shattered the image of American invincibility to terrorism.
When terrorists try to enter the United States, the INS, with help from other law enforcement and intelligence agencies, is responsible for protecting national security by excluding them. Similarly, when terrorists succeed in getting past the border, the INS must locate and deport them. In some cases the INS must rely on highly sensitive information that is classified for national security purposes. The evidence is presented to immigration judges presiding over removal proceedings but is not disclosed to the alien, because disclosure arguably would endanger U.S. intelligence sources and operations abroad.
Federal court cases have established the INS' right to use classified evidence ex parte to deny admission to terrorists or deny claims for relief made by illegal alien terrorists who are trying to avoid deportation. This law was codified by the 1996 immigration reforms, which also created the Alien Terrorist Removal Court where classified evidence may be used as affirmative grounds to deport terrorists.
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Classified evidence is rarely used and requires high-level authorization. The Attorney General or Deputy Attorney General must personally certify that the alien is a terrorist and that public disclosure of evidence would threaten national security. Out of 300,000 immigration court proceedings brought by INS each year, fewer than 20 involve ex parte classified evidence.
Three criticisms have been leveled at the use of classified evidence. First, opponents say that it denies the alien the opportunity to see all the evidence against him. Supporters respond that deportation proceedings are not criminal trials, they are preventative measures to protect Americans from threats to their safety and security. Supporters also argue that the government should not have to choose between endangering its intelligence sources or allowing terrorists to roam freely the United States.
Second, because almost all of the affected aliens have been from the Middle East, Arab-American organizations question whether the INS is unfairly biased against Middle Eastern immigrants.
Supporters of classified evidence respond that much of the terrorist threat to the United States is primarily from Middle Eastern groups.
Third, the media has reported a number of cases where alleged terrorists were detained for long periods based on classified evidence, but then ultimately released by INS. Questions have been raised regarding the necessity of these detentions and the quality of the classified evidence used, especially when the aliens were ultimately released.
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This hearing will give witnesses an opportunity to address mistakes or abuses that may have occurred and discuss corrective measures that may be necessary.
H.R. 2121, authored by Representatives Campbell and Bonior, would prohibit the U.S. government from using classified evidence ex parte in immigration proceedings.
Specifically, it would abolish the Alien Terrorist Removal Court, making the government forego the use of undisclosed classified evidence as grounds for removal.
The bill also prohibits the use of undisclosed classified evidence against claims for relief made by illegal aliens who are trying to avoid deportation.
H.R. 2121 would prohibit the government from using undisclosed classified evidence to deny immigration benefits, including asylum, permanent residence, and United States citizenship. The bill would also prohibit the use of such evidence to deny admission to the United States.
Currently, terrorist or criminal aliens in removal proceedings or under removal orders may be detained by INS so that they do not abscond. The aliens' claims are heard and decided by immigration judges.
H.R. 2121 would give all detained aliens the additional right to challenge their detention by filing habeas corpus petitions in federal district court. The government would be prohibited from using undisclosed classified evidence to prevent the release of a terrorist or other criminal alien.
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Finally, H.R. 2121 would take effect on enactment, requiring the government either to disclose classified evidence to affected aliens or to immediately terminate all immigration proceedings against such aliens and release them from detention within 30 days.
Mr. BERMAN. Thank you very much, Mr. Chairman.
First in terms of time, I notice that we have five witnesses on an important issue. I hope we can be done by 11:00, but I don't know quite how that is going to happen. But the point I want to make, I want to offer the testimony of a witness, the National President of the AJC, the American Jewish Council, who was invited to testify at this hearing, who while critical of certain provisions of the law that applies to this issue, is a strong opponent of the repeal of this law.
In other words, he has a position opposed to the legislation that is being offered by my friends and colleagues, Mr. Campbell and Mr. Bonior. At the last moment, when his testimony, apparently as I understand it, came to the knowledge of the staff of the subcommittee, on his way to L.A. airport, (we're talking here about someone from my hometown, a friend, he is a Republican, but what can I do)—[Laughter.]—he was dis-invited, on the basis that his testimony didn't fit in with what the committee majority or the committee staff or the chairman thought was the appropriate way to take the position that the American Jewish Committee has, which as I understand it by the way, is a position on this legislation that is consistent with the chairman's position.
Obviously at a personal level I am disturbed and upset that someone I know, invited not at my request, but at the majority's request to come and testify, at the last moment has his testimony perused and they decide, because, I believe, he is critical of certain aspects of the procedures that apply, not so much from this law, but from the amendments made in the 1996 immigration bill that the chairman sponsored and led through Congress, because he is critical of some aspects of those provisions, all of a sudden, he does not have the official line and he is dis-invited, not based on time, not based on logistical questions, but simply based on the content of his comments.
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This is not the way we should be operating here. And it is also, from the point of view of sustaining the chairman's position, I believe, if I may suggest, the wrong approach. You want a broad base of people, and as broad as possible, to take your position. The fact that there are people who may not have liked aspects of the 1996 immigration bill opposing a repeal of all provisions, both in the immigration bill and the anti-terrorism bill, serves your purposes. But it requires you to have to listen to people who are somewhat critical of certain aspects of the present law and would like to see that law changed.
And I just think it is not the right way to operate the subcommittee, and I feel compelled to raise the issue. I am not going to try and make motions to see if Mr. Ramer can testify. But I would like to have his testimony offered for the record and just express my chagrin that we would operate on that basis.
Mr. SMITH. Without objection, the testimony will be made a part of the record.
[The prepared statement of Mr. Ramer follows:]
PREPARED STATEMENT OF BRUCE M. RAMER ON BEHALF OF THE AMERICAN JEWISH COMMITTEE
My name is Bruce Ramer. I am National President of the AJC, the nation's premiere human relations organization with some 100,000 members and supporters in 34 regional chapters across the United States. I am submitting this testimony to address the concerns of the American Jewish Committee with respect to the Secret Evidence Repeal Act (H.R.2121).
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Since 1906, the American Jewish Committee has fostered understanding and cooperation among Americans across religious, ethnic and racial lines. We have fought bigotry and anti-Semitism in our own country and around the world, seeking to protect Jewish communities and other religious minorities abroad while advancing the cause of human rights. We have sought, as well, to promote the civil liberties that are the bulwark of the American democratic enterprise. We have worked to strengthen the mutually beneficial relationship between the United States and Israel; in that regard, we have actively supported the Arab-Israeli peace process and the central role played by the United States in advancing that process.
As I will discuss more fully, we believe that H.R.2121's categorical ban on the use of classified information in immigration proceedings fails to draw a balance between due process concerns and national security interests, a balance for which AJC advocated during Congress' consideration of the 1996 antiterrorism law. It is a hatchet taken to a set of serious and difficult issues that require, instead, a scalpel. Before I discuss H.R. 2121, however, I want to make some brief comments on the role that AJC has played in two disparate areas—the battle against terrorism and the promotion of fair and generous immigration policy—that may be conflated within the scope of this hearing.
Firstly, the AJC has consistently advocated a broad and multifaceted response to the global and domestic threats of terrorism, including the enactment of tough legislation that is mindful of preserving the liberties we all cherish while giving law enforcement authorities the tools not only to apprehend terrorists but also, to the maximum extent feasible, to prevent the commission of such crimes. The carnage resulting from terrorist attacks—of which the Oklahoma City and World Trade Center bombings are the most notorious examples—demands a vigorous national and international response. Neither this nation, nor any other, is obligated to stand idly by while the sworn enemies of all we hold dear attack us frontally and with unspeakable brutality. And, as demonstrated by the arrest on New Year's Eve of Ahmed Ressam, who has ties to Osama bin Ladin—as he allegedly attempted to bring into the United States a rented car full of enough explosives to kill hundreds of people—terrorists continue to pose a substantial threat to the values and enduring interests of the United States, and civilized society generally.
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Secondly, and no less crucially, the AJC has a historic commitment to the United States maintaining a fair and generous immigration policy. We are mindful that in the first decades of this century, more than two million East European Jews came to America fleeing poverty and persecution, seeking freedom and opportunity, and, save a sad, long period when the gates of this nation were slammed shut to those literally seeking to escape extermination, many more of our people have followed since. Bearing in mind the contribution we and other immigrants have made to this nation, and all that this nation has meant to those who have arrived on its shores, the AJC works in many ways on the state and national levels to insure that immigrants continue to see America as a symbol of hope.
There is nothing inconsistent in assuring that law enforcement authorities are properly equipped to respond to the threat of terrorism while, at the same time, assuring that immigrants and refugees are treated fairly and decently. Against this background of firm commitment to fair treatment of immigrants, not to mention the fundamental due process protections that we all cherish, it is with regret that we must argue that those of our friends and colleagues who support the Secret Evidence Repeal Act are in error.
Over recent months, we have seen severe criticisms of the INS for its use of classified information, not shared with the potential deportee, in detaining aliens who are alleged to have been involved in terrorist activity. Such advocates have asserted that the information on which the INS relies in detaining these individuals and in seeking deportation, turns out, once revealed, to call into question the merits of the case. They further allege that the use of what they call ''secret evidence'' deprives immigrants of basic civil liberties and due process, such as the opportunity to refute evidence used to justify their deportation. By most reports, there are close to two dozen immigrants currently being held in this fashion.
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The campaign against government reliance on classified evidence was given additional momentum by two recent judicial determinations. In one case, Hany Kiareldeen was freed from a New Jersey jail in October after a federal district judge ruled that his detention violated due process because it was based on evidence that he had not had the opportunity to examine or confront, and because the government's evidence, including information made available to the court in camera, consisted of ''uncorroborated hearsay accusations which [Kiarledeen] ha[d] rebutted.'' In the other case, an immigration judge freed Nasser Ahmed from detention because, the court concluded, Mr. Ahmed successfully rebutted the INS' assertion that he was a threat to national security. The court noted that this rebuttal was only made possible once Mr. Ahmed was afforded access to a declassified version of evidence to which he had earlier been denied access altogether and cautioned against ''the possibilities for abuse'' in the use of ''secret evidence.'' The court's determination was upheld by the Board of Immigration Appeals in November. Both men still face further legal proceedings as to whether they may remain in this country.
H.R.2121 would respond to the perceived problem of the use of ''secret evidence'' by forbidding the use of classified information in any immigration proceeding, unless that information is subject to discovery and examination on the same basis as any other evidence. Current provisions of immigration law that allow the INS or the courts to rely on classified information to which an alien does not have access would be repealed, including pertinent provisions of the 1996 omnibus antiterrorism law.
But, significantly, neither of the aforementioned high-profile cases—nor any other case—has involved the special ''removal court'' procedure created by the 1996 antiterrorism act. That procedure, perhaps with some modifications, provides a far more appropriate response to a situation in which law enforcement authorities possess classified information tending to show an alien's involvement in terrorist activities.
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The procedure is set forth in a section of the 1996 antiterrorism law called the ''Alien Terrorist Removal Act'' (ATRA). ATRA establishes a removal court of lifetime-appointed federal judges (as opposed to immigration judges) with jurisdiction to hear cases to remove aliens where the Government has classified information demonstrating that the accused aliens have been engaged in terrorist activities. ATRA also establishes rules to assure that the accused has an opportunity for a fair and adequate defense, including the right to a public hearing and counsel; an opportunity to introduce exculpatory evidence; and a reasonable opportunity to examine the evidence, including an unclassified summary of the classified evidence. The special court must find that removal of the alien pursuant to usually applicable procedures ''would pose a risk to . . . national security'' before ATRA procedures may be utilized and, thereafter, in order for the case to proceed, the court must approve the unclassified summary to be provided to the alien as sufficient to allow for the preparation of a defense. The accused also has the right to appeal any adverse decision to the U.S. Court of Appeals for the District of Columbia.(see footnote 1)
It is worth noting that, during Congress' consideration of the antiterrorism law in 1995 and 1996, even as AJC called for tough and effective measures in the interest of national security, we were also concerned that any such initiatives not undermine our most fundamental due process protections, including the rights of confrontation and cross-examination. Towards that end, we were troubled by the original version of the antiterrorism bill because of its lack of adequate due process protections and endorsed, instead, an alternative bill proposed by Representatives Jerrold Nadler (D–NY), Howard Berman (D–CA), and John Conyers (D–MI). The Nadler-Berman-Conyers initiative (introduced on the House floor as a proposed substitute for the omnibus antiterrorism bill and subsequently defeated) provided a procedure for handling of classified information in the course of deportation proceedings involving alleged alien terrorists based on the existing Classified Information Procedures Act. This approach was based on the recognition that, even while the due process concerns were substantial, the use of classified information in a proceeding nevertheless requires special treatment because such information often includes sensitive material that cannot be revealed, such as the identities of well placed operatives whose lives would be jeopardized if their identities or whereabouts were revealed. The ATRA, as originally enacted, incorporated some of the concepts in the Nadler substitute, reflecting significant improvements over the original draft of ATRA in terms of the effort to address due process concerns.
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The Classified Information Procedures Act (CIPA), enacted in 1980, provides that in a federal criminal proceeding a court may, upon sufficient showing, authorize the United States to delete specific items of classified information from documents prior to disclosing them to the defendant in the course of discovery, substitute a summary of the information for the classified material or submit a statement admitting facts that the documents would tend to prove. The determination of the court as to the procedure to be followed is made after an in camera and ex parte examination of both the classified information and the summary to be provided to the defendant (if that is the course approved by the court) must be found by the court to provide the defense with substantially the same ability to mount a defense as would full disclosure of the classified information. CIPA has overwhelmingly been upheld by the federal courts against constitutional challenge.
As I indicated earlier, the ATRA has yet to be invoked. Judges have been named to sit on the removal court contemplated by ATRA. Perhaps the Justice Department, well aware that the first case brought under this procedure will precipitate a constitutional challenge, is looking for the ''right'' case. In addition, ATRA is, by its terms, to be utilized in cases where the basis for deportation is involvement of the potential deportee in terrorist activities. It is not available in cases in which classified information demonstrating such involvement is used to deny, for instance, an asylum claim or as a basis to deny release from detention while an immigration proceeding based on other grounds for deportation is under way.
Thus, ironically, while the Kiareldeen and Ahmed cases, and others reported in the press, have been cited as justification for repeal of ATRA, the ATRA procedures have not been utilized in those, or any other, cases. In reviewing the Kiareldeen and Ahmed cases, it appears that the procedures there utilized by the INS were not as protective of due process concerns as a proceeding brought pursuant to ATRA, as originally enacted, would have been. The initial proceedings were before an immigration judge, not an Article III court; no court was involved in the initial determination that the case should proceed without ordinary disclosure; and any summary of classified information provided to the potential deportee does not seem to have been reviewed by a court to determine if it was sufficient to enable the preparation of a defense.
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It is notable that both Kiareldeen and Ahmed were able to persuade the courts that they should not continue to be detained once some additional information was provided to them. Their cases thus seem to stand not for the proposition that the ATRA should be repealed in its entirety but, rather, as an argument for why the procedures of the type contemplated by ATRA, as originally enacted, are adequate and should be expanded to situations to which they are currently not applicable, such as denial of asylum or denial of release.
In any event, we are not here today to argue that the INS should be defended in every case in which it has chosen to rely upon information not disclosed to a potential deportee. As is evident from the positions AJC is taking on other immigration-related matters now before the Congress, we do not regard the INS' record in treating immigrants equitably as spotless. Nevertheless, we cannot help but observe that even advocates of the Secret Evidence Repeal Act can point to not more than about two dozen cases in which the INS has relied on undisclosed classified information in seeking deportation or detention. Even this may be too much if in fact that number includes cases based on uncredible witnesses or evidence, but it is certainly clear that INS reliance on unclassified information in immigration proceedings is rare indeed.
Further, our position with respect to H.R.2121 does not turn on whether ATRA, as enacted in the 1996 antiterrorism law, is a good model. Its provisions may well be susceptible to improvement. The Nadler substitute of 1996, as well as CIPA itself, reflects other formulations to which one may look. We understand, as well, that the Justice Department is preparing new guidelines as to procedures for the use of classified information in immigration proceedings, efforts that we hope will provide greater clarity and assure less opportunity for abuse.
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Whatever the merits of any of the foregoing approaches, the tack taken by the pending bill is untenable. H.R.2121 makes no accommodation whatsoever to the national security concerns to which the antiterrorism law—and the alternative proposed by Representatives Nadler, Berman and Conyers—were addressed. Its categorical ban on the use of classified information in immigration proceedings fails to draw the balance between due process concerns and national security interests for which AJC advocated during Congress' consideration of the antiterrorism law. We urge this committee, and the Congress as a whole, to reject the Secret Evidence Repeal Act and to adopt a more balanced approach.
Mr. SMITH. We will now go to our first panel. We have with us Congressman Campbell and Congressman Bonior.
Mr. CONYERS. Mr. Chairman?
Mr. SMITH. Oh, I am sorry, Mr. Conyers. You are recognized for an opening statement.
Mr. CONYERS. Just a comment here. I know we want to move ahead, and I ask unanimous consent that my statement appear in the hearing record.
Mr. SMITH. Without objection.
[The prepared statement of Mr. Conyers follows:]
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PREPARED STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
I am an original cosponsor of the legislation before us to overturn the secret evidence provisions of the 1996 Terrorism and immigration bills, and I want to thank my good friends and colleagues, David Bonior and Tom Campbell, for their leadership on this measure.
Imagine a place where the government accuses you of criminal activity and initiates proceedings to throw you out of your country. What is the evidence against you? The police tell you nothing. Who is saying I did these things? You can't even get a list of witnesses. You have no way of defending yourself. Sadly this is not some police state far away—it is the United States.
In the last several years every federal court which has head a secret evidence case has found it to constitute an unconstitutional denial of due process. In one of the cases, Nasser Ahmed, a 38-year-old Egyptian was denied bond and asylum based on secret evidence. The immigration judge who heard Mr. Ahmed's persecution claim said that he had ''no doubt'' that Mr. Ahmed would be tortured if returned to Egypt.
If Mr. Ahmed had been allowed to see and respond to the secret evidence that the government was using to block his asylum application, he would have won his case immediately. Instead, he was held in solitary confinement for nearly three years, until an immigration judge finally rejected the secret evidence as double and triple hearsay.
Another case involves 19-year old Mazen Al-Najjar, a stateless Palestinian in Tampa, Florida. He is about to mark his 1,000th day of detention based on secret evidence. His sister will be testifying today.
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In an other case, the D.C. Circuit aptly equated the situation of the accused, Fouad Rafeedie, with Joseph from Kafka's book, The Trial, because he could only prevail by rebutting evidence he was not permitted to see. The D.C. court observed that, ''It would be difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.''
I agree with the comments of Justice Frankfurter, who wrote 50 years ago that secret evidence ''is not congenial to truth seeking . . . No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.''
The legislation before us would not require the government to release dangerous terrorists. It would simply require the Justice Department to make a choice of revealing the evidence against the individual whose liberty is in jeopardy, or maintaining the confidentiality of the source outside of immigration proceedings. Virtually every day, prosecutors make a similar choice in criminal cases where a person's liberty is at stake and it has not affected their ability to deter and prosecute terrorists.
Mr. Chairman, thank-you for holding this hearing, and I hope we can quickly move to markup this bipartisan legislation.
Mr. CONYERS. But imagine a place where the government accuses you of a criminal activity, initiates proceedings to throw you out of your country, and what is the evidence against you? The police tell you nothing. Who is saying these things? You can't even get a list of witnesses, and you have literally no way of defending yourself.
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Sadly, this is not a police State somewhere far away, this is the United States. In the last several years, every Federal court that has heard these secret evidence cases has found secret evidence to constitute an unconstitutional denial of due process: Nassar Ahmed, Mazen Al-Najjar, and Fouad Rafitti.
Let me just remind you of what Justice Frankfurter said many years ago about secret evidence. It is not congenial to the truth seeking process. No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it. Nor has a better way been found for generating the feeling so important to a popular government that justice has been done.
And so the legislation before us would not require the government to release terrorists, it requires only that the Justice Department make a choice of revealing the evidence against the individual whose liberty is in justice, or maintaining the confidentiality of the source they seem to want to prize. And every day prosecutors make this choice. And there is no reason why we shouldn't in this case.
I am very pleased that my friend Mr. Campbell and my colleague from Michigan, Dave Bonior, have introduced the bill. I want to let you know in advance I am a co-sponsor of that bill as well. Thank you, Mr. Chairman, for holding the hearings. And I return any time that is remaining.
Mr. SMITH. Mr. Conyers, thank you for your comments.
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I also want to recognize you as the ranking member of the full Judiciary Committee and we appreciate your presence.
We will now go to the ranking member of the subcommittee, Ms. Jackson Lee, for her opening statement.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. And I thank you for holding this hearing. I thank both Representative Campbell and Representative Bonior, the minority whip and as well, join in co-sponsoring this legislation.
It is important that we come today to consider legislation that reaches for the highest ideals of the founders of our great Nation. They created a bill of rights that is supposed to work for everyone who is here in this country without exception. The immigration and anti-terrorism laws that were enacted in 1996 withdraw the promise of that document from dozens of non-citizens who face detention or possible deportation based on evidence that their attorneys may not see.
This is not particularly germane, but I just would note that many of my constituents who come from other parts of this great world have themselves had difficulties by being stereotyped because of the tan color of their skin or their last name. In particular, I received a call recently by members of my Indian community that were stopped in a city in San Antonio. Not exactly the same issue, but we must respect individuals and not prejudge. And we must allow the opportunity, of course, for a full review of documentation that would give evidence to a fair and just resolution.
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Secret evidence submitted in the form of classified information often consists of nothing more than rumor and innuendo. It is often unverified and unverifiable. It has not and cannot be tested reliably in cross examination during trial. The 1996 Anti-Terrorism and Effective Death Penalty Act established a new court charge to only hear cases in which the Government seeks to deport aliens accused of engaging in terrorist activity, based on secret evidence submitted in the form of classified information.
The 1996 Illegal Immigration Reform and Immigration Responsibility Act expanded the secret evidence so that secret evidence could be more easily used to deport even lawful, permanent residents as terrorists. It also included provisions allowing the Government to use secret evidence to deny bond to all detained non-citizens and to deny various discretionary immigration benefits, such as asylum, to all non-citizens, including those not accused of being terrorists.
Though the secret evidence court has not heard a case, the INS has moved in dozens of other proceedings to use secret evidence against non-citizens, to deny them bond and relief from deportation, such as asylum. In fact, the INS attempts to use secret evidence to deny mandatory relief from deportation, such withholding of deportation, even though it has no statutory authority to do so.
I am supporting, as I have stated, and co-sponsoring, the Secret Evidence Repeal Act of 1999, it is H.R. 2121. This bipartisan legislation would restore in immigration proceedings this most basic notion of due process under the fifth amendment to the U.S. Constitution. It would put an end to the use of secret evidence against non-citizens in deportation proceedings and promote the Supreme Court's promise that non-citizens are protected by the due process clause of the fifth amendment.
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I think this is something to reinforce and reaffirm. Virtually every secret evidence or recent secret evidence case that has come to public attention involves a Muslim or Arab. The ACLU represents one such non-citizen, Nassar Ahmed, a 37 year old Egyptian who was denied bond, asylum and withholding, based on secret evidence. The immigration judge who heard the evidence said that he had no doubt that Mr. Ahmed would tortured if returned to Egypt.
If the decision in this case had been based only on the evidence in the public record, evidence that Mr. Ahmed had a chance to challenge, Mr. Ahmed would be a free man today. Instead, he was held in solitary confinement for over 3 years, and is still being detained without being told why, and thereby given a chance to refute the accusations against him.
I have always maintained that we are a Nation of immigrants, but as well of laws. Having visited INS detention centers, there are many who have come up to me and indicated that information that they would have liked to have had or explanations they would like to have made have not been made available to them, and there they have stayed.
Secret evidence is also being used to detain in Florida without bond Mazen Al-Najjar, a stateless Palestinian. One day at breakfast with his wife, as he helped his daughters get ready for school, he answered a knock on the door. The 18 year resident of the United States was immediately detained for alleged violations of the immigration laws. When he was asked for release on bond, which is commonly granted to similarly situated non-citizens who are likely to appear for the immigration hearings because of their strong family and community ties, his request was denied based on secret evidence.
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Two years has elapsed, and the gentleman still does not know the basis for his detention. The use of secret evidence undermines our adversarial system. One cannot defend against the unknown accusations whispered to a judge by a secret accuser.
I am aware of the fact that the Department of Justice uses secret evidence to protect the identities of Government informants. However, this tool should not be used to deny basic fundamental rights and fairness. This has been determined in courts in Virginia, which have stated that the use of secret evidence against a party, evidence that is given to and relied upon by the immigration judge and the board of immigration appeals, but kept entirely concealed from the party and the party's counsel, is an obnoxious practice.
Finally, I would like to note that it is very important that we add to the process of justice and that we determine that we do not stereotype in this country. Notably, of course, the first response to the Oklahoma tragedy was to stop someone that was of Arab or Muslim heritage. I would hope that our cause of justice is a higher cause, Mr. Chairman, and hope that in this hearing we will find greater ground to be able to support H.R. 2121.
Mr. Chairman, as I close, let me, since we have an ongoing issue, just note for the record that I continue to hope that the INS continues to deliberate on consideration of the plight of little Elian Gonzalez. And I hope that can find a way to do the just and right thing and return young Elian Gonzalez to a fit, non-abusive and living natural parent in his native land of Cuba.
With that, Mr. Chairman, I thank you and I yield back the balance of my time.
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Mr. SMITH. Thank you, Ms. Jackson Lee.
We will go now to our first witness, Mr. Campbell.
Mr. CAMPBELL. Mr. Chairman, I would like to yield to my colleague, and he might save some time for me.
Mr. SMITH. Okay, we will be happy to do it that way. Mr. Bonior.
STATEMENT OF HON. DAVID BONIOR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. BONIOR. Thank you, Mr. Chairman. First of all, I'd like to thank my friend Tom Campbell for his leadership on this issue. And I would like to thank you and Ms. Jackson Lee and members of the subcommittee for conducting this hearing today and my colleagues for attending.
I would say just at the outset that in the 28 years that I have been making laws, this law that was part of the 1996 Anti-Terrorism and Death Penalty Act, in my personal view, is the most pernicious that I have seen in my career as a legislator. Our constitution deliberately and specifically protects the rights of individuals against abuses of government.
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These rights are central to our constitution, and are a core guarantee of our individual liberty. They are not abstract ideals, and the people denied these rights are not faceless victims. They are real people with families and jobs and dreams for the future.
You will hear today from Nahla Al-Arian, the sister of a man who has been jailed in Florida for a thousand days without being able to see any evidence against him, without any opportunity to post bail, without even being charged with a crime. The right, Mr. Chairman, to confront your accuser, to hear the evidence against you and to secure a speedy trial, are fundamental to the tenets of the American justice system.
Secret evidence violates our deepest trust and the rights of due process and violates our democracy's most sacred document, the Constitution. As we have heard already this morning from others who have spoken, three Federal judges have ruled that the use of secret evidence is unconstitutional. When the Government was finally forced to reveal the evidence in these cases, it was hearsay or unsubstantiated.
Unfortunately, about 20 more people remain detained under the secret evidence. And as Ms. Jackson Lee noted, all of these men are Arab or Muslim, and some of them have lived in the United States for years with wives and children.
Do we wait for the courts to act on these cases one by one as has been the case for the last several years, or do we afford justice now? How many more days and weeks and months away from their children must Dr. Al-Najjar and other detainees suffer? That is why I believe Congress must take legislative action to repeal secret evidence, not because our commitment to combatting terrorism has grown weak, but because our love for the Bill of Rights has never been more strong.
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Striking a balance between protecting our individual liberties and safeguarding our national security has always been one of the fundamental challenges of democracy. But I would argue, Mr. Chairman, that we must be very careful not to erode that which we seek to defend: the rights and the freedoms that imbue our democracy with its meaning.
I urge my subcommittee members here to look favorably upon the bill, to defend the Constitution, and to do the justice that is deserved to these individuals.
I will give back the time to my friend from California who has fought valiantly on this issue.
STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CAMPBELL. Mr. Chairman, you deserve a great round of thanks, whatever your view on this issue, because you didn't have to hold this hearing and it may not have been the number one agenda item you made it. And I just want to put on the record my tremendous admiration and applause for you for doing that. That is how the system ought to work.
Mr. SMITH. Thank you.
Mr. CAMPBELL. I brought with me the entire Constitution with every annotated case under it. And I am going to give you a hypothetical, Mr. Chairman, because I am a law professor and I'd like to do that.
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Mr. SMITH. We should have introduced you as a constitutional law professor. That was an oversight.
Mr. CAMPBELL. Not at all. I teach anti-trust and international trade law. But occasionally I get to teach a seminar on constitutional issues.
The fifth amendment states, ''no person''—it does not say no citizen—''no person shall be deprived of life, liberty or property without due process of law.'' It doesn't say in a criminal case. The fifth amendment doesn't exclusively deal with criminal cases. The sixth amendment does. The sixth amendment says that when you get to jury trial, you have the right of counsel. But the fifth amendment is broader.
Here's the hypothetical. You know the argument. We're going to be better at preventing terrorism because we put people who we suspect in jail and don't let them know the evidence because we don't want to reveal the sources. Why not give them truth serum? Why not give them truth serum, as long as they are in jail? I bet you could get some really good evidence on terrorism that way.
If, like me, your stomach revolts at that thought, it must be because something in this Constitution prevents it.
It must be because the fifth amendment applies. It is not an eighth amendment issue, it is not a punishment. It must be because it would deprive that person of liberty without due process of law.
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If the INS position is right, then you ought to be able to do the truth serum too. But once you grant that there is something that stops that, and look at the whole Constitution, the only thing you are going to find is the fifth amendment. Then you have got to deal with the question of whether you can keep that person in jail on the basis of evidence they couldn't see. Because that is a due process violation.
Lastly, I also know the other answer. The other answer is, well, you know, this isn't a criminal case, this is just access into our country. No one has the right to be admitted into the country, so this is a deportation proceeding, and you don't have any rights regarding a deportation proceeding.
Wrong. Twenty-five people are in jail. I can quarrel with people in good faith as to whether the fifth amendment would apply to a deportation proceeding simpliciter, just the deportation proceeding. But once you put somebody in jail, how do you say that is anything but a deprivation of liberty? And you put somebody in jail because pending resolution of the deportation proceeding, they are denied bond on the basis of evidence they can't see. That is a deprivation of liberty.
And here is my whole point. If you agree that the Constitution applies, then the laws on the books are unconstitutional. They are unconstitutional. And that is what the ninth circuit held, that is what the D.C. Circuit held, that is what the District Court of New Jersey has held. And the argument that it will help us combat terrorism cannot avail against a constitutional argument.
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I think I could cure the drug problem of America if you allowed me to search without warrants. Just put me in charge, Mr. Chairman. I will search without a warrant, and I will get good evidence, and there won't be a drug problem in America.
And similarly, let me give truth serum to these people, because the Constitution doesn't apply. This way, I will certainly find out about terrorism.
The truth is that if we are willing to sacrifice our freedom to get security, we will deserve neither. And the truth is that you and I and every member of this committee took one oath—it was not to be smart, it was not to be popular. It was to uphold and defend the Constitution of the United States.
Thank you.
[The prepared statement of Mr. Campbell follows:]
PREPARED STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Thank you, Chairman Lamar Smith, for allowing me to testify at this hearing today. I would also like to thank Subcommittee Ranking Member Sheila Jackson-Lee, a co-sponsor of H.R.2121, and other Members of the Subcommittee for being present at this important hearing. Today I am pleased to testify in favor of ''The Secret Evidence Repeal Act of 1999,'' a bill to repeal the use of ''secret evidence'' in Immigration and Naturalization Service deportation hearings.
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Under the Anti-Terrorism and Effective Death Penalty Act of 1996, the INS is allowed to arrest, detain and deport non-citizens on the basis of ''secret evidence''—evidence whose source and substance is not revealed to those who are targeted or their counsel.
The right to confront your accuser, hear the evidence against you and secure a speedy trial are fundamental tenets of the American justice system. This violates our deepest faith in the right to due process, and violates our democracy's most sacred document, the United States Constitution.
I am very concerned about the arrest, imprisonment and even forced deportation of individuals here in the United States based on evidence that the individual is not afforded an opportunity to review or challenge. The use of such ''secret evidence'' directly contradicts our sense of due process and fairness. Secret evidence submitted in the form of classified information often consists of nothing more than rumor and innuendo. It is often unverified and unverifiable. It has not, and cannot be, tested reliability in cross-examination during a trial
The Bonior-Campbell bill would correct this injustice by ensuring that no one is removed, or otherwise deprived of liberty based on evidence kept secret from them.
People should know the crimes with which they are being charged and should be given a chance to challenge their accusers in court. I am proud to join my colleague, Congressman David Bonior, in proposing legislation to end this practice.
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According to the Immigration and Naturalization Service, about 25 secret evidence cases are pending currently, and approximately 50 secret evidence cases were filed from 1992–Feb. 1998. In one secret evidence case, Nasser Ahmed, a 38-year old Egyptian was denied bond, asylum and withholding based on secret evidence. The immigration judge who heard the evidence said that he had ''no doubt'' that Mr. Ahmed would be tortured if returned to Egypt. If the decision in his case had been based only on the evidence in the public record—evidence that Mr. Ahmed had the chance to challenge—Mr. Ahmed would have won his case immediately. Instead, he was held in solitary confinement for approximately three years and was only recently released upon the order of an immigration judge, who ruled that the secret evidence the Government offered it was inadmissable as double or triple hearsay.
Perhaps the most egregious case is that of Dr. Mazen Al-Najjar of Tampa, Florida. Dr. Al-Najjar, a Palestinian-American, is about to mark his 1,000th day of detention based on secret evidence. This 19-year resident of the U.S. was first detained almost three years ago! I'm glad to see that Mr. Al-Najjar's sister, Mrs. Nahla Al-Arian, will be testifying today and I look forward to her testimony.
Virtually all of the ''secret evidence'' cases have been directed at Muslims and people of Arab descent. This has created a perception in those communities that the Government is targeting them with the most repressive tools available to it. This law is clearly discriminatory and unconstitutional, and we need to take a strong stand against it.
The Secret Evidence Repeal Act would not require the government to release dangerous terrorists. It merely requires the Government to choose whether to reveal the evidence against a non-citizen whose liberty is in jeopardy, or keep that information fully secret and outside of immigration proceedings and determinations. It is common for prosecutors to make similar choices in criminal cases where a person's liberty is likewise at stake. These requirements were applied in prosecutions of truly dangerous terrorists, such as those who bombed the World Trade Center and the federal building in Oklahoma City, and those cases have been successfully prosecuted.
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In sum, the fight against terrorism need not involve compromise of our most cherished constitutional rights. Mr. Chairman, thank you again for allowing me to testify before you today.
Mr. SMITH. Thank you, Mr. Campbell, thank you, Mr. Bonior.
Let me also welcome a member of this subcommittee, Ed Pease, and we appreciate his attendance as well.
I don't have any questions at this point, and will yield to the ranking member if she has any questions.
Ms. JACKSON LEE. None at this time, Mr. Chairman. I would just simply like to thank both Representative Campbell and Minority Whip Bonior, one, for their leadership on this, which contributed, of course, to I think, the chairman's interest. And I thank him for holding this very vital hearing. We hope to give it very appropriate and prompt attention. Thank you.
Mr. SMITH. The gentleman from Indiana? No questions.
The gentleman from California? No questions.
And the gentleman from Michigan, our ranking member of the Judiciary Committee, any questions?
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Mr. CONYERS. Merely to congratulate our two leaders on this very important bill.
Thank you for being here.
Mr. SMITH. Thank you, Mr. Conyers.
Thank you again for your testimony today.
We will now go to our second panel, consisting of Mr. Larry R. Parkinson, FBI General Counsel, accompanied by Mr. Bo Cooper, INS General Counsel.
Mr. Parkinson, if you will give us your testimony.
STATEMENT OF LARRY R. PARKINSON, GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Mr. PARKINSON. Thank you, Mr. Chairman. I am Larry Parkinson, General Counsel of the FBI.
Mr. SMITH. Let me interrupt you for a second and say, although they have presumed correctly, we do welcome Mr. Bonior and Mr. Campbell to the dais, and have them, if not as participants, then certainly as witnesses, to the hearing this morning.
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Mr. Parkinson, please proceed.
Mr. PARKINSON. I want to thank you, Mr. Chairman, Congresswoman Jackson Lee, and other members of the committee, for inviting me and my colleague from the INS to participate this morning. I am pleased to have the opportunity to discuss with you, on behalf of the Justice Department and the FBI, H.R. 2121 and more specifically, the use of classified information in immigration proceedings.
I cannot address specific cases because of ongoing litigation and the need to protect sensitive law enforcement information. But I will try to illustrate the value to the United States of preserving our ability to use classified information in selected ex parte in camera immigration proceedings.
At the outset, I want to emphasize that the Department and the FBI understand and acknowledge the serious concerns that were expressed this morning by Congressman Bonior, Congressman Campbell and other members of the committee, as well as other persons and organizations who are here today. We recognize that the use of this kind of information can profoundly affect the people involved. We take these matters very seriously, and we do not casually resort to the use of secret or classified information in these kinds of proceedings.
We have found, however, that in a small number of cases, the use of such information is necessary to adequately protect the Nation's security, and we believe that the laws currently in place which allow for the use of such information in appropriate cases, do strike the best balance between the various interests affected in these cases.
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Moreover, I want to emphasize that the Justice Department and the FBI, recognizing the serious concerns implicated here, have instituted practices and procedures to ensure that classified evidence is used only when necessary to adequately serve the national interests. Before any final decision is made to use classified information in immigration proceedings, the information and the case are subjected to the highest level of review at the Department of Justice to ensure that it is necessary and appropriate to use that information.
When the decision is made to use classified information in court, the alien is given an unclassified summary of the classified information when one can be produced to use in the preparation and presentation of his or her case. Moreover, the Department is currently in the process of an ongoing review of all pending cases involving the use of classified information to ensure that the information has been properly used.
The Department, under the Deputy Attorney General's office, is also working on guidelines and regulations to regularize and improve these processes. The Attorney General and the Deputy Attorney General are personally involved in these efforts. The Department believes that all of these practices will help ensure that the letter and spirit of the current law will be honored by requiring that classified information is used only when necessary in the interests of the United States.
Congress has considered this issue in the past, and for good reason, has authorized the INS to use and consider classified information in ex parte in camera proceedings. In fact, the 1996 Congress thoroughly debated the competing interests involved during a review of the Immigration and Nationality Act, and on a bipartisan vote of wide margins, determined that the United States should not be put to the choice of either admitting or suffering the continuing presence of a terrorist alien or compromising the national security information regarding that alien.
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INS has testified in the past as to its authority, and I will leave it to my colleague from the INS to respond to any questions regarding the details of the immigration laws and the regulations under which it operates. What I am here to emphasize is the value to the United States of preserving the INS' ability to present appropriately classified information in ex parte in camera proceedings where necessary.
This typically occurs when, in the considered opinion of senior executive branch officials, it is necessary to introduce such information in opposition to an alien's admission to the United States, or in opposition to an alien's application for discretionary relief, such as the granting of asylum, adjustment of status, granting of bond or cancellation of removal.
There are times when the Government has highly relevant classified information that should be considered in determining an alien's immigration status. But the information simply cannot be made public or disclosed to the alien without harming the national security by compromising intelligence operations and sources. In such cases, the FBI or whatever other agency has this information shares it with the INS, and the information is then subjected to a clearance process within the Justice Department by all concerned components at a high level.
Once a consensus is reached that the alien poses a risk to the national security, or that the classified information is otherwise material to national security issues in the case, the INS presents that information to the immigration judge. The immigration judge then determines how much weight, if any, he or she will give to the information.
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It is important to note that while ex parte in camera use of classified information has garnered a great deal of media attention, and that is appropriate, it is in fact quite rare. Classified evidence is involved in only 12 pending cases out of a total of 300,000 cases pending overall. And only 5 of those 12 involve incarcerated persons.
We don't want to minimize those 5 or those 12. But I think it is appropriate to keep in mind those numbers.
The ability to use classified information in this manner is vitally important to the protection of our national security because it allows us to proceed appropriately against that very small number of aliens who pose a legitimate national security threat. Although the United States has always welcomed immigrants, it has always been the policy of the United States to exclude those aliens who pose a threat to national security, such as terrorist and foreign intelligence operatives, and for those who would impose undue burdens on society, such as convicted felons.
In recent years, we have found that direct and continuous liaison with the INS and the ability to use classified information in appropriate cases are essential to the effort to protect the national security by making proper decisions about aliens with ties to terrorism or other activities that threaten our national security.
I firmly believe that the FBI must be able to share this information with the INS and the INS must be able to use it in ex parte in camera proceedings where necessary. That means the INS must be able to use the information in a manner that protects the confidentiality of the information, and the methods and sources to obtain that information. Disclosing such information to the public or to the alien would put the sources and methods at risk and we could no longer count on being able to use those sources and methods to learn important information about critical national security matters.
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It should also be remembered that immigration proceedings are administrative, they are not criminal proceedings. The Supreme Court has noted that the purposes of immigration proceedings is to provide a streamlined determination of eligibility to remain in this country, and nothing more. That is quoting from the Lopez-Mendoza case.
Thus, the full range of rights guaranteed a criminal defendant, including the sixth amendment's right to confrontation of evidence, are simply not applicable in their entirety in immigration proceedings. Recognizing the interests involved and the rights and duties of all parties, the courts, including the United States Supreme Court, have concluded that INS use of classified information in ex parte in camera proceedings to deny discretionary relief from deportation, or to deny release on bond, is appropriate.
In short, if the INS could not use classified information in ex parte and in camera proceedings, and was instead required to share all evidence with the alien, the United States would be faced with two equally unacceptable scenarios in those small number of cases involving national security threats.
Using a terrorism example, if we withhold the classified information in order to protect our important sources and methods, we let a dangerous alien obtain an immigration benefit which threatens our national security, requires the release of the alien to move freely within the United States, and confers permanent status that may then aid the alien in obtaining U.S. citizenship.
But if we reveal the classified information in an attempt to obtain an appropriate ruling in the immigration court, we will jeopardize and in most cases effectively eliminate our ability to use those sources and methods in very important national security investigations.
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Frankly, both scenarios pose unacceptable risks to the Nation's security. We believe Congress properly considered all these factors and struck the proper balance in favor of protecting the national security when it came up with the current laws that allow for ex parte in camera use of classified information in appropriate cases. Representative Bonior noted that this balancing of individual liberties and the national interest has been one of the most fundamental challenges of our democracy. I agree with him completely.
But I think Congress and the courts have recognized that we have reached the appropriate balance. I have included in the prepared statement a couple of case examples to demonstrate how this plays out in real life. But I won't go into that in the interest of time.
I will conclude by saying that for the reasons stated, the Department and the FBI oppose H.R. 2121. With that, I will conclude my statement, Mr. Chairman, and I will be happy to answer any questions.
[The prepared statement of Mr. Parkinson follows:]
PREPARED STATEMENT OF LARRY R. PARKINSON, GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION
I am pleased to have the opportunity to discuss with you, on behalf of the Justice Department, H.R. 2121, and more specifically, the use of classified information in immigration proceedings. I cannot address specific cases because of ongoing litigation and the need to protect sensitive law enforcement information, but I will try to illustrate the value to the United States of preserving the ability to use classified information in ex parte, in camera immigration proceedings.
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At the outset, I want to emphasize that the Justice Department understands and acknowledges the serious concerns that some members of the Committee and other persons and organizations have expressed about the ex parte, in camera use of classified information in immigration proceedings. We recognize that the use of such information can profoundly affect the people involved. We take these matters seriously, and we do not casually resort to the use of classified information. We have found, however, that in a small number of cases the use of such information is necessary to adequately protect the national security, and we believe that the laws currently in place, which allow for the use of such information in appropriate cases, strike the best balance between the various interests affected in these cases.
Moreover, I want to emphasize that the Justice Department, recognizing all of the serious concerns implicated by this issue, has instituted practices and procedures to ensure that classified evidence is used only when necessary to adequately serve the national interest. Before any final decision is made to use classified information in immigration proceedings, the information and the case are subjected to rigorous review at high levels of all affected Justice Department components to ensure that it is necessary and appropriate to use the information. When the decision is made to use classified information in court, the alien is given an unclassified summary of the classified information when one can be produced, to use in the preparation and presentation of his or her case. Moreover, the Department is currently in the process of an ongoing review of all pending cases involving the use of classified information, to ensure that the information was properly used. The Department, under the Deputy Attorney General's Office, is also working on guidelines and regulations to regularize and improve these processes. The Attorney General and the Deputy Attorney General are both personally involved in these efforts. The Department believes that all of these practices will help ensure that the letter and the spirit of current law will be honored, by requiring that classified information is used only when necessary in the interests of the United States.
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Congress has considered this issue in the past and, for good reason, authorized the Immigration and Naturalization Service (INS) to use and consider classified information in ex parte, in camera proceedings. In fact, the 1996 Congress thoroughly debated the competing interests involved during a review of the Immigration and Nationality Act, and on a bi-partisan vote of wide margins, determined that the United States should not be put to the choice of either admitting or suffering the continued presence of a terrorist alien, or compromising the national security information regarding that alien. INS has testified in the past as to its authority, and I will leave it to INS to respond to questions regarding the details of the immigration laws and regulations under which it operates. What I am here to emphasize is the value to the United States of preserving the INS's ability to present appropriately classified evidence in ex parte, in camera proceedings. This typically occurs when, in the considered opinion of executive branch officials, it is necessary to introduce such information in opposition to an alien's admission to the United States, or in opposition to an alien's application for discretionary relief such as the granting of asylum, adjustment of status, granting of bond, or cancellation of removal.
It is important to note that under current procedures classified information is not used to prove deportability in conventional immigration proceedings. In general, when the INS presents classified evidence ex parte and in camera, it does so only to demonstrate the alien's inadmissibility into the United States, to demonstrate that the immigration court should deny bond to an alien, or to demonstrate that the alien is ineligible for some type of relief he or she is seeking. In other words, classified evidence is used only against aliens who are either seeking admission to the United States or, having been determined to be removable from the United States, are applying for relief from that removal. When an alien who has been determined to be removable, for overstaying a visa or on other grounds, seeks relief from removal—asylum, withholding of removal, suspension, or adjustment of status—and other agencies have provided substantive, credible, and relevant classified information which indicates that the alien is ineligible for such relief or does not merit the exercise of discretion, the INS should bring such information to the attention of the immigration court in the interest of the national security.
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There are times when the government has highly relevant classified information that should be considered in determining an alien's immigration status, but the information cannot be made public or disclosed to the alien without harming the national security by compromising intelligence-gathering operations and sources. In such cases the FBI, or whatever other agency has the information, shares it with the INS, and the information is subjected to a clearance process within the Justice Department by all concerned components, at a high level. Once consensus is reached that the alien poses a risk to the national security, or that the classified information is otherwise material to national security issues in the case, the INS presents the information to the immigration judge. The immigration judge then determines how much weight he or she will give to the information. It is important to note that while the ex parte, in camera use of classified information has garnered much media attention, it is in fact quite rare. Classified evidence is involved in only 12 pending cases out of a total of 300,000 cases pending overall.
The ability to use classified information in this manner is vitally important to the protection of our national security, because it allows us to proceed appropriately against the very small number of aliens who pose national security threats. Although the United States has always welcomed immigrants, it has also always been the policy of the United States to exclude those aliens who pose a threat to national security, such as terrorists and foreign intelligence operatives, and those who would impose undue burdens on society, such as convicted felons. In recent years we have found that direct and continuous liaison with INS, and the ability to use classified information in appropriate cases, are essential to the effort to protect the national security by making proper decisions about aliens with ties to terrorism or other activities that threaten our national security.
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I firmly believe that the FBI must be able to share classified information with the INS, and the INS must be able to use the information in ex parte, in camera proceedings, when necessary in order to adequately protect the national security. That means the INS must be able to use the information in a manner which protects the confidentiality of the information, and the methods and sources used to obtain the information. Disclosing such information to the public, or to the alien, would put the sources and methods at risk, and we could no longer count on being able to use those sources and methods to learn important information about critical national security matters.
It should also be remembered that immigration proceedings are administrative and not criminal proceedings. As the Supreme Court has noted, the purpose of immigration proceedings is to ''provide a streamlined determination of eligibility to remain in this country, nothing more.'' United States v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Thus, the full range of rights guaranteed a criminal defendant, including the Sixth Amendment's right to confrontation of evidence, are not applicable in immigration proceedings. Recognizing the interests involved, and the rights and duties of all parties, courts, including the United States Supreme Court, have concluded that INS use of classified information in ex parte, in camera proceedings to deny discretionary relief from deportation or to deny release on bond is appropriate.
In short, if the INS could not use classified information in ex parte and in camera proceedings, and was instead required to share all evidence with the alien, the United States would be faced with two equally unacceptable scenarios in the small number of cases involving national security threats. Using a terrorism example, if we withhold the classified information in order to protect our important sources and methods, we let a dangerous alien obtain an immigration benefit which threatens national security, requires the release of the alien to move freely within the United States, and confers permanent status that may then aid the alien in obtaining United States citizenship. But if we reveal the classified information in an effort to obtain an appropriate ruling in the immigration court, we will jeopardize, and in most cases effectively eliminate, our ability to use those sources and methods in important national security investigations. Both scenarios pose unacceptable risks to the national security. We believe Congress properly considered all these factors, and struck the proper balance in favor of protecting the national security, when it came up with the current laws that allow for the ex parte, in camera use of classified information in appropriate cases. Again, the Department is taking appropriate steps to ensure the reliability of any classified evidence used in immigration proceedings.
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I am providing two brief examples to illustrate how damaging it would be to national security to take away the ability to use classified information in immigration proceedings. The aliens in both of these examples are in the United States unlawfully.
CASE # 1:
We receive information from four separate foreign governments linking Subject #1 to terrorist groups and activities. Subsequent FBI investigation confirms Subject #1's dedication to a terrorist organization, and his commitment to violence. The FBI investigation indicates that Subject #1 participates in procuring weapons for terrorist violence, and has a desire to participate in violent activities himself. Additionally, the FBI investigation confirms that Subject #1 raises money to send to the terrorist organization, helps transmit communications for it, and engages in immigration fraud on behalf of members of the organization. Subject #1 wants to obtain lawful status so he can more easily leave and re-enter the country. He was the subject of an intelligence investigation for some time but has been referred to INS for evaluation of his right to be in the United States. Subject #1 was found to be excludable, but filed for asylum. We will want to use classified information to show that he should be denied asylum.
All of the foreign governments who provided information on Subject #1 did so on a classified basis only. The subsequent FBI investigation relied on classified means of acquiring information. Disclosure of either the foreign or FBI-acquired information would reveal the precise means and timing of the acquisition. In turn, that would disclose the scope of the investigation, the identities of other targets of the investigation, and the information that would have been provided to other nations to assist in prevention of terrorist acts. Disclosure of even the FBI-acquired information would reveal that specific individuals both abroad and in the United States were subjects of terrorism investigations by certain governments. That, in turn, would lead to the frustration of efforts by friendly foreign governments to prevent terrorist acts.
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CASE #2:
Subject #2 applies for immigration relief. He comes to FBI attention as a result of reporting from a very singular and highly reliable source. Information from that source and further FBI investigation demonstrate that Subject #2 is in a leadership position of an organization that assumes responsibilities for gathering intelligence on behalf of a foreign power. Additionally, the FBI investigation shows that the foreign power directly contacts and tasks the individual and provides him with funds. Through the investigation, focusing on Subject #2's contacts, the FBI learns of intelligence activities being conducted by a number of individuals, as well as the methods of operation of both the organization and the individuals. Through a court-authorized electronic intercept targeting a person other than Subject #2, the FBI learns of significant activities by Subject #2 to circumvent United States laws for the benefit of the foreign power.
Disclosure of the classified information in this scenario would reveal the source of the information and, in all likelihood, would preclude further receipt of information from the source. It would reveal, as well, knowledge of the United States concerning the activities of the organization and the individuals supporting it. It would reveal our knowledge of a foreign power's efforts to circumvent United States law, and thereby alert the foreign power to the need to switch to new tactics. Disclosure of the electronic intercept would reveal the investigation and targeting of the other person. In short, the inability to use classified information in this case would do serious damage to the national security.
For all these reasons, the Justice Department is opposed to HR 2121.
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Mr. Chairman, this concludes my statement, and I would be happy to answer the Committee's questions.
Mr. SMITH. Thank you, Mr. Parkinson, for your testimony.
Let me address my first question to both of you, and if you will both try to answer it. And it is this, that—excuse me, Mr. Conyers?
Mr. Cooper is not scheduled to testify, he is just accompanying Mr. Parkinson. The question was whether Mr. Cooper was going to testify separately. Is that correct, that you are accompanying Mr. Parkinson?
Mr. COOPER. That is correct. I am available to answer whatever questions I can.
Mr. SMITH. That is fine. But nevertheless, I would still like for you to address the questions when appropriate.
Considering the individuals who are now being detained, and how many are there roughly?
Mr. PARKINSON. There are now five incarcerated that involve cases in which secret evidence has been used. There are 12 cases total, 5 who are currently incarcerated.
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Mr. SMITH. In regard to those cases, is it your feeling that if they were admitted to the United States, they would possibly commit terrorist actions against Americans? And on the other hand, is it your feeling that if the evidence against them was revealed to them to a full extent, it would endanger the lives of security sources? Do you believe either one of those situations to be true?
Mr. PARKINSON. I don't think it would be appropriate, Mr. Chairman, for me to comment in this context for the specific cases that are pending.
Mr. SMITH. Right. And I am not asking you about specific cases. I am just asking generally about people who have been detained, but not in any particular case.
Mr. PARKINSON. Hypothetically, I think the answer to your question is yes, and that is precisely the balance that is set forth in the statutory framework. I will say, and this does go to the pending cases, as I mentioned in the statement, the Justice Department and the Bureau are doing a top to bottom review of every case in which we have used secret evidence, and that review is continuing. We are engaged in an interagency process to make sure that we are using that information appropriately.
Mr. SMITH. Okay. And that was a yes, both to American lives being endangered if these individuals were released, and to intelligence sources lives being endangered if the evidence was made public?
Mr. PARKINSON. Absolutely, Mr. Chairman.
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Mr. SMITH. Mr. Cooper, what is your response?
Mr. COOPER. Yes, like Mr. Parkinson, I am not able to comment on particular cases. But it is certainly the case where, in the instance where the Government resorts to custody during the pendency of an immigration proceeding, it does so either because it believes that the person can't be released safely without creating an unacceptable risk of flight, or an unacceptable risk to the public safety. And that is typically an issue when we would resort to custody in a case where we are alleging a threat to the national security.
The only other thing I would like to add is just as a matter of process, in most categories of cases, it is possible for the person who is in custody to ask the adjudicative body, the administrative adjudicative body, to evaluate the legitimacy of the custody decision separately from the particular merits question, so that there is a procedure for a person to ask for their custody to be reevaluated.
Mr. SMITH. And that gets a little bit into my next question, which is, in fairness to the other side, are there ways that the system or the process can be improved or changed, or do you feel that the current system and process are adequate?
Mr. COOPER. We feel that, first of all, the current legal basis for using, for limited purposes and in a limited number of cases, classified information against someone, in camera or ex parte, is a necessary authority for us to have. Of course, it is not new, it has been in existence, it has been confirmed by the courts for nearly half a century. And it is one that has been confirmed by all three branches of the Government, both in judicial decisions, regulations and now in the last 4 years in statute.
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As far as how the process is carried out, I am certainly not here to claim that it is perfect. And there is clearly room, always room for us to improve the way in which we go about these things. But as Mr. Parkinson mentioned in his testimony, we are quite actively engaged in the process for evaluating and trying to seek ways of improving the way in which we exercise this authority.
And its key points are, first of all, to ensure that this authority is used only where it is necessary, that is, where there is no unclassified way of getting the same information before the tribunal. And also to ensure that classification decisions are appropriately made and that we as a Government don't over-classify the information that is to be presented. And third, to try to find improved ways of providing unclassified summaries wherever possible, so that the gist of the information, to the extent possible, can be put forward and subjected to the adversary process.
Mr. SMITH. Thank you, Mr. Cooper, thank you, Mr. Parkinson.
Ms. Jackson Lee is recognized for her questions. And let me say, I usually don't say this publicly, we usually say it privately, but to the Members who testified earlier, Mr. Bonior and Mr. Campbell, while they will not be recognized for questions, they are welcome to give questions to other members to ask. Apparently, they are being prepared as I speak. [Laughter.]
Mr. SMITH. Ms. Jackson Lee is recognized for her questions.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Mr. Parkinson, in the In Re Nassar Ahmed case, the immigration judge expressed concern that the evidence that you were taking and utilizing came from the Egyptian government, which was known to be the persecutor of Mr. Ahmed.
Does it not trouble our Government that in fact the evidence that may be using and classifying as secret evidence to deport a person back into the hands of their persecutor, and in effect becoming a tool of the persecutor in so doing, how do you respond to that?
Mr. PARKINSON. Let me first take it out of the context of the specific case. Because I don't think it would be appropriate for me to comment on that.
Ms. JACKSON LEE. And I appreciate that. If you can generically respond to the question.
Let me do this, so you can answer it in a holistic fashion. Viewing it or answering that sort of generic inquiry, are you then taking or will you be taking or have you taken any steps to develop clean sources of evidence which would allow the individual to be able to review, along with his or her counsel, and do you think that you can do more to get evidence that is not classified? Sort of put that in a package?
Mr. PARKINSON. We make every effort to proceed in these cases without using classified information or secret evidence. And in most cases, we succeed in doing that. There are some limited number of cases, and they are very limited, in which we are not able to do that. But we have some national security or intelligence information that is significant enough that it could make a difference in a particular case.
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One way we approach these cases is to put together a record that does not have to rely on any classified information or any secret proceedings, and assess how strong or merit worthy that case is before we take it to the next level. And the process that I briefly described and that Mr. Cooper referred to that the Justice Department has currently ongoing is to develop a significant, high level process where, before we do anything with a piece of secret evidence in one of these matters, it is decided at the highest level of the Justice Department before we proceed. And there is a coordinated interagency process by which to do that at the very highest levels.
So we do not, as I said in the statement, do this lightly. We do it very selectively, and I would submit that in the future we will probably be even more selective.
Ms. JACKSON LEE. So what you are suggesting is that you have an internal pre-review before you proceed? And that gives you comfort that you are not using the persecutor's secret evidence against someone who is seeking to run away, escape from persecution? I am unclear as to where the protection is for the individual. Because I assume that you review it and then you give yourselves the green light.
Now, are there are cases when you decide not to proceed?
Mr. PARKINSON. Just speaking from the FBI's perspective, we don't always get the green light, either internally or certainly with the judges. One of the reasons that this has become a significant issue is that judges in this arena are not a rubber stamp. Judges scrutinize the evidence, and if they are not satisfied with the reliability of the evidence or they don't think they know enough, the immigration judges have not been shy to tell us so.
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So I think there are several protections. The first protection is internal, within the Justice Department, and the new procedures that we are putting in place, and the new process that we are putting in place will give significantly added measures of protection.
We also at that stage determine whether or not it is possible, even if we think we have to use classified information, to prepare an unclassified summary, so that we can share the gist of the information with the alien. And if so, provide that to them, so they do have the information at hand.
And then the next level of scrutiny is with the immigration judges. And beyond that, there is also the Federal courts, who have another layer of review when appropriate.
Ms. JACKSON LEE. Mr. Cooper?
Mr. COOPER. Thank you. If I could add to that by being a bit more specific about exactly what the review process is in the first place, before classified evidence can be introduced. There has been convened within the Justice Department senior attorneys from the Immigration and Naturalization Service, from the Civil Division, from the FBI, from the Office of Intelligence and Policy Review, from the Civil Rights Division; these are people who can bring a variety of different perspectives to the question, who will come in and evaluate and then present recommendations to the Deputy Attorney General and then the Attorney General. Evidence of this sort is not used without approval at those levels.
And the question that you raised about the source of the information, for example, or whether it would bear on a person's eligibility for protection under one of the relevant human rights conventions or a domestic statute are absolutely the kinds of questions that we would evaluate in making the decision whether to go forward, first of all. Second, it is absolutely the case that we don't always give ourselves the green light, and that those kinds of considerations would be in the mix of the analysis.
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And third, I would just like to reiterate the point that Mr. Parkinson, I think, has already clearly made, that even if we give ourselves the green light, the green light is to put the information before, in most categories of cases, a tribunal that—while it is part of the Justice Department—is institutionally separate from the INS which is bringing the case. And if you look at the cases that are out there, that tribunal disagrees with us sometimes.
Ms. JACKSON LEE. Mr. Chairman, I don't have a question, I just have a one sentence closing comment. I note the time has come to a conclusion.
Let me thank Mr. Parkinson and Mr. Cooper. I think I heard the number five, or five pending cases. One would argue, you might argue that you see, we only have five. I would take the opposite perspective and say, with the numbers that you have, that we're not throwing the net out so large, or that it is not such a huge problem that we need to, because you are operating under the law that you have. But it does not appear to be such a huge problem that we can't restore due process and fifth amendment rights by what we have accumulated so far.
I appreciate your response, but I would say that when you catch people up in a net like this, one person being denied their rights is something that we should be concerned about. So I thank the gentleman very much.
Mr. SMITH. Thank you, Ms. Jackson Lee.
On the way to recognizing the gentleman from Indiana for his questions, I would like to recognize the gentleman from Florida, Mr. Scarborough, who just joined us. We appreciate his being here as well.
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Mr. Pease.
Mr. PEASE. Thank you, Mr. Chairman.
Mr. Parkinson, does the Department of Justice consider a human being physically present in this country, legally or otherwise, a person?
Mr. PARKINSON. Absolutely.
Mr. PEASE. And Mr. Cooper, can you describe for us the elements that would constitute due process of law in the immigration context?
Mr. COOPER. I think that is a question that can't be answered in one simple way, because the Constitution applies to different levels and in various ways, depending upon the stage in the immigration process of the person, or in other ways upon the context. I think the key point to be made about the constitutional issue is that this is a practice, a mechanism that has been upheld throughout the last several decades. Although there have been cases in which that has not been unanimous, there have been cases in which the constitutional issues have been treated otherwise by the courts.
For example, the cases in New Jersey and the D.C. Circuit that you mentioned. Those are both in response to fairly specific questions. The D.C. Circuit case, for example, was the case of a person who had been a lawful permanent resident for many years, and was at a port of entry, and for other reasons as well, it was a very particular situation.
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The New Jersey case is one which, as I understand it, was a decision on the constitutionality as applied, rather than a broad constitutional judgement about the process itself. And in any case, that decision is still the subject of judicial evaluation before the circuit court.
So I think the main point from our perspective is that there has not been a judicial evaluation that the mechanism that we are trying to use responsibly is itself unconstitutional as a blanket matter.
Mr. PEASE. I appreciate what you just said. But my question is, what does the INS consider to be the basic elements of due process, and I will be more specific, in a deportation?
Mr. COOPER. First of all, let me just explain to you what the process is. And that is one that we think satisfies the constitutional standards. We are not authorized, nor do we use classified information ex parte and in camera to establish someone's deportability. We can only use it for limited purposes. And those are one, to oppose someone's admission to the United States; two, to oppose an application for a remedy from removal under the immigration laws; and three, to support a determination to keep someone in custody while their immigration proceedings are progressing.
So those are the limited purposes for which we use classified information. They do not include, as you mentioned, establishing that someone is deportable. Typically in these kinds of cases, the person's immigration status is not in question at all. There is no doubt that the person is in the United States without a basis under the immigration laws and what we are trying to use the classified evidence to show is typically that the person represents a threat to the national security, in opposition to someone's request for a remedy under the immigration laws from what is without contest. Usually, their deportability from the United States is not at issue.
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Mr. PEASE. Thank you. And I assume then that your conclusion is that the process you use comports with the constitutional requirements?
Mr. COOPER. Yes, sir.
Mr. PEASE. Thank you. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
I want to recognize the gentleman from Virginia, Mr. Goodlatte, and appreciate his being at this important hearing as well.
We will now go to the gentleman from Michigan, Mr. Conyers, for his questions.
Mr. CONYERS. Thank you very much.
Mr. Parkinson, let me pose the famous hypothec that was raised earlier today. Would it be legal in your view to administer truth serum to an alien in jail on the basis of secret evidence?
Mr. PARKINSON. No.
Mr. CONYERS. I am glad you answered that way. [Laughter.]
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Mr. CONYERS. Is it because of a constitutional prohibition?
Mr. PARKINSON. My sense of that, Mr. Conyers, is that there are certain things that the law recognizes that so shock the conscience that it is an unconstitutional practice. My view is that that would be one of them.
Mr. CONYERS. Right, that it is an unconstitutional practice, which suggests that the Constitution forbids it.
Mr. PARKINSON. Correct.
Mr. CONYERS. Right. Okay, now what part of the Constitution might you want to refer in this discussion?
Mr. PARKINSON. The fifth amendment.
Mr. CONYERS. Exactly. But we have here an instance of a person in their 1,000th day of detention based on secret evidence. Let me ask you, if we have secret evidence, the person is detained, why does it take more than 1,000 days to come to some disposition of the matter?
Mr. PARKINSON. Again, I don't think I can comment on a specific case. But I would ask my colleague, Mr. Cooper, if he can, to describe the nature of delays in these kinds of proceedings. Sometimes they fall at the hands of the Government, sometimes they fall at the hands of the person at issue, and there are a variety of reasons for delays.
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Mr. CONYERS. Well, I am not going to go into that, because I only have a few minutes. But I would grant you that there could be delays. But we are talking about, you know, somewhere around 3 years. Doesn't that shock the conscience? I mean, here you are, going against a constitutional provision, but then the months, the years go by and we are still waiting. We probably are bumping up against another constitutional prohibition.
So to me, anything like this actually compounds the problem we are here to correct.
Let me just ask you, have you any response to the three cases that have been cited here, an appeals court case and two Federal district cases, that have rejected this provision, not to mention an immigration judge who rejected the secret evidence in one case as double and triple hearsay?
Mr. PARKINSON. I believe all three of those cases, Mr. Conyers, are still in litigation, and the Government does have a response, the Justice Department does respond, but it responds in the pleadings and the court proceedings.
Mr. CONYERS. Well, can you tell me, if you know, if any of those are on appeal?
Mr. PARKINSON. I would have to defer to Mr. Cooper on that question.
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Mr. COOPER. With respect to the New Jersey case, that is a case that still has elements in litigation. As for the other two cases, the ninth circuit case, of course, is one that was overturned on other grounds before the Supreme Court. That case and the D.C. Circuit decision dealt with very particular aspects, very particular immigration law questions and not with the constitutionality as a whole of the statutory and regulatory authority to use classified information ex parte and in camera.
Mr. CONYERS. Well, in other words, if we took this action and the Congress followed up and supported us in changing the law that applies to secret evidence, you would follow that law as well, and you would proceed on in your prosecution of cases, both aliens and otherwise, where the secret evidence might obtain. Is that not true?
Mr. PARKINSON. Absolutely. We would follow whatever law Congress gave us, until the Supreme Court told us otherwise.
Mr. CONYERS. Well, here's the Supreme Court, Justice Frankfurter and the Joint Anti-Fascist Refugee Committee v. McGrath. Here is his quote: ''No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it.'' Would you have any objection to that being the law of the land?
Mr. PARKINSON. I think in the vast majority of cases, that clearly is the law of the land, and I think he hits the nail on the head, that we are talking about extraordinarily rare exceptions, when the presumption to have the full right of confrontation may not be available.
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Mr. COOPER. And if I could just add to that, it is certainly the case, and we recognize very clearly that typically, the goal that you want is as transparent a process as possible, when someone has serious interests at stake. But the balance that is at issue in these kinds of cases is balancing on the one hand, whether a person who is not a national of the United States should be able to remain in the country, and whether or not the national security can be safeguarded on the other hand.
And Mr. Parkinson has already testified at great length about the reasons why putting the sorts of information that are at issue here into the process publicly, in the way that you normally would in the immigration process and in other judicial processes, would itself create a threat to the national security. And that is, I think, a quite different balance. And that is the balance that I think the Supreme Court was applying, and that I expect Congress was applying when it gave us the authorities by statute to use the information this way.
Mr. CONYERS. Let me conclude with this observation. What you are asking us to accept is the notion that this is rarely used, it is very carefully determined that it is necessary, and so we have to make this great exception to a very sacred constitutional right.
What I want you to remember from our point of view, who write the constitutional amendments, that if there are any coming out of this Congress, they must start here in the Judiciary Committee. Please remember that once you make this little exception, very rarely used, you are very careful, you review, you give a summary if you can, you are very circumspect, almost apologetic about the fact that you have to use it.
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But once that becomes embedded in the law, I can guarantee you that somebody else has another reason just as important, just as serious, just as important to the safety of this country that you ought to make yet another exception. And so far, the courts have been very reluctant to deal with this extension. It seems to me that INS and FBI ought to, at a minimum, go back and review what the courts are saying about this matter and determine that those in the Congress who are supporting Mr. Campbell and Mr. Bonior are in the right. We are making a history that, if we leave uncorrected, will open the door to even far greater and worse constitutional problems.
Please think of it from that point of view.
Mr. SMITH. Thank you, Mr Conyers.
We will go to the gentleman from Virginia, Mr. Goodlatte, for his questions.
Mr. GOODLATTE. Thank you, Mr. Chairman.
I want to thank you for holding a hearing on this important issue. I also want to thank the gentleman from California, Mr. Campbell, for his initiative in addressing the issue, although I must say that I have some concerns regarding the impact of his legislation.
This issue brings together two very important responsibilities of our Government and highlights it and pinpoints it. We have on the one hand a constitutional responsibility to safeguard the due process rights of United States citizens and in most other instances, other people who come under the jurisdiction of our Government in one form or another. And so we have prohibitions on a lot of the information that may be available in determining some of the issues in deportation and exclusion proceedings from being gathered about United States citizens.
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But we all know that because of national security concerns and problems that we face with terrorism, we have agencies of our Government—the CIA, the NSA and other intelligence gathering and law enforcement agencies—gather information about foreign governments, agents of foreign governments and agents of terrorist organizations to safeguard our security.
When this information is in the hands of the Government, it in many instances cannot be disclosed publicly or to the defendant in a case without compromising people working on behalf of the United States, working on behalf of security of the United States citizens or the interests of the United States Government in maintaining the security and integrity of our country.
So to require in all cases the disclosure of this information or force the Government to decide not to use information which clearly would result in exclusion or deportation, in my opinion should not be done. And I think the evidence of the number of cases involved here suggests that this is not being abused.
But I would like to ask Mr. Parkinson or Mr. Cooper, is there a mechanism where those here in the Congress who may feel that there is an abuse of this information in individual cases can get a review? Can the Intelligence Committee here in the House or the Senate or some other entity review the very information utilized in these cases to determine whether or not they think that a governmental agency has abused the process and withheld information from somebody in a way that is unfair to their rights in a deportation or exclusion proceeding?
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If a committee of the Congress requested those holding this information to come before that committee in a classified briefing, could they see and determine for themselves whether or not this process was being abused?
Mr. PARKINSON. I think under the appropriate setting, if it came to that, certainly. I mean, the Intelligence Committees, speaking for the FBI, we are in front of the Intelligence Committees on a regular basis, sharing the most sensitive national secrets. And if it rose to that level, I am sure that an accommodation could be made.
But I also would add that this is part of the process of inquiring into that, and we welcome this. This is perfectly appropriate, and there is a lot of this that we can do in open hearings, and should do in open hearings.
Mr. GOODLATTE. How many exclusion and deportation proceedings are there in the country each year?
Mr. PARKINSON. Approximately 300,000 pending at any given time.
Mr. GOODLATTE. And in how many of those cases is there classified information that is not made available to the subject of the deportation proceeding?
Mr. PARKINSON. At the present time, 12.
Mr. GOODLATTE. Twelve this year?
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Mr. PARKINSON. Twelve pending cases. In the last 2 years, I believe the number is approximately 30
Mr. GOODLATTE. Thirty in 2 years. So basically one out of about 20,000 individuals subject to a deportation proceeding faces this particular issue?
Mr. PARKINSON. Roughly.
Mr. GOODLATTE. Let me ask you this. Under the law, is it not correct that an individual outside of the United States, not a United States citizen, who is subject to a deportation or exclusion proceeding, isn't it true that the courts have held consistently that their due process rights are not being denied by the use of this classified information because that is an issue of whether somebody is being deprived of their liberty, of their freedom, and whether or not you are admitted to the United States, when you are not a citizen of the United States, has been held to not be such a case, they are not being deprived of their life or liberty under those circumstances?
Mr. PARKINSON. I think generally that is accurate. This requires a reasonably sophisticated legal analysis, but I think the fundamental proposition that U.S. citizens have a broader range of rights under the U.S. Constitution that non-U.S. citizens, and particularly aliens who are not in the country, I think is clearly a matter of longstanding legal precedent.
Mr. GOODLATTE. But what we have to weigh is the risk to our national security or the safety of individuals acting on behalf of our Government if we were to make this information available to the defendant in a deportation or exclusion proceeding, against what rights those individuals as non-citizens might have in an effort to have the issue of whether or not they are entitled to be in the United States determined fairly by the court?
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Mr. PARKINSON. Absolutely. That is the balancing that we have been discussing.
Mr. GOODLATTE. Given the very narrow use of this, 1 in 20,000 cases, it seems to me that erring on the side of caution, as long as we have the ability to come in and review individual cases, when there may be an abuse, it doesn't seem to me that the Government is abusing this process under current circumstances.
I thank the chairman.
Mr. SMITH. Thank you, Mr. Goodlatte.
The gentleman from California is recognized.
Mr. BERMAN. Thank you, Mr. Chairman.
The more I think about secret evidence, the more I dislike it. So I am really upset with Mr. Campbell for making me think about it. [Laughter.]
Mr. BERMAN. You said, Mr. Parkinson, earlier, in response to Mr. Conyers' question, that it would be wrong to jail someone based on secret evidence. Am I correct in saying that?
Mr. PARKINSON. I think that is probably a slight overstatement. I mean, I think there are cases in which secret evidence used——
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Mr. BERMAN. Would it be wrong to jail a U.S. citizen based on secret evidence?
Mr. PARKINSON. Oh, a U.S. citizen, yes. As a general practice.
Mr. BERMAN. All right. So a naturally born U.S. citizen goes to Afghanistan. Let's assume we don't have any unconstitutional laws restricting Americans' right to travel. And while he is there he hooks up with Osama Ben Laden and gets some assignments. We don't know the nature of the assignments, but we know he hooked up with Osama Ben Laden, and comes back to the United States.
Should secret evidence of these contacts be used against him to affect his liberty, his freedom?
Mr. PARKINSON. It gets a little bit complicated. Obviously we would not be in an immigration setting or a deportation setting if it was a U.S. citizen. But if it ever came to the point where——
Mr. BERMAN. A criminal act.
Mr. PARKINSON [continuing]. A criminal prosecution was ever brought——
Mr. BERMAN. Secret evidence?
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Mr. PARKINSON. The Congress has balanced these kinds of things in the past.
Mr. BERMAN. Have we allowed, in the context of criminal charges, secret evidence?
Mr. PARKINSON. Let me give you one example. Congress more than 20 years ago passed the Classified Information Procedures Act, which does set up a process, even for U.S. citizens, particularly in espionage cases, in which there is the ability of the Government to go into it before a district judge and propose the use of classified information in a way that does not constitute a full disclosure to the defendant.
They are rare, but they do happen.
Mr. BERMAN. In a criminal case?
Mr. PARKINSON. In criminal espionage cases.
Mr. BERMAN. With a jury trial?
Mr. PARKINSON. Right.
Mr. BERMAN. And the defense has no right to call the source of that testimony as a witness?
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Mr. PARKINSON. It is a little bit more complicated than that. But generally, depending on the sensitivity of the information, what the Government and the court and the defense attorneys would try to accomplish is, at the very least, a summary of the information that in the court's view gives the defendant the full right of confrontation that he otherwise may have.
Mr. BERMAN. Now, the gentleman from Michigan, Mr. Bonior, in his testimony mentioned that the 1996 Anti-Terrorism and Death Penalty Act was about the most pernicious piece of legislation he has seen. But since I voted for it, I want to try to find a way out of that charge. [Laughter.]
Mr. BERMAN. That law did not deny bond, based on secret evidence. Is that correct?
Mr. PARKINSON. No, but it allowed the use——
Mr. BERMAN. Of secret evidence.
Mr. PARKINSON [continuing]. Secret evidence in appropriate cases that could be used in a bond determination.
Mr. BERMAN. I thought the bond determination was added by the immigration law in 1996.
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Mr. PARKINSON. Mr. Cooper may have to clarify this. It was my understanding that the legislation itself does not get to the level of bond determinations. It may, and he can correct me.
Mr. BERMAN. I thought the 1996 immigration law modified the 1996 Anti-Terrorism law, one, to deny the alien the right to even see a summary of his information, and secondly, apply it to bond proceedings to allow the denial of bond so that these people are staying in jail pending the process of their case. Am I wrong about that? You're the experts.
Mr. PARKINSON. Given the stage of the proceedings, secret evidence can be used in either of those contexts, including bond decisions.
Mr. BERMAN. I am sorry—do you understand my question?
Mr. PARKINSON. I think so.
Mr. BERMAN. Which law, the 1996 Anti-Terrorism law or the 1996 Immigration law?
Mr. PARKINSON. Okay, now I understand your question.
Mr. COOPER. I am sorry, I don't know the exact sequence of the changes between those two. We certainly can find that out.
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Mr. BERMAN. Has the special court created by the 1996 Anti-Terrorism law ever been used?
Mr. COOPER. No. But one thing to note about that is that the use of that court by statute contemplates that the Attorney General certify that the use of regular immigration proceedings, which is what we have at issue in the cases we are discussing today, would itself jeopardize the national security. So that court was not set up to deal with the body of national security cases. It was set up to deal with a specific subset, that is, those that couldn't be processed through the regular Title II.
Mr. BERMAN. And that particular process court has not been used yet?
Mr. COOPER. That is right.
Mr. BERMAN. The fellow who was arrested in Seattle over the Christmas holidays, I think he was an Algerian national, Ahmed Ressam, he is in jail now?
Mr. PARKINSON. Yes.
Mr. BERMAN. What are his charges?
Mr. PARKINSON. I can't recall precisely the charges.
Mr. BERMAN. Are there criminal charges against him?
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Mr. PARKINSON. Yes, absolutely. He is in custody in Seattle facing criminal charges.
Mr. BERMAN. So the criminal law does at some times provide you an alternative to deal with people who are undertaking terrorist activities?
Mr. PARKINSON. Oh, every day.
Mr. BERMAN. Okay. My time has expired.
Mr. SMITH. Thank you, Mr. Berman.
The gentleman from Florida, Mr. Scarborough.
Mr. SCARBOROUGH. Thank you, Mr. Chairman.
I got here a little bit late, because of another hearing. But I walked in while Mr. Pease and then Mr. Conyers were asking some questions. I would like to follow up briefly on some of those, only because of my concern that the profiling that is occurring now with Muslims is really only going to get worse in the future, as I think we have increased incidences of terrorism at home.
And I want to disagree with the gentleman from Virginia, who I don't usually disagree with, who said that the fact that only 12 out of 300,000 people were being thrown in jail and being denied basic rights as not an abuse. I think it is an abuse. I think 12 out of 300,000 or 1 out of 20,000 are too many. Though I do understand the real concerns we have regarding, again, that balance of protecting our safety and liberty at the same time.
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I do want to follow up, though, on what Mr. Conyers was asking you regarding application of truth serum. Obviously your answer was that there was a fifth amendment right to prevent that from occurring. We could also say that about the eighth amendment, right? I mean, obviously neither of you would be able to justify the beating of someone interred, because of the eighth amendment, is that correct?
Mr. PARKINSON. I think we would rely on the fifth amendment to prohibit a beating of a custodial person.
Mr. SCARBOROUGH. All right, let's go ahead and take the eighth amendment, the pulling out of fingernails to get information. Does that get us closer to cruel and unusual?
Mr. PARKINSON. I think we're talking about different stages in the proceedings. The eighth amendment normally comes into play after some conviction and there is a determination of what is excessive punishment in the criminal process. I don't think you have to get to the eighth amendment if you are talking about beatings or other kinds of activities. I think you can stop at the fifth amendment. It is a violation of due process and it is clearly unconstitutional.
Mr. SCARBOROUGH. Does the first amendment apply? Do these people that are interred have first amendment rights?
Mr. PARKINSON. Certainly.
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Mr. SCARBOROUGH. Okay.
Mr. PARKINSON. To some extent. I think the Supreme Court has recognized that first amendment rights differ, depending on whether you are a U.S. citizen or not.
Mr. SCARBOROUGH. But they don't have due process rights?
Mr. PARKINSON. Oh, no, they have due process rights. They certainly have a range of due process rights. I think my comment earlier referred to, what I was trying to convey is that there is a full panoply of due process rights that every U.S. citizen has. That full panoply of due process rights is not necessarily available to non-U.S. citizens, and certainly not available to people outside this country.
There is a continuum, and I think it is a continuum that the Supreme Court has recognized for a long time.
Mr. COOPER. And at least with respect to what were formerly called excludable aliens—those persons who had not entered the United States—the courts have said that due process is what Congress says it is. And it is the statutory authority that was passed in 1996 that we are trying to exercise as responsibly as we can.
Mr. SCARBOROUGH. When you say what passed in 1996, it would be responsible for a man being held in Tampa, Florida, for 3 years without being able to see the evidence that has kept him locked up for 3 years? Who shoulders the blame for that, Mr. Berman and I, for voting the way you did?
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Mr. BERMAN. You can say yes, that is okay. Which 1996 law?
Mr. SCARBOROUGH. Yes. Well, it was a busy two or 3 years for us.
Mr. COOPER. I actually can give you a more precise answer than I was able to a few moments ago. The Anti-Terrorism and Effective Death Penalty Act that passed in the spring of that year, that is what created this alien terrorist removal court, the ATRC.
Mr. SCARBOROUGH. The one that has never been used?
Mr. COOPER. That is right. It was the later, broader immigration reforms that passed in the fall of that year that codified what had been a part of the regulations since at least the beginning of the 1960's——
Mr. SCARBOROUGH. The one I voted against.
Mr. COOPER [continuing]. That permitted the use of classified information for the purposes that we have talked about.
Mr. SCARBOROUGH. Yes, I am sure I voted for that. So I am not out of the water yet.
Well, let me ask you this, and this is something that the gentleman from Virginia was trying to get to. Because I have got to tel you right now, I am inclined to support it, because we hear all the time stories about journalists being held in South America or being held in different continents for two or 3 years, and we are outraged, and we read it in the New York Times, because they are not able to see the evidence that is used against them, they are not able to see charges, they are not able to face their accusers.
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And yet, we appear to be doing the same thing here in, be it 12 out of 300,000 cases, that is still too many cases. Is there a less, and I do not mean this ideologically, Democrat or Republican, but is there a less liberal approach for eliciting this sort of evidence where it is not an opening of a Pandora's box, where we can perhaps walk a tighter tightrope than we are doing right now? Or than Mr. Bonior's and Mr. Campbell's approach would take. Is there something that might be more tightly tailored to address my concerns and at the same time not endanger American lives?
Mr. BERMAN. Would the gentleman yield on that very question?
Mr. SCARBOROUGH. Yes.
Mr. BERMAN. In defense of myself and in partial agreement with you, let me say that I think we are mixing two things together. There is one, the issue of whether or not you can use this evidence and keep it classified and not disclose it to defendant. There is another issue of how long you can hold somebody under those circumstances.
Mr. SCARBOROUGH. Right. If it is a short period of time, fine. But I would agree with you that if you are going to hold somebody for a period of time, you ought to have to either charge them or let them go. And let them go can mean either deporting them or allowing them into the country, depending on the circumstances.
But I would share your concern about long detention. But I wouldn't agree with you on the issue of whether or not the Government can make a prompt decision to exclude somebody based upon——
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Mr. BERMAN. Would the gentleman yield further?
Mr. SCARBOROUGH [continuing]. And 3 years is too long.
Mr. BERMAN. Would the gentleman yield further?
Mr. SCARBOROUGH. Yes.
Mr. SMITH. The gentleman is almost out of time.
Mr. BERMAN. I thank him for yielding. There is a further distinction. The second 1996 law even did away with a detailed summary of what the secret witness would have said, so that now the person can't even get a summary of the evidence being brought against him.
Mr. SCARBOROUGH. I thank the gentleman, and thank you, Mr. Chairman, for allowing me to go past my time.
Mr. SMITH. Thank you, Mr. Scarborough. I am going to add one note real quickly, and that is that as far as the length of time individuals are being held, don't forget they are being held because they have refused to leave the country and are not necessarily being forced to stay here.
I am going to yield to Ms. Jackson Lee for one more question before we recess for the vote.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Let me just briefly say that one of the notes that should be made is the fact that the removal of secret evidence does not in fact release the individual. It only allows them to have a fair chance under due process to assess and to see what it is.
And the sixth amendment, in the criminal proceedings, Mr. Parkinson, does protect us against that, even though you did mention the CIPA. But even in that instance, there is some summarization of the secret evidence for a criminal defendant in the United States.
So at least we should know that we are not releasing people randomly into the population. It only allows them to fairly look at the evidence against them.
And I do want to note, this is a question I had, and again, you can answer it generically, with respect to, I think a gentleman who is here in the audience, Hany Kiareldeen's case, where the Government determined, how did the Government determine the national interest in his case, which resulted in his release. He was, and had been held, for a period of time for nothing more than hearsay and claims. And this was a marital situation.
And so how was that assessed, or how would you assess it if you had innuendos and rumors and it happened to be because of an estranged spouse who gave that information? You see the dilemma that we find ourselves in, whenever you get into innuendo and rumor, how is that so necessary to protect our, if you will, our security?
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Mr. CONYERS. Could I ask the subcommittee chairman to raise this one question with him?
Mr. SMITH. Maybe they can answer both your question and Ms. Jackson Lee's at the same time.
Mr. CONYERS. This is directed to the chairman. Because we have praised you for holding this hearing and yet, at the same time, the President of the American Jewish Committee has flown from Los Angeles to present his testimony.
Mr. SMITH. Mr. Conyers, we made his testimony a part of the record. But I will be happy to get into the details with you at your convenience.
Mr. CONYERS. But could we have him on a second panel, since he is, I understand, here.
Mr. SMITH. That is not possible, Mr. Conyers. I am sorry.
The subcommittee will stand in recess for about 10 minutes.
Ms. JACKSON LEE. Mr. Chairman, I have things to admit into the record.
Mr. SMITH. When we come back.
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[Recess.]
Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene.
As I understand it, Mr. Parkinson was going to respond very briefly to Ms. Jackson Lee's question.
Mr. PARKINSON. I think that was a question, her last comment. I think that was a question, do we want to wait for her return? I am happy to, to the extent I recall it.
Mr. SMITH. Okay, let's wait just a minute. I am hoping she will be right behind me.
Ms. JACKSON LEE. Do you want me to repeat it? Well, since I ran back over here, I may not have caught my breath.
But there was a gentleman who the Government determined national interest, it was Hany Kiareldeen's case, I believe. And again we know you are not commenting on specific cases. But the national interest issue, it resulted in his release. But he was held on evidence more specifically that was ultimately determined to be innuendo and rumor from an estranged spouse.
So my question is, how do you determine national interest, or how do you determine it, and what happens when we have these kinds of rumors and innuendo?
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Mr. PARKINSON. And again, taking it outside the context of the particular case, I think it is critical to understand that every piece of information is scrutinized and valued for what it is worth. Sometimes that is a hard assessment to make. But clearly, the reliability of the source of the information, the credibility of the source of the information, the track record in terms of credibility, are all factors that need to be considered in deciding whether or not, whether it is the FBI or anybody else who is going to put any weight on that particular evidence, even at the outset on whether we are going to submit it in the course of the litigation.
And it is no different than the kinds of assessments we make in criminal cases. For instance, every day there is information that is reliable and there is information that is not reliable. And we make those kinds of judgments and we submit it to the review process and ultimately to a fact finder, to decide whether or not that is information that should be relied upon.
Ms. JACKSON LEE. Well, let me conclude, Mr. Chairman, and I have three items to submit into the record, by asking Mr. Parkinson and Mr. Cooper, who are representing the INS, to keep an open mind, recognizing that even though we can calmly sit here and talk about process, we are destroying people's lives. And frankly, we have a situation or circumstances where it is not limiting us, if we did not use secret evidence, from holding the individual, because we have evidence. It only simply allows an equal playing field with still the same tools to protect the United States against terrorist acts.
So I hear what you are saying. But in many instances, even though I heard 12 or I heard 5, a lot of this is innuendo and rumor. It is people who want to get you l. It is a country who is already persecuting you of which you are fleeing from that is providing the information. And to me, that is a paradox of our constitutional underpinnings, which are for equal justice under the law, even though I acknowledge the fact that there is a question, or you have raised the question about the constitutional rights of non-citizens.
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My concern here is secret evidence and I think we don't need it.
Mr. COOPER. First of all, let me say—the only thing I wanted to add—your original question before the break also dealt with, I think, the custody angle of the kind of situation that you described. And although of course we can't talk about particular cases, it is important to just emphasize that the INS tries to make as careful a custody decision as it can when going into these cases. And as the statistics show, while there in December were 12 pending cases in which classified evidence was used in only 5 of those had the Government resorted to custody.
And even after that decision is made, it is possible to ask the immigration judge or the Board of Immigration Appeals to evaluate the person's custody decision as a separate matter from the merits themselves.
Ms. JACKSON LEE. Well, thank you very much again. We have talked about the issues, not the magnitude, it is the unfairness. I thank you.
Mr. SMITH. Ms. Jackson Lee, before you ask for those items to be made a part of the record, let me thank Mr. Parkinson and Mr. Cooper for their testimony. And while we are entering some items into the record, we will look forward to the next panel coming forward. Thank you both.
Ms. JACKSON LEE. I add my thanks as well, and appreciation. Thank you.
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Mr. SMITH. Would you describe the items you would like to make part of the record? And I have several as well.
Ms. JACKSON LEE. All right, Mr. Chairman.
I would like to offer a statement of Gregory T. Nojeim, I hope I am getting it correctly, legislative counsel, American Civil Liberties Union, dated February 10th, 2000. The Secret Evidence Repeal Act of 1999, a statement of the Arab American Institute, dated February 10, 2000. And as well, a statement on behalf of the American Muslim Council, written testimony of the American Muslim Council to this committee, February 10, 2000. I ask without objection that these items be submitted.
Mr. SMITH. I have a letter from Stephen Flatow, as well as several newspaper articles and editorials on the subject of the hearing. And without objection, they will all be made a part of the record.
Ms. JACKSON LEE. Thank you.
Mr. Chairman, I have a parliamentary inquiry. As it has been noted on the record, let me make an official request——
Mr. SMITH. State your inquiry.
Ms. JACKSON LEE. The procedural basis of not allowing the American Jewish Committee witnesses to come after having been asked, invited and have come to this hearing, I think in fairness and comity to the ranking member, I would appreciate, expecting the fact that they were going to make a presentation, as to the reason that they are not doing so. And would respectfully request that they be allowed to do so.
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Mr. SMITH. I don't think that is a parliamentary procedure or inquiry. But I will respond very quickly.
Next time, if they want to testify, I would encourage them to submit testimony of the kind that we thought they were going to submit. I would also encourage them to submit it 48 hours beforehand, which is our standard practice. And then perhaps we would have avoided some of the inconvenience.
But more than anything, I will remind the minority member that the majority has every right to invite or not invite anybody that they want to. And I would appreciate your supporting a majority witness, but in this case, we were simply exercising the rights that we already have.
Ms. JACKSON LEE. Well, I thank you, Mr. Chairman.
In the interests of fairness and due process and all of the values that the House Judiciary Committee portends to protect, I respect the response of the chairman only to say that laymen who typically are not proficient at testifying before committees may have any number of reasons to delay or have delayed testimony. In fact, I have been before many witnesses whose testimony appeared on my desk right as they began to speak.
I would only indicate and say that I would rather another penalty for individuals as opposed to denial of testimony, because we have every right to cross-examine their testimony if it was not in the keeping and liking of any of us who might have invited them. I only ask again for that, and I appreciate the fact that you have given a response.
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Mr. SMITH. Thank you.
Ms. JACKSON LEE. I thank the chairman.
Mr. SMITH. We will welcome our third panel today, consisting of Professor David Cole, Georgetown University Law Center; and Mrs. Nahla Al-Arian, a relative of an affected individual who is being held in detention.
We welcome you both, and Professor Cole, if you will begin by giving us your testimony.
STATEMENT OF DAVID COLE, PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER
Mr. COLE. Thank you, Mr. Chairman. I want to thank you for holding this hearing and for inviting me to testify.
We heard a lot in the prior panel about national security and threats to national security. And of course, when the FBI General Counsel gets up and talks about threats to national security, it is very hard for us to question that. And when questions are raised, and he says, well, I am not at liberty to talk about specific cases, it gets more difficult to challenge the claim.
But I think the claim can be challenged, and I am here to do that. First, I want to look at what Mr. Alexander's testimony basically was, which is, despite the broad authority that you have given us, or that we have interpreted you to give us, we in fact only use this procedure where there are true threats to national security, where the alien poses a true threat to national security.
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In other words, trust us. You give us this big authority, but we will only use it in narrow cases.
But then he says, there are 12 currently pending cases in which aliens pose a true threat to national security. It has been determined at the highest levels that they pose a true threat to national security.
But then he also tells us that only five of those aliens are being detained by INS. So INS, in the highest levels of justice, has decided that seven aliens pose a true threat to national security, and nonetheless are free and at large in this country. Now, if they really posed a threat to national security, would the INS be allowing them out, free, at large? No, they would be detained.
So I think that, just from the current pending cases, suggests some reason to question what they say.
Now, I want to talk about the past a little bit. I have represented 13 people in the last 13 years against whom the INS has sought to use secret evidence. And the INS' track record in these cases belies Mr. Parkinson's general assurances that this power will be used only for true threats to national security.
That was the argument that the INS made in all 13 cases at one time. They were all alleged to be threats to national security. Yet in no case did the secret evidence charge that any of these individuals engaged in or supported any criminal conduct, much less criminal conduct that would threaten national security. In every case, the basic charge was guilt by association.
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Twelve of those 13 people who the INS said posed direct threats to national security are now living freely and peaceably in the United States, without, as far as I can tell, any undermining of the national security. The thirteenth case is still pending, and Mrs. Al-Arian will talk about that.
In every case that has reached a resolution, the INS has lost. In the three cases that reached Federal court resolution, Federal courts have declared the use of secret evidence unconstitutional, and the INS has basically chosen not to pursue its appeals. The only appeal it has chosen to pursue is with respect to Mr. Kiareldeen, and there the only argument it is making on appeal is that the case should be dismissed as moot, because Mr. Kiareldeen is now released, not that the underlying decision was wrong.
Yet it continues to engage in the practice. In all the cases that did not reach Federal court, immigration judges ruled against the INS, rejecting claims that national security was in fact at stake, after considering the evidence. Now, it is a rare thing, as you know, for a judge to stand up to a Federal Government claim of national security. The fact that judges have done so in so many cases reflects both the due process concerns that this practice raises and the Government's failure to reserve the tool for the most egregious cases.
In my written statement, I have illustrated in detail the dangers of secret evidence by talking about these specific cases. Here I just want to touch on some of the most fundamental problems, first by focusing on a single case, Nassar Ahmed. Put yourself in the shoes of Nassar Ahmed, an Egyptian citizen living here for 10 years with three U.S. citizen children, put in deportation proceedings because he overstayed his visa.
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But he has a strong case for asylum because he faces persecution if returned to Egypt. He shows up for a routine immigration hearing and he is suddenly taken into custody, told he is a threat to national security. He says, why? The INS says, we can't tell you, because disclosing anything, even summarizing the charges against you, would itself jeopardize national security.
How do you defend yourself? In an ordinary immigration case, he would have the right to know the charges against him. In these proceedings, he had no right even to a summary. In an ordinary immigration case, he would have the right to cross-examine witnesses. In secret evidence proceedings, you don't even know who the witnesses are, much less can you cross-examine them. And indeed, the Government declined even to tell the immigration judge behind closed doors who the witnesses were, and declined to bring the witnesses in to be questioned by the judge. They said, rely on our FBI agent's summary of what they have said.
In an ordinary immigration case, you have the right to object to the admission of evidence. Well, how can you object to the admission of evidence when it is being submitted behind closed doors?
In short, secret evidence short-circuits the adversary process. That is why three Federal courts, the only three Federal courts that have addressed this issue in the last decade, and I represented the aliens in all those cases, have declared that the use of secret evidence is unconstitutional.
Mr. Alexander said, aliens don't have a full panoply of due process rights, and citizens do, as if there is kind of a deluxe version of due process rights, and then a basic version of due process rights. Well, there is no case that supports that proposition. But even if there were, what right could be more basic under due process than the right to see the evidence against you?
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Now, beyond the basic, general problems with the use of secret evidence that the courts have recognized, I want to talk about the particular problems raised by the way the INS has used this. And I want to particularly respond to the assurances you have had about how they engaged in very careful review.
First of all, there is no requirement in the law that this practice be reserved for persons who truly threaten national security. The only requirement in the law is that the information be classified, and of course, you know, millions of pages of information are classified every day, and that the information be relevant to the immigration proceeding. Not that it shows that the alien is a threat to national security, but merely that it be relevant. They can use it any time it is relevant. They have used it in cases where the INS's own actions indicate no threat to national security.
In one of the earliest cases I did, the case of the Los Angeles Eight, in 1987, the INS sought to detain eight immigrants on secret evidence at the same time than then-FBI Director William Webster was testifying before this Congress that the FBI had determined that none of the individuals had engaged in any criminal or terrorist activity whatsoever, that they were arrested solely for their political affiliations and that if they were U.S. citizens, there would be no grounds for their arrest.
Moreover, in all 12 of the cases in which the INS has lost and we have prevailed and the aliens have been freed, the Government has declined to pursue all of its appeals. Now, if a true threat to national security were presented, wouldn't you expect the INS to pursue all of its appeals? But instead, it has repeatedly dropped the case, allowed the alien who it was claiming posed a threat to national security to be released into the community and not even taken all the steps that it could take.
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Secondly, summaries. There is no requirement under the law that a summary be provided. There is also no requirement that if a summary be provided that it be meaningful. When Mr. Ahmed was first detained, he received no summary whatsoever. At a later point in his hearing, the INS used secret evidence again. The only summary they would give him then was, you are associated with a known terrorist organization. They wouldn't even tell him the group.
Now, how do you defend yourself against that? When we filed a constitutional challenge, all of a sudden the INS found itself able to disclose the name of the group and 50 pages of previously classified information.
And that brings me to the third point. The INS often uses this procedure where the evidence does not need to be kept secret, because it was improperly classified. The Iraqi Six, represented by former CIA Director, Jim Woolsey. Initially, the Government said they had to be kept out because they were threats to national security and all the evidence against them was secret. Well, then Jim Woolsey took the case, came here, brought a lot of attention to it, went on 60 Minutes, and all of a sudden, the INS was able to disclose 500 pages of what it previously said could not possibly be disclosed without threatening and jeopardizing national security. In Mr. Ahmed's case, the same thing happened.
Fourth, this ability to use secret evidence leads the INS to rely on very questionable evidence. In Mr. Kiareldeen's case, which we have heard about, and he is here, once a threat to national security, now sitting right here, because the INS did not deem him a serious enough threat to pursue its appeals, even though it deemed him a serious enough threat to hold him in jail on the basis of secret evidence for 19 months.
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In his case, the evidence primarily came from his ex-wife who was in a custody dispute with him, who it was established had made repeated——
Mr. SMITH. Professor Cole, I am going to interrupt you for a minute. We have been generous with other witnesses this morning and let them go a minute or so past the customary 5 minute limit. You are almost doubling that limit.
Mr. COLE. Well, if I could just conclude.
Mr. SMITH. Please, thank you.
Mr. COLE. Just one other example of questionable evidence. In the Nassar Ahmed case, one of the arguments that the FBI agent made behind closed doors, and which was classified as secret, was that because the INS had imprisoned Mr. Ahmed, it had increased his stature in the community and therefore he should not be released.
The strongest argument against the use of secret evidence is that it is fundamentally unfair. But it is also unnecessary. We can't do it in criminal proceedings, and all the references to CIPA previously I think were quite misleading. CIPA does not permit introduction of secret evidence in criminal proceedings. It couldn't, because of the sixth amendment.
No matter how serious the crime is, we can't do it. And we have survived as a Nation for 200 years, and I think we are better for it, for having honored the basic right to see the evidence against us. We can continue to survive honoring that right.
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[The prepared statement of Mr. Cole follows:]
PREPARED STATEMENT OF DAVID COLE, PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER
INTRODUCTION
Mr. Chairman, members of the Committee, I thank you for inviting me to testify on the use of secret evidence in immigration proceedings.(see footnote 2) I have an unfortunately long experience with this practice. Since 1987, I have represented 13 aliens against whom the INS has sought to use secret evidence. At one time, the INS claimed that all 13 posed a direct threat to the security of the nation, and that the evidence to support that assertion could not be revealed—in many instances could not even be summarized—without jeopardizing national security. Yet in none of these cases did the INS's secret evidence even allege, much less prove, that the aliens had engaged in or supported any criminal, much less terrorist, activity. In most cases, the government's allegations, once revealed, consisted of no more than guilt by association: it claimed that the aliens were associated with disfavored ''terrorist'' groups, but not that they actually engaged in or furthered any terrorist activity themselves.
Today, one of the 13 remains in prison as his case is still pending. All the other clients are free, living a law-abiding and peaceable existence here in the United States, without any adverse consequences to the security of the nation. In every case that has reached a final determination, the INS has lost. Where the cases have been resolved in the federal courts, the courts have declared the use of secret evidence unconstitutional. Where the cases have been resolved in the immigration process, immigration judges have uniformly rejected the government's national security claims as unwarranted.
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In the meantime, however, substantial harm has been done. Nasser Ahmed, an Egyptian man living in New York, spent 3 and years of his life incarcerated, most of it in solitary confinement, before his release last November, when the Attorney General declined to overrule the Board of Immigration Appeals' ruling that he did not pose a threat to national security and should be released. Hany Kiareldeen, a Palestinian from New Jersey, spent a year and a half in detention before the BIA and a federal court ordered his release in October 1999. And Mazen Al Najjar, a Palestinian from Tampa, Florida whose case is still pending, this week will pass his 1000th day in captivity, without criminal charges and on the basis of evidence he has never seen.
But it is not simply years of human beings' lives that have been lost. More broadly, America's image as a country that cares about fairness, openness, and due process has been seriously tarnished. Secret evidence is a tactic one associates with totalitarian regimes and military juntas, not free democracies. A remedy is needed, and H.R. 2121 is it.
The use of secret evidence poses insuperable challenges to the administration of justice. First, and most fundamentally, it is simply not possible to hold a fair adversary proceeding where one side presents its evidence behind closed doors. The adversary process is the best mechanism for determining the truth that we have yet identified, but it depends on each side being able to examine and respond to the other's evidence. Accordingly, every court to address the use of secret evidence in immigration proceedings in the last decade has declared it unconstitutional.
Second, the INS's use of secret evidence contains practically no safeguards against abuse. It uses secret evidence against people who do not pose any threat to the national security, because in its view evidence can be submitted behind closed doors whenever it is classified and relevant, even if the individual involved does not himself pose a threat to national security. It uses secret evidence where there is no legitimate need for the evidence to be secret, because it has been improperly classified by another agency and the INS has no authority to declassify. It uses secret evidence where it has no affirmative statutory authority to do so, such as in detaining aliens without bond. It has failed to keep any record of many of its secret evidence presentations, thereby defeating meaningful review. And while the INS has occasionally provided aliens with declassified summaries of its secret evidence, neither statute nor regulation requires such a production, nor that the summary provided afford the alien a meaningful opportunity to respond. Accordingly, summaries are often not provided at all, and when provided, are often so general as to be entirely unhelpful.
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Third, reliance on secret evidence that cannot be challenged by one's adversarIes leads the government to engage in sloppy practices that would never be tolerated were it required to make its case in open court. As far as I can determine, the INS has relied almost entirely on hearsay presentations by FBI agents, and has failed to produce any original declarants, even in the closed-door proceedings. The FBI agents' presentations have sometimes taken the form of barebones assertions, not even providing the judge with sufficient information to make an independent assessment of the reliability of or basis for the allegations. And the INS and FBI have relied on innuendo and rumor, even where its own records raise serious questions about the validity of its charges.
Fourth, there has never been any showing that the use of secret evidence is necessary. In no other setting is the government permitted to deprive someone of his liberty without affording him a meaningful opportunity to respond to the evidence against him. In criminal cases, secret evidence is never permitted, no matter how serious the charges, and no matter how much confidential or classified information the government has implicating the defendant. This rule applies to the prosecution of terrorists, spies, and mass murderers. We have survived as a nation for over 200 years abiding by that basic rule of due process. There is no reason we cannot and should not extend the same rule to immigrants when we seek to deprive them of their liberty and either imprison them or deport them.
Finally, the use of secret evidence is counterproductive. It poisons the truth-finding process, so we cannot even be certain of whether we have properly identified threats to national security. It embroils the government in protracted litigation because the adversary process is ill-suited to this practice. And most problematically, it encourages cynicism, paranoia, and distrust in immigrant communities, because closed-door proceedings understandably make people fear the worst. That paranoia and distrust in turn impedes the ability of law enforcement to identify true threats in immigrant communities, because it means that the FBI and INS will be viewed as enemy rather than protector.
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I support H.R. 2121 because it seeks to end this practice. It would repeal existing statutory authority for the use of secret evidence to deport aliens, to deny them relief from deportation, or to detain them. Its premise is that the practice cannot be mended, and therefore should simply be ended. I agree with that premise, because at bottom the use of secret evidence cannot be squared with the due process guarantee of notice and a fair hearing. In this testimony, I will show why that is so as a matter of constitutional law and illustrate why it is so by pointing to the INS's dismal track record in secret evidence cases.
I. A CASE STUDY
I want to begin with a case study. Hany Kiareldeen is a thirty-one year old Palestinian who came to the United States on a student visa in 1990 and lives in Newark, New Jersey. From March 1998 to October 1999, he spent 19 months in prison solely on the basis of secret evidence—an uncorroborated bare-bones hearsay report—that neither he nor his lawyers ever have had an opportunity to see.
In 1997, Kiareldeen applied for adjustment of status to permanent resident based on his marriage to a U.S. citizen. On March 26, 1998, however, without ruling on his application for permanent resident status, the INS arrested Kiareldeen, charged him with being deportable for failing to maintain his student visa status, and took him into custody as a threat to national security.
Kiareldeen has never seen the only evidence that the INS ever offered to justify his detention, because the INS presented it in camera and ex parte. According to the undisputed claims of the immigration judges who reviewed it, however, the secret evidence consisted of a report prepared by an FBI Joint Terrorism Task Force relaying extremely general hearsay allegations. Declassified summaries of the evidence provided to Kiareldeen disclosed three allegations: (1) that Kiareldeen was associated with an unidentified ''terrorist organization,'' and ''maintains relationships'' with other members and ''suspected members'' of ''terrorist organizations,'' also unidentified; (2) that ''[an unidentified] source advised'' that about a week before the World Trade Center (''WTC'') bombing, Kiareldeen hosted a meeting at his residence in Nutley, New Jersey, where some individuals discussed plans to bomb the World Trade Center; and (3) that ''[an unidentified] source advised Kiareldeen expressed a desire to murder Attorney General Janet Reno.'' The INS never introduced any evidence in open court to substantiate any of these allegations. Kiareldeen v. Reno, 1999 WL 956289, *15 (D.N.J. Oct. 20, 1999).
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The immigration judge handling Kiareldeen's case initially ruled, in May 1997, that the government's secret evidence justified his detention as a security threat. At that time, the INS told Kiareldeen only that the evidence showed that he was associated with terrorists and posed a threat to the Attorney General, charges so general that he could not possibly rebut them.
After Kiareldeen obtained more detailed summaries of the evidence, he did rebut the government's case in open court. He proved, for example, that he did not even live in the apartment where he supposedly met with World Trade Center bombers until a year and a half after the alleged meeting took place. (The FBI's own records confirmed this fact.) He also showed that one of the sources of secret evidence against him, his ex-wife, had made numerous false allegations against him in the course of a custody battle over their child. Kiareldeen sought to examine his ex-wife in open court, but the INS vigorously opposed his attempts to do so, and she refused to testify about her discussions with the FBI.
Seven immigration judges ultimately examined Kiareldeen's case on the complete record, including the government's secret evidence presentation and Kiareldeen's open court rebuttal—the judge who conducted the immigration hearing and two separate three-judge panels of the Board of Immigration Appeals. It is rare for any judge—even an Article III judge—to reject to a claim of national security by the federal government. Yet in this case, all seven judges flatly rejected the government's contention that Kiareldeen posed a threat to national security.
Two judges directly discussed the quality of the government's evidence. The Immigration Judge who presided at trial, Daniel Meisner, stated that Kiareldeen had ''raised formidable doubts about the veracity of the allegations contained in the [classified information],'' and that in the face of repeated requests for more information, the INS had refused ''to answer those doubts with any additional evidence, be it at the public portion of the hearing or even in camera.'' Matter of Kiareldeen, A77–025–332, Decision of Immigration Judge (Apr. 2, 1999). He concluded that the classified evidence was ''too meager to provide reasonable grounds to believe that [Kiareldeen] was actually involved in any terrorist activity.'' Id.
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BIA Judge Anthony Moscato, dissenting from a preliminary bond panel decision not to release Kiareldeen, wrote that the bare-bones character of the government's in camera evidence made it ''impossible'' for the BIA to exercise independent judgment in assessing ''either the absolute truth or the relative probity of the evidence contained in the classified information.'' Matter of Kiareldeen, A77–025–332, Decision of BIA Denying Request to Lift Stay of Release Order (June 29, 1999) (Moscato, J., dissenting). Judge Moscato criticized the INS for having provided no original source material and ''little in the way of specifics regarding the source or context of the classified information.'' Id. He further noted that despite the immigration judge's continuing requests, the INS had provided ''no witnesses, neither confidential informant nor federal agent, to explain or document the context of the actions and statements referenced in the classified information or to document the way in which the classified information became known to the source of that information.'' Id. at 1–2.(see footnote 3)
On August 18, 1999, Kiareldeen filed a habeas corpus petition in federal district court in New Jersey, arguing that the use of secret evidence to deprive him of his liberty pending resolution of the deportation proceedings was both unauthorized by statute and unconstitutional. On October 20, 1999, the district court granted the petition and issued a writ of habeas corpus. The court ruled that the INS's reliance on secret evidence violated Kiareldeen's due process right to a fair hearing, finding that ''reliance on secret evidence raises serious issues about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of government processes initiated and prosecuted in darkness.'' Kiareldeen v. Reno, 1999 WL 956289, *11 (D.N.J. Oct. 20, 1999). The court also ruled that Kiareldeen had been deprived of his due process rights because the secret evidence at issue consisted of uncorroborated hearsay that ''could not be tested for reliability'' and did not allow the immigration judges ''to conduct a meaningful administrative review.'' Id. at *14–18. The court ordered Kiareldeen's immediate release.
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Later the same day, a three-judge bond panel of the BIA also ordered Kiareldeen's release, unanimously rejecting the INS's appeal of the immigration judge's decision to grant bond, and lifting its prior preliminary stay of Kiareldeen's release. Five days earlier, on October 15, 1999, a separate three-judge merits panel had unanimously affirmed the immigration judge's decision granting Kiareldeen permanent resident status, also finding that Kiareldeen had successfully rebutted the INS's charges against him.(see footnote 4)
After obtaining temporary stays of Kiareldeen's release from the Attorney General and a Third Circuit judge, the INS decided, on October 25, 1999, not to pursue further appeals available to it, and released Kiareldeen. The INS apparently concluded, after contending for more than a year and a half that Kiareldeen posed a national security threat, that he did not even pose a sufficient threat to justify pursuing its appeals. Kiareldeen is now a permanent resident alien, but has never received even an apology from the INS for taking a year and a half of his liberty from him.
Kiareldeen's case is just one of many stories that could be told. I will now turn to the range of legal and practical problems raised by the INS's use of secret evidence.
II. THE USE OF SECRET EVIDENCE VIOLATES DUE PROCESS
The use of secret evidence denies an alien the most basic guarantees of due process: notice of the evidence against him and a meaningful opportunity to rebut it. Accordingly, every court to address the issue in the last decade has found this practice unconstitutional.(see footnote 5)
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There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivations of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.
Mathews v. Diaz, 426 U.S. 67, 77 (1976) (emphasis added) (citations omitted); see also Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (''our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality.''); Galvan v. Press, 347 U.S. 522, 530 (1954) (''since he is a 'person,' an alien has the same protection for his life, liberty and property under the Due Process Clause as is afforded a citizen.'').
As the Supreme Court has stated:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
Greene v. McElroy, 360 U.S. at 496. '' 'Fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.'' ' Goss v. Lopez, 419 U.S. 565, 580 (1975) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J. concurring).
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Accordingly, even in ordinary civil litigation where physical liberty is not at stake, ''it is . . . the firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions.'' Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987); see also Kinoy v. Mitchell, 67 F.R.D. 1, 15 (S.D.N.Y. 1975) (refusing to grant summary judgment on the basis of materials submitted in camera, because ''[o]ur system of justice does not encompass ex parte determinations on the merits of cases in civil litigation''). ''[T]he very foundation of the adversary process assumes that use of undisclosed information will violate due process,'' and therefore ''use of undisclosed information in adjudications should be presumptively unconstitutional.'' American-Arab Anti-Discrimination Committee v. Reno, (ADC v. Reno), 70 F.3d 1045, 1069–70 (9th Cir. 1995).(see footnote 6)
Applying these principles, a federal district court recently declared unconstitutional the use of secret evidence to detain aliens without bond. In Kiareldeen v. Reno, 1999 WL 956289 (D.N.J. Oct. 20, 1999), the district court granted habeas corpus relief to an alien who had been detained by INS on the basis of secret evidence allegedly demonstrating that he was a threat to national security. As noted above, the court found that ''reliance on secret evidence raises serious doubts about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of government processes initiated and prosecuted in darkness.'' Id. at *11.
The Court in Kiareldeen followed the two most recent federal appellate court decisions reviewing INS attempts to use secret evidence in immigration proceedings, both of which also held the practice unconstitutional. In 1988, the INS asserted national security concerns and sought to rely on secret evidence of Fouad Rafeedie's alleged high-ranking membership in the Popular Front for the Liberation of Palestine (PFLP), an allegedly terrorist group, to exclude him from the country upon his return from a trip abroad. A district court preliminarily enjoined the INS's actions on due process grounds, and the D.C. Circuit affirmed the injunction. Rafeedie v. INS, 688 F. Supp. 729 (D.D.C. 1988), aff'd in part, rev'd in part, and remanded, 880 F.2d 506 (D.C. Cir. 1989). On remand, the district court granted summary judgment and held that the INS's attempt to rely on secret evidence violated due process. Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992). The INS chose not to appeal, and abandoned its effort to expel Rafeedie.
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In Rafeedie, every judge to review the INS's actions found '' 'the government's basic position . . . profoundly troubling.' '' Rafeedie, 880 F.2d at 525 (Ruth Bader Ginsburg, J., concurring). The district court found that such a procedure ''afford[s] virtually none of the procedural protections designed to minimize the risk that the government may err.'' Rafeedie, 795 F. Supp. at 19. The court of appeals compared the position of an alien having to disprove charges based on secret information to that of Joseph K. in Franz Kafka's The Trial, and stated that ''[i]t is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.'' Rafeedie, 880 F.2d at 516.
In 1995, the Ninth Circuit unanimously held that the INS could not constitutionally rely on undisclosed information to deny legalization, an immigration benefit, to two aliens accused of associating with a terrorist organization. ADC v. Reno, 70 F.3d at 1066–71. The Ninth Circuit held that ''[o]nly the most extraordinary circumstances could support one-sided process.'' Id. at 1070. The fact that the government asserted national security and charged aliens with membership in a terrorist organization was not sufficient to justify reliance on secret evidence. Id. Again, the government chose not to pursue further appeals, and granted the aliens legalization.
These cases in turn followed Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), in which the Supreme Court relied on due process concerns to interpret an INS regulation not to permit the use of secret evidence to exclude aliens who live here and have due process protections. Chew was a lawful permanent resident of the United States who had left the country for four months as a seaman on a merchant vessel. Upon his return, he was threatened with permanent exclusion based on an immigration regulation that allowed the exclusion of aliens on the basis of confidential information without a hearing. To avoid a ''constitutional conflict'' with the Due Process Clause, the Supreme Court construed the regulation not to apply to returning lawful resident aliens, who have due process rights. Id. at 600–03.
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These cases establish a simple proposition: the use of secret evidence cannot be squared with due process. It makes a mockery of the adversary process. Ordinarily, aliens have a right to confront all the evidence against them, and to cross-examine the government's witnesses. In secret evidence proceedings, the alien cannot cross-examine, and often has no idea even of what the charges against him are. Ordinarily, aliens can object to the introduction of evidence in immigration proceedings; where evidence is produced in secret, the alien cannot make any objections, because he cannot know what the evidence consists of. Ordinarily, an alien is provided with notice of the charges against him; in a secret evidence proceeding he is not. In short, all of the requisites of a fair adversarial process are abandoned when the government is free to introduce its evidence behind closed doors.
The government generally cites three cases in arguing that it is constitutional to use secret evidence in deportation proceedings. None provides the support the government seeks. The first, Jay v. Boyd, 351 U.S. 345 (1956), expressly disclaimed any constitutional holding. The case presented only a statutory challenge to the use of secret evidence to deny suspension of deportation as a matter of discretion, and the Court expressly noted that the alien had presented no constitutional challenge. Jay, 351 U.S. at 357 n.21. Quite plainly, a case that does not even present a constitutional claim cannot resolve that claim. The other two cases the government cites, from the Fifth and Eighth Circuits, engage in virtually no constitutional analysis. They each dismiss the due process issue in a paragraph by misreading Jay v. Boyd as if it decided the constitutional issue, wholly disregarding the fact that the Court in Jay explicitly said it was not deciding that issue.(see footnote 7)
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III. THE INS'S USE OF SECRET EVIDENCE IS DEVOID OF MEANINGFUL SAFEGUARDS
The basic due process problem with relying on secret evidence is exacerbated by the fact that the INS's regulations and procedures contain no meaningful safeguards against its abuse. And as the INS's track record illustrates, the abuses have been endemic.
A. The Use of Secret Evidence is Not Restricted to Individuals Posing a Threat to National Security
First, the INS does not limit its use of secret evidence to national security risks. Its regulations permit it to use this extraordinary procedure anytime that it has classified evidence relevant to an application for an immigration benefit. If the INS had classified evidence that an individual's marriage was not bona fide, for example, an issue that in itself poses no security concern, its regulations would nonetheless permit it to present that evidence behind closed doors. There is no requirement that it first attempt to make its case without relying on secret evidence. And most problematically, there is no requirement that it limit its use of this procedure to individuals who truly pose a threat to national security, such as, for example, individuals who have committed or were planning to commit criminal conduct threatening national security.
Accordingly, the INS used secret evidence in 1997 to oppose Imad Hamad's application for permanent resident status, even though its evidence (which it subsequently disclosed because it was improperly classified), showed no more than that Hamad had attended a Palestinian dinner/dance, on the basis of which the INS argued that he was associated with the Popular Front for the Liberation of Palestine. Both an immigration judge and the BIA held that this evidence did not support denying Mr. Hamad adjustment of status, and the INS did not pursue further appeals. Mr. Hamad now lives in Dearborn, Michigan.
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More frequently, the INS maintains that individuals pose a threat to national security when the INS's own subsequent actions make clear that the evidence simply does not support the charge. Thus, in 1987, the INS arrested eight aliens in Los Angeles, charged them as deportable for being members of a group that advocated world communism, and sought to detain them as national security threats on secret evidence. When the immigration judge refused to take evidence in camera and ex parte, the INS simply allowed the eight to go free, belying its national security claims. At the same time, then-FBI Director William Webster testified that an FBI investigation had found no evidence of terrorist or criminal conduct on the part of any of the eight, that they were arrested for their political affiliations with the Popular Front for the Liberation of Palestine (PFLP), and that if they had been U.S. citizens, there would have been no basis for their arrest.(see footnote 8) Thus, in this case the government sought to use secret evidence at the same time that it admitted that the individuals had engaged in no criminal or terrorist activity. Later in the same case, the INS again tried to use secret evidence to deny two of the eight aliens legalization under an amnesty law. The district court examined the evidence in camera and found that it demonstrated nothing other than First Amendment-protected activities. American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069–70 (9th Cir. 1995) (discussing district court finding and noting that the government's claims of national security were premised not on any individual conduct but on general assertions about the PFLP).
Similarly, the INS initially claimed that Fouad Rafeedie posed a threat to national security because he was a high-ranking member of the PFLP, it allowed him to remain free on parole, thus undermining its own claims. And when a district court granted summary judgment against the INS and held both its use of secret evidence and a provision of the INA unconstitutional, the government did not pursue further appeals, even though there is a strong presumption in favor of appealing decisions declaring statutes unconstitutional. Mr. Rafeedie now lives a peaceful and law-abiding existence in Texas.
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Imad Hamad, yet another man accused of posing a national security threat, is also a permanent resident today. A Palestinian living in Michigan, he was also charged with being associated with the PFLP, again on the basis of secret evidence. The immigration judge reviewed the evidence, but found nothing in it that warranted denying Hamad's application for permanent resident status. On appeal, the BIA affirmed, and the INS did not seek further review by the Attorney General.
As detailed above, the INS never charged Hany Kiareldeen with any criminal activity despite claiming that he posed a threat to national security. All seven judges to view the complete record in his case found no basis for the government's claim that he posed a national security threat, and the INS then declined to pursue its appeals Nasser Ahmed spent 3 and 1/2 years detained, ostensibly as a threat to national security.
When an immigration judge and the BIA both ruled in 1999 that Nasser Ahmed, an Egyptian man who had been imprisoned for 3 and 1/2 years, should be released because the INS's evidence did not show that he posed a threat to national security, the INS initially sought Attorney General review. At the eleventh hour, however, minutes before the deadline the Attorney General set for herself to decide whether Ahmed should go free or continue to be detained, the INS withdrew its request for Attorney General review. Quite plainly, the Attorney General was not convinced that Ahmed actually posed a national security threat.
The only person I represent who is still detained on the basis of secret evidence is Mazen Al Najjar. We have just filed a habeas corpus petition on his behalf, and the case is still being briefed. But in his case, too, there are strong reasons to doubt the government's claims of national security. First, Al Najjar remained a free man until his deportation hearing concluded, yet the INS has never explained why he became a threat to national security only after the hearing was complete. He has been the subject of grand jury investigations since at least January 1996, yet the government has filed no criminal charges against him or those with whom he is associated. And the only reason that either the immigration judge or the BIA gave for detaining him as a national security threat was his alleged political association with a terrorist group—neither the immigration judge, the BIA, nor the INS itself has ever claimed that Al Najjar himself engaged in or supported any terrorist activity. Matter of Al Najjar, A26–599–077, Bond Decision of Immigration Judge 6 (June 23, 1997); Matter of Al Najjar, A26–599–077, Bond Decision of BIA 12 (Sept. 15, 1998).
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It is my view that the use of secret evidence to deprive an individual of his liberty or to adjudicate an alien's request to remain here is nearly always unconstitutional. But even if one believed that it could be used in extreme cases posing extreme dangers, the INS regulations do not restrict it to such cases. On the contrary, the INS has repeatedly used secret evidence even where it lacks sufficient evidence to charge any criminal conduct, much less criminal conduct threatening national security.
B. The INS Often Uses Improperly Classified Evidence, and Only Declassifies it When Its Actions are Challenged
Whatever one thinks of the validity of secret procedures where evidence is properly classified, we can all agree that there is no justification for the procedure where evidence does not in fact need to be confidential. Yet the INS has repeatedly presented evidence in camera and ex parte that could and should have been disclosed from the outset. This is more the fault of the FBI, which is generally the classifying agency, than the INS, but it is a critical problem with current practices.
For example, in 1998, the INS initially relied on secret evidence to exclude several Iraqis who were accused of being double-agents after the United States airlifted them from Iraq on the heels of a failed coup attempt against Saddam Hussein. When former Director of Central Intelligence James Woolsey took their case on and brought substantial congressional and media pressure to bear on the INS, the government found that it was suddenly able to declassify over 500 pages of the previously secret evidence.
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Similarly, in Nasser Ahmed's case, the government initially took the position that it could not even provide a summary of any the secret evidence against him without jeopardizing the national security. Yet when Ahmed filed a constitutional challenge to the INS's actions, it suddenly found itself able to provide a summary of many of its charges, and it eventually turned over more than 50 pages of declassified material that had originally been submitted in secret. The fact that the INS was able to disclose the evidence indicates that there was no need to submit it in secret in the first place. Moreover, on its face much of the evidence could not possibly have been properly classified. One allegation, for example, maintained that Ahmed was associated with Sheikh Omar Abdel Rahman, but that was hardly a secret, as Ahmed had served as Sheikh Abdel Rahman's court-appointed paralegal and translator during the criminal trial of the Sheikh. Other evidence initially classified but ultimately disclosed revealed that the INS's witness in the in camera proceedings, an FBI agent, argued that Ahmed should be detained because his detention by INS had made him a hero in the Muslim community and his release would increase his political stature. Matter of Ahmed, Decision of Immigration Judge and Declassified Excerpts from Classified Attachment (July 30, 1999).
In still another case, that of Imad Hamad, it turned out that the ''secret evidence'' that the INS presented at Mr. Hamad's hearing in 1997 had previously been produced publicly and disclosed to the alien at an earlier stage of the proceeding. When the INS learned of this, it ''declassified'' the document and submitted it as part of the open record when the case was on appeal to the BIA. Quite plainly, the document never should have been classified.
These cases illustrate an inherent structural problem. The evidence that the INS generally presents in secret is not classified by it, but by another agency, usually the FBI. If the FBI overclassifies, as it apparently did in the cases described above, the INS has no authority to second-guess the FBI's judgment. Nor does the immigration judge. Moreover, when an FBI agent makes a decision to classify, it is usually in the context of a counterterrorism investigation, where he is effectively weighing an abstract public right to know against the need for confidentiality of an investigation. In that situation, agents naturally err on the side of classifying. But when that evidence is then used to deprive an alien of his liberty, there is no requirement that anyone review the classification decision. In other words, no one asks whether the classification decision might come out differently when the interest on the other side of the balance is not an abstract public right to know, but the very specific interest of a human being seeking to regain his liberty.
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This structural flaw can lead to years of wholly unnecessary detention. If Nasser Ahmed had been provided at the outset of his detention with the information he was ultimately given, he would have been able to put on his defense immediately, and he would presumably have been released in short order. Instead, when he was initially detained he was told that nothing could be revealed about the secret evidence, and the immigration authorities, denied any meaningful response from Ahmed, ordered his detention. Only after he had sat for years in prison did the INS disclose what could and should have been disclosed at the outset. Thus, here the overclassification literally cost a man years of his life.
C. The INS Uses Secret Evidence Where it Lacks Statutory Authority to Do So
One of the most common uses of secret evidence by INS is to justify detaining an alien without bond while his deportation hearing is pending. This practice can and has resulted in the detention of aliens for years without ever seeing the evidence against them, even where the only formal charge against them is that they overstayed their visa. Yet there is no statutory authority for this practice.
Congress has authorized the INS to use secret evidence in a variety of settings, and H.R. 2121 seeks to repeal much of that authority. Thus, the INA today authorizes the use of secret evidence to deny various forms of relief from removal, to exclude certain aliens, and to deport ''alien terrorists.'' But the only statutory authorization to use secret evidence to detain an individual while his deportation proceedings are pending is 8 U.S.C. §1536(a)(2)(B) (1997), which applies only to ''alien terrorists'' under special deportation hearings held in the Alien Terrorist Removal Court. The INS has never invoked the Alien Terrorist Removal Court procedures, but nonetheless has repeatedly used secret evidence to detain aliens not in those procedures, and not accused of being ''alien terrorists.''
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D. INS Regulations Do Not Require That the Alien be Provided a Meaningful Declassified Summary of Secret Evidence
INS regulations permit the use of secret evidence without even providing a summary of the evidence to the alien. While the regulations state that a summary should be provided when possible, there is no requirement that a summary be provided, or that the summary afford the alien a meaningful opportunity to respond. See, e.g., 8 C.F.R. §103.2(a)(16) (1996), 242.17(a), (c)(4)(iv)(1996); 8 CFR §240.11(c)(3)(iv) (1997). An alien may be told only that secret evidence shows that he must be detained, without even a hint as to what the evidence consists of or charges him with. That is the situation Nasser Ahmed faced when he was initially detained. The INS maintained that it could not tell him anything about the secret evidence whatsoever. In such a situation, it is literally impossible to present a defense.
Where summaries are provided, there is no requirement that they be meaningful. Thus, when Nasser Ahmed next faced secret evidence, in the course of his deportation hearing, the INS did give him a summary. But the summary consisted solely of the allegation that he had an ''association with a known terrorist organization.'' Matter of Ahmed, Deportation Decision of Immigration Judge 20 (May 5, 1997) The INS would not even disclose the name of the group. The immigration judge correctly characterized that summary as ''largely useless,'' id., but the regulations impose no requirement that the summaries meet any standard whatsoever.
The use of secret evidence virtually always makes a meaningful defense impossible, but it indisputably does so where the government does not give the alien notice of the specific allegations against him. Yet in none of the cases in which I have been involved has the INS provided an adequate summary, and there is no regulation or requirement in place to ensure that it do so.
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E. The INS Has Failed to Keep Records of Its Secret Evidence Presentations, Thereby Defeating Meaningful Review
Finally, the INS has failed to keep records of many of its secret evidence presentations. In Ahmed's and Al Najjar's cases, the immigration judges initially took evidence in camera but made no record of the hearing. The absence of a record, of course, defeats any semblance of meaningful appellate review, particularly where the hearing was never open to the public so there is no check on government assertions regarding what transpired. In these cases, the Board of Immigration Appeals, an appellate body, took new evidence outside the record and again ex parte and in camera, and based its decisions on that extra-record showing.
III. SECRET PROCEDURES ENCOURAGE RELIANCE ON QUESTIONABLE EVIDENCE
In open proceedings, each party's knowledge that its evidence will be subjected to cross-examination and rebuttal by its adversary creates crucial incentives. It means that any good advocate will test his or her evidence first, before it is subjected to testing in open court, and will not rely on weak or questionable evidence. When one knows, by contrast, that the other side will never see the evidence, those checks do not operate. The INS's track record illustrates that secret procedures invite abuse.
First, the INS has relied heavily in its secret evidence presentations on hearsay, often in the form of reports drafted by FBI agents relaying accusations by hearsay sources. In the cases of Nasser Ahmed and Hany Kiareldeen, the immigration judges harshly criticized the government for its reliance on double and triple hearsay, its failure to provide sufficient information to permit an independent assessment of the allegations, and its failure, when questioned by the immigration judges, to produce any first-hand witnesses. In effect, it appears that the government sought to have the immigration judges simply defer to the judgment of its FBI witness that the alien posed a threat to national security.
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The Supreme Court and the courts of appeals have held that reliance on hearsay in immigration proceedings, while not absolutely prohibited, poses serious due process problems because it defeats the possibility of examining the witnesses. Bridges v. Wixon, 326 U.S. 135, 154 (1945); United States v. Matlock, 415 U.S. 164, 172 n.9 (1974) (describing Bridges as holding that due process bars use of hearsay ''as substantive evidence bearing on . . . A charge upon which a deportation order had been based''). Thus, many courts hold that the INS may not present hearsay unless it first shows that the original declarant is unavailable. See, e.g., Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir. 1988); Olabanji v. INS, 973 F.2d 1232, 1234–35 (5th Cir. 1992); Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985); Kiareldeen, 1999 WL 956289, at *14–*18. Yet the INS relies heavily on hearsay in its secret evidence hearings, and as far as I know, has never made a showing that the original declarants are unavailable. The presentation of evidence in secret makes it impossible for the alien to cross-examine the witnesses against him. When the secret evidence consists of hearsay, it is impossible even for the judge to question the sources.
Second, the INS has relied on extremely weak evidence in its secret presentations. In Hany Kiareldeen's case, it appears to have relied principally on accusations made by Kiareldeen's ex-wife, who was in a custody dispute with Kiareldeen and had made repeated false accusations against him. Its evidence alleged that Kiareldeen had hosted a meeting at his Nutley, New Jersey apartment a year and a half before he even moved into the apartment.
In Nasser Ahmed's case, the FBI initially claimed in its secret evidence that Ahmed had disseminated to the press a letter from Sheikh Omar Abdel Rahman, who was then in prison, to the press. The letter complained of the Sheikh's prison conditions, but called for no violence. The FBI claimed in its secret evidence presentation that the letter had nonetheless sparked a terrorist bombing in Egypt. Ahmed denied disseminating the letter, and proved that many other persons could have done so. The FBI subsequently admitted that it had no idea who had disseminated the letter, and the State Department reported that the terrorist incident had nothing to do with the Sheikh, but was a retaliatory attack for an Israeli bombing in Southern Lebanon. Matter of Ahmed, Deportation Decision of Immigration Judge and Declassified Excerpts from Classified Attachment (July 30, 1999). In Ahmed's case, the FBI agent also argued in secret hearings that Ahmed should be detained because the INS's detention of him had increased his stature in the Arab community, and that as a result upon his release he would be a more effective leader. Id. Finally, some of the secret evidence in Ahmed's case may have come from the Egyptian government, the very country that the immigration judge found would imprison and likely torture Ahmed for his affiliations with Sheikh Abdel Rahman if Ahmed were returned there. Id.
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These examples illustrate that one cannot short-circuit the adversary process without substantial costs, not only to the rights of those against secret evidence is used, but to the legitimacy of the truth-finding process itself.
IV. THE USE OF SECRET EVIDENCE IS UNNECESSARY AND COUNTERPRODUCTIVE
The government typically responds to the above concerns by claiming that the government's interest in national security, coupled with the political branches' ''plenary power'' over immigration matters, nonetheless justifies the use of secret evidence. But there has never been any showing that national security in fact requires the use of secret evidence, and the government's track record strongly suggests that its identification of ''national security'' concerns is by no means trustworthy.
As I noted at the outset, I have represented 13 aliens against whom the INS sought to use secret evidence. In all 13 cases, the INS claimed that national security would be threatened. In 12 of the 13 cases, the aliens are now living freely in the United States, after the INS lost in court and then decided not to pursue avenues of appeal available to it. The very fact that in these cases the INS did not even pursue all of their appeals only underscores the weakness of the national security claim. If national security were genuinely at risk, one would expect the government to leave no stone unturned in its attempt to safeguard the nation.
Even where national security concerns are bona fide, the use of secret evidence to deprive an alien of his liberty is unconstitutional. It is indisputable that secret evidence could never be used in a criminal case, whether the crime charged was espionage, sabotage, or terrorism, and no matter how serious the national security concern. We have survived as a nation for over 200 years despite our adherence to that absolute principle. There is no reason to believe that adoption of a similar practice in deportation cases would pose any greater threat.
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The Supreme Court has made clear that it will not countenance the use of secret evidence, even where claims of national security are advanced, to deprive aliens living here of their liberty. It refused to permit secret evidence in Kwong Hai Chew v. Colding, even though the Attorney General had personally determined that the information could not be disclosed without prejudicing the national interest. 344 U.S. at 592. When faced with INS claims that labor organizer Harry Bridges's continued residence here was contrary to national security due to his associations with the Communist Party, the Supreme Court nonetheless held that hearsay could not be used to establish deportability because he must be afforded the opportunity to confront the evidence against him. Bridges v. Wixon, 326 U.S. 135, 152, 156 (1945).(see footnote 9) As Justice Frankfurter wrote, ''[t]he requirement of 'due process' is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble.'' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. at 162.
Finally, the use of secret evidence is counterproductive, even as a tool for fighting terrorism. It makes error all too likely, meaning that we may well focus on the wrong people. And more fundamentally, secrecy encourages distrust of government. And that distrust can itself impede law enforcement. Many aliens in Arab communities are deeply suspicious of federal agents now, and for good reason. Nearly all of the secret evidence cases of the past five years have involved Arab and/or Muslim aliens. If we believe that the Arab community is more likely to contain terrorists, a supposition that as Timothy McVeigh showed, is debatable, the last thing we should do is adopt tactics that make the entire community view law enforcement as the enemy.
V. H.R. 2121 RESPONDS TO THE ABOVE CONCERNS BY REPEALING STATUTORY AUTHORITY TO USE SECRET EVIDENCE IN DEPORTATION PROCEEDINGS AND IN THE ADJUDICATION OF IMMIGRATION BENEFITS
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H.R. 2121 provides a direct and straightforward remedy to all of the above problems. It repeals statutory authority for the use of secret evidence in deportation proceedings and the adjudication of immigration benefits. If enacted, it would accord to all aliens the fair procedures now provided to most. Because the use of secret evidence is unconstitutional, unworkable, and unwise, I fully support this remedy.
First, it would repeal authority for using secret evidence to deport aliens. That authority has only existed since 1996, and has never been invoked by the INS, so it is quite plain that we can survive without it. This provision would simply place all aliens living here on equal footing in removal hearings.
Second, it would repeal authority for the government to deny immigration benefits based on secret evidence. Currently, the INA authorizes the government to deny even asylum on the basis of secret evidence. In Nasser Ahmed's case, the immigration judge initially found that although Nasser Ahmed had shown his eligibility for asylum on the public record, because he would be imprisoned and very likely tortured if returned to Egypt, his application had to be denied based on secret evidence that Ahmed never saw.
Third, the bill would make clear that aliens may not be detained on the basis of secret evidence while their removal proceedings are pending. As noted above, there is no existing affirmative statutory authority for this practice under current law outside the Alien Terrorist Removal Court, but the INS maintains that it has the authority implicitly, and therefore it is wise to make clear that no such authority exists.
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Fourth, the bill would bar the government from using secret evidence to deny admission to returning permanent resident aliens, individuals paroled into the United States, and asylum seekers at the border. The bar on use against returning permanent residents is already supported by Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992). Persons paroled into the United States and asylum seekers under current law lack constitutional protection, but the use of secret evidence in these cases presents all the same problems that its use presents in proceedings against aliens who have entered the country, and accordingly I support this reform as well.
CONCLUSION
The defects of legal proceedings conducted in secret have been recognized for centuries. In the Bible itself provided that under Roman law, a man charged with criminal conduct should ''have the accusers face to face, and have license to answer for himself concerning the crime laid against him.''(see footnote 10) Similarly, Wigmore, the noted expert on evidence, has written that ''[f]or two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.''(see footnote 11) It would be difficult to identify anything more as fundamental to a fair legal process than the right of each party to examine and confront the evidence against it. When we deny that right to aliens, we not only denigrate their rights, but demean our own system of justice.
Mr. SMITH. Thank you, Professor Cole.
Mrs. Al-Arian.
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STATEMENT OF NAHLA AL-ARIAN
Mrs. AL-ARIAN. Thanks, Mr. Chairman, thanks, Ms. Jackson Lee for inviting me today to talk about this very much needed issue and the secret evidence procedure.
My name is Nahla Al-Arian, and I am a proud American citizen of Palestinian descent. I am also a mother of five, and the proud sister of Dr. Mazen Al-Najjar, who's been deprived of his freedom for almost 1,000 days now because of the use of secret evidence. On May 19th, 1997, Mazen was handcuffed in front of his three young daughters and taken to a detention facility for supposedly a visa violation. We thought that he would be released on bail in a day or two, like thousands of many similar cases.
However, our hopes were quickly dashed when the Government used secret evidence against him. The immigration judge in the hearing said that my brother is respectable socially, religiously and professionally and has strong family and community ties. He then continued to say that had it not been for the secret evidence, he would have granted him bail.
Needless to say, it was impossible for my brother to defend himself against these Kafkaesque proceedings. He was denied the right to face his accusers, to cross-examine them and to present evidence on his behalf that would establish his innocence. It was like fighting ghosts.
When my parents learned of my brother's incarceration, they were so deeply affected, to say the least. My mother's health, in particular, has suffered since. She frequently breaks into tears when she remembers the horrible situation my brother and his family are in. The pain they feel when they visit their educated, respectable, kind and loving son in that detention facility where he is kept with 16 inmates, cannot be described.
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Mr. Chairman, 2 weeks ago I took my 66 year old father to attend the oath ceremony in which he became an American citizen. On that joyous occasion, my father and I felt sad that my brother, Dr. Mazen Al-Najjar, couldn't be with us to celebrate one of the happiest days in my father's life. Why is this happening? Everyone who knows Mazen knows that he is a very peaceful man who has never been charged with anything, not even a traffic violation.
Mazen's unfair detention was devastating to his three beautiful American-born daughters psychologically, emotionally and academically. They have been traumatized by this horrible experience. When he was taken away, his youngest daughter, Saffa, who was barely 2 years old at that time, refused to eat dinner for many days without her father's presence. She told her mom she was waiting for her dad to come home.
When we talk about the case, we ignore that this case is related to a human being and the web of social connections, a family, children. We have to remember that. We are not talking about just abstract cases.
Mazen's daughters are growing up fatherless during a time in their lives when they need him most. Why should three innocent little girls be deprived of their father's love and guidance when he has committed no crime? When they ask why their father isn't with them and what secret evidence means, and why is their own government doing this to their father, we, the family members and friends, find ourselves trying to explain the unexplainable.
This is what happens in far-away places, but not here, we all thought. My brother, for the past 1,000 days, has lost his freedom without being charged with a single crime. We can expect this to happen in a totalitarian regime, but not here, not in America, the land of the free and the home of the brave.
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Mazen has spent three Ramadans, our holy month, in very intolerable conditions. How would you react if you were told that a priest or a rabbi has spent three Christmases or three Yom Kippurs in detention without committing any crime? As a Palestinian refugee, without a country to call his own, my country Mazen believed very strongly in this country, with its great Constitution and principles. He thought that he would never be a victim of discrimination.
But the use of secret evidence is discriminatory in nature. Because if mazen were a citizen, like his daughters and many members of his family, he wouldn't have faced this.
Muslim women and children feel that they have to deal with fear and discrimination and suspicion all the time now, because of the hysteria around us, because of what we see around us, our beloved ones, we feel our rights violated by not being with them. Mr. Chairman, there is an erroneous misconception that Mazen could leave this country whenever he pleases and whenever he wants to go. This is not true. As a stateless Palestinian refugee, he has no citizenship or residency in any country in the world. In fact, he has no passport from any country.
Moreover, no other country would like to take Mazen after the Government permanently damaged his reputation. In December, 1998, we obtained a visa, a visitor's visa, to Guyana, South America, and Mazen thought by being reunited with his family, he could sacrifice his right to defend himself. But even this didn't work, because when the Guyanase government found out that Mazen was detained here based on secret evidence, they refused to take him unless they see the secret evidence. And our Government refused to show it to them. And they just canceled the visa.
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So that is why we tried in Saudi Arabia, we tried in many, many countries. And we were unfortunately unsuccessful to get him visa.
In April, 1998, I came with a group of church leaders from Tampa, Florida, to talk with some officials at the Justice Department about my brother's predicament. Unfortunately, their hearts were not softened by our pain and suffering. But countless fair-minded men and women of this great land offered their help and support in this struggle for justice.
I am going to wrap up. I would like to, on this note, extend my gratitude and appreciation to the original co-sponsors in the House of Representatives for sponsoring the initiative to ban the use of secret evidence. The Honorable David Bonior and the Honorable Tom Campbell, John Conyers and Bob Barr, all of them, with the 59 other Congressmen and women who have since joined the effort to repeal the use of this shameful procedure.
For the past 8 months, my husband and I have talked to many law makers here in Congress. We are extremely grateful for living in an open political system that allows us to freely express our point of view and to have access to address our concerns to the highest people in power in our country. This is what is great about America, and we must keep it as the beacon of freedom and democracy.
Mr. Chairman, President Eisenhower told us that the nations remain great so long as they are good. On that note, I would like to urge you, and urge all the Congressmen and women to support the Secret Evidence Repeal Act, H.R. 2121. Your vote is a vote for your conscience, for the Constitution, for this great country.
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As long as my brother and others stay imprisoned unjustly, a huge part of our lives will be missing. And here we are crying for justice, and I hope your hearts are open for these cries.
[The prepared statement of Mrs. Al-Arian follows:]
PREPARED STATEMENT OF NAHLA AL-ARIAN
Good morning Mr. Chairman, the Honorable Lamar Smith, Ranking member, the Honorable Sheila Jackson-Lee, and Honorable members of this sub-committee.
My name is Nahla Al-Arian and I'm a proud American citizen of Palestinian descent. I'm also a mother of five and the proud sister of Dr. Mazen Al-Najjar, who has been deprived of his freedom for almost 1000 days now, because of the use of secret evidence.
On May 19, 1997, Mazen was handcuffed in front of his three young daughters and taken to a detention facility for supposedly a visa violation. The FBI and INS agents who arrested him brought with them a photographer from a local newspaper, so his picture with his hands cuffed would be published on the first page the next morning. We thought that he would be released on bail in a day or two, like thousands of other similar cases. However, our hopes were quickly dashed when the government used secret evidence against him.
We subsequently found out that my brother was first taken to the FBI office in Tampa, where he was offered by them residency and citizenship if he would ''cooperate'' and act as an informant. My brother said that he was a researcher and an academic and was not in the line of working as an FBI informant. Then they told him that he would be punished and would not get bail. At first, they said that he was a flight risk. When they were told that he had no place to go, they said that they would use secret evidence. The immigration Judge in the hearing said that my brother is respectable socially, religiously, and professionally and has strong family and community ties. He then continued that had it not been for the secret evidence, he would have granted him bail.
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Needless to say, it was impossible for my brother to defend himself against these Kafkaesque proceedings. He was denied the right to face his accusers, to cross-examine them, and to present evidence on his behalf that would establish his innocence. It was like fighting ghosts. There have been numerous examples that proved beyond the shadow of a doubt that when the so-called evidence is cross-examined, the defendant was easily able to dismiss it. The cases of Hani Kaireldeen and Naser Ahmad, who both were imprisoned on secret evidence and subsequently freed after 19 and 43 months respectively, are just two examples of how this process is flawed. They were easily able to defend themselves even when they obtained part of the secret evidence that was used against them. It should also be noted that the overwhelming number of victims of secret evidence cases are Muslims and/or Arabs. The former CIA director, the Honorable James Woolsey, noted this prejudice in his testimony before the Senate Judiciary committee in July 1998.
When my parents learned of my brother's incarceration, they were deeply affected, to say the least. My mother's health, in particular, has suffered since. She frequently breaks into tears when she remembers the horrible situation my brother and his family are in. My parents always had high hopes that Mazen, their eldest son, will be there to support them in their old age. Unfortunately, they are now faced with taking care of their son and supporting his family. The pain they feel when they visit their educated, respectable, kind, and loving son in the detention facility he is kept in cannot be described.
Mr. Chairman:
Two weeks ago, I took my 66-year-old father to attend the oath ceremony, in which he became a citizen of this great country. On that joyous occasion, my father and I felt sad that my brother, Dr. Mazen Al-Najjar, could not be with us to celebrate one of the happiest days in his father's life.
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Everyone who knows Mazen knows that he is a very peaceful man, who has never been charged with anything, not even a traffic violation. Believing in the principles of freedom and democracy our country upholds, he was eager to come here to continue his higher education and be a benefit to the society.
On December 11, 1981, while I was giving birth to my second child, Mazen arrived in the U.S., and hence I was reunited with my older brother, who has always been a source of wisdom, guidance, and knowledge, not only to me but also to everyone around him. As a pastor to his mosque, Mazen was always there to help and comfort those in need, and to establish tolerance and understanding between the Muslim community and the society at large. As a scholar, Mazen pursued his education and received his masters and doctor of philosophy degrees in Industrial Engineering and Management. In addition, Mazen played an important role in the academic world by establishing a dialogue between Muslim and Western scholars. He was also a teacher at the University of South Florida and was loved dearly by all his students. A. Engler Anderson, who is a Jewish journalist and a former student of my brother, has recently written an article in which he said:
''I emphasize that during my association with him, Mazen showed nothing but the highest degree of respect for Judaism and Jewish culture. As somebody who spent more than four years of his life as a yeshiva bachur, studying Talmud, codes, Jewish philosophy and Chasidic literature, I am clearly in a position to make that assessment.''
(attached article enclosed). Over 30 editorials and columns have condemned the use of secret evidence and have called on the government to abolish this un-American procedure. (see articles attached.)
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Nonetheless, Mazen's most rewarding achievement was in raising his three beautiful American-born daughters: Yara (11), Sara (9), and Safa (4 ). Mazen's unfair detention was devastating to these young girls psychologically, emotionally, and academically. They have been traumatized by this horrible experience. During the 1000 days of Mazen's unjust incarceration, they were only allowed to hug him 4 times! This, my brother told me was the hardest thing in this ordeal—the fact that ''his daughters have to live almost like orphans.'' When he was taken away, his youngest daughter, Safa, who was barely 2 years old at the time, refused to eat dinner for many days without her father's presence. She told her mom she was waiting for her dad to come home. The middle child, Sara, had nightmares for weeks, while the oldest, Yara, had withdrawal symptoms that affected her personality and behavior. Mazen's daughters are growing up father-less, during a time in their lives when they need him most. Why should three innocent little girls be deprived of their father's love and guidance, when he has committed no crime? When they ask why their father isn't with them and what secret evidence means, we, family members and friends, find ourselves trying to explain the unexplainable. To these girls and to all of us, the use of secret evidence that deprives the accused of the right to face the accusation against him and the accusers is unconscionable. This is what happens in far-away places but not here, we all thought. President Clinton, on June 29, 1998, chastised the Chinese at the University of Beijing because of their use of secret proceedings. How can we lecture others about this despicable act while we practice it here at home? It is inimical to the universal principle of human rights. My brother, for the past 1000 days, has lost his freedom without being charged with a single crime! Other victims such as Dr. Anwar Haddam in Virginia, Dr. Ali Karim in California, as well as many others across the nation have fallen victims to this unconstitutional practice. Each victim was snatched from his family to live an unending nightmare. We can expect this to happen in a totalitarian regime, but not here, not in America, the land of the free, and home of the brave.
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Mazen is now faced with living in an entirely different environment. The detention facility he stays in is a place where 16 inmates share a cell, the single toilet has a half-wall for privacy, and the food is inadequate, especially since Mazen is diabetic. It gets especially difficult for Mazen, a religious and pious man, during the Holy month of Ramadan, a time in which Muslim families, and the community as a whole, spend time together.
Mazen has spent three Ramadans in such intolerable conditions. How would you react if you were told that a priest or a rabbi had spent three Christmases or three Yom Kippurs in detention without committing any crime?
As a Palestinian refugee, without a country to call his own, my brother Mazen believed very strongly in this country. With its great constitution and principles, he thought he would never be a victim of discrimination. But the use of secret evidence is discriminatory in nature, for if Mazen were a citizen, like his daughters and many members of his family, it would be impossible to use secret evidence against him. Discrimination, fear, and suspicion are what our children see and deal with nowadays. Muslim women in the U.S., not in Afghanistan, not under the Taliban, feel their rights to be with their loved ones are violated because of this inhumane practice. We teach our children that America is a land that guarantees the freedom of expression, religion, and association, and where the right of due process is made sacred by the constitution. All these constitutional rights are today threatened by the abuse of secret evidence.
Mr. Chairman:
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There is an erroneous misconception that Mazen could leave this country whenever he pleases and that this whole ordeal could be over. Or as some in the government would like to say that ''my brother holds the key to his chains.'' Nothing is further from the truth. As a stateless Palestinian refugee, he has no citizenship or residency in any country in the world. In fact he has no passport from any country. He can't go back to his birthplace in Gaza. The Palestinian authority says the Oslo accords don't allow him. We contacted Egypt, the United Arab Emirates, Saudi Arabia, and Jordan, to name a few, but none was willing to take him. Moreover, no other country would take Mazen after the government permanently damaged his reputation. In December, 1998, we obtained a visitor visa to Guyana, in South America, which upon hearing that he was detained on secret evidence demanded to know what the secret evidence was, or they would withdraw the visa. When the U.S. government refused to share the secret evidence, they withdrew the visa. Indeed, he has lived in America for the past 18 years of his life, and this is where he belongs. This is the only country that his daughters can call home, and he has strong family and community ties here.
In April 1998, I came with a group of church leaders from Tampa, Florida, to talk to some officials at the Justice Department about my brother's predicament. Unfortunately, their hearts were not softened by our pain and suffering. But countless fair-minded men and women of this great land offered their support in this struggle for justice. The support and love in the Tampa community and the public support we have received, have enriched our lives and taught all of us the true meaning of humanity and how to love thy neighbor.
I would also like to extend my gratitude and appreciation to the original co-sponsors in the House of Representatives for sponsoring the initiative to ban the use of secret evidence, HR 2121, the Hon. David Bonior, the Hon. Tom Campbell, the Hon. John Conyers, and the Hon. Bob Barr, and also to the 59 other Congressmen and women who have since joined the effort to repeal the use of this shameful procedure. For the past 8 months, my husband and I have talked to many lawmakers here in Congress. We are extremely grateful for livivig in an open political system that allows us to freely express our point of view and have access to address our concerns to the highest people in power in our country. This is what's great about America and we must keep it as the beacon of freedom and democracy.
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Mr. Chairman, President Dwight D. Eisenhower told us that nations remain great so long as they are good. On that note, I would like to urge every Congressman and woman to support the Secret Evidence Repeal Act (H.R. 2121). Your vote is a vote for your conscience, for the Constitution, for the future generations, and above all for this great country. As long as my brother and others like him are imprisoned unjustly, a huge part of our lives will be missing. We are crying out for justice—but who will hear our cries?
May God protect us all. May He guide us to the straight path and in the support of true justice. And may He bless our country.
Thank you very much.
Mr. SMITH. Thank you, Mrs. Al-Arian.
Professor Cole, let me address my first question to you, and acknowledge at the outset that I am aware of the due process arguments. But I am going to focus a little bit on the practical consequences of your argument. Let me pose this to you.
If you had a dangerous terrorist, and the only thing standing between the admission of that terrorist into our country and his refusal to be admitted was evidence that was gathered by an intelligence source whose life would be endangered if that source was revealed, should we go on and admit that dangerous terrorist into our country?
Mr. COLE. Well, two responses to that. First of all, under H.R. 2121 the Government would retain the ability to exclude aliens based on secret evidence.
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Mr. SMITH. But my question was this, that the only thing that was being used to detain the individual was this evidence gathered by an intelligence service that was not being made public.
Mr. COLE. Right. And H.R. 2121 does not address that, and the Constitution doesn't address that, because the Supreme Court has told us that aliens outside the country don't have due process rights.
But the Supreme Court has also told us that aliens, once they enter the United States, are protected by the due process clause, whether they are here legally or illegally.
Mr. SMITH. And as you know, this individual——
Mr. COLE. And those people cannot be——
Mr. SMITH. Let me clarify my question. As you know, this individual has not been admitted to the United States. So we are not talking about——
Mrs. AL-ARIAN. But we are talking about Mazen who has been here for 18 years, and he has been known for his work, he is a public figure——
Mr. SMITH. Mrs. Al-Arian, I have a question for you in just a minute. I wanted to finish up with Professor Cole if I could.
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My point, Professor, is that the practical consequences of sometimes standing for the ideal of due process is you are going to be admitting some individuals who are going to pose a clear and present threat to innocent American citizens.
Mr. COLE. No, I think——
Mr. SMITH. Or no one would be admitted in that category.
Mr. COLE. No, and the reason they wouldn't be is because this bill doesn't require that they be given the evidence, nor does the Constitution. And that is not on the table here.
Mr. SMITH. I understand, and you differ with the INS and the FBI on this, and we will just have to let it go at that.
Mr. COLE. No, I don't think we differ on this. On the question of aliens outside the country, they have under our law no constitutional rights. There is no issue about due process. The issue about due process is with respect to people within our jurisdiction. And that is where we differ.
Mr. SMITH. I understand that. But I still think there is a difference between your and their testimony.
Mrs. Al-Arian, let me mention something to you, and I know this is a sensitive subject to you, because we are talking about a brother, and that is an emotional subject, shall we say, so I understand that. But I wanted to make a point, and then you are welcome to respond if you want to.
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Is Professor Cole representing you as your attorney?
Mr. COLE. I am representing Mr. Al-Najjar, yes.
Mr. SMITH. Okay, he could respond if you are not comfortable responding, is my point there.
As I understand it, deportation proceedings were started against your brother 15 years ago in 1985 by the INS because he allegedly overstayed his student visa, entered into a fraudulent marriage, and falsely claimed to be a United States citizen. Now, setting aside the political questions, it seems to me that he could have avoided detention had he been willing to leave the country 15 years ago.
Mrs. AL-ARIAN. What happened is that, you know, there was a marriage, if the woman said something about her husband, does this mean that he is like that?
Mr. SMITH. Well, actually my question——
Mrs. AL-ARIAN. So the point is that he was still in the middle of his education, pursuing his education, when this happened. He was married for a year and a half. He wasn't married for a day or two.
Mr. SMITH. The INS had three charges against him and initiated deportation hearings in 1985. And at that point, it is my understanding that had he agreed, he could have gone to another country at that point.
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Mrs. AL-ARIAN. Yes, he was out on bail, he continued his education. As a matter of fact, he is the one who initiated, in 1996, I think, who initiated opening his file. He is the one who went to them and said, please open my file, I want to readjust my status. So he wasn't like escaping or running away. He was there, he was ready to take care of that.
Mr. SMITH. Professor Cole, last question for you, quickly, and it is this, that there were newspaper accounts that linked Mrs. Al-Arian's brother with Islamic Jihad terrorist organizations responsible for numerous killings. Isn't that a legitimate cause for concern by law enforcement agencies?
Mr. COLE. That there are newspaper articles? I suppose it is a legitimate cause of concern for them to read the newspaper and to look into the matter.
Mr. SMITH. You are welcome to question the credibility of the media, but I am just saying that that was in the newspaper.
Mr. COLE. Right, and if I could answer the question, it is certainly appropriate for the FBI to investigate whenever there are credible charges that someone is engaged in Federal criminal activity. The point with respect to Mr. Al-Najjar is the same point with respect to all the other people I have represented. The FBI investigated them but the FBI didn't stop when it concluded, as it has in Mr. Al-Najjar's case, no criminal charges have been filed, as it did in all the other cases, that no criminal conduct was engaged in.
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It didn't then stop and say, okay, there's no crime here, which is what it should do. Instead what it did was go to the INS and urge the INS to use secret evidence regarding associations, not conduct, not criminal conduct, not terrorism, but association at its base. And that is the only charge that has been put forward with respect to Mr. Al-Najjar, that he is associated with this group. Not that he did anything illegal, not that he did furthered any illegal activities. Guilt by association.
And as you know, our history shows that guilt by association is very dangerous.
Mr. SMITH. So you would not be concerned about individuals in this category coming to the United States if the only charge was association?
Mr. COLE. That is right. I think that the principle of freedom of association means that people have a right to be associated with groups, and if they engage in any kind of illegal conduct, they can be criminally prosecuted, they can be deported, no question about that. But if they don't engage in any illegal conduct, I don't think we should be engaging in guilt by association. We went down that road in the McCarthy era, there's no point in going down it again.
Mr. SMITH. Well, I don't think many people would agree with you that this is a McCarthy-like law, but you did answer my question, and I appreciate that.
The gentlewoman is recognized for her questions.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Professor Cole, I am going to allow you to clear up the murkiness of the history of your client, starting from the 1985 episode that the chairman referred to. But allow me just to indicate, you mentioned the McCarthy era, I am well aware, having been on the House Select Committee to investigate the assassinations of Dr. Martin Luther King, as a staffer, and John F. Kennedy, of tracking what was then called, which I think is now public knowledge, COINTELPRO, which in fact, utilized against American citizens the idea of association.
And in fact, even attributed to one who we admire greatly and have taken great comfort from, Dr. Martin Luther King, associated him with certain elements that the United States decided was not one of their liking.
So I do want to caution us to be cognizant that any one of us could be caught in the entrapment of laws that suggest that we are not the appropriate group or type to be associated with.
Help me understand the 1985 situation and the time since then. Did that ever get cleared up? What was the impact of your client coming forward to say, open my case? And I think it is important to reestablish or restate an earlier point that you made of not having the ability to confront witnesses, see witnesses, and again to emphasize that we have a situation where this law allows the keeping of an individual who cannot be associated with actual conduct.
If that is correct, then would you say that for me, and would you also restate that your particular, that the brother of Mrs. Al-Arian, has not been charged with any conduct. It is a long question, and I apologize. I hope you've gotten the elements of it.
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Mr. COLE. You are absolutely right, he has not been charged with any conduct. His proceeding has been going on for a long time, it has been going on for a long time because the INS, as is unfortunately its practice, sat on the case for a long time. And he actually instituted the case. He said, I want resolution of my case, and that is when the case was reopened, at his request in 1996.
He then had a deportation hearing.
Ms. JACKSON LEE. And he was free then?
Mr. COLE. He was free then. He had a deportation hearing. At that deportation hearing, he was found to be deportable. But still he had not been detained.
Then suddenly, the INS detained him, after he was found deportable. But he still has a number of appeals available to him. They say, okay, now somehow, suddenly, you have become a threat to national security, and we have to detain you and we can't allow you to go free, while the courts determine whether you should in fact have the right to stay here, which is his claim, or whether he should be kicked out, which is the Government's claim. And of course, that is always the issue. The issue in these cases is should the alien be allowed to remain free while that dispute is resolved.
In his case, they detained him. He said, on what basis are you detaining me? They refused to provide even a summary of what the charges were against him. They said, you can defend yourself, but we are not even going to give you a summary of what the evidence is.
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Now, as everyone here I think has acknowledged, it is impossible to defend yourself in that situation. And he was held and still is being held on the basis of two decisions which say no more than the following. They say first of all, the public record evidence suggests that he should be free, but the secret evidence means that we have to hold him because he is associated with a terrorist group. Not because he engaged in any illegal activity, merely for his associations.
And I think you are absolutely right to bring up the history of Martin Luther King. You know, the Communist Party was considered a threat to national security, a much greater threat to national security, I might add, than the Palestine Islamic Jihad. It was directed at us. Congress found it to be a threat to national security.
And notwithstanding that, the Supreme Court has held repeatedly that it was unconstitutional for the Government to deny any kind of benefit, to impose any kind of penalty, on someone for their association with the Communist Party unless the Government could also show that that person individually intended to further illegal conduct of the Communist Party. In other words, individual culpability is what the due process clause requires. Guilt by association is unconstitutional.
And yet that is the theory under which all of these cases have proceeded, not that they did anything illegal, but that they are associated with the wrong group.
Ms. JACKSON LEE. Let me quickly, and I think we were better for that Supreme Court interpretation, that we lived through very difficult times, do you as you have practiced, and I have a question for Mrs. Al-Arian with respect to how her brother, or how her brother could end his incarceration, so I want to get that on the record so that I can get an answer.
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But in any event, Professor Cole, is there any basis for doubting whether the secret evidence procedures are reserved for evidence that is legitimately confidential? I heard the chairman mention reading or issues in the newspaper. Is it for as simple a documentation as that that might be put into secret evidence or secret evidence generated out of that? And that gives me great concern. Can you comment on that?
Mr. COLE. Absolutely. There is a very serious basis for doubting whether these procedures are in fact used for evidence that legitimately needs to be confidential. And the basis for that is the record. I talked about the Iraqi Six case in my opening testimony. In Mr. Ahmed's case, when he was initially detained, the INS said, we can't disclose any of this evidence because it is classified. And remember, to say that information is classified is equivalent to saying, its disclosure would threaten national security.
Now, I am sure all of you have experience with classified information and know that information is classified in many circumstances where in fact its disclosure would not threaten national security. Unfortunately, that happens.
But what happened with Mr. Ahmed was, the INS and the FBI took the position, we can't disclose anything until they were challenged in court. Then when they were challenged in court, and the constitutionality of what they were doing came into question, they all of a sudden were able to disclose all kinds of information. With that information, he was able to defend himself. But he spent three and a half years in detention because of information which was improperly classified at the outset, and did not need to be classified.
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Ms. JACKSON LEE. Might I just have his sister answer whether her brother could end his incarceration by voluntarily leaving, and what would happen.
Mrs. AL-ARIAN. As I said, where is he going to go? Without any travel document, as a Palestinian refugee, we even asked the Palestinian authority to take him, and they said no. No country wants to show that it is the haven for terrorists. Our Government accuses Mazen of being an associate with terrorists. Do you want any country to say, okay, fine, I will take that person. Their reputation also would be tarnished if they do that.
That is why we were very unsuccessful in finding him any country. We have been trying very hard. Although as I said, he really didn't want to go, because he felt his whole life, he would feel victimized. I didn't have the right to defend my reputation, I lived like this, how would he feel as a father, as a man.
But he agreed to go because of his kids. And we didn't succeed.
Ms. JACKSON LEE. But no success, so he is in the bottomless pit.
Mrs. AL-ARIAN. No, we have been trying until now.
Mr. SMITH. Thank you, Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
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Mr. SMITH. The gentleman from Indiana, Mr. Pease, has no questions.
The gentleman from California, Mr. Berman.
Mr. BERMAN. Yes, Mr. Chairman, you earlier made a point that any of these people could end their confinement by virtue of going back to the country——
Mr. SMITH. I am told by the INS that many could. I don't know if all could.
Mr. BERMAN. Oh, I am sure there are some that could. But I think it must be established that either because the country will not take them back or because perhaps for some political situation in that country, going back would be like execution, or because in the situation like a Palestinian refugee, I don't know what the current status is with the Palestinian authority and their ability to accept Palestinian nationals at this particular point, and perhaps in a short time there will be no question about that ability.
But in any event, there are a lot of different kinds of obstacles that do not give the person who is incarcerated a choice to get out of jail by virtue of going to some other country. And that is a difficult situation which we have to deal with.
Professor Cole, in your testimony you said that these statutes, and I am still not clear about what statute does what in the context of secret evidence, but you said the formula is not tied to true threats to national security. What did you mean?
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Mr. COLE. What I mean by that is that the provision that was in the 1996 Illegal Immigration Reform Act——
Mr. BERMAN. The second one.
Mr. COLE. The second act, which authorizes the use of secret evidence to oppose applications for asylum, withholding, adjustment of status and the like, does not require that the evidence establish that the person poses a threat to national security. The INS' regulations, which actually predated the 1996 Act, because even without the 1996 Act, INS took the position that it had this authority implicitly given to it by Congress.
Mr. BERMAN. There is some earlier law that is referred to in this one.
Mr. COLE. Actually, prior to 1996——
Mr. BERMAN. A 1980 law, or——
Mr. COLE. No, prior to 1996 the only explicit statutory authorization for the use of secret evidence was in exclusion proceedings, which is the hypothetical that the chairman first raised, an alien who has no due process rights. Since the 1950's, those people could be excluded based on secret evidence. But there was no explicit statutory authority for use of secret evidence anywhere else.
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The INS interpreted Congress to have given it implicit authority, and adopted regulations. Those regulations are still in effect after the 1996 Act. And those regulations provide, any time that the INS has classified information that is material to the immigration proceeding, it can use it in secret procedures. So if it has secret evidence that a marriage was breaking up, it could use that. The secret evidence, in other words, does not have to establish that the person is a threat in any way, shape or form.
Mr. BERMAN. But the basis for the deportation may not be threat to national security, but can you use secret evidence where the justification for the secret evidence is anything other than protecting vital national security interests?
Mr. COLE. Yes, absolutely. When you have classified information——
Mr. BERMAN. Well, let's establish this, I accept the principle that there is massive over-classification.
Mr. COLE. Right.
Mr. BERMAN. So we don't have to debate that. I saw recently the results of the Russian Duma elections were classified as secret. [Laughter.]
Mr. COLE. And Mr. Berman, that is the only thing that the law requires. All it requires is that the information be classified and that it be relevant to any issue in the immigration proceeding. Not that it be relevant to proving that this person poses a threat to national security, just that it is relevant evidence, and it is classified. Therefore, to disclose it would threaten national security. That is the only national security nexus in the statute with respect to the administration of benefits.
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Mr. BERMAN. All right. But presumably a third party, a judge, or an immigration judge, you apparently have had quite a bit of success dealing with immigration judges in these matters, could review that classified material and question the basis for the INS' initial proceeding?
Mr. COLE. In fact, that is a very good question, Mr. Berman, and it raises another problem here, which is that the only entity that can declassify or question the classification of a piece of evidence is the entity that classified the evidence. In virtually every case I have been involved with, it is the FBI that classifies the evidence, it is the INS that presents the evidence. And the immigration judge is an INS official, essentially. The immigration judge has no authority to question the classification. The INS says, we can't do anything about it, FBI classified it.
So it is all kind of pointing fingers. There is no authority or responsibility taken for——
Mr. BERMAN. The immigration judge sees the classified evidence.
Mr. COLE. He sees the classified evidence and then he makes his decision based on that classified evidence.
Mr. BERMAN. And in the cases, it sounds like in 12 of your 13 cases, you can't hold them.
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Mr. COLE. Well, that is not quite accurate. In 12 of 13 cases, we have prevailed. In a number of the cases, we have prevailed on the ground that you simply can't use this procedure. The Federal courts have held it is unconstitutional to use this procedure, and we have never gotten into it.
But where judges have actually looked at the evidence, what they have determined, take Mr. Kiareldeen's case, alleged, after high level Justice Department review that he was a threat to national security, seven immigration judges looked at the secret evidence in his case and looked at the record that he presented in open court. All seven immigration judges, no dissents, found that there was no basis to conclude that he posed any threat to national security, and he was released.
But he spent a year and a half in detention because of that. And the reason he spent a year and a half in detention was because when you use the secret evidence procedure it takes a lot longer to do anything.
Mr. BERMAN. But just to follow up, there are a lot of issues about the length of detention and whether or not there should be writs of habeas corpus and how quickly this judgment should be made.
Mr. COLE. Right.
Mr. BERMAN. But you did come back to saying that in the end, the people were released because a judge found they were no threats to national security. My bet is, they found that the association with an organization may exist, but in and of itself, that mere association was not enough and they could not from that leap to the fact that the person was a threat to national security.
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Mr. COLE. That is right. In fact, judges have said precisely that.
Mr. BERMAN. So there is a standard, then, of threat to national security as a justification for the detention.
Mr. COLE. For detention, for detention the standard is that an alien can be detained while in deportation proceedings if either he poses a threat to national security or he poses a risk of flight. So in those cases, where there is detention, the immigration judge is assessing, and the Government has to allege, that either this person is a flight risk or a threat to national security. In those cases, yes, they have to allege that.
But they don't have to claim just national security. In all the other cases, adjustment of status or asylum or withholding, in those cases, there is no requirement that the INS allege that the person poses a threat to national security. All they have to allege is, we have classified information, it is relevant to the immigration determination at hand, we want to produce it in secret. Then they can do it in secret and there is no requirement that they give a summary and there is no requirement that summaries be meaningful.
Mr. BERMAN. And you disagree with the FBI contention that in espionage cases, criminal cases, there is a procedure to allow secret evidence?
Mr. COLE. Yes. There is a procedure, it is called the Classified Information Procedures Act. But it does not permit in any case whatsoever the introduction of secret evidence into evidence. It was drawn up to deal with gray mail, essentially, where defendants with high security clearances themselves said they wanted to use secret information in order to defend themselves. It permits the creation of a substitute summary which the judge has to find affords the defendant substantially the same opportunity to defend himself as would the classified information itself.
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If the judge makes that determination, that the same opportunity to defend oneself is presented, then the summary becomes part of the record. The secret evidence is never produced. And under CIPA, in no situation would it be permissible, as is routine in immigration cases, to have witnesses testifying in secret.
Mr. SMITH. Mr. Berman, thank you for your questions.
I have one last question to ask you, Professor Cole, on behalf of Tom Campbell. This is the question, and let me say at the outset, you are going to be limited to 60 seconds in your answer.
Mr. COLE. All right.
Mr. SMITH. What would you think of at least providing that no one be held in jail after 30 days on the basis of secret evidence? That would allow keeping someone out as an initial matter, or arresting someone for the purposes of deportation, but not the interminable incarceration that Mrs. Al-Arian's brother, for example, has endured.
Mr. COLE. I think that would be a great improvement. I wouldn't solve the due process problems, but it would solve some of the most egregious abuses with respect to length of detention.
Mr. SMITH. Okay. Thank you for your answer. We thank you both for your testimony today.
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And before we adjourn, I just want to thank the counsel to my right, Jim Wilon, who was up until midnight last night getting last minute testimony and preparing for this hearing. The staff is always overworked and underpaid, but this is just another example. So Jim, thank you.
I thank you again, and we stand adjourned. But let me say we will commence the next hearing on the Visa Waiver Pilot Program in 10 minutes.
[Whereupon, at 1 p.m., the subcommittee was recessed, to reconvene at 1:10 p.m. the same day.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT ON BEHALF OF ANTI-DEFAMATION LEAGUE, B'NAI B'RITH INTERNATIONAL, HADASSAH, THE JEWISH COUNCIL FOR PUBLIC AFFAIRS
As organizations that have played leadership roles in support of civil rights and civil liberties in America, as well as international human rights and religious freedom, we appreciate the opportunity to present our views on H.R. 2121—the Secret Evidence Repeal Act.
Our organizations have also staunchly supported America's role as a haven for persons persecuted and oppressed in their native lands. Working with other religious and ethnic groups, the Jewish Community has championed America's historic commitment to fair treatment for all immigrants. Our organizations have strongly supported broad due process protections for aliens facing deportation. However, we oppose the drastic approach embodied in H.R. 2121, which would strip the government of important protections against compromising counterterrorism intelligence sources.
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A system under which aliens may be detained without access to full information about the allegations of wrongdoing against them, clearly falls below the normal standards which form the basis of our justice system. But in modifying the existing process governing the detention of suspected terrorists, for example, it is necessary to appropriately balance national security interests with individual liberty. At oversight hearings on the threat of terrorism before this Subcommittee last month, Members heard testimony about continuing efforts by terrorists to infiltrate the United States to carry out criminal acts here—and about individuals who come to the United States to raise funds for and organize terrorist activity. Investigating and preventing such acts requires law enforcement officials and investigators to be able to protect sources and methods.
As the Subcommittee examines the necessary balancing test between an individual's rights and national security interests, we urge Members to reject the approach of H.R.2121 and look to existing models, approved by Congress and upheld by the Supreme Court. These provisions more appropriately balance the legitimate efforts of the government to protect Americans from foreign security threats with the responsibility to provide an appropriate level of due process for aliens at the same time.
Models supported by Congress and the Supreme Court.
Congress has long grappled with the unique challenge of deterring and preventing terrorism in a free society—balancing the need to protect confidential sources and methods with the due process rights of suspected terrorists. In 1996, Congress overwhelmingly passed the Antiterrorism and Effective Death Penalty Act, which provided one useful model for balancing national security concerns and the due process rights of aliens accused of terrorist crimes.
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That Act's provisions created a mechanism for providing an alien suspected of terrorism with an unclassified summary of the specific evidence against him ''sufficient to enable the alien to prepare a defense''—allowing the government, in these limited circumstances, to protect its confidential sources and methods. Similar procedures which seek to strike an appropriate balance are contained within the Classified Information Procedures Act (CIPA), a statute which has been upheld against due process challenges. CIPA provides another useful guide for how to provide an alien with limited access to classified information—without unduly compromising national security interests.
The Use Of Classified Evidence Should be Rare—and Oversight by Justice Department Officials is Appropriate.
Aliens entering the US are entitled to reasonable procedural due process protections—including the opportunity to defend themselves against unfounded criminal charges. These rights should be safeguarded unless the government can appropriately demonstrate that a specific alien is suspected of involvement in terrorist activities—and that full disclosure of the classified evidence against him would pose a risk to national security. According to press reports, the Deputy Attorney General is now reviewing each new circumstance in which government officials seek to limit the evidence provided to a particular alien suspected of involvement in criminal activities. We welcome this step.
In addition, we believe the Attorney General should review the particular circumstances of those individuals currently being detained based, in part, on undisclosed classified information and determine whether relevant evidence of criminal wrongdoing has been properly withheld. This oversight function provides another important safeguard against inappropriate withholding of classified evidence from aliens suspected of criminal wrongdoing.
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Providing an Appropriate Summary of Classified Evidence Would Help Balance Competing Concerns.
Any circumstance in which an alien is provided with less than full disclosure of the evidence against him raises serious concerns. In those limited circumstances in which national security interests conflict with an individual's reasonable due process expectations, we believe the law should require disclosure of, at least, the nature of the charges and an appropriate summary of the evidence—sufficient to permit the alien to prepare a defense. This approach ensures that the alien would have a more meaningful chance to respond to unfounded charges.
H.R. 2121 Unduly Restricts the Ability of Government Officials to Protect Essential Confidential Sources and Methods.
Senior law enforcement authorities in the US have testified on numerous occasions before Congress that terrorist organizations seek to use the United States to plan, organize, and raise funds for terrorist activities here and abroad. H.R.2121 too-broadly restricts the ability of law enforcement officials to protect intelligence sources. In some instances, because the information provided by intelligence sources is so singular in nature, known only by very few individuals, revealing it to suspected terrorists detained in this country would compromise those sources—who may risk death if exposed.
H.R.2121 Could Force the Government to Release Terrorists Who Threaten National Security.
Because this legislation forces the government to choose between releasing a suspect or exposing intelligence sources, H.R. 2121 could lead to the release of individuals currently being detained who do, in fact, pose a terrorist threat.
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Discrimination or Profiling on the Basis of Ethnicity or Religion is Always Unacceptable.
Even when faced with the significant threat of international terrorism, law enforcement officials must never engage in inappropriate stereotyping or profiling on the basis of ethnicity or religion. Members of specific ethnic or religious groups should never be singled out for different treatment on the basis of their personal characteristics. The creation of a sound procedural due process framework—coupled with necessary training—should help guard against abuses and prevent improper treatment of individuals based on any erroneous preconceived terrorist ''profile.''
Fighting Terrorism is Not a Zero-Sum Game.
It is well established that the government has the constitutional right—and the duty—to keep our nation from being used as a base for terrorist activity. Limiting access to the US for individuals involved in terrorism, establishing sanctions on those nations that support terrorism, and banning fundraising and material support for foreign terrorist organizations in this country are important ways in which Congress and the Administration have attempted to prevent acts of terrorism before they occur. In the same way, creative means must be used to balance the government's legitimate security interests with a defendant's legitimate expectation of due process protections. Congress will continue to grapple with this daunting challenge, but the ongoing threat posed by individuals who come to the US to engage in terrorism demands sustained attention.
Finally, it is important to keep in mind that terrorists do not play by our rules. Given the chance, terrorists and their sponsors in rogue nations will exploit our democratic freedoms to finance and organize terrorist activity here and abroad.
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We very much appreciate this Subcommittee's deliberate efforts to examine the existing procedural due process safeguards for aliens. We believe that the Administration and Members of Congress are rightly concerned about preventing misuse of classified information. Rigorous procedures must be in place to prevent the improper use of classified information against any individual. We would support appropriate refinements in existing law or administrative procedures that would provide additional safeguards against abuse, while maintaining the necessary investigative tools to prevent terrorist acts here or abroad. H.R. 2121, however, does not provide the proper balance between national security interests and individual liberty and we urge Congress to reject this extreme measure.
(Footnote 1 return)
Our comments in this testimony are directed only to the provisions of ATRA as originally enacted. We are aware that ATRA was amended by the immigration reform law enacted later in 1996. That amendment purports to provide for a process pursuant to which a deportation case may proceed, under certain circumstances, even without provision to the potential deportee of a summary. We do not subscribe to that procedure.
(Footnote 2 return)
I speak here in my personal capacity, and not as a representative of Georgetown University Law Center or any other entity or person. I attach my curriculum vitae as Exhibit A. Pursuant to House Rule XI, clause 2(g)(4), I hereby disclose that in the past three years I received a $2500 honorarium for speaking at a Justice Department conference, and $300 each year from the Administrative Office for U.S. Courts for conducting an annual training session for U.S. magistrates.
(Footnote 3 return)
The other two judges on this panel declined to lift the stay of Kiareldeen's release order pending appeal, but did not dispute in any respect Judge Moscato's characterization of the evidence.
(Footnote 4 return)
Under the BIA's rules, separate panels consider appeals of bond determinations and appeals of the merits of deportation proceedings. 8 C.F.R. §3.19(d); 8 U.S.C. §1226; Gornika v. INS, 681 F.2d 501, 505 (5th Cir. 1982).
(Footnote 5 return)
The Due Process Clause protects all persons living in this country, whether citizen or alien. It protects even aliens living here unlawfully:
(Footnote 6 return)
A later decision in ADC v. Reno, addressing a separate selective prosecution claim, was reversed and vacated by the Supreme Court under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, Reno v. American-Arab Anti-Discrimination Comm., XXU.S.XX, 119 S. Ct. 936 (1999), but that decision had no bearing on the 1995 decision's holding on the use of secret evidence.
(Footnote 7 return)
United States ex rel. Barbour v. District Director, 491 F.2d 573, 578 (5th Cir.), cert. denied, 419 U.S. 873 (1974); Suciu v. INS, 755 F.2d 127, 128 (8th Cir. 1985). Indeed, the court in Suciu acknowledged that ''as a matter of fairness and logic, the [due process} argument has considerable appeal,'' but then erroneously considered it ''foreclosed'' by Jay v. Boyd. Id.
(Footnote 8 return)
Hearings before the Senate Select Committee on Intelligence on the Nomination of William H. Webster, to be Director of Central Intelligence, 100th Cong., 1st Sess. 94, 95 (April 8, 9, 30, 1987; May 1, 1987), quoted in American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1053 (9th Cir. 1995).
(Footnote 9 return)
In enacting the deportation provision at issue in Bridges, Congress specifically found that the Communist Party posed a threat to national security. S.Rep. No. 1515, 81st Cong., 2d Sess. 788–89 (1950).
(Footnote 10 return)
Acts 25:16 (King James).
(Footnote 11 return)
5 Wigmore on Evidence 1367 (3d ed. 1940) (quoted in Greene v. McElroy, 360 U.S. 474, 497 (1959)).