SPEAKERS CONTENTS INSERTS
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SECRET EVIDENCE REPEAL ACT OF 1999,
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
MAY 23, 2000
Serial No. 97
Printed for the use of the Committee on the Judiciary
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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
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
Page 3 PREV PAGE TOP OF DOCDAVID 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
C O N T E N T S
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Hyde, Hon. Henry J., a Representative in Congress From the State of Illinois, and chairman, Committee on the Judiciary
Al-Arian, Nahla A., relative of detained alien
Bonior, Hon. David E., 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
Cooper, Bo, General Counsel, Immigration and Naturalization Service
Emerson, Steven, executive director, Terrorism Newswire
Flatow, Stephen, victim of terrorism
Page 5 PREV PAGE TOP OF DOC Homburger, Thomas, National Executive Committee, Anti-Defamation League
Kiareldeen, Hany, formerly detained alien
Nojeim, Gregory T., legislative counsel, American Civil Liberties Union
Parkinson, Larry R., General Counsel, Federal Bureau of Investigation
Ramer, Bruce, president, American Jewish Committee
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Al-Arian, Nahla A., relative of detained alien: 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
Cooper, Bo, General Counsel, Immigration and Naturalization Service: Prepared statement
Emerson, Steven, executive director, Terrorism Newswire: Prepared statement
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Flatow, Stephen, victim of terrorism: Prepared statement
Homburger, Thomas, National Executive Committee, Anti-Defamation League: Prepared statement
Hyde, Hon. Henry J., a Representative in Congress From the State of Illinois, and chairman, Committee on the Judiciary: Prepared statement
Kiareldeen, Hany, formerly detained alien: Prepared statement
Nojeim, Gregory T., legislative counsel, American Civil Liberties Union: Prepared statement
Parkinson, Larry R., General Counsel, Federal Bureau of Investigation: Prepared statement
Ramer, Bruce, president, American Jewish Committee: Prepared statement
Material submitted for the record
SECRET EVIDENCE REPEAL ACT OF 1999, PART II
TUESDAY, MAY 23, 2000
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House of Representatives,
Committee on the Judiciary,
The committee met, pursuant to call, at 10:02 a.m., in Room 2141, Rayburn House Office Building, Hon. Henry J. Hyde (chairman of the committee) presiding.
Present: Representatives Henry J. Hyde, George W. Gekas, Howard Coble, Charles T. Canady, Steve Chabot, Bob Barr, Asa Hutchinson, James E. Rogan, John Conyers, Jr., Jerrold Nadler, Robert C. Scott, Sheila Jackson Lee, Maxine Waters, and William D. Delahunt.
Staff Present: Thomas E. Mooney, Sr., general counsel and chief of staff; Jon Dudas, deputy general counsel and staff director; Daniel M. Freeman, parliamentarian and counsel; Joseph Gibson, chief counsel; Will Moschella, chief oversight counsel; Samuel F. Stratman, communications director; James B. Farr, financial clerk; George Fishman, chief counsel, Subcommittee on Immigration; Jim Wilon, counsel, Subcommittee on Immigration; Kelly Dixon, clerk, Subcommittee on Immigrations; Keenan Keller, minority counsel; Leon Buck, minority counsel.
OPENING STATEMENT OF CHAIRMAN HYDE
Mr. HYDE. The committee will come to order.
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. Like the car bombing of U.S. Marines in Beirut, the bombing of Pan Am Flight 103, the Unibomber, the World Trade Center bombing, the Oklahoma City 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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Those tragedies, along with close calls like the full Brooklyn subway bombing and the recent capture of Algerians smuggling bombs across the border, have shattered the image of American invincibility to terrorism, either foreign or domestic. When terrorists try to enter the United States, the Immigration and Naturalization Service, 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 evidence that an alien is a terrorist is sensitive information that is classified for national security purposes. Classified evidence may be presented to immigration judges presiding over removal proceedings, but is not fully disclosed to the alien, although a summary may be provided. The rationale has been that full disclosure of classified information might endanger U.S. intelligence sources and operations abroad.
Since the 1950's, a long line of Federal court cases has established the Immigration and Naturalization Service's right to use classified evidence to deny admission to terrorists and to deny claims for asylum or other relief made by illegal alien terrorists who are trying to avoid deportation.
The 1996 antiterrorist reforms codified those court decisions and also created the Alien Terrorist Removal Court, a specialized court where classified evidence may be used to deport terrorists. In each case of the use of classified information, the Attorney General or Deputy Attorney General must personally certify that the alien is a terrorist, and that public disclosure of classified evidence would threaten national security.
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Out of 300,000 immigration court proceedings brought by INS each year, fewer than 20 cases involve the use of 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 of the use of classified evidence respond that deportation proceedings are not criminal trials and that the government should not have to choose between endangering its intelligence sources or allowing terrorists to roam freely in the United States.
The second criticism against the use of classified evidence is that the INS is biased against Middle Eastern immigrants. Almost all of the aliens affected by classified evidence have been from the Middle East. Supporters of classified evidence respond that a disproportionate number of terrorist attacks against Americans are perpetrated by Middle Eastern groups or individuals, a position supported by the State Department's latest survey of global terrorism.
The third criticism arises from media reports of a number of cases where alleged terrorists were detained for long periods based on classified evidence, but then ultimately released by the INS. Questions have been raised regarding the necessity of those detentions and the quality of the classified evidence used, especially when the aliens were ultimately released.
Legitimate concerns about national security and public safety should not blind us to the potential for hardship and abuse for aliens who are excluded or removed based on classified evidence. In removal cases, criminals or suspected terrorists are often held in detention facilities to ensure they do not abscond, and such detention can stretch out for months or years while the case is litigated.
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Removal based on classified evidence is a delicate procedure that, if mishandled, can create oppressive situations.
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 forgo use of undisclosed classified evidence as grounds for removal.
The bill also prohibits the use of undisclosed classified evidence against claims for asylum or other 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, terrorists or criminal aliens in removal proceedings or under removal orders may be detained by the INS so 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.
[The prepared statement of Mr. Hyde follows:]
PREPARED STATEMENT OF HON. HENRY J. HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS, AND CHAIRMAN, COMMITTEE ON THE JUDICIARY
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 like the car-bombing of U.S. Marines in Beirut, the bombing of Pan Am flight 103, the Unabomber, the World Trade Center bombing, the Oklahoma City 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, have shattered the image of American invincibility to terrorism, either foreign or domestic.
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 evidence that an alien is a terrorist is sensitive information that is classified for national security purposes. Classified evidence may be presented to immigration judges presiding over removal proceedings but is not fully disclosed to the alien, although a summary may be provided. The rationale has been that full disclosure of classified information might endanger U.S. intelligence sources and operations abroad.
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Since the 1950's, a long line of federal court cases has established the INS' right to use classified evidence to deny admission to terrorists, and to deny claims for asylum or other relief made by illegal alien terrorists who are trying to avoid deportation.
The 1996 anti-terrorist reforms codified those court decisions and also created the Alien Terrorist Removal Court, a specialized court where classified evidence may be used to deport terrorists.
In each case of the use of classified information, the Attorney General or Deputy Attorney General must personally certify that the alien is a terrorist and that public disclosure of classified evidence would threaten national security.
Out of 300,000 immigration court proceedings brought by INS each year, fewer than twenty cases involve the use of 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 of the use of classified evidence respond that deportation proceedings are not criminal trials, and that the government should not have to choose between endangering its intelligence sources or allowing terrorists to roam freely the United States.
The second criticism against the use of classified evidence is that the INS is biased against Middle Eastern immigrants. Almost all of the aliens affected by classified evidence have been from the Middle East.
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Supporters of classified evidence respond that a disproportionate number of terrorist attacks against Americans are perpetrated by Middle Eastern groups or individuals, a position supported by the State Department's latest survey of global terrorism.
The third criticism arises from media reports of 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.
Legitimate concerns about national security and public safety should not blind us to the potential for hardship and abuse for aliens who are excluded or removed based on classified evidence. In removal cases criminals or suspected terrorists are often held in detention facilities to ensure they do not abscond, and such detention can stretch out for months or years while the case is litigated. Removal based on classified evidence is a delicate procedure that, if mishandled, can create oppressive situations.
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.
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The bill also prohibits the use of undisclosed classified evidence against claims for asylum or other 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.
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. HYDE. The Chair is pleased to recognize the ranking member, Mr. Conyers.
Page 15 PREV PAGE TOP OF DOC Mr. CONYERS. Thank you very much. I am delighted to see my colleagues here. I am cosponsor of this bill, and I wanted to make a couple of observations.
First, the measure before us, the Secret Evidence Repeal Act, does not require the release of dangerous terrorists. It merely requires that the government either reveal the evidence against the noncitizen whose liberty is in jeopardy or keep the information fully secret and outside of the immigration proceedings and determinations.
Similarly, the Secret Evidence Repeal Act is not designed to help illegal aliens; it is designed to ensure that a fair process is used in the proceedings to determine whether a noncitizen is in the United States lawfully.
Now, I might point out that the courts have held the use of secret evidence in deportation cases unconstitutional. I have a series of cases here that I am sure we will get into later.
In addition, the Immigration and Naturalization Service's use of secret evidence lacks meaningful safeguards. The use of secret evidence is not restricted to individuals posing a threat to national security. And often the INS uses improperly classified evidence and only declassifies it when its actions are challenged.
In addition, we have cases in which the INS has used secret evidence where it lacks the statutory authority to do so.
The secret evidence provisions have had a disparate impact upon the Arab and Arab-American community.
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And so I am thankful we are having these hearings because one of the country's most time-honored constitutional traditions is that of due process, and nowhere is due process more important than one's right to confront evidence if accused of a crime.
But in 1996, those in control of the House of Representatives, with two pieces of legislation, struck a hard blow to that tradition, telling the courts that criminal deportation and other proceedings could occur in secret chambers, the Antiterrorism and Effective Death Penalty Act established the Alien Terrorist Removal Court, which is empowered to deport those suspected of terrorism on the basis of secret classified information that is unreviewable by the accused.
It is my contention that that should not happen in America.
And then the Judiciary Committee and the Congress enacted the second of these constitutional affronts, the Illegal Immigration Reform and Immigrant Responsibility Act to eliminate judicial review over a host of the most significant governmental actionsthe right to appeal asylum denials, decisions related to apprehension and detention of aliens, document fraud waivers, orders issued in absentia, and denial of requests for voluntary departure.
The statute also broadened the range of proceedings where secret evidence can be used against an immigrant.
And many of those in this Congress who voted for these laws were the first to plead for greater due process in a recent immigration case in Floridanot exactly a consistent position.
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Needless to say, the courts are skeptical of these laws. The first circuit, the second circuit, and the ninth circuit have substituted a habeas analysis to ensure the otherwise abandoned judicial review.
Other Federal courts have found outright that the denial of confrontation and due process rights offend the Constitution.
In one of these cases, a 38-year-old Egyptian, Nasser Ahmed, was held in solitary confinement for 3 years and denied asylum, all due to double hearsay and, in some cases, triple hearsay. When scrutinized, the evidence not only showed a lack of incriminating conduct, but also that the asylum case had merit. Only he lost 3 years of his life due to the suspension of his rights by these secret processes.
In another case, a 19-year-old Palestinian, Mazen Al-Najjar, who is marking his 1,000th day of detention based on secret evidencehis sister will be testifying here today. In comparing a defendant to a character in Kafka's book, ''The Trial,'' the D.C. circuit observed that it would be difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.
Justice Frankfurter uttered a similar sentiment when he said that no better structure 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 in popular government that justice has been done.
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I have no interest in compromising national security with this legislation, but I believe national security and civil liberties can and must peacefully coexist. The measure before us would not require the disclosure of sensitive information, but allow scrutiny of the information only if prosecutors seek to use it in a court of law.
Furthermore, when necessary, courts can provide the accused access while sealing the contents from public dissemination. We can and we must reconcile the twin goals of security and liberty.
Mr. HYDE. Thank you very much, Mr. Conyers.
And our first panel consists of two of our very valuable fellow members. The sponsors of H.R. 2121, Representatives Tom Campbell of California, and David Bonior, the minority whip from Michigan.
So welcome to both of you, and Congressman Campbell, would you please begin.
Mr. CAMPBELL. Mr. Chairman, would you allow me the indulgence of yielding to my colleague only because of the seniority, and I respect that.
Mr. HYDE. Well, surely.
Mr. CAMPBELL. I have plenty to say.
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Mr. HYDE. You embarrass the Chair for not thinking of it himself. Mr. Bonior. And you may take as much of his time as you would like.
Mr. CAMPBELL. I reconsider my offer.
STATEMENT OF HON. DAVID E. BONIOR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. BONIOR. I feel inadequately humble, Mr. Chairman.
Mr. Chairman, thank you for having this hearing. I want to join my colleague, Tom Campbell, in expressing our appreciation for your efforts to allow us to speak to this fundamental issue. I want to thank Mr. Conyers and members of the committee for arranging this hearing today.
Our Constitution deliberately and specifically protects the rights of individuals against abuses of government. These rights are central to our Constitution and are core guarantees of our individual liberty. They are not abstract ideals and the people denied these rights are not faceless, anonymous victims. They are real people with families, with jobs, and with dreams.
You will hear today, as Mr. Conyers has just pointed out, from Nahla Al-Arian, the sister of a man who has been in jail in Florida for more than 3 years without even being charged with a crime, without being able to see any evidence against him, and without any opportunity to post bail.
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Mazen Al Najjar of Tampa Bay, Florida, is the father of three daughters. He is a loving husband, a scholar, marriage counselor, a leader in his mosque, and a respected man in his community. Mazen is in the United States and has been here for 19 years. He overstayed his visa, but unlike most overstays he was not provided with relief. He was arrested in May 1997.
Mazen was arrested in front of his children, handcuffed and taken to jail. Amnesty International considers Mazen and some of the targets of secret evidence in the United States to be political prisoners. As the Miami Herald said, and I quote, ''To jail a person indefinitely without charge or trial would be understandable in Cuba, Iran, North Korea or Algeria. But in America, it is unconstitutional.''
Mr. Chairman, secret evidence is a national embarrassment, and we need to take action.
The right to confront your accuser, to hear the evidence against you, and to secure a speedy trial are fundamental tenets of the American justice system. And my colleague and friend, Tom Campbell will articulate that concept well when he speaks in just a few minutes.
Secret evidence violates our deepest trust in the right to due process and it violates our democracy's most sacred document, the Constitution of the United States.
Mr. Chairman, 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 it was unsubstantiated. Unfortunately, about 20 more people remain detained under secret evidence, and the chairman and Mr. Conyers are absolutely correct, the vast majority of these individuals are either Arab-American or Muslim.
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Some of them have lived in the United States for years with their wives and their children.
Do we wait for the courts to act on these cases, one by one, as has been the case for the past several years? Or do we afford justice now? How many more days and weeks and months away from their children must Mazen Al Najjar and the other detainees suffer? That is why I believe the Congress must take legislative action to repeal secret evidence, not because our commitment to combating terrorism has grown weak, but because our love for the Bill of Rights has never been more strong.
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 that we must be very careful not to erode that when we seek to defend the rights and the freedoms that imbue our democracy with meaning.
I would like to share with you, if I could a quote from a decision by the U.S. District Court for the Eastern District of Virginia, from Haddam v. Reno, a recent secret evidence case, and I quote:
''The use of secret evidence against a party is an obnoxious practice, so unfair that in any ordinary litigation context its unconstitutionality is manifest.''
Mr. Chairman, I urge the committee to look favorably upon H.R. 2121, to defend the Constitution, and to put an end to secret evidence. And I thank you.
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Mr. HYDE. Thank you, Mr. Bonior.
STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CAMPBELL. Thanks, Mr. Chairman.
In your opening remarks there was a discussion, Mr. Chairman, between the immigration decision to let somebody in, and a deportation proceeding to get somebody out. And I am worried that those two are being confused. This is really important or I wouldn't be directly addressing it.
The Congress, as you well know, and the committee, we can go beyond what the Supreme Court thinks is the minimum necessary for the Constitution. But please, let's get clear what the Supreme Court has said. The Supreme Court has never, never allowed secret evidence in deportation proceedings. And as I heard your opening remarks, you correctly said that the Supreme Court has permitted it in the failure to enter, but it is a big difference once somebody is here to toss them out.
The logic behind that distinctionand you will see it in the annotated Constitution the Library of Congress created, and I am going to read a part that you might think hurts my case, but I want you to see what I am conceding on the admission side, that is, what the courts held, but never on the deportation side.
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And why would that distinction be important? Because the Constitution applies when you are here. There is a territorial nature to that, right? We have lots of protections in our Constitution that do not apply to other countries, other places; but once you are here, they do apply. The fifth amendment applies to all persons, not to all citizens, to all persons.
So if you are talking about keeping somebody out, the logic of the Supreme Court has been, you are not here yet. And believe it or not, as you guessed, there is a case where the ship comes into Ellis Island and they take the individual off the ship and put them on Ellis Island. And they say, see, I am now here; and the Supreme Court says, no, you are not here because otherwise we will have to keep you on the ship, and that is silly. But the whole phraseology was worried about this problem that once you are here, there is a different rule; keeping you out, basically the Supreme Court said, any process is due process.
Mr. HYDE. If you will hold for a moment, we have some votes.
We understand there are three, and possibly four votes if final passage is included. So 15 minutes and then 5, 5, and 5. And then we will come back. So if we can suspendI regret this; they held over some votes from last evening. I hate the interruption, but there is no way to avoid it.
So we will stand in recess until the final vote in which I would ask my committee members to return.
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Mr. HYDE. The committee will come to order.
I regret the disjuncture of our hearings, but we are trying to be in two places at once and, as usual, not doing very well at it.
Mr. Campbell, are you ready to proceed? Please do.
Mr. CAMPBELL. Mr. Chairman, you are most patient, and thank you for allowing me to continue.
You might remember, when we broke, I was trying to emphasize one point, that is, that there is a huge difference between excluding somebody as an initial matter, and once they have established residency, kicking them outa huge difference for due process purposes.
And the reason why I am so directed toward this issue is that in your opening statement, and as I have now read the majority memorandum, and I am going to read it, there is a statement with which I disagree. And I am reading it now, however; this is page 2 of the majority memo:
''Courts have clearly ruled that deportation and exclusion proceedings, unlike criminal prosecutions, are not punitive and do not deprive aliens of life or liberty.''
Mr. Chairman, that is correct as to exclusion; that is incorrect as to deportation. As to deportation, the Supreme Court, as recently as 1982 in the Landon case, held that due process applies to deportation, that to apply it implicates a deprivation of liberty. So that is very important.
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Mr. HYDE. Does it make a difference if you are in the country illegally as they seek to deport you, or for some other reason?
Mr. CAMPBELL. No case has made that distinction, but I will give my humble opinion since you are kind enough to allow me to testify. It would. But being here illegally versus overstaying your visa is a very big difference, if you follow me.
You are here legally, you applied, you are in as a student, Mazen Al-Najjar, as a student. He is asked to be a professor at Southern Florida University. He is a professor. He begins to transfer from student status to work status, and the INS takes their time, which they do. He is in process, but he drops into the gap.
Now that, to me, is not the same as entering illegally. My really big point is that the Supreme Court absolutely clearly has held that for the decision to come in, you are entitled to very little, whatever you get is due process. And that is where you are going to see these cases out of the 50.
And I was going totime probably doesn't permit it now, but in the annotated Constitution that the Library of Congress created, I will read this just to concede because I said I would. They say to aliens who have never been naturalized or acquired any domicile or residence in the U.S.:
''The decision of an executive or administrative officer acting within powers expressly conferred by Congress with regard to whether or not they shall be permitted to enter the country is due process of law.''
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Since the status of a resident alien returning from abroad is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing on the basis of secret, undisclosed information also is deemed consistent with due process.
So, you know, I want you to vote for this bill, but I want to concede that as to getting in, the Supreme Court has held that due process doesn't apply.
Mr. HYDE. You maintain overstaying your visa somehow drapes you in a legality that is not significant in terms of using classified information?
Mr. CAMPBELL. Residence does. And the reason is that like Mazen Al-Najjar, 19 years resident. He now has a liberty interest, which he didn't while he was outside the country; and whether it is because he fell out of status or some other reason, he cannot be deprived of that without due process, just like a green cardholder who had fallen out.
Suppose he had been a student still. INS could not do this to him, okay? That is a huge distinction.
Thanks for hearing me out on it.
Let me say, this is not a close question. The Supreme Court in 1982, 1966, 1953, 1903four separate opinionsheld that due process is implicated because there is this liberty interest to somebody who has been admitted and established residence, and in every one of these cases, they have done something wrong or they would not have been deportedfallen out of status or any number of things which made them vulnerable.
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If the committee is with me that there is now due process to the question of tossing somebody out who has established residency, the memo, with respect, is wrong. True as to exclusion, not true as to deportation.
And so it is not correct to say that depriving somebody of presence in America on a deportation doesn't implicate liberty. Even more, if you put them in jail pending the decision that, it is a slam dunk: Of course you are depriving them of liberty. The only case that went the other wayremember, you can deny somebody the right to secret evidence in the hearing, but they are on bail, so they are able to walk around and see their family and go home at night, live at home.
But Mazen Al-Najjar is in jail.
Now, whatever concept you might have of liberty to be in this country, and whether due process adheres to that, he has been in jail 3 years. Boy, that does implicate due process; and there is no case that holds contrary to that with one exception. And I want to be clear about it.
This was the immigrant coming in for the first time who was put on Ellis Island rather than float on the boat. And he said, see, now I am on Ellis Island, I am here; and the court, in distinguishing that, used the phrase ''assimilated the status of an entrant.'' because practicality suggested that you shouldn't have to stay on the boat, we are going to allow you to stay on Ellis Island. They found him excludable and shouldn't have been let in; and he said, now that I am here, you have to let me stay.
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Now that case is clearly different from what we are doing in this bill. With that distinction, I will conclude with a suggestion.
People more eloquent than I have made the case about how unfair it is. If you believe that the Supreme Court has held that due process adheres to the decision to kick somebody out who has established residenceit has four timesthen what INS is doing now is wrong. It is unconstitutional. Every court that has ruled on this question has so held.
But even if the courts are beingare not necessarily the only guardian of the Constitution, we are, too, and we can do what we think is right, whether or not it is constitutionally compelled.
My request is that we put aside this business of using secret evidenceand my preference, which I put in this billand that that attitude would be whether you are applying for citizenship, applying for entry, applying for asylum, any of this, if it is secret evidence, we shouldn't be using it.
The trade-off there is national security; and the national security argument I put to you is equally well made in cases where you have got a citizen. It is made for Mafia cases, where there is a Mafia informant, and where the Department of Justice or the prosecutor is put to the test saying, okay, I have either got to disclose this evidence or I have got to drop the prosecution. But it happens every day.
But if you can't go all the distance with me on thatand this is what I am askingif you get us a markup, a compromise I think that would at least be a very good start is to say, anybody who has been in jail for 30 dayscome on. Whatever use you have of secret evidence to keep somebody, you are worried about them as a national security threat, 30 days. Make your argument, exclude them, get them out; but to keep somebody in jail beyond 30 days
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That is a compromise I would suggest is a possibility, and an amendment can be made in the markup. You know, my position, I want the whole thing because I think there is a constitutional issue here. But a very sensible approach is for somebody who has been deprived of liberty by being put in jail, that at least is a violation of due process. And if you can give us a markup, I think a reasonable compromise could even be worked out this year.
And I will conclude by saying, my last plea is to the President of the United States and to the Attorney General. They could correct this tomorrow. Attorney General Janet Reno could order the release of anybody who is in jail on the basis of secret evidence tomorrow. And I am hoping that by the publicity you can give to the issue, for which I am very grateful, that at least we can move them to do the right thing before this administration changes.
Mr. HYDE. Thank you, Mr. Campbell.
[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 Henry Hyde, for allowing me to testify at this important hearing today. I would also like to thank Ranking Member John Conyers (an original co-sponsor of this bill), Immigration and Claims Subcommittee Chairman Lamar Smith and Immigration and Claims Ranking Member Sheila Jackson-Lee, another co-sponsor of H.R.2121, as well as the other Members of the Committee 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. This bill already has 14 co-sponsors on the Judiciary Committee.
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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 1992Feb. 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 recordevidence that Mr. Ahmed had the chance to challengeMr. 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, has been detained over 1,000 days 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. Late last month, I had the opportunity to visit Dr. Al-Najjar at his prison in Florida.
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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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 whom 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.
If the INS and Justice 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 is a due process violation.
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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. This 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.
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.
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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 other Member of this Committee took one oathit was not to be smart, it was not be popular. It was to defend and uphold the Constitution of the United States.
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. HYDE. Our second panel presents the administration's views.
The witnesses are Mr. Larry Parkinson, General Counsel for the Federal Bureau of Investigation, and Mr. Bo Cooper, General Counsel for the Immigration and Naturalization Service. We have a Panel III, consisting of several people, and so if you can encapsulateand this has been a pretty broad hearing so far, but if you could cut to the chase as much as you can, it will help us get through the whole panel
But we welcome both of you, and whicheverMr. Parkinson would you like to proceed?
STATEMENT OF LARRY R. PARKINSON, GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Mr. PARKINSON. Thank you, Mr. Chairman. I am pleased to have the opportunity to discuss with you, on behalf of the Department and the FBI, H.R. 2121 and, more specifically, the use of classified information in immigration proceedings.
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At the outset, I want to emphasize 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.
At the outset, I want to emphasize that the Department and the FBI understand and acknowledge the serious concerns about the ex parte, in camera use of classified information in these kinds of proceedings.
We do recognize that the use of such information can profoundly affect the people involved. Congressman Bonior and Congressman Campbell correctly emphasized that these are real people with real families, and we understand that. We take these matters very seriously, and we do not casually resort to the use of classified information.
We have found, however, that in a very 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, strike the best balance between the various interests affected in these cases.
Moreover, I want to emphasize that the Justice Department and the FBI, recognizing all of the serious concerns implicated by this issue, have instituted practices and procedures to ensure that classified evidence is used only when necessary to adequately protect the national interest.
Page 36 PREV PAGE TOP OF DOC 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, where one can be produced, to use in the preparation or presentation of his or her case. Moreover, the Department is currently in the process, and has been for some time, of an ongoing review of all pending cases involving the use of classified information to ensure that that information has been properly used.
The Department, under the Deputy Attorney General's office, is also developing guidelines and regulations to regularize and improve on these processes within the Department. 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 spirit of the current law will be honored by requiring that the classified information is used only when necessary in the interest of the United States.
Congress has considered this issue in the past, of course, and for good reason has authorized INS to use and consider classified information in ex parte, in camera proceedings. In 1996, Congress thoroughly debated the competing interests involved during the 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 continued 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 to Mr. Cooper and the INS to respond to specific questions about 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 INS's ability to present appropriately classified information 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.
There are times when the government has highly relevant classified information that should be considered in determining an alien's immigration status, but that information cannot be made public or disclosed to the alien without harming the Nation's security by compromising intelligence-gathering operations or sources.
In such cases, the FBI, or whatever other agency has the information, shares it with the INS; and that information is subjected to the clearance process that I described within the Department of Justice by all concerned components at a very high level. Once consensus is reached that an 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.
Page 38 PREV PAGE TOP OF DOC It is important to note that while the ex parte, in camera use of classified information has garnered a great deal of attention, it is, in fact, very rare. Classified evidence is being used in only 11 pending cases out of a total of approximately 300,000 cases overall. And out of those 11 cases, only four of those cases involve persons who are presently incarcerated.
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 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 those appropriate cases are essential to the effort to protect the national security by making proper decisions about aliens who have ties to terrorism or other activities that threaten our Nation's security.
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 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 sources and methods used 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 and not criminal proceedings. As the Supreme Court noted in the Lopez-Mendoza case, the purpose of immigration proceedings is to, ''provide a streamlined determination of eligibility to remain in this country, nothing more.''
Thus, the full range of rights guaranteed to a criminal defendant, including the sixth amendment right to confrontation of witnesses, 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 this manner, to deny discretionary relief from deportation or to deny release on bond, is appropriate.
In short and in closing, if the INS could not use classified information in ex parte, in camera proceedings, and instead was required to share all evidence with the alien, the United States would be faced with two 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 sources and methods, we let a potentially 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.
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But on the other hand, if we reveal the classified information in an effort to obtain an appropriate ruling from 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, in our view, pose unacceptable risk to the national security. We believe that Congress properly considered all of 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 use of this kind of evidence in these cases.
Again, the Department is taking appropriate steps to ensure the reliability of any classified evidence used in immigration proceedings.
I want to close by just noting that I think Congressman Bonior was absolutely correct when he said that balancing national security and civil liberties has always been one of the fundamental challenges of our democracy. He is absolutely correct; we agree with that. But in this context, given the limited number of cases in which we feel the need to use this kind of evidence, we believe that Congress has struck the appropriate balance.
Mr. Chairman, that concludes my statement, and I am happy to answer any questions the committee may have.
Mr. HYDE. Thank you, Mr. Parkinson.
Page 41 PREV PAGE TOP OF DOC [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.
At the outset, I want to emphasize that the Justice Department understands and acknowledges the serious concerns 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 in conventional immigration proceedings 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 removalasylum, withholding of removal, suspension, or adjustment of statusand 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 11 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.
Page 44 PREV PAGE TOP OF DOC 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 witnesses, 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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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. HYDE. Mr. Cooper.
STATEMENT OF BO COOPER, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE
Mr. COOPER. Mr. Chairman, members of the committee, I am also very grateful to have had the chance to come and testify before you this morning. And I need to reiterate specifically, on behalf of the INS, what Mr. Parkinson said about the FBI.
The INS understands and acknowledges the serious concerns about the process that we are discussing today, the ex parte, in camera presentation of classified evidence in immigration proceedings. We take these matters very, very seriously and try to ensure that it is an authority that is used responsibly.
And I also need to underscore the rarity with which this authority is used. As Mr. Parkinson noted, in about the 300,000 or so cases that wash through the Executive Office for Immigration Review in the Immigration Service each year, only 11 now are cases in which the INS has presented and relied upon classified information. In fewer than half of those cases is the alien in detention.
As the members of the committee well know, the Department's pending policy matter, as well as its rules regarding the individual privacy of aliens, substantially constrain my ability to talk today about individual immigration cases. Nor can I discuss sensitive national security information that is classified. Having noted these constraints that govern my appearance here today, however, I would like to illustrate the value to the United States of preserving its authority to use classified information in ex parte, in camera immigration proceedings.
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In classified evidence cases, there is a tension between the two goals of adjudicating immigration claims in a fair and transparent manner and protecting the national security. To make the problem more concrete, let me pose a hypothetical example.
Assume that the INS encounters an alien who has been in this country illegally for several years. The alien concedes that he is here illegally and that he is deportable, but then he asks the immigration judge to exercise discretion and grant asylum so that he will not be returned home. The law says that an alien who is a threat to the national security cannot be granted asylum. The law also says that someone who is granted asylum can seek adjustment of status to become a permanent resident after 1 year.
Suppose the INS receives classified information that this alien is actually a dangerous person, perhaps an activist in a terrorist organization, and suppose the classified information comes from a reliable source, such as an official of that organization, and suppose that we cannot reveal that information publicly without thereby revealing the source and compromise the entire intelligence gathering operation. This is the dilemma.
To protect the national security, the immigration judge needs to be allowed to see the classified information before he or she decides whether the alien should be given asylum and thereby be put on the path toward more permanent participation in the American community. But neither the INS nor the immigration judge can show the information to the alien without risking the national security; and the INS believes that in this instance, the judge should be allowed to see the evidence. That is what the law now says, that is what the Supreme Court and most Federal courts have said is constitutionally permissible, and that is what is appropriate to protect the national security.
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Mr. Chairman, I have submitted, of course, a written statement, and in the interest of your request that we try to proceed with dispatch while making the critical points, I would like to just reiterate three key points about the Immigration Service's use of this information.
First is one that we have already discussed, that its use is very, very rare. The second is that this is a use that is very well established in law. And I hope now to clarify some of the points that were discussed by the previous panel.
All three branches of government have sanctioned the use of classified information in immigration court for particular purposes. It has been sanctioned by the Supreme Court for nearly half a century. It has been a part of our regulations since the early 1960's; and since 1996, this body, Congress, has specifically authorized the use of classified information for particular purposes in immigration court proceedings.
The third point is that the purposes for which this information is used are quite limited. And here is where I hope that we can clarify some of the points that were raised earlier in this hearing.
INS can use classified information ex parte, in camera for essentially three reasons: One is to contest a person's admission to the United States. The second is to contest an application for discretionary relief, such as asylum or suspension. The third is to contest someone's release from custody during their immigration proceedings.
Page 50 PREV PAGE TOP OF DOC So it is not the case that the courts have forbidden the use of classified information in the course of deportation proceedings. In fact, Jay v. Boyd, the Supreme Court case that specifically sanctions the use of classified information in immigration proceedings, was itself a deportation case.
What the INS cannot do with classified information in a deportation case is to use that information to prove that the person who had been admitted to the U.S. is deportable. That is a purpose for which it cannot be used ex parte, in camera. But even in the context of a deportation proceeding, once deportability is established, the INS can useand this has been clearly sanctioned by the Supreme Court and most the lower Federal courtsthe INS can use classified information to contest a discretionary benefit under the immigration laws, like asylum. That is the key distinction that we need to keep in mind as the hearing goes forward.
The INS opposes H.R. 2121. We believe that the current procedures protect the national security while comporting with due process. The INS believes that if H.R. 2121 were enacted, one result would be that aliens who have been involved in terrorist activity or human rights abuses in other countries would likely be able to obtain immigration benefits in the absence of derogatory information that is unclassified. Once an alien becomes a lawful permanent resident, it is just a matter of time before that individual may become a U.S. citizen. H.R. 2121 will put the INS in the position of extending the privilege of United States citizenship to those who are undeserving because they are a danger to the national security.
Mr. Chairman, this concludes my statement and I would be happy to try my best to answer the committee's questions.
Page 51 PREV PAGE TOP OF DOC Mr. HYDE. Thank you Mr. Cooper.
[The prepared statement of Mr. Cooper follows:]
PREPARED STATEMENT OF BO COOPER, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE
I am pleased to have the opportunity to discuss with you, on behalf of the Department of Justice, H.R. 2121, and more specifically, the use of classified information in immigration proceedings.
At the outset, I want to emphasize that the INS understands and acknowledges the serious concerns about the ex parte, in camera use of classified information in immigration proceedings. We take these matters seriously, and we do not casually resort to the use of classified information. The INS prosecutes and the Executive Office for Immigration Review hears nearly 300,000 cases each year. There are currently 11 pending cases involving classified information.
As Members of this Committee know, the Department's pending matter policy, as well as its rules regarding the individual privacy of aliens, substantially constrain my ability to discuss individual immigration cases. Nor can the Department discuss sensitive national security information that is classified.
Having noted the constraints that govern my appearance today, I do want to address the policies and procedures that are at issue in the INS's use of classified evidence and that serve as the focus of this hearing this morning. 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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Role of the Department of Justice
The Attorney General also recognizes the serious concerns implicated by this issue. As a result, she 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 is 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.
Either the Attorney General or the Deputy Attorney General must currently approve any use of classified information in immigration proceedings. The aim of this review is to ensure that classified evidence is used only when it is necessary, and when it cannot be declassified.
The issue of using classified information implicates two very important objectives that the Department of Justice strives to achieve: (1) adjudicating immigration claims in a manner that is as transparent and fair as possible; and (2) protecting the national security and the safety of all Americans.
There is a tension between these two goals in classified evidence cases. To make the problem more concrete, consider the following hypothetical example. Assume that the INS encounters an alien who has been in this country illegally for several years. The alien concedes that he is here illegally and that he is deportable. But then he asks the immigration judge to exercise discretion and to grant him asylum so he will not be returned home. The law says that an alien who is a threat to the national security cannot be granted asylum. The law also says that someone who is granted asylum can seek adjustment of status to become a permanent resident after one year. Now, suppose that the INS receives classified information that this alien is actually a dangerous personperhaps an activist in a terrorist organization. And suppose that the classified information comes from a very reliable source, such as an official of that organization. And, suppose that we cannot reveal that information publicly without thereby revealing the source and compromising the entire intelligence-gathering operation.
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Here is the dilemma. To protect the national security, the immigration judge must be allowed to see the classified information before she decides whether the alien should be given asylum. But neither the INS nor the immigration judge can show the information to the alien without risking the national security.
The INS believes that the judge should be allowed to see the evidence. That is what the law now says, that what the Supreme Court and most federal courts have said is constitutionally permissible, and that is what is appropriate to protect the national security.
H.R. 2121 would repeal most of the INS's statutory authority to present classified information in camera and ex parte in any type of removal proceeding. Specifically, H.R. 2121 would amend the Immigration and Nationality Act (INA or Act) by:
(1) repealing Title V of the Act, which governs proceedings before the Alien Terrorist Removal Court;
(2) amending section 240(b)(4)(B) of the INA, by removing language that currently provides that aliens in removal proceedings are not entitled to examine national security information presented by the INS to oppose the alien's admission to the United States or an application by the alien for discretionary relief under Act;
Page 54 PREV PAGE TOP OF DOC(3) providing aliens in removal proceedings access to all documents pertaining to the alien's admission or presence in the United States, including records and documents considered by the Attorney General to be confidential;
(4) prohibiting any decision on any application for a benefit, including custody on the basis of evidence not shared with the alien;
(5) prohibiting the use of expedited removal for national security cases under Section 235(c) in cases of lawful permanent residents, aliens granted parole or advance parole, and aliens seeking asylum; and
(6) allowing most detained aliens to seek review of custody determinations through petitions for writs of habeas corpus.
Relevant Immigration Law
The INS is charged with the difficult task of determining when to admit an alien to the United States, when to grant an alien's application for an immigration benefit, and when to place an alien in removal proceedings. The INS undertakes these tasks with vigilance in an effort to ensure the protection of our national security.
Congress has considered this issue in the past and, for good reason, has authorized the Attorney General to use and consider classified information in ex parte, in camera proceedings. The Attorney General has delegated much of her authority under the immigration laws to the INS.
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Congress has authorized the Attorney General to consider classified evidence in several provisions of the Immigration Nationality Act (Act).
First, Section 105 of the Act authorizes the INS to maintain direct and continuous liaison with the federal intelligence and law enforcement entities for the purpose of enforcing the immigration laws in the interest of the internal security of the United States. To further this end, the INS has established a National Security Unit to coordinate counterterrorism efforts within INS and between INS and other law enforcement and intelligence agencies.
The second statutory basis for the use of classified information is Section 235(c) of the Act. Under Section 235(c), if an immigration officer or immigration judge ''suspects that an arriving alien may be inadmissible'' under INA §212(a)(3)(A) (other than clause (ii)), (B), or (C), the immigration judge or immigration officer shall order the alien removed without further inquiry. Pursuant to regulation, the case is referred to the appropriate INS regional director, who reviews the order, reviews any relevant ''confidential information,'' and consults with ''appropriate security agencies of the United States Government'' over whether the ''disclosure of the confidential information would be prejudicial to the public interest or security.'' If the regional director concludes that the alien is inadmissible on the specified security related grounds based on the confidential information that cannot be disclosed, the regional director may issue the final order of removal, or order any other action the regional director deems appropriate. Section 235(c) has been part of the immigration law since 1952.
The third way in which Congress has authorized the Attorney General to consider classified information is in the context of conventional removal proceedings under Section 240 of the Act. If an alien is removable from the U.S. on a charge based on unclassified evidence, such as overstaying a visa, but the alien applies for discretionary relief from removal, the INS may introduce classified national security information to oppose the application for relief. Discretionary applications for relief from removal include asylum, cancellation of removal, suspension, or adjustment of status. The INS presents classified information to oppose applications only when 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.
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This express statutory authority was added to the law as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. However, it is important to note that in 1996, Congress simply sanctioned by statute an authority to introduce classified evidence that had been a part of the Attorney General's regulations since at least 1961. Furthermore, the Supreme Court and other federal courts have upheld these regulations and this practice over the last four decades.
The fourth way that the Attorney General may use classified information is in immigration proceedings before the Alien Terrorist Removal Court (ATRC). The Antiterrorism and Effective Death Penalty Act of 1996 added a new Title V to the Act which established the ATRC. In proceedings before the ATRC, the Department of Justice may present classified evidence in camera and ex parte to prove that the alien has ''engaged in terrorist activity.'' In fact, to initiate a case under Title V, the Attorney General must determine that ''removal under Title II would pose a risk to the national security of the United States.'' INA §503(a)(D)(iii).
Taken as a whole, these provisions clarify the expectation of Congress that the INS must play a larger and increasingly critical role in counterterrorism activities. The laws have substantially strengthened INS' authority to remove aliens who support or are directly involved in terrorist activities. Incidents such as the December 1999 arrest at the United States-Canadian border, the 1998 embassy bombings, and the 1993 World Trade Center bombing have shown that the United States is a target for international terrorists. Interagency cooperation on terrorism is vital to protecting the security and the interests of the United States.
Page 57 PREV PAGE TOP OF DOCRemoval Proceedings
An alien in conventional removal proceedings has certain statutory rights. The alien has the right: to be represented by an attorney at no expense to the government; to notice of whether the alien will be maintained in custody and, in some cases, to seek a bond redetermination hearing before an immigration judge; to a reasonable opportunity to examine the unclassified evidence against the alien; to present evidence on the alien's behalf; to cross examine witnesses presented by the INS; and to a complete record of the proceeding. However, Section 240(b)(4)(B) specifically states that ''these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this Act.''
The Supreme Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application for admission because the power to admit or exclude aliens is a sovereign prerogative. The Court, however, has held that once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.
Based on this distinction, the burden of proof in a conventional removal proceeding depends on the type of charge. An applicant for admission bears the burden of proving that he or she is ''clearly and beyond a doubt entitled to be admitted and is not inadmissible'' to the United States or by clear and convincing evidence that the alien is lawfully present in the U.S. pursuant to prior admission. If the alien has been admitted to the United States, then the INS bears the burden of establishing by clear and convincing evidence that the alien is deportable.
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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 witnesses, 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.
Process for Using Classified Information
The INS learns that classified information relating to an alien may exist in two ways: from another agency or from the alien. In some cases, the INS requests that other agencies search their records to determine whether any information exists on the alien. In these cases, the INS usually has some indication that the alien may be involved in terrorist activity or human rights abuses. In other cases, the other agency contacts the INS to report that it possesses relevant information.
In still other cases, an alien may claim an affiliation with a United States agency. This claim is usually made in the asylum context. When such a claim is made, the INS goes to the specified agency and requests that the agency check its records and report whether it has any information on the alien.
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In each of these scenarios, most, if not all, of the information is classified. I will leave it to Mr. Parkinson to explain the requirements under the relevant Executive Orders for classification of documents. However, I want to emphasize that the INS does not make the classification decision.
The decision to submit classified evidence is made on a case-by-case basis without regard to a person's religion, nationality or ethnic origin. The INS and the Department of Justice have developed standard procedures for dealing with each case that involves the potential use of classified information. In such cases the FBI, or whatever other agency has the information, shares it with the INS. The INS has established a National Security Law Division in the Office of the General Counsel to ensure that all national security cases are legally sufficient and are handled in a consistent manner. The INS carefully scrutinizes the information and meets with representatives of the originating agency to examine the information.
If the INS believes the information is relevant and necessary in the case, the case is referred to the Department of Justice for intra-departmental review and discussion with other components. In order for the classified information to be used, this review process must result in the determination that the information is properly classified and either that the alien poses a risk to the national security, or that the classified information is otherwise material to issues in the case. In addition, the Attorney General or the Deputy Attorney General must thereafter approve use of the evidence.
Once this process is completed, the INS presents the information to the immigration judge in camera and ex parte. The immigration judge then determines how much weight he or she will give to the information. If the immigration judge grants the application for relief, the INS may seek further review before the Board of Immigration Appeals (BIA), and if the immigration judge denies the application, the alien may appeal to the BIA.
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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. As noted at the outset, in any given year, nearly 300,000 cases are processed by the INS and decided by the Executive Office for Immigration Review. The INS has presented classified evidence in only 11 pending cases, four of them involving detained aliens.
H.R. 2121's Amendments to Judicial Review
The INS opposes the bill's amendment to the judicial review provisions of the Act because the legislation is written so broadly it creates room for two parallel tracks of review, at both the district court and court of appeals levels. This will create confusion in the federal court system if the same case is pending at both levels at one time. The INS prefers the current law contained in Section 242(a) of the Act, which provides for judicial review of claims arising from removal proceedings through a timely-filed petition for review in the court of appeals.
For all these reasons, the INS opposes HR 2121. The INS believes that if H.R. 2121 were enacted, one result would be that aliens who have been involved in terrorist activity or human rights abuses in other countries would likely be able to obtain immigration benefits, in the absence of derogatory information that is unclassified. Once an alien becomes a lawful permanent resident, it is only a matter of time before that individual becomes a United States citizen. H.R. 2121 will put the INS in a position of extending the privilege of United States citizenship to those who are undeserving because they are dangers to the national security.
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Mr. Chairman, this concludes my statement, and I would be happy to answer the Committee's questions.
Mr. HYDE. Mr. Conyers.
Mr. CONYERS. Thank you very much.
You know what bothers me about the statements of the two gentlemen, both who have appeared before the subcommittee, is not that they are just doing their job, which we expect them to do, but that they create a very wide difference of view from others that are working with us on this matter.
First of all, it is not reassuring to tell me how few times this is used in the total summary of things. I mean, the question is, is it wrong or is it impermissible or is it unconstitutional? Because if it is, then once is bad enough.
So, in addition, we have no assurances how many more times it might get used. I mean, we leave it to your discretion to use it as much or as little as you want. So I am not left feeling good about the fact that you use it very seldom and very selectively. Knowing the INS, that is not persuasive to me.
Now, the question of secret evidence in deportation cases being held unconstitutional is a very nice thing for you to just skip over and tell us that there haven't been secret evidence deportation cases held unconstitutional is not fair for a lot of people that are trying to understand what is going on.
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Remember, Tom Campbell made a number of concessions when he made his presentation. He did not go all out. As a matter of fact, he suggested an extremely reasonable midpoint that might get us somewhere on this.
But we have a number of cases that in my 5 minutes I can hurl back at you, and we can get into what those cases mean constitutionally from your point of view and our point of view.
Fortunately, we will have these proceedings to go over this much more clearly.
Now, the use of secret evidence, there is evidence that it is being used improperly, are without meaningful safeguards. The only time we can get a summary of the secret evidence is when somebody happens to be able to get a lawyer who happens to be skilled enough, and who happens to be able to get it before a judge who happens to be able to say, yes, that ought to happen, and then we get it.
The third thing is that there is no suggestion of why somebody has to be in jail 3 years, 2 years, 1 year, while all this is going on. I mean, this is like enacting a punishment before there has been a finding of guilt. And the other thing we neglected to talk about is the fact that we have to make these choices, prosecutors make these precise choices every day, and many similar kinds of choices in the course of trial.
You know, what kind of case are we talking about that we have to suspend one of the most valued prerogatives in our Constitution? We do not want them to know where we got the information from because it would taint a source or identify a source. But it seems to me that that is not a strong enough reason for us to violate one of the most valuable constitutional rights that anybody has.
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To me, this just does not add up, and we need to say for everybody that either we have a case that can go forward, or we do not have a case that can go forward.
It would seem to me that if we cannot build a case so that there will be a fair trial, that we may wonder why we are bringing the case at all, because in the few cases that have been examined, we find the rules were not being followed, there was not credible evidence, and there was no terrible vulnerability as to sources.
In other words, there are a few cases where we have proven that this was not justifiable; and for that reason, I am not persuaded by the case you make on behalf of the government.
And I invite any comments you would like to make about that.
Mr. COOPER. I would like to start, Mr. Conyers, first of all, by clarifying that Mr. Parkinson and I note the rarity of the use of this authority not by way of saying it is okay because it is just a few cases, but by way of saying this is an authoritywe made separately the argument that this is a necessary authoritybut that it is an authority that is used responsibly and used only in those cases where it is necessary, where we have deemed the information to be reliable.
Mr. CONYERS. But we have had cases that prove it was not necessary. For God's sake, you have read the cases more than anybody else around here. We have had cases where it was proven it was not necessary, that it was invalidly applied. It was shown where secret evidence was used, where the statutory authority did not even exist. So how can you tell me that?
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Mr. COOPER. We certainly can go through case by case and discuss these points. For example, the ninth circuit case that has been noted in some of the other testimony as striking down the use of classified information, that actually found that classified information in that case was being used to contest what the court found to be a mandatory remedy under the immigration laws and was not discretionary. But that case itself noted the Supreme Court decision that sanctioned the useconstitutionally sanctioned the use of classified evidence ex parte, in camera in the context of discretionary benefits.
Mr. CONYERS. Well, you know, the fact that the court found that was okay but found out some of the procedures were wrong is what I am getting at. What I am getting at, is the fact that we have a constitutional authority in this committee and in this body to examine these questions just like the Supreme Court. So, I think it is about time our staff gets together and writes a book on all of these cases, since there are so few, and try to make all the distinctions we need to make.
It is clear to me there has been no justification given at this hearing so far why a person should be in jail for years waiting to come up for a trial. I mean, when does this end? Is there anybody in the government that feels badly about this that is not in Congress, that feels this is unnecessary? What did they do to get 3 years which may turn into 4 or maybe they will be tried or released tomorrow? Nobody knows.
And to come here and tell us this is perfectly permissible, that it has been validated and should be allowed to continue rather than to subscribe to the position of the bill before us I think is an error.
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Mr. HYDE. I am sorry, did anyone want to comment?
Mr. COOPER. I would like to offer just a few quick points in response.
First, as we have noted, the fact that we introduced classified information in someone's proceedings does not automatically carry with it the determination that someone should remain in custody. Those are separate determinations that are made according to separate evaluations. And, as we said, in fewer than half of the cases in which we have relied on classified information do we have the person in custody.
Second, the courts have been clear that, first of all, that an excludable alien does not have a constitutional right to be free of custody while their immigration status is being determined and the purpose of detention in the immigration process is not punitive. It is as an aid of removal, if that is the point that the proceeding reaches at the end.
And the last point that I wanted to make is that the period of time that detention can last is typically a function of how far in the process the person whose interests are at stake wishes to proceed. For example, in some of the cases that are at issue that we are talking about now, there are cases in which the government has prevailed before the immigration court, the government has prevailed before the court of administrative appeals, and the person is contesting those administrative determinations in the Federal courts. That can take a very long period of time. I mean, no one takes the custody issue lightly; and there are cases in which, as I said, we consider it appropriate to use classified information but not necessary to detain; and we make the decision to not detain in those sorts of cases.
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We also have tried to take steps to ensure that the process can go as quickly as possible. For example, at the administrative appellate level, the Board of Immigration Appeals has recently set a new goal of trying to get all of its cases in the detained docket done in half a year and has done that in most cases.
Mr. CONYERS. Can you provide the committee with the numbers of cases where there was secret evidence involved and it was decided to not detain or not to go forward?
Mr. COOPER. I can tell you now that there are now 11 cases in which we are relying on classified evidence. In those, four of the aliens are detained.
I do not have numbers with me of cases in which we have
Mr. CONYERS. That is why I asked you to just provide the committee when you can.
Mr. COOPER. We would be pleased to.
Mr. CONYERS. All right.
Mr. HYDE. The Chair will reverse the order of questioning so that the people at the lower end get a chance first. So, Mr. Rogan.
Page 67 PREV PAGE TOP OF DOC Mr. ROGAN. Mr. Chairman, thank you; and I thank both the witnesses for joining us today on this important topic.
As important as this topic is, I do want to ask an unrelated question to Mr. Parkinson only because of his position with the FBI. And so, Mr. Parkinson, bear with me for a moment.
On Friday, The Washington Post ran a report from the Associated Press; and this report dealt with a memorandum from FBI Director Louis Freeh to Deputy FBI Director William J. Esposito regarding comments that allegedly were made to Mr. Esposito by Lee J. Radek, the Chief of the Public Integrity Section of the Department of Justice.
I want to read to you, Mr. Parkinson, just a few paragraphs from this article.
''FBI Director Louis Freeh wrote a memo in the earliest days of the Democratic fund-raising investigation suggesting a top Justice Department
Mr. NADLER. Mr. Chairman, point of order.
Mr. CONYERS. Regular order. Mr. Chairman, what in the world does that have to do with these proceedings?
Mr. HYDE. I am waiting to see if we can connect it up. But the Chair grants wide latitude to all members. The Chair has permitted people to go beyond 5 minutes often. And so if Mr. Rogan has a point to make, would you get to it?
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Mr. ROGAN. Thank you, Mr. Chairman. And I would note, Mr. Chairman, that in my year and a half on this committee, whenever any other member on either side has asked for dispensation, I have never objected. The fact that Mr. Parkinson is here and this is an important issue that has just been reported in the press, I think leads to this fair question.
Mr. NADLER. Mr. Chairman? Mr. Chairman?
Mr. HYDE. Mr. Nadler.
Mr. NADLER. I have a question. My question is, it is fine to have latitude, and I understand that Mr. Parkinson is here, but I would simply ask, is he going to connect this in any way with the question of secret evidence in these questions?
Mr. HYDE. We will wait and see. I hope he does.
Go ahead, Mr. Rogan.
Mr. ROGAN. Actually, Mr. Chairman, in a very bizarre way this does deal with secret evidence.
Anyway, Mr. Parkinson, as I was saying, this is a memo that was dealing withDecember 9, 1996, to Deputy Esposito. Mr. Freeh recounted thirdhand comments Mr. Radek allegedly made to Esposito suggesting he was being pressured in connection with the investigation into the Democratic fund-raising improprieties during President Clinton's 1996 reelection.
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According to this material, Freeh's memo quotes Radek as telling Esposito he was, ''under a lot of pressure not to go forward with the investigation,'' because Attorney General Reno's job ''might hang in the balance,'' the official said.
Mr. CONYERS. Mr. Chairman, I reluctantly have to ask for regular order.
I mean, the political dimension of this cannot escape anybody's attention. I do not mind you reversing it to let the last go first, but to talk about a man brought before here on one subject, to now connect it up to a newspaper article about something else, I think that is a little extreme; and I would beg for you to use the fairness of the Chair you normally exerted to preclude this line of questioning.
Mr. HYDE. I appreciate your comments, and I want to be fair to Mr. Rogan. So, Mr. Rogan, can you ask your question?
Mr. ROGAN. Yes, thank you. Mr. Parkinson, what I would like to know is, during the course of any investigation you have had at the FBI, do you know whether any other FBI official may have been in the room or was present during the Esposito-Radek meeting?
Mr. NADLER. Mr. Chairman?
Mr. HYDE. Yes? Is that Mr. Nadler?
Page 70 PREV PAGE TOP OF DOC Mr. NADLER. Yes, it is. It is now clear, since we have heard the question, that the question is part of Mr. Rogan's campaign for reelection. It has nothing to do with the subject of this hearing and should be done in a press conference outside, and the witness should be directed to answer questions that are before the committee.
Mr. HYDE. Thank you. You made your point.
May we have an answer from Mr. Parkinson?
Mr. PARKINSON. The answer is yes.
Mr. ROGAN. Who would that be?
Mr. PARKINSON. At the time, Principal Assistant Director Neal Gallagher.
Mr. ROGAN. Does Mr. Gallagher corroborate any of the accounts of this meeting?
Mr. PARKINSON. Yes.
Mr. ROGAN. Whose account?
Mr. PARKINSON. He essentially corroborates the account that is described in the Director's memo to Mr. Esposito.
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Mr. ROGAN. Thank you. I have no further questions. I yield back.
Mr. HYDE. Mr. Nadler.
Mr. NADLER. Mr. Chairman before I begin, could we find out how that was relevant to this committee hearing? Could someone explain that please?
Mr. HYDE. Yes, after the hearing, we will chat.
Ms. WATERS. Will the gentleman yield?
Mr. NADLER. No, not if it is on my time now.
I was going to be very harsh in my questioning of these two witnesses, but I find emotionally I cannot do that right now.
Mr. Cooper, please keep the answers short, because I have a number of questions.
You described why it is necessary or convenient for the government to use secret evidence and how it is very carefully used and only rarely. Let's assume that someone with a less charitable attitude toward the current administration and who thought that the Justice Department could not be relied upon to be fair and objective or assume that in some future administration there were people in bad faith in the administration. What protection is there against people of bad faith using secret evidence unfairly against people they don't like?
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Mr. COOPER. First of all, let me clarify that I never said that we used classified information because it is convenient.
Mr. NADLER. Excuse me. I characterized it that way. You say it is important; I will say it is convenient. It is important, convenient. Someone makes that decision. Let's assume that someone is in bad faith and wants to get someone. What are the protections against use of that secret evidence unfairly?
Mr. COOPER. There are a couple of protections.
First, I must reiterate the difference in the Department's view between convenient and important.
Mr. NADLER. Fine. Don't waste time on that. It is important. Go ahead.
Mr. COOPER. First, in nearly all categories of immigration cases, these decisions are made by adjudicators that are distinct from the Immigration Service.
Mr. NADLER. Let's assume these are in bad faith.
Mr. COOPER. These decisions are often brought to the courts.
Mr. NADLER. The decision as to whether you can use the secret information.
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Mr. COOPER. You can run through the group of cases before us now and find ways cases where the immigration court has presented evidence to a distinct, separated, neutral decision-maker.
Mr. NADLER. And how does the court judge whether that information is reliable in the absence of cross-examination or any other normal technique for judging the reliability of information?
Mr. COOPER. The court has the ability to see what the evidence is, see where it comes from.
Mr. NADLER. X said Joe planned terrorist bombs. How does the court have any way of knowing whether X is a liar or a truth-teller?
Mr. COOPER. The Court can see the information before it, give it the weight that the court determines to be appropriate.
Mr. NADLER. Without any cross-examination or other information about X?
Mr. COOPER. There are all kinds of instances in which the adjudicator decides that, because of the absence of those things and in the absence of other indications of strength of the evidence, the court will not give it weight; and that is how the process works.
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Mr. NADLER. Let me ask you a different question. Under the law the way we have it now, is it conceivable that someone could be deported or refused admission based on allegations which are too sensitive and secret to tell them what they are, from witnesses whose identity is too sensitive to tell them who they are, and the evidence is too sensitive to tell them what it is, so and if that is true, how do you prepare a defense?
Mr. COOPER. One of the key things that we have tried to do in setting up the procedures by which this is used is, in every casefirst of all, make sure that the casethat the information is properly classified. Set up procedures where
Mr. NADLER. Let's assume that it was. What I am sayinglet's assume this is terribly sensitive information, properly sensitive information. How do you prepare a defense? Let's assume it is very sensitive and wrong, and the Department in good faith thinks it is correct. How does anybody prepare a defense when he doesn't know what it is?
Mr. COOPER. The second thing we make as a critical procedural step is we try to figure out and try to ensure that in every case where it is possible an unclassified summary of the classified information is prepared.
Mr. NADLER. Yes, but under current law if the judgment is that even an unclassified summary is too sensitive, you don't have to have that. Is that true?
Page 75 PREV PAGE TOP OF DOC Mr. COOPER. That is correct. Too sensitive means its
Mr. NADLER. Okay. So let's assume it is one of those cases. How do you prepare a defense?
Mr. COOPER. First, let me be clear that ''too sensitive'' means in this context that its disclosure cannot be made without damage to the national security.
Mr. NADLER. In somebody's judgment, which could be wrong. But forgetting all of that, let's assume that everybody is right. How do you prepare a defense when you don't have a summary about the information or perhaps even the allegations against you?
Mr. COOPER. In those situations a defense cannot be made in the same way it is made in the criminal context.
Mr. NADLER. Can it be made in any way?
Mr. COOPER. Of course it can.
Mr. NADLER. How?
Mr. COOPER. The person can present evidence that supports whatever remedy it is that the person is seeking. There have been instances
Page 76 PREV PAGE TOP OF DOC Mr. NADLER. Present evidence against an allegation when he doesn't even know what the allegation is?
Mr. COOPER. The purpose of
Mr. NADLER. How do you refute evidence when you don't know what it is and refute an allegation when you don't know what you are accused of?
Mr. HYDE. Would the gentleman let the witness answer?
Mr. NADLER. If he will answer on point.
Mr. COOPER. It is clearI mean, the whole question here is whether or not it is permissible constitutionally and whether it is appropriate for there to be instances where the person can have introduced against them in the immigration process information that they don't have access to.
Mr. NADLER. I understand that. But I asked you a question. If that happens and if you are accused of an allegation which is judged by somebody, properly or improperly, correctly or incorrectly, that it is against the national security to let you know what you were alleged to have done, if the evidence is judged by somebody, properly or improperly, that it is dangerous to the national security to tell you what the evidence is, so you are going to be deported or refused admission and they will not tell you what the evidence is or what theor why, how do youand let's assume it is not true. Everybody is mistaken. How do you disprove this unknown allegation based on this unknown evidence? And they can't even give you a summary because that is so sensitive, too.
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Mr. COOPER. There are certain circumstances where the immigration decision has to be made without the person having access to the information.
Mr. NADLER. I understand that. But I asked you the question: Is it possible to defend, to mount any kind of defense under the circumstances I just outlined which are entirely plausible circumstances under the current law? Is it possible? And, if so, how?
Mr. COOPER. Not on the basis of having received the information, because its disclosure would be
Mr. NADLER. Well, on what other basis? How do you defend against such an allegation when you don't know what the allegation is and you don't know what the information is?
Mr. HYDE. If the gentleman would yield, you can't defend against allegations you don't know.
Mr. NADLER. I understand that. I am trying to see if Mr. Cooper will admit that. It is obvious, but I want him to admit it.
Mr. COOPER. Mr. Nadler, the point I have been trying to make is that there are circumstances in the immigration process where the system tolerates the introduction of evidence that the person
Page 78 PREV PAGE TOP OF DOC Mr. NADLER. What you are really saying, if I can paraphrase you, that there are rare circumstances that the system tolerates deporting somebody without giving him any ability whatsoever to deny the accuracy of information which may be inaccurate, or to deny the allegation which may be wrong, at all, in which there is no defense.
Now, let me ask one other question. With the indulgence of the Chair, could I have 2 additional minutes?
Mr. HYDE. Surely.
Mr. NADLER. There is something called the Classified Information Procedures Act which is used in normal criminal procedures. It is, frankly, used in espionage allegations or any other criminalif someone is accused of a serious crime, including espionage, atomic espionage, whatever, and this says that you can use secret information if the judge thinks it is too sensitive to release, provided that you provide to the defense a summary of the evidence which is sufficientlythat the Court must find that the summary is sufficiently detailed and precise so that it will, ''provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.''
And if it is judged by the governmentnot the INS in this case, the FBI, the Department of Justice, or whatever, the prosecutor that is providing even such a summary is dangerous to the national security, then in espionage cases, in criminal cases, in murder cases, then you cannot use this information.
Now why do you thinkin deportation and immigration cases, why wouldn't that be a better standard? Why shouldn't we conform the law to the existing law for espionage and other serious crimes so at least there would be a semblance of due process? Why do we have to give the INS and the agency in these cases much greater latitude and allow them to trample due process to a much greater extent than we do when espionage or atomic spying may be involved?
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Mr. COOPER. Mr. Nadler, it is not a question of trampling due process. It is a question of what is due process. And the Constitution applies
Mr. NADLER. Clearly, due process is not when you have no information what the allegation is or what the evidence is. I am not going to debate that.
Why do we need stronger protections here? Why wouldn't it be right to simply amend the law here to conform with the Classified Information Procedures Act which has been upheld as constitutional by the Supreme Court and which we deem adequate protection for the national security in cases of espionage, for example?
Mr. COOPER. Mr. Parkinson is more of an expert on the CIPA than I am, but if I could note it is simply incorrect to say that it is a violation of due process, constitutional due process, in the case of someone seeking admission to this country to use classified information that they cannot see. That is a question that has been addressed and settled by the courts for nearly half a century.
Mr. NADLER. Your concept of due process may be a little different from mine. I stand on the Magna Carta and the Constitution.
Mr. Parkinson, can you answer the question? Why would it not be a sufficient safeguard in immigration cases or the deportation or exclusion cases to use the same statutory scheme that we use in espionage and other similar criminal cases?
Page 80 PREV PAGE TOP OF DOC Mr. PARKINSON. Mr. Nadler, I think that would be an option but not a preferable option. The bottom line becomes what is the appropriate balance, and Congress struck the balance that we think is appropriate.
Mr. NADLER. Do you think espionage cases pose less of a risk and we should give greater due process protections to accused people in espionage cases and other felony cases than in immigration cases?
Mr. PARKINSON. One fundamental distinction, and I think Mr. Cooper was trying to allude to it, and that is, typically, in criminal cases, whether it is espionage or other kinds of serious matters involving CIPA, you are talking about U.S. persons. And there isit is not simply sufficient to say it is a due process question because there is a range of what is appropriate.
Mr. NADLER. I understand. People who are not U.S. citizens may have less rights as a legal matter.
Mr. HYDE. Mr. Nadler, you have gone well over your time.
Mr. NADLER. If I may just ask this one question and let him answer it please.
Mr. HYDE. Have at it.
Mr. NADLER. Thank you.
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I understand as a legal matter people who are not citizens or not permanent residents have less legal rights. As a matter of fundamental fairness, however, I am asking the question. Why is it necessary to afford less fundamental fairness, due process rights in immigration cases than in espionage or other serious felony criminal cases?
Mr. PARKINSON. We simply have to make the balance, and there may be cases, and they are rare, in which we have a piece of information that is properly classified that cannot be revealed for national security reasons. And if that piece of information is not provided to the adjudicator, someone who is a danger to the Nation's security will walk free. And Congress made the balance and said, in those rare cases, we should have a system in which, with judges overseeing this process, we make that available to the adjudicator.
Mr. NADLER. Thank you.
Mr. HYDE. The gentleman from Pennsylvania, Mr. Gekas.
Mr. GEKAS. I thank the chairman.
I have always supported and will continue to support the tactical and sensitive use of classified information with respect to matters touching upon national security. I learned that lesson when I served on the Select Committee on Intelligence, and it is absolutely necessary for our Nation to dutifully use classified methodology when our national security can be damaged.
Page 82 PREV PAGE TOP OF DOC And so I say that, prefacing my questions, if you came to a choice, which both of you said would eventually cause having to withdraw the case and preserve the confidentiality and classified information that you have, even at the cost of letting someone be granted asylum, for instance, that is a Hobson's Choice that you don't want to confront, that you would rather have the ability to demonstrate that this is classified and that the person should not be granted asylum through the due process that permits the classified information to be used and convince a judge at least that asylum should not be granted in a particular case.
My opinion is, if there really are onlyremember, I am on your side on thisif there are only 11 cases and only four of them have required incarceration according to your testimony, if you came to the choice of, say in the case of asylum, that you had to withhold your classified information and not pursue the matter, don't you have other alternatives at your disposal? That is, the person is granted asylum, but he is never out of your sight, is he? He is never out of the possibility of surveillance and investigative methodologies. That if this were a known terroristand that is one of my justifications for supporting classified information and secrecy where necessarycan we not keep track of one out ofor 11 out of 300,000 so that you can still preserve your classified information, protect your sources, and still make sure this individual does not wreak havoc in the community?
Mr. PARKINSON. Congressman, I think, in the abstract, you are absolutely right. And I think in a case in which we decided that the information was so sensitive that it could not be revealed in any way and we needed to protect the sources and methods to the point where we didn't want to proceed with that kind of evidence and we chose to let the case get dismissed or dismiss it ourselves, I think we would take whatever actions we thought necessary to make sure that this harm to the national security did not come to fruition. So I think you are correct.
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On the other hand, it is somewhat easier to say than do I thinkto say that we are going to have a 24-hour wrap around a particular person who we think poses a national security threat, particularly in this age of instantaneous communication worldwide where it may not be this person who is going to carry out a particular terrorist activity.
Let's use terrorism as an example. If this person is able to freely communicate, whether he is the one actually, you know, planting bombs, I think that is a security risk that has to be assessed.
Mr. GEKAS. My point is that, if there are only three or four cases out of 300,000, that perhaps it is worth applying the extra resources to do this preventive surveillance or watchful action on this individual, other than when the choice is made that you simply cannot disclose classified and confidential information, it might be worth it.
If we were talking about the 65,000 cases, I would have to agree, clamp down and stick to your guns on classified information. But a handful of cases, I see as a possibility of making the judicious determination that we are going to preserve our classified sources, but we are going to make sure that this guy, a potential terrorist, will never be able to ply his trade. I know that once we do that and something goes wrong that we would be back here clamping down even more severely. But approximating the number of cases bothers me.
Mr. PARKINSON. Congressman, if I could just make a couple of quick points.
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The first, we have to keep in mind that what we are talking about here is the granting of an immigration benefit to these individuals. We are not talking about taking a U.S. person and throwing them out of the country. That is one point. We are talking about a benefitpreferential benefit to an individual.
Secondly, I am sure that we would be sitting here trying to explain to a congressional committee why we were doing 24-hour surveillance on a person that does not even have any judicial process against them. It is easy to say we should keep somebody surveilled, but in a lot of cases, depending on what the threshold is, we cannot do that.
Mr. COOPER. If I could just please add to that a couple of quick points.
One is that it is certainly possible to make that decision to forgo the introduction of classified information for the reasons that you described or for others. And I assure you that in the process that we have described of trying to make sure that we use this only in cases where it is necessary and where we cannot get the information through an open source we have made the decision not to go forward in that departmental process.
But it is critical to note that if this legislation were to pass, that would be the only way it would be possible to deal with these kinds of situations because we would not have the possibility, in most instances, of trying to contest the person's application for the benefit, and they would get lawful permanent residence, the possibility of naturalization, I mean, and that could not be accounted for in the scenario that you described.
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Mr. GEKAS. You would still be able to proceed, would you not, still withholding the classified information and proceeding on other evidence that you might have, other documentation that could convince a trier of fact that, indeed, asylum shouldn't be granted, for instance?
Mr. COOPER. Actually, typically where we have open source information that serves the same purpose we already decline to introduce the classified information. If we can get the information elsewhere, we do.
Mr. GEKAS. But sometimes you say it is absolutely essential, the only way to win a case and prevent asylum from being granted and to do the classified documentation; is that correct?
Mr. COOPER. In certain cases, yes.
Mr. HYDE. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Cooper, I am not sure I heard you right. Could you explainI thought I heard you say that jailing someone was not punishment. Can you clarify that statement?
Mr. COOPER. Sure. It has been uniformly held in the courts that have looked at this as an immigration matter that when you detain someone for immigration purposes it is distinct from punishment aswhere you are putting someone in jail for as retribution for a criminal act that they committed. When you detain someone for immigration purposes, it is to put an end to a continuing immigration violation, in other words, an aid of removal. And there are two reasons for which we can do it. This is by statute. One is where the person poses a risk of absconding and the other is where the person's continuation at large
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Mr. SCOTT. In your view, why should the proceedings not proceed with dispatch while someone is being detained? Why are people in jail for 2 and 3 years? However you are going to conduct the proceeding, why can't you go ahead and do it so that they are not detained indefinitely?
Mr. COOPER. We make every effort to try to make sure the process goes as quickly as possible. The immigration courts have a separate docket for detained cases that goes on a much faster pace than those that are not detained. That is true on the appellate level as well.
Mr. SCOTT. Why are people in jail for years? If you are presenting secret evidence, there is not much caseyou are presenting evidence, and they cannot defend against it. Why is anybody in jail for an extended length of time?
Mr. COOPER. First, I would not suggest that there are no complications simply because there is classified information. Often these are very difficult and complicated cases.
Second, as I mentioned before, the INS prosecutes and the Executive Office for Immigration Review hears about 300,000 cases a year. That is a great number of cases. And so when you have got the possibilityhere is the process that is typically available: An immigration judge hearing, an appeal before what is called the Board of Immigration Appeals. Then the possibility under certain circumstances for review in the Federal courts. That can take a long time.
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Mr. SCOTT. Well, when you are using secret evidence, is there, in fact, no opportunity to cross-examine the evidence by the defendant or someone on his behalf?
Mr. COOPER. That is the case with respect to the classified portion of the evidence and if it is not possible to prepare an unclassified summary.
Mr. SCOTT. You mentioned something about some clearance procedure to determine whether you would use secret evidence or not. What kind of due process do you go through to determine whether or not the secret evidence ought to be offered as secret evidence? Does somebody second-guess whatever official decides we are going forward with this evidence? Is there any second-guessing of that opinion?
Mr. COOPER. The process is this. First of all, these decisions are considered and evaluated by a group of representatives from various parts of the Department of Justice. So while it is the Immigration Service's responsibility to conduct or to bring about and represent the government in removal proceedings, the idea is that getting some institutional vantage points from other places that have different responsibilities around the Justice Department is valuable.
So that decision would be made, for example, by senior attorneys from the Immigration Service, the Civil Division, the Civil Rights Division, the FBI, the Office of Intelligence Policy Review, the Office of the Deputy Attorney General. So first we try to make sure there is a mix of institutional vantage points.
Page 88 PREV PAGE TOP OF DOC Mr. SCOTT. Everybody has an institutional interest in keeping it secret. I mean, is there any balance? Is anybody arguing that it, in fact, shouldn't be made secret?
Mr. COOPER. Sure. We have made decisions to not introduce classified evidence in that process.
Mr. SCOTT. Do you ever decide to not prosecute criminal cases because you would have to reveal evidence? And, if so, how often does that occur?
Mr. COOPER. It wouldn't be a question of prosecuting a criminal case. The INS doesn't have the authority to do that. We have certainly decided to not introduce classified evidence in immigration cases.
I can give you an example. This is just a hypothetical to try to illustrate the point. Let's say someone making an asylum claim
Mr. SCOTT. Maybe I should have been aiming that at Mr. Parkinson because, obviously, you don't do that in immigration. In FBI cases, do you ever decide to not prosecute because you would have to reveal secret information in a criminal prosecution?
Mr. PARKINSON. Very rarely, but it does happen in extraordinarily rare circumstances. The reason
Mr. SCOTT. Do you resort to the immigration process where you could use the secret evidence and essentially get people out of the country rather than prosecute them criminally?
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Mr. PARKINSON. Depending on the status of the individual, that certainly is a possibility. And CIPA is one of the reasons why this is extraordinarily rare. We have a mechanism
Mr. GEKAS [Presiding.] The time of the gentleman has expired.
The Chair recognizes the gentleman from Georgia, Mr. Barr, for 5 minutes.
Mr. BARR. I have no questions. I have enjoyed very much the questions, particularly those from the gentleman from New York, Mr. Nadler, and appreciate his questioning and the questioning of other members and would ask the gentleman from New York if he needs any additional time?
Mr. NADLER. I appreciate that. I would just ask Mr. Parkinson one question. I was fascinated by your answer to what the gentleman from Virginia asked you a moment ago. And I appreciate the gentleman yielding to me.
You said that the existence of CIPA in criminal cases is why the use of the immigration authority is so rare, I think you said. But CIPA says that if you cannot even give a summary of the information that is too sensitive to release, a summary sufficient to allow the defendant to haveI forgot the phraseology that I read beforea relatively adequate defense, you cannot use the information so you may have to ultimately face that choice.
My question is, why shouldn't weif that is adequate in the criminal field, why shouldn't we simply have the same regime across the board? Why do we need a stronger regime in immigration cases?
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Mr. PARKINSON. There is a little bit of a difference, and that is this. That in the criminal contextwell, let me shift the question. In the immigration context, I again state the obvious, and that is that we are talking about generally non-U.S. persons, and there is a different due process consideration there. But in those cases, if we choose in the end not to use the information because it is too sensitive, we are talking about a person who is not only given a benefit but has been deemed a national security risk walking the streets.
Mr. NADLER. Yes, but in the other case, if you choose ultimately not to use the information, you may be letting someone who stole atomic secrets go free or someone who committed serial murders go free or whatever.
I mean, in the CIPA situation, you are talking about someone who you think or the Department thinks is a serious criminal, whether it is stealing atomic secrets or whatever it may be. Forgetting the legal distinction as Americans, et cetera, if that is sufficient to protect national security in all other fields, why is it not sufficient to protect national security in immigration situations?
Mr. HYDE [Presiding]. Will the gentleman yield to me? Terrorists kill people.
Mr. NADLER. So do murderers.
Mr. HYDE. Espionage may steal secrets, may take photographs, but terrorists bomb and kill. There is a sharp difference.
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Mr. NADLER. Reclaiming my time.
Murderers murder people. Atomic spies may resultJudge Kaufman in the Rosenberg case said that those spies resulted in tens of thousands of deaths in Korea. Maybe he was right; maybe he was wrong. But they have very serious consequences, perhaps as much or more than terrorists do. So why the distinction in terms of protecting national security, Mr. Parkinson?
Mr. PARKINSON. I think the short answer is that might work, but Congress chose to strike a different balance.
Mr. NADLER. So you would not opposeif we were to modify the law and not do H.R. 2121 but simply to say that we are going to take CIPA and extend it across the board so youin other words, we are going to repeal the statutes, these immigration laws, and we are going to substitute extending the same CIPA standards in the immigration field. You say that would be adequately protective of national security?
Mr. PARKINSON. You took it a couple of steps further than what I said.
Mr. NADLER. You said it might work.
Mr. PARKINSON. My answer to that is a couple of things.
Page 92 PREV PAGE TOP OF DOC One, that hasn't been on the table until you just put it on the table.
Mr. NADLER. Excuse me. I put it on the table 4 years ago in the Nadler-Conyers amendment, and we are going to put it on the table again. So I hope you will form an opinion.
Mr. PARKINSON. My opinion sitting here today is that we would oppose that because it is proper in deciding what that balance is to take into account the varying due process rights of the person involved. And I think Congress
Mr. NADLER. But is it necessary from a national security standpoint?
Mr. PARKINSON. I think it is better from the national security standpoint to be able to use the information that we are talking about here. I don't think there is any questionand I have a hard time thinking anybody would dispute thisthat if you are simply focused on the national security issue, this helps. But that doesn't answer the question about balance. It certainly helps.
Mr. NADLER. I certainly hope that people in the Department of Justice are focused not only on national security but on basic civil liberties, too.
I thank the gentleman, and I yield back to the gentleman from Georgia.
Mr. HYDE. The gentleman has 12 seconds.
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Mr. BARR. I yield back.
Mr. HYDE. The gentlewoman from Los Angeles, Ms. Waters.
Ms. WATERS. Thank you very much.
Just quickly, Mr. Parkinson, were you aware of the questions that were going to be asked of you by Congressman Rogan? Had anybody been in touch with you from this committee or a staff person of any Member of Congress, anyone associated with this committee, Congress, that told you or talked with you about the possibility of that question before you came over here?
Mr. PARKINSON. No.
Ms. WATERS. So you had no idea Mr. Rogan would ask you that question?
Mr. PARKINSON. No.
Ms. WATERS. Thank you. Let me just ask you if the use of classified information in ex parte, in camera immigration proceedings are only used in the case of Arabs and Muslims.
Mr. PARKINSON. I am sorry; Ms. Waters, could you restate the question?
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Ms. WATERS. The question is the use of classified information in ex parte, in camera immigration proceedings, has it only been used in cases where Muslims and Arabs are the suspected terrorists?
Mr. PARKINSON. I think the short answer to that is no. It clearly hasn't been.
But let me defer to Mr. Cooper who haswho knows all of the individual cases better than I. Certainly, there is no policy or procedure that would be offensive
Ms. WATERS. If you don't know, let him answer.
Mr. COOPER. Yes, the answer is absolutely no. And if you look back in earlier periods over the years, there have been periods where you would not find any people of Arab or Muslim descent at issue. For example, the Supreme Court case we have been talking about was a person who I think was from the United Kingdom. Another one of the circuit court decisions that upheld the use of classified information for the purposes we have been discussing involved someone from Romania.
And in INS's view it would be absolutely wrong to consider things like
Ms. WATERS. What percentage are Muslim or Arab?
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Mr. COOPER. Of today's caseload?
Ms. WATERS. Yes.
Mr. COOPER. I don't know the answer. I will be glad to find that out for you. I know it certainly includes those who are not. But I will be glad to follow that up and give you the answer after the hearing.
But the point I wanted to emphasize is that we make these decisions based on what we consider to be the national security implications and not on the basis of the person's nationality, their religion or ethnicity.
Ms. WATERS. Let me try to understand. I have some information here that says the INS has never invoked the Alien Terrorist Removal Court procedures but, of course, repeatedly use secret evidence to detain aliens not in those procedures and not accused of being alien terrorists. Why not?
Mr. COOPER. Well, the Alien Terrorist Removal Court, it is correct that that process has never been used. It is a process that has existed since 1996. But it is not correct to understand the immigration court process as a substitute for that. That is onlythat is a process that is only available when the Attorney General can certify that the use of normal immigration procedures would itself damage the national security.
Ms. WATERS. Is there a written definition of securitynational security interests? For example, when these decisions are being made by individuals, particularly where you don't have any review, they have to use whatever is available to them, do they start from someplace with a basic definition that helps to lead them to the conclusion that the national security interests are at stake?
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Mr. COOPER. Actually, you work backwards from the statute. And the statute says that it is possible to use classified evidence in camera, ex parte and the classification decisions are in an executive order that does set out standards for when information can be classified and at what levels. And Mr. Parkinson is far more expert in that than I.
Mr. PARKINSON. It derives from the classification standards, Congresswoman Waters. It has three levelsconfidential, secret, and top secretand each is defined slightly differently. For something to be classified confidential, it has to present a risk to the national security; and to be classified secret, it has to constitute grave risk to the national security; and if I have got it correctly, top secret has to be an extremely grave risk to the national security. But these are set out in classification standards of vintage most of this century or most last century, I guess. We are in a new one.
Ms. WATERS. Well, you are describing classified
Mr. PARKINSON. Right.
Ms. WATERS [continuing]. The three levels of classified information. But I really was trying to get at some definition and description of what is in or not in the national security interest.
For example, you may have information and it may fall into one of these categories. Does simply the information that has been classified determine whether or not it is in the national security interest to use that information or not use that information?
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Mr. PARKINSON. Yes, I think by definition it flows from the fact that it is classified information. In other words, in order to be classified properly, a piece of information has to haveit has to be deemed by the executive branch that disclosure of that piece of information will be a riskunacceptable risk to the national security. So it flows from that.
It doesn't mean to say that people do not scrutinize the classifications very carefully. And one of the things that we do in all of these cases is towhen we have classified information, the first step is to make sure it is properly classified. Because if it is not properly classified, then we have no business relying upon it as a national security risk.
Ms. WATERS. Is there a definition, a strict definition of alien terrorist?
Mr. COOPER. If I could just back up a moment to the national security question you were asking.
Ms. WATERS. Yes?
Mr. COOPER. The law does not require that the information be relevant to the national security in order for it to be usable for the purposes I have described. It just has to be relevant to whether someone is admissible, whether someone is eligible for asylum, whether asylum ought to be granted in discretion and so forth.
Page 98 PREV PAGE TOP OF DOC Typically, we only introduce the evidence where the national security interest is at risk, but the law doesn't require that determination to be made. In certain of those circumstances, if we are trying to oppose someone's application for asylum and they are in fact a refugee, we are required to show that there is reasonable grounds for considering that person a threat to the national security. And that is a decision that would be made by an independent adjudicator.
Ms. WATERS. Is there a strict definition of alien terrorist?
Mr. PARKINSON. There is certainly a definition of alien, and I think there is a definition of terrorism in different statutes. And I would defer to Mr. Cooper on alien.
Terrorism is generally definedand I wouldn'tplease don't hold me to the exact language, but in most criminal statutes as least it is focused on individuals who, through violent means, attempt to coerce or influence the civilian population.
Mr. COOPER. There also is a definition of engaging in terrorist acts. It is in the Immigration and Nationality Act it is set out in section 212(a)(3).
Ms. WATERS. Engaging in terrorist acts in this country?
Mr. COOPER. Not necessarily.
Ms. WATERS. This person could have been accused of engaging in terrorist acts in other countries?
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Mr. COOPER. That is right.
Ms. WATERS. Do you have situations where we have in this country people who are not involved in immigration proceedings that have been involved in terrorist acts in other countries that are not taken before the Alien Terrorist Removal Court under any circumstance?
Mr. COOPER. There certainly are peopleI mean, there has been no one who has been taken before the Alien Terrorist Removal Court principally for the reason I said before. The Attorney General has to certify that you cannot, without endangering the national security, go through the regular immigration court process.
In trying to get to the heart of your question
Ms. WATERS. What do you do with terrorists who have committed terrorist acts in other countries but are not before the immigration court but are in this country? How are they dealt with?
Mr. COOPER. When we find someone who we believe to be a terrorist and who we believe to be removable, typically we would seek their removal through the immigration process.
If there is anything outside the immigration process, Mr. Parkinson could speak to that.
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Mr. HYDE. The gentlewoman's time has expired.
Ms. WATERS. Unanimous consent for 1 more minute.
Mr. HYDE. Without objection.
Mr. PARKINSON. The short answer, if we knew about a person like that, we would investigate him and determine through investigation what kind of evidence there is that might support removal, might support prosecution. And when we get to the level of evidence that supports that, we would take action.
Ms. WATERS. And we could use classified information to do that and classified information that could not or would not be shared with the individual who has been accused?
Mr. PARKINSON. It depends on the context. If we took the criminal route, what we might end up with is a Classified Information Procedures Act proceeding in which we tried to come up with some compromise where the defendant is given a right to confront the evidence against him or her but it is limited because that is what the nature of CIPA is.
If it is on the immigration side and it fit within the parameters that we have been discussing today, we could use secret evidence.
Mr. HYDE. I would inform the gentlewoman that title 8, section 1182(b), describes terrorist activities, terrorist activity definedengaging in terrorist activity defined. So it is here, and I would be happy to show it to you.
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Ms. WATERS. Thank you. I just wanted to see if they knew it.
Mr. COOPER. That was section 212(a)(3) that I pointed you to.
Mr. HYDE. The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. I think, if I am correct in interpreting what the gentlewoman washer line of questioning, is your concernin terms of utilization of secret evidence and the issue of removal, is it focused on a concern that an individual may engage in potential terrorist acts here in the United States, or is it a determination that an individual meet whatever criteria it is to conclude that that individual is a terrorist because of activity outside of the United States?
Mr. PARKINSON. Let me take a shot. I am not sure that I understand the thrust of the distinction between inside the United States and outside.
Mr. DELAHUNT. Well, what I am saying is, is there concern on the part of the Bureau and INS that an individual may be suspect or there may be some concern about the commission of terrorist acts within the United States, or is it a decision predicated on a history of terrorist acts committed outside of the United States or in the United States?
Mr. PARKINSON. It could be both or various combinations. But, obviouslyat least I think it would be obvious that we would not have much of a record that he is a threatpotential threat in the future unless there was some history that we had to go on.
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But I will say that the distinction between inside and outside is not
Mr. DELAHUNT. Okay. Please remove that.
Is the concern about potential acts of terrorism? Is that the motivation? Is it that the individual may commit an act or there is reason to believe that an individual may commit a terrorist act in the United States?
Mr. PARKINSON. The short answer is yes. The simple answer is yes. In other words, the person has to present a risk to the United States. And if somebody engaged in an act 20 years ago and we have no reason to think that if he iswalking the streets today he would present a risk, then we wouldn't
Mr. DELAHUNT. Do you seek evidence to indicate that there is reason to believe that the individual may commit an act in the United States if not excluded or deported?
Mr. COOPER. The question differs depending on what kind of immigration context you are in. If you are trying to show that someone shouldn't be given asylum, we have to show that there is reasonable grounds for considering the person to be a threat to the national security. It might be terrorism. It might be some other form of threat to the national security.
Page 103 PREV PAGE TOP OF DOC And typically, as Mr. Parkinson said, it is a circumstance where the possibility for further threats to the national security is at issue.
It is not legally irrelevant that someone has committed a previous terrorist act to the question saying whether or not you should exercise your discretion to give this person asylum in the United States or give them permanent residence.
Mr. DELAHUNT. Okay. Let me desist from that, because I want to ask some other questions.
In his testimony, Representative Campbell made the clear distinction between deportation and admission. Do you concur with his analysis of the law?
Mr. COOPER. Well, that is what I was trying to clarify at the outset. It is not true that the courts have said classified evidence cannot be used in deportation cases. What the statute says and what the courts have said is that you cannot use classified information to prove someone's deportability. And that has a lot to do with the fact that the people's constitutional status evolves the stronger their tie is with the U.S..
Mr. DELAHUNT. So up to that point you would agree with Representative Campbell?
Mr. COOPER. No, I agree only that it is not possible to use and we have never argued that it is possible to use classified information to prove that someone is deportable. But even in a deportation proceeding we can use classified information to contest the person's release from custody or, more important, to contest an application for discretionary relief. The key Supreme Court case on this was a deportation case.
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Mr. DELAHUNT. Well, there seems to be some disagreement, and I am not conversant, but I am glad we are able toI am glad we have the opportunity to ask that question so that my colleague can reflect on it.
By the way, I think it was you, Mr. Cooper, who said, what is due process? And if there is one thing in the United States Constitution that is fundamental and incorporates due process, it is the right of cross-examination, the right to confront your accusers. I mean, that is explicit in our Constitution.
What I guess you are really saying is that the issue, from what I can sense, is whether due process applies in this particular type of case.
Mr. COOPER. Or more particularly what process is due? And here, as in all areas of the law, the process that is appropriate depends what question the process is designed to answer. For example, in a criminal context where very different and much stronger constitutional protections apply, there are procedural requirements that are appropriate
Mr. DELAHUNT. I understand all about the criminal justice system. But I would suggest, even in any administrative hearing, the right of cross-examination, the right to confront is absolutely fundamental to any justice system and is incorporated in American jurisprudence. And I am interestedand I will probably have a conversation with Representative Campbell afterwardI understand there have been appellate court decisions, but I don't know whether there has been a Supreme Court decision on this particular issue.
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But let me just get to some practicalcould I have another minute?
Mr. HYDE. If the gentleman would yield. We have eight other witnesses, and I am just wondering if you could bring your questioning to a close.
Mr. DELAHUNT. I just have one other question.
Mr. HYDE. Surely.
Mr. DELAHUNT. This classified information, this secret evidence that you utilizeand you talked about an independent adjudicator. This will be one question, kind of two, but does INS or the FBI do anything other than present? Do they additionally try to vet the information, if you will, in these particular cases? Is there a process that goes beyond simply the acceptance of raw intelligence or simply a statement by a particular informant?
Because it has been my experience that, all too often, investigative agencies rely to a significant degree on raw intelligence without sufficient corroborationand I would be particularly concerned if that is the case here. And an independent adjudicator, unless that adjudicator has an opportunity to conduct some sort of examination and seek additional information and mandate additional investigative effort by an agency, is really not an independent adjudicator.
Mr. PARKINSON. The short answer, Congressman Delahunt, is that, yes, it is vetted. It is vetted aggressively internally within the Department of Justice, and it is aggressively vetted or reviewed by the adjudicators.
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I will say, and I think this is important, that one of the reasons that this issue has gotten such attention not only in the media but in Congress, and it appropriately should get a lot of attention, is because these judges are not rubber stamps. The judges have the ability to pry and dig, and they do. And we either satisfy them or we don't. And sometimes they say, my prying is not good enough for me, and I am going to rule against you, U.S. Government, and they do. And that is one of the reasons why there are opinions out there, and that is the way the process should work. And there is sometimes a give and take.
But the short answer is, yes, they have the ability to do that; and they do it; and they are not bashful about doing it.
Mr. HYDE. Thank you very much, Mr. Parkinson and Mr. Cooper, for your very helpful testimony. We appreciate it very much.
Our third panel is composed of eight nongovernmental witnesses, four in favor of H.R. 2121 and four in opposition. The order of testimony will alternate back and forth between the pro and con witnesses.
The witnesses in support of the bill are Mr. Gregory Nojeim, legislative counsel for the American Civil Liberties Union; Professor David Cole of the Georgetown University law Center; Mr. Hany Kiareldeen, who was detained by the INS using classified evidence; and Mrs. Nahla Al-Arian, whose brother is currently detained by the INS using classified evidence.
In opposition to the bill we have Mr. Bruce Ramer, president of the American Jewish Committee; Mr. Thomas Homburger, vice chair of the National Executive Committee of the Anti-Defamation League; Mr. Steven Emerson, executive director of Terrorism Newswire, who researches terrorist organizations; and Mr. Stephen Flatow, an antiterrorist activist whose daughter was killed by terrorists.
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Mr. Nojeim, would you please begin; and I plead with you to hold it to 5 minutes if you can. You have been very patient and you have listened to all people who have gone over the 5 minutes, so I don't want to be unfair to you all, but there are a lot of witnesses. So, Mr. Nojeim.
STATEMENT OF GREGORY T. NOJEIM, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION
Mr. NOJIEM. Thank you, Mr. Chairman. I am pleased to testify before the committee on behalf of the ACLU in support of the Secret Evidence Repeal Act.
The ACLU is a nationwide nonpartisan organization consisting of over 275,000 people dedicated to protecting the principles of freedom set forth in the Bill of Rights. We support H.R. 2121 because it would end a civil liberties crisis. People are being detained for years without a realistic opportunity to rebut the allegations that are the basis for their detention.
Today I will describe how the INS uses secret evidence in immigration cases and how the use of secret evidence violates the Constitution. I will discuss how the Secret Evidence Repeal Act and proposed alternatives to that legislation would affect the use of classified information in deportation cases.
The INS abuses its authority to use secret evidence. It uses secret evidence when there is no need for the evidence to be secret, when it has no statutory authority to use secret evidence, and when other evidence in the public record and open to cross-examination would tend to show the same thing.
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It uses secret evidence that amounts to no more than triple hearsay, and it does not even preserve a record of the evidence it presents so that its actions can be evaluated on appeal. It claims the authority to use secret evidence against people it does not even allege are terrorists or pose some vague threat to national security.
Secret evidence undermines our adversarial system. One cannot defend against the unknown accusation whispered to a judge by a secret accuser. When it appears in the form of classified information, secret evidence often consists of mere rumor and innuendo. It has not been and it cannot be tested by cross-examination for reliability.
Mr. Chairman, this is the kind of information that might be used to trigger an investigation, but it is simply not reliable enough to be relied upon to deprive a person of their liberty.
The sixth amendment to the Constitution prohibits the government from using secret evidence in criminal proceedings against both citizens and noncitizens. Instead of using secret evidence, the government relies on the Classified Information Procedures Act, CIPA. CIPA does not treat citizens and noncitizens differently.
Some claim that the secret evidence provisions in the immigration law provide protections similar to those afforded criminal defendants in CIPA cases. This is not true. CIPA prohibits the use of secret evidence against the accused. The immigration law permits it.
When the decision-maker is a jury deciding guilt or innocence in a criminal case involving CIPA, it bases its decision on no more evidence than the evidence that is presented to the accused. In contrast, the decision-makers in immigration proceedings involving secret evidence will always, always have secret evidence that the accused cannot access.
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Every court that has addressed the constitutional question in the last dozen years has found the use of secret evidence in immigration proceedings unconstitutional under the due process clause of the fifth amendment. If the previous two witnesses were correct when they said that the Supreme Court had ruled that secret evidence is permitted by the Constitution, these cases would not have been lost by the government. But they have been.
Though the courts have repeatedly ruled against the INS, it continues to bring secret evidence cases costing noncitizens years of detention based on unknown, unverified and unverifiable allegations that all too often turn out to be too flimsy to justify that detention.
The Secret Evidence Repeal Act would put an end to the civil liberties nightmare by prohibiting the use of secret evidence in most immigration proceedings. The bill doesn't require the release of dangerous terrorists. It merely requires the government to make a choice. It must either reveal the evidence against a noncitizen whose liberty is in jeopardy or must keep that information fully secret and outside of the immigration proceedings.
The Secret Evidence Repeal Act is not designed to help, ''illegal aliens.'' It is designed to ensure that a fair process is used in proceedings to determine whether a person is in the United States lawfully.
Arguing that the bill is designed to help ''illegal aliens'' is like arguing that the right to trial by jury is designed to help guilty people.
Page 110 PREV PAGE TOP OF DOC Alternatives to the Secret Evidence Repeal Act suggested by opponents of the bill do not meet constitutional requirements. Some view the procedures of the secret evidence court established in the 1966 Antiterrorism law as an appropriate model. It is not. It allows for the deportation of noncitizens based on secret evidence. In fact, the Antiterrorism law provisions allow for deportation based on secret evidence if the government proves its case merely by a preponderance of the evidence, a low standard of proof the Supreme Court explicitly rejected in 1996 for all immigration cases.
Others favored a ''cleared counsel'' model in which an attorney with a security clearance reviews the classified information and argues to the court whether the information proves what it is alleged to have proved. However, this model fails to provide adequate protection because often only the noncitizennot his attorneyknows why a particular person's allegations might lack credibility.
Mr. Chairman, this is the big picture. The government has information that raises suspicion about a particular person. It accuses that person of engaging in criminal activity, and it wants to incarcerate him. But instead of charging the person with a crime, it completely circumvents the criminal system, and it locks up the person anyway without having to present evidence in open court.
That is the big picture, and it is an ugly picture, and it is time to put an end to it.
Mr. HYDE. Thank you, Mr. Nojeim.
Page 111 PREV PAGE TOP OF DOC [The prepared statement of Mr. Nojeim follows:]
PREPARED STATEMENT OF GREGORY T. NOJEIM, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION
Chairman Hyde, Ranking Member Conyers, members of the Committee:
I am pleased to testify today before the House Judiciary Committee on behalf of the American Civil Liberties Union in support of the Secret Evidence Repeal Act, H.R. 2121. The ACLU is a nation-wide, non-profit, non-partisan organization consisting of over 275,000 members dedicated to protecting the principles of freedom set forth in the Bill of Rights. The ACLU receives no funding from the federal government. We support the H.R. 2121 because it would end a civil liberties crisis: people are being detained, for years, without a realistic opportunity to rebut the allegations that are the basis for their detention.
No person should be deprived of liberty on the basis of evidence kept secret from the person.
This simple statement is a fundamental requisite of any fair legal system. Secret proceedings conducted out of sight of the accused and her attorney are a feature of totalitarian governments, not of our own. The Supreme Court has said time and again that deportation is a severe deprivation of libertyone that can separate a person from home, family, career, and ''all that makes life worth living.''
The Secret Evidence Repeal Act, H.R. 2121, introduced on June 10, 1999 by Representatives Bonior (DMI), Campbell (RCA), Conyers (DMI) and Barr (RGA) 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 evidenceusually submitted in the form of classified informationagainst non-citizens in deportation proceedings and promote the principle that non-citizens are protected by the Due Process clause of the Fifth Amendment. The bill has 90 co-sponsors.
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Today I will explain how the Immigration and Naturalization Service uses secret evidence in immigration cases, and how the use of secret evidence violates the Constitution. Then, I will discuss how the Secret Evidence Repeal Act and proposed alternatives to that legislation would effect the use of classified information in deportation cases.
Use of Secret Evidence Now
The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing 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 Immigrant Responsibility Act (IIRAIRA) expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists. It also included provisions the Government relies upon to use secret evidence to deny bond to any detained non-citizen (regardless of whether the person is accused of engaging in ''terrorist activity'') and to deny various discretionary immigration benefits such as asylum to any non-citizen, including those not accused of being terrorists.
Though the secret evidence court has not yet 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 as withholding of deportation, even though it has no statutory authority to do so. Withholding of deportation is available to non-citizens who demonstrate that their life or freedom would be threatened in the country to which they are to be deported on account of their race, religion, nationality, membership in a particular social group, or political opinion.
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Virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab. The ACLU represents two such non-citizens. One of them, Nasser Ahmed, is a 37-year old Egyptian who was initially 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. Mr. Ahmed was held in solitary confinement for over three years, but was recently released from custody on bond. The immigration judge who ordered his release criticized the INS for using secret evidenceoften in the form of double or even triple hearsaywhen public material showing the same thing could have been used instead, and provided to Mr. Ahmed. In re Nasser Ahmed, No. A90 674 238 (6/24/99).
Secret evidence is also being used to detain in Florida without bond Mazen Al-Najjar, a stateless Palestinian also represented by the ACLU. His sister, Nahla Al-Alrian, is testifying before the Committee today. One day at breakfast with his wife as he helped his daughters get ready for school, he answered a knock on the door. This 18-year resident of the United States was immediately detained for alleged violations of the immigration laws. When he asked for release on bondwhich is commonly granted similarly-situated non-citizens who are likely to appear for their immigration hearings because of their strong family and community tieshis request was denied, based on secret evidence. Earlier this week, Mr. Al-Najjar marked the third anniversary of his detention based on secret evidence.
The INS is also using secret evidence in cases involving seven Iraqis airlifted by the U.S. from northern Iraq because they were part of a failed CIA plot to destabilize the regime in Iraq headed by Saddam Hussein. The INS is denying them political asylum based on secret evidence. A legal team including former Director of Central Intelligence R. James Woolsey represents them. Mr. Woolsey, who was himself denied the opportunity to see the evidence against his clients, commented that secret evidence is what ''one would expect to find in Iraq, not the U.S.'' Last year, five of the seven agreed to be deported in exchange for release from custody with certain limitations on their liberty while they search for a foreign country that will accept them. Two weeks ago, an immigration judge preliminarily ruled that one of the Iraqis who rejected the deal is not a risk to national security, though the Government had alleged that he is.
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Problems Arising from the Use of Secret Evidence
Secret evidence presents both practical and constitutional problems. The INS abuses its authority to use secret evidence. It uses secret evidence when there is no need for the evidence to be secret, when it has no statutory authority to do so, and when other evidence in the public record and open to cross-examination would tend to show the same thing. It uses secret evidence that amounts to no more than triple hearsay, and it does not even preserve a record of the evidence it presents so that its actions can be evaluated on appeal. It claims the authority to use secret evidence against people it does not even allege are ''terrorists'' or pose some vague threat to national security. Should Elian Gonzalez be granted an asylum hearing, under the Government's reading of the law, it could present secret evidence against even him to show, for example, that he would not be persecuted if returned to Cuba.
Secret evidence undermines our adversarial system. One cannot defend against the unknown accusation whispered to a judge by a secret accuser. In commenting on secret evidence in another context, Supreme Court Justice Frankfurter once said, ''Secrecy 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.'' (Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 17172) (Frankfurter, J., concurring). Fairness demands no less.
Secret evidence in the form of classified information often consists of mere rumor and innuendo. It is often unverified and unverifiable. It has not been, and cannot be, tested for reliability under rigorous cross-examination. Sometimes, it can be something as ''secret'' as a newspaper clipping the substance of which could be refuted if only it was known. This is the kind of information that might trigger an investigation, but it is not the kind of information that ought to be relied upon to deprive a person of liberty.
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It is impossible to fight charges without knowing the nature of those charges, and who is making them. In U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) secret evidence was used to deny a WWII ''war bride'' the opportunity to come to the U.S. and join her husband. When eventually she was granted a hearing, the secret evidence was found to be untrustworthy in part because the ''confidential source'' that offered it turned out to be a jilted former lover of her husband.
The Sixth Amendment to the U.S. constitution prohibits the Government from using secret evidence in criminal proceedings against both citizens and non-citizens. Instead of using secret evidence, the Government relies on the Classified Information Procedures Act, 18 U.S.C. App. 3, to protect classified information in criminal cases. CIPA does not permit the use of evidence not also provided the accused. However, the Sixth Amendment does not apply in civil proceedings, such as immigration proceedings. One of the problems with the use of secret evidence in immigration cases is the possibility that use would be expanded to other civil matters, such as civil asset forfeiture proceedings.
Some have suggested that the secret evidence provisions in the Immigration and Nationality Act provide protections similar to those afforded criminal defendants in CIPA cases. This is not true. CIPA prohibits the use of secret evidence against the accused; the INA permits it. CIPA requires the government to provide the accused with a summary of the classified information, and the summary must afford the accused with substantially the same ability to make his defense as would disclosure of the classified information. The INA has no explicit requirement for a summary whenever bond or an immigration benefit such as asylum is being denied. The summary provided to an alien accused of being a terrorist need not even meet the CIPA standard. Most importantly, when the decision maker is a jury deciding guilt or innocence in a criminal case involving CIPA, it bases its decision on no more than the evidence provided the accused. Whether the evidence consists of a summary of classified information, admissions of fact that the classified information would tend to prove, or declassified information, the jury and the accused in a CIPA case have the same evidence. In contrast, the decision maker in secret evidence proceedings under the INAwhether an immigration judge or a judge sitting on the secret evidence courtwill always have secret evidence that the accused cannot access.
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Use of Secret Evidence in Deportation Cases Violates the Constitution
Every court that has addressed the constitutional question in the last dozen years has found the use of secret evidence in immigration proceedings against a person admitted to the United States, or seeking admission as a lawful permanent resident returning from a trip abroad, unconstitutional under the Due Process Clause of the Fifth Amendment.
In Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989) the court rejected an attempt by the INS to use secret evidence to exclude a lawful permanent resident from the United States upon his return from a trip abroad. In reaching this decision, the court said, ''. . . Rafeedielike Joseph K. in Kafka's 'The Trial'can prevail . . . only if he can rebut the undisclosed evidence against him, i.e. prove that he is not a terrorist regardless of what might be implied by the government's confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden. . . .'' Id. at 516.
In American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995)), the court rejected an attempt by the INS to deny legalization to two Palestinians it accused of associating with a terrorist organization. In characterizing the INS use of secret evidence in that case, the court said, ''One would be hard pressed to design a procedure more likely to result in erroneous deprivations.'' Id. at 1069 [citations omitted].
Just a few months ago, a federal district court ordered the release of Hany Kiareldeen after he had been detained for 19 months based on secret evidence that is believed to have been offered by his estranged wife, with whom he was having a custody battle. In granting Mr. Kiareldeen's petition for habeas corpus, the court cited the Supreme Court's decision in Bridges v. Wixon and said, ''The court cannot justify the government's attempt to 'allow [persons] to be convicted on unsworn testimony of witnessesa practice which runs counter to the notions of fairness on which our legal system is founded.' Kiareldeen v. Reno, 71 F.Supp.2d 402, 419 (D.N.J. 1999).
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The Government relies primarily on Jay v. Boyd, 351 U.S. 345 (1945), a case in which the Supreme Court considered only a statutory challenge to a decision to deny suspension of deportation as a matter of discretion. The court expressly indicated that it was deciding the case on statutory, as opposed to constitutional grounds, and decided that the statute did not preclude the use of secret evidence. 351 U.S. at 358, fn. 21. The Government relies on a dictum in that footnote suggesting that the particular use of secret evidence in the exercise of discretion in that case would not give it ''difficulty'' as a constitutional matter. Id. We believe, and the courts that have recently considered the matter have agreed, that because the Jay court did not reach the constitutional issue, it is scant authority for the proposition that the use of secret evidence in an immigration proceeding does not violate the Due Process Clause.
Though the courts have repeatedly ruled against the INS in secret evidence cases, it continues to bring such cases. The cost has been substantial: years of detention based on unknown, unverified and unverifiable allegations that all too often turn out to be too flimsy to justify such detention. Congress can put an end to this nightmare.
How H.R. 2121 Would Address The Problems Arising from the Use of Secret Evidence
The Secret Evidence Repeal Act (H.R. 2121) would put an end to the use of secret evidence in most immigration proceedings. In regular removal proceedings where the Government is attempting to prove deportability, this is already the rule. The Secret Evidence Repeal Act would expand this rule to all deportation cases, including those involving aliens accused of being terrorists, and to proceedings involving denial of bond, immigration benefits, and to certain persons seeking admission.
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The bill does not require release of dangerous terrorists. It merely requires the Government to make a choice. It must either reveal the evidence against a non-citizen whose liberty is in jeopardy, or it must keep that information fully secret and outside of immigration proceedings and determinations. Virtually every day, prosecutors make similar choices in criminal cases where a person's liberty is likewise at stake. Though required to make these choices, prosecutions of truly dangerous terrorists, such as those who bombed the World Trade Center and the federal building in Oklahoma City, have been successful.
The Secret Evidence Repeal Act has five simple themes. First, the Government may not use secret evidence to deport non-citizens. It eliminates from current law the secret court established in the 1996 anti-terrorism law. It requires the Government to use the same removal proceedings against aliens accused of being terrorists that it uses to remove aliens accused of being deportable for other reasons.
Second, the Government may not deny immigration benefits to any non-citizen based on secret evidence. This would be the case regardless of whether the alien seeks the benefits in removal proceedings or has affirmatively applied for the benefits. Access to immigration benefits is critical to a non-citizen. Sometimes, it can mean the difference between life and death. Asylum is such a benefit. If it is denied, the non-citizen could be sent back to a place in which he or she could be tortured or killed on account of his or her political opinion, race, religion, national origin, or membership in a particular social group. The Government must either disclose this information to both the decision-maker in the case and to the non-citizen so that it can be challenged, or must keep it secret.
Page 119 PREV PAGE TOP OF DOC Third, the Government may not deny release on bond to any non-citizen based on secret evidence. Bond determinations would be made based on evidence in the public record. Aliens could still be held while their removal proceedings are pending if, based on evidence in the public record, the alien is a flight risk or a danger to the community.
Fourth, the Government may not arbitrarily deny admission to returning lawful permanent residents, people it has paroled into the United States, and asylum seekers based on ''confidential'' information and without independent review. The Secret Evidence Repeal Act excepts these non-citizens from the group of arriving aliens who can be denied admission on security-related grounds merely because an immigration official or immigration judge ''suspects'' that they are inadmissible and the Attorney General supports that decision on the basis of ''confidential'' information not shared with the non-citizen. Under current law, ''confidential'' information need not even be classified, and there is no further review of the Attorney General's decision.
Fifth, in pending cases, where the Government is holding an alien without bond based on secret evidence, or is denying an application for relief such as political asylum based on secret evidence, it must act fairly. The Secret Evidence Repeal Act directs the Department of Justice to either disclose the evidence to the non-citizen or withdraw it from the record, and in either event, the case would be re-heard on the basis of evidence in the public record, unless the Government decided not to proceed.
The Secret Evidence Repeal Act is not designed to help ''illegal aliens.'' It is designed to ensure that a fair process is used in proceedings to determine whether a non-citizen is in the United States lawfully. The Department of Justice asserts the power to use secret evidence against all non-citizens in the United States, whether they are lawful permanent residents, visitors, or people who entered without admission. Since the purpose of a removal proceeding is to determine whether a person is present lawfully, it begs the question to assert that H.R. 2121which is designed to ensure a fair proceedingonly helps ''illegal aliens.'' When the Government loses a secret evidence case and the person against whom the evidence was used establishes that the law permits him to remain, it can hardly be said that he is an ''illegal alien.'' Arguing that the Secret Evidence Repeal Act is designed to help ''illegal aliens'' is like arguing that the right to a trial by jury is designed to help guilty people. Instead, both are designed to promote fairness in proceedings when a person's liberty is at stake.
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Alternatives To H.R. 2121
Some opponents of H.R. 2121 have suggested that alternatives to the bill would better ''balance'' national security interests against the liberty interests of the accused non-citizen. However, the alternatives suggested do not meet constitutional requirements. Some view the procedures of the secret evidence court established in the 1996 anti-terrorism lawprior to the amendments adopted a few months later in the 1996 immigration lawas an appropriate model. It is not. It was little improved from the 1991 anti-terrorism provisions proposed by the Bush Administration's Department of Justice. Both pieces of legislation allowed for the deportation of non-citizens, including lawful permanent residents, based on secret evidence the source of which might be the government of the alien's native country, with only a generalized summary provided the non-citizen and with a one-sided appeals process.
In fact, the 1996 anti-terrorism law's secret evidence court proceedings have civil liberties problems that did not appear in legislation when it was proposed in 1991. The anti-terrorism law allows for deportation if the Government proves its case merely by a ''preponderance of the evidence.'' INA Section 504(g), 8 U.S.C. 1534(g). Even the 1991 proposal required the Government to prove its deportation case by ''clear and convincing evidence''a much higher standard. ''Clear and convincing evidence'' is the standard required in the INA for other deportation cases. INA Section 240(c)(3)(A), 8 U.S.C. 1229a(c)(3)(A). It is similar to the standard of proof the Supreme Court established for deportation cases in Woodby v. Immigration Service, 385 U.S. 276 (1966) (no deportation order may be entered unless the Government proves by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true). The Woodby court explicitly rejected the ''preponderance of the evidence'' standard for deportation cases. 385 U.S. at 284285.
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Others favor a ''cleared counsel'' model. In this model, an attorney with a security clearance is chosen by the non-citizen to review the classified information and argue to the court about whether the information proves what it is alleged to prove. The cleared counsel would be prohibited from sharing classified information with the non-citizen. However, this model fails to provide adequate protection when a person's liberty is at stake. Often, only the non-citizen knows why a particular person's allegations might be lacking in credibility. This is illustrated by the Knauff case mentioned above. Only the accused WWII ''war bride'' could know why the person who secretly offered the secret information against her might have had reason to offer false information.
Still others favor an amendment to the anti-terrorism bill offered by Representative Nadler at the 1995 mark-up of the legislation, incorporated into the Nadler-Berman-Conyers substitute and rejected on the House floor in 1996. In proceedings before the secret evidence court, the amendment would have increased the quality of the summary of classified information given the accused to the standard set forth in the Classified Information Procedures Act (CIPA). The summary would have to afford the accused with substantially the same ability to make his defense as would disclosure of the classified information. While this amendment would have advanced the due process rights of the accused non-citizen, it is not at all clear that it would pass constitutional muster, and it would not put a non-citizen in a deportation case in the same position as a criminal defendant in CIPA proceedings. Most importantly, the amendment would not ensure the protection of due process rights as required by the Fifth Amendment because the amendment applies only to proceedings before the secret evidence court, which the Government has never used. It would not address the abuses in any of the past or pending secret evidence cases because none of them were brought in the secret evidence court.
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Even with respect to proceedings in the secret evidence court, the amendment falls short. CIPA operates against the backdrop of the Sixth Amendment's confrontation clause. It was drafted not to confer or to diminish substantive rights, but to establish procedures under which rights could be protected when the defendant or the Government wanted to use classified information. The rightsincluding the right to discover and use informationare conferred by the Sixth Amendment as interpreted by the Supreme Court and by Federal Rule of Evidence No. 16. To put the non-citizen in a deportation case in substantially the same position as a criminal defendant in CIPA proceedings, these rights to obtain and confront the evidence against the accused would have to be conferred in immigration cases. If that is done, some will certainly object to giving non-citizens accused of being terrorists discovery of classified information relevant to their defense. If that is not done, the non-citizen would be unable to challenge the adequacy of the summary because neither she nor her attorney would in the vast majority of cases have access to the classified information upon which the summary is based.
For all of these reasons, we believe H.R. 2121 an approach superior to the alternatives that have been suggested.
The fight against terrorism need not involve compromise of our most cherished constitutional rights. The American Civil Liberties Union strongly supports the Secret Evidence Repeal Act (H.R. 2121), compliments Reps. Bonior, Campbell, Conyers and Barr for introducing it, and encourages the House Judiciary Committee to quickly mark-up the bill.
Page 123 PREV PAGE TOP OF DOCSupplement:
WHAT THE COURTS ARE SAYING . . .
Supreme Court Justice Frankfurter in Joint Anti-Fascist Refugee Comm. v. McGrath: ''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 opportunity to meet it. Nor has a better way been found for generating the feeling, so important to popular government, that justice has been done.'' (Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171172 (1951) (Frankfurter, J., concurring)).
Supreme Court Justice Jackson in Knauff v. Shaughnessy: ''The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.'' (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (Jackson, J., dissenting)).
Federal Appeals Court for the District of Columbia on Secret Evidence in Rafeedie v. INS: ''. . . Rafeedielike Joseph K. in Kafka's 'The Trial'can prevail . . . only if he can rebut the undisclosed evidence against him, i.e. prove that he is not a terrorist regardless of what might be implied by the government's confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden. . . .'' (Rafeedie v. INS, 880 F.2d 506, 516, (D.C. Cir. 1989))
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Federal Appeals Court for the Ninth Circuit, on Secret Evidence in ADC v. Reno: ''One would be hard pressed to design a procedure more likely to result in erroneous deprivations.''
''Because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the . . . balancing [test adopted by the Supreme Court to determine whether INS conduct violates a non-citizen's due process rights] suggests that use of undisclosed information in adjudications should be presumptively unconstitutional.'' (American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1069; 107071 (9th Cir. 1995)).
Federal District Court in New Jersey in Kiareldeen v. Reno: ''Here, the government's reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United States, citizens and resident aliens alike.''
''Despite repeated requests from the Immigration Judge, the government made no recorded efforts to produce witnesses, either in camera or in public, to support its allegations of terrorism. The petitioner was thus denied the opportunity to meaningfully cross-examine even one person during his extended detour through the INS' administrative procedures. The INS' actions unconstitutionally damaged Kiareldeen's due process right to confront his accusers. The quality of the evidence offered by the government as the basis for petitioners' continued detention does not attain that level of reliability sufficient to satisfy the constitutional standard of fundamental fairness. Even the majority opinion of the Board of Immigration Appeals, which overruled the [immigration judge's] decision to release the petitioner on bond, noted: 'Like the Immigration Judge and the dissent, we have some concerns about the reliability of some of the classified information.' The court finds that to be an understatement.''
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''Here, the court cannot justify the government's attempt to 'allow [persons] to be convicted on unsworn testimony of witnessesa practice which runs counter to the notions of fairness on which our legal system is founded.' '' [citation omitted] (Kiareldeen v. Reno, 71 F.Supp.2d 402, 414; 418; 419 (D.N.J. 1999)).
Federal Court for the Eastern District of Virginia in Haddam v. Reno: ''The use of secret evidence against a party, evidence that is given to, and relied on, 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, so unfair that in any ordinary litigation context, its unconstitutionality is manifest.'' (Haddam v. Reno, 54 F. Supp.2d 588, 598 (E.D. Va. 1999)). (The Haddam court did not address the constitutional issues arising from the use of secret evidence).
Donn Livingston, Immigration Judge, In In Re Nasser Ahmed: ''The INS seems to be asking the court to abdicate its statutory and regulatory duty to decide the respondent's asylum claim based on the evidence presented at the hearing. The court will respect the expertise of law enforcement personnel and their dedication to protecting our country. But the court will not defer to their credibility findings, their weighing of the evidence or their interpretations of law. . . . [T]hese issues are to be resolved by the [immigration] court which will make its own findings and conclusions based on the evidence presented.''
''It appears that some of the classified information could be gathered from non-confidential sources. If the information could be presented in open court as coming from an unclassified source, the respondent would be able to confront the evidence against him. This is certainly a desirable feature of any court proceeding. Indeed, the court is concerned about the possibility for abuse in this area. Imagine, for example, an agency which has two sources of evidence of a particular fact. One source is classified and the other source is public. If the agency chooses to present the information through the public source, the respondent will have an opportunity to confront the evidence. However, if the agency chooses to present the evidence through a classified source, the evidence could remain unassailable. Imagine further the situation where an agency has classified information of a certain fact, but does not yet have a public source for that fact. If the agency knows it can present the classified information in camera, what is the incentive to expend investigatory resources on developing a public source for that evidence?''
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''Virtually all of the secret information is hearsay not subject to any exception to the hearsay rule. Most of this information is double or triple hearsay. Of course, hearsay evidence may be admissible in deportation proceedings [citation omitted]. However, hearsay may be relied upon only if it is probative and its use would not be fundamentally unfair [citations omitted].''
''The government's failure to respond to the credibility questions leaves the court utterly unable to assess the reliability of the government's hearsay evidence. The FBI urges the court to defer to its assessment of credibility. . . . However, the FBI has refused to provide the court with evidence from which the court could make an independent evaluation of the credibility of its sources. In light of that refusal, this court must reject the secret information as being of unproven reliability.'' (In Re Nasser Ahmed, No. A90 674 238 (7/30/99)).
SECRET EVIDENCE SIGN-ON LETTER
No person should be deprived of liberty based on evidence kept secret from the person. We are writing to ask that you support this principle of due process in immigration cases by co-sponsoring the Secret Evidence Repeal Act, H.R. 2121, introduced by Representatives Bonior (D-MI), Campbell (R-CA), Conyers (D-MI) and Barr (R-GA).
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act is being used by the Immigration and Naturalization Service to deny bond, asylum and other immigration relief to non-citizens based on evidence kept secret from them. The 1996 Antiterrorism and Effective Death Penalty Act established a special ''Star Chamber'' court that can use secret evidence to deport even lawful permanent residents as ''terrorists.''
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Under these 1996 laws, any non-citizen alleged to be deportable may be detained without bond for years without even knowing why he is being detained. Likewise, any non-citizen who seeks asylum may be returned to a country where she faces persecution or torture, all because the evidence suggesting that the non-citizen does not qualify for asylum is kept secret from her, and therefore cannot be rebutted or effectively challenged. This can happen to any non-citizen, including those not accused of being ''terrorists.'' Finally, a non-citizen, including a lawful permanent resident, can be accused of being a ''terrorist'' under the Immigration and Nationality Act, detained, required to appear in front a special court, and be ordered deported without ever being informed of the basis for the charges against him.
This is unfair. Nobody can defend against secret allegations whispered by the unknown accuser. As Supreme Court Justice Frankfurter said in Joint Anti-Fascist Refugee Committee v. McGrath, ''Secrecy 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.''
More recently, immigration judges have determined that the secret evidence being used is inherently unreliable. In In re Ahmed, the immigration judge said that most of the secret evidence being used to deny asylum and bond amounted to double or even triple hearsay, and may have originated with the foreign government accused of persecuting the non-citizen seeking asylum. On October 20, 1999, a federal district court in New Jersey joined the 9th Circuit and the Federal District Court in Washington, D.C. in ruling that the use of secret evidence violates a non-citizen's due process rights: ''[T]he government's reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all person within the United States, citizens and resident aliens alike. The INS procedures patently failed the . . . test of constitutional sufficiency.'' Kiareldeen v. Reno.
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We urge you to co-sponsor and support the Secret Evidence Repeal Act. It would prohibit the government from using secret evidence to deport non-citizens or to deny critically important immigration benefits to them. It would not require the release of dangerous people. Rather, it would require the government to make in immigration cases the same choice it must make in criminal cases: either disclose the evidence it wishes to use against the person or leave that evidence out of the proceedings altogether.
American-Arab Anti-Discrimination Committee
American-Arab Council (New York)
American Arab Heritage Council (Flint, MI)
American Civil Liberties Union
American Friends Service Committee
American Immigration Law Foundation
American Immigration Lawyers Association
Americans for Democratic Action
Americans for Tax Reform
Amnesty International USA
Arab American Institute
Arab American League of Voters of New Jersey
Asian American Legal Defense and Education Fund
Asian Law Alliance
Asian Law Caucus
Page 129 PREV PAGE TOP OF DOCAsian Pacific American Labor Alliance
Asian Pacific American Legal Center of Southern California
AYUDA (Washington, D.C.)
Caribbean Women's Health Association (New York)
Catholic Charities Family Services (Honolulu)
Catholic Charities of Dallas, Inc, Immigration Counseling Services
Center for Battered Women's Legal Services
Center for Constitutional Rights
Central American Resource Center
Centro Cultural (Cornelius, OR)
Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA)
Columbian American Service Association (Miami)
El Rescate (Los Angeles)
Estamos UnidosHispanic Ministries (Roanoke, VA)
Heartland Alliance for Human Needs and Human Rights
Hermandad Mexicana National
Immigrant and Refugee Rights Project of the Washington Lawyers' Committee for Civil Rights & Urban Affairs (Washington, D.C.)
Immigrant Legal Resource Center (San Francisco)
Immigration and Refugee Services of America/U.S. Committee for Refugees
International Human Rights Law Clinic (Berkeley, CA)
International Institute of New Jersey
International Institute of Rhode Island
International Institute of San Francisco
Jewish Community Council, Metropolitan Detroit
Page 130 PREV PAGE TOP OF DOCKorean Resource Center
Lawyers' Committee for Civil Rights of the San Francisco Bay Area
Lawyers Committee for Human Rights
Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA)
Mexican American Legal Defense and Educational Fund
Na LoioImmigrant Rights and Public Interest Legal Center (Honolulu)
National Asian Pacific American Legal Consortium
National Committee Against Repressive Legislation
National Council of La Raza
National Immigration Project of the National Lawyers Guild
National Korean American Service and Education Consortium
National Lawyers Guild
National Network for Immigrant and Refugee Rights
Northwest Immigrant Rights Project
Riverside Language Program, Inc.
San Francisco District Attorney's Office
Sponsors Organized to Assist Refugees (Portland)
United Methodist General Board of Church and Society
Westchester Hispanic Coalition (White Plains, NY)
World Organization Against Torture USA
World Relief, Chicago
Page 131 PREV PAGE TOP OF DOC Mr. HYDE. Mr. Ramer.
STATEMENT OF BRUCE RAMER, PRESIDENT, AMERICAN JEWISH COMMITTEE
Mr. RAMER. My name is Bruce Ramer. I am the National President of the American Jewish Committee; and, Mr. Chairman, I appreciate the opportunity to appear here today to address the concerns of the American Jewish Committee with respect to the Secret Evidence Repeal Act, H.R. 2121.
The American Jewish Committee, some 94 years old, is composed of over 105,000 members and supporters throughout the United States. We are an intergroup human rights organization.
May I ask, Mr. Chairman, that my written statement, which I will very briefly summarize, be included in the record in its entirety?
Mr. HYDE. Without objection, and all written statements of all witnesses will be made a part of the record.
And while I am at it, I will ask unanimous consent for the entry into the record of an article by Jeff Jacoby of the Boston Globe called ''The Real Terrorist Threat,'' and you may proceed.
Mr. RAMER. Thank you, Mr. Chairman.
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It is an interesting coincidence that this hearing is being held this week at the very time that there are pending exercises in this country to handle, confront, and combat terrorist activities involving chemical and biological activities. The idea of these exercises is to prevent and respond to these terrorist acts should they ever occur in our communities.
As discussed more fully in my written statement, Mr. Chairman, 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 on the one hand and national security interests on the other. It is a hatchet taken to a set of serious and difficult issues that require, instead, a scalpel.
AJC has historically played a leadership role in three disparate areas: the battle against terrorism, support for civil liberties and due process, and the promotion of a fair and generous immigration policy. We strongly believe that it is absolutely consistent to assure 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.
Classified information often includes sensitive material that cannot be revealed, such as the identities of well-placed operatives whose lives could well be jeopardized if their identities or whereabouts were revealed.
Disclosure of classified information will also mean in many cases that sources of intelligence crucial to national security, whether individuals or foreign nations, will be lost. Supporters of H.R. 2121 would present with us a Hobson's choice of either bringing classified information into open court for discovery and examination with these potentially harmful consequences or be left without recourse againstnot even by removal from the United States ofnoncitizens who are believed, based upon classified information, to be involved in activities.
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We reject this false and dangerous choice. A section of the 1996 Antiterrorism Act called the Alien Terrorist Removal Act, ATRA, provides an existing, appropriate response to a situation in which law enforcement authorities possess classified information proving an alien's involvement in terrorist activities.
ATRA establishes a removal court of lifetime-appointed Federal judges, as opposed to immigration judges, with jurisdiction to hear such removal cases. Among other rules to assure that the accused has an opportunity for a fair and adequate defense, the ATRA as originally enacted provides that the special court must find that removal of the alien pursuant to usually applicable procedures, ''would pose a risk to national security,'' and thereafter, in order for the court 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.
In legislation enacted 20 years ago, which Mr. Nadler referred to earlier today, Congress recognized that the demands of due process can be reconciled with the use of classified information in legal proceedings in a fashion that safeguards the sensitive nature of that information.
That legislation, the Classified Information Procedure Act, has been upheld by Federal courts against constitutional challenge. Now, significantly, several high-profile cases to which proponents of H.R. 2121 have pointed as evidence of the need for this bill have not involved this special removal court procedure established by the 1996 Antiterrorism law. Nor, to our knowledge, has this procedure been invoked in any case to date, a question posed by Representative Waters.
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In addition, ATRA is, by its terms, to be utilized only 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 example, 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.
In reviewing the cases most frequently cited by the supporters of H.R. 2121, 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 the court to determine if it was sufficient to enable the preparation of a defense.
Mr. HYDE. Can you bring your remarks to a close?
Mr. RAMER. Yes, sir, in 30 seconds.
It is notable that the respondents in a number of these cases have been able to persuade the courts that they shouldn't be continued to be detained once some additional information was provided to them. So their cases do not seem to stand for the proposition that the ATRA should be repealed in its entirety but rather as an argument for why, as a safeguard against INS misaction, the procedures of the type contemplated by ATRA are adequate.
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Let me conclude. Mr. Chairman, you and Mr. Conyers mentioned the disproportionate use of these procedures with respect to people who have arrived here from the Middle East, and Ms. Waters also mentioned or questioned that this was applicable mainly to Arabs and Muslims. Let me make very clear, if I may, that these matters should not, in our view, have any basis in religious, racial, ethnic, national, or any geographical aspect. None at all.
Finally, there may be other ways to square this circle, but one thing is clear. The tack taken by H.R. 2121 is untenable. It makes no accommodation whatsoever to the national security concerns to which the Alien Terrorist Removal Act was 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 has consistently advocated.
We urge this committee and Congress as a whole to reject the Secret Evidence Repeal Act and to retain and adopt a more balanced approach. Thank you.
Mr. HYDE. Thank you, Mr. Ramer.
[The prepared statement of Mr. Ramer follows:]
PREPARED STATEMENT OF BRUCE RAMER, PRESIDENT, AMERICAN JEWISH COMMITTEE
I. INTRODUCTORY STATEMENT
Page 136 PREV PAGE TOP OF DOC My name is Bruce Ramer. I am National President of the American Jewish Committee, the nation's premiere human relations organization with some 105,000 members and supporters, and with 32 regional chapters across the United States. Mr. Chairman and Ranking Member Conyers, I appreciate the opportunity to appear before the House Judiciary Committee today to address the concerns of the American Jewish Committee with respect to the Secret Evidence Repeal Act (H.R.2121).
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 and to ensure an equitable immigration policy founded on the understanding that this nation is, fundamentally, a Nation of Immigrants.
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. 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 areasthe battle against terrorism and, as mentioned above, the promotion of a fair and generous immigration policythat are both pertinent to 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 attacksof which the Oklahoma City and World Trade Center bombings are the most notorious examples to have occurred on American soildemands 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 in December of Ahmed Ressam, who has ties to Osama bin Ladinas he allegedly attempted to bring into the United States a rented car full of enough explosives to kill hundreds of peopleterrorists 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 all immigrants continue to see America as a symbol of hope.
There is absolutely no inconsistency between assuring that law enforcement authorities are properly equipped to respond to the threat of terrorism and, at the same time, assuring that immigrants and refugees are treated fairly and decently.
II. THE THREAT OF TERRORISM
Before I turn to the problematic nature of the Secret Evidence Repeal Act itself, a review of the nature of the threat posed to the United States by the forces of international terrorism is in order. It is crucial to understand that we are dealing here not with some will-o'-the-wisp, but with a palpable and growing danger to each of us and to all that we hold dear.
The menace of terrorism threatens America and its allies and the core values and institutions of democratic societies around the world. It appears that a substantial part of this threat is fueled by, or linked to, militant Islamic extremism but by no means does this movement pose the only threat of terrorism to Americans on the international scene. Let me be clear on one pointfrom whatever place the threat of terrorism emerges, and whatever philosophy supports it, our view as to the measures necessary to counteract this peril remain the same. And let me be just as clear on another crucial pointby no means does the existence of such a threat justify the taking of legal action against an individual on the basis of his or her ethnic identity or religion, as opposed to evidence of that individual's culpability for wrongdoing. But these weighty concerns as to fairness and the need to foreswear discrimination cannot allow us to blink at the reality of the ongoing threat.
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Four categories of terrorism confront the United States today:
Terrorism carried out by organizations that possess an international infrastructure, such as Al-Qa'ida headed by Usama Bin Ladin, and Hizballah;
Domestic terrorist organizations located in the United States that are comprised of American citizens, such as The Order, the Aryan Nations, and certain extremist militia groups;
Acts of terrorism carried out by individuals motivated by the extremist ideology and propaganda of a terrorist group, but with no formal ties to such groups. One example of such an incident may be the August 1999 attack carried out by Buford Furrow against a Jewish day care center in the Los Angeles area; and
Terrorism carried out via state sponsorship. While state-sponsored terrorism has declined through the 1990s, it has continued to play a role in regard to Middle Eastern terrorist organizations, such as Hamas and Hizballah which have received funds and logistical support for their activities from Iran.
One factor heightening the threat of terrorism against the United States over the last two decades has been extreme religious fanaticism. Leaders of terrorist groups who employ this type of ideology present a perverted form of religious tenets to justify their attacks. The abuse of the trappings of religion by these organizations gives them the ability to take advantage of the freedoms provided by Western societies. In contrast to terrorist organizations that have a specifically declared political goal, the potential of these organizations for carrying out ever more deadly attacks is much higher.
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Another factor is the ability and willingness of terror organizations to pursue ever more deadly means of carrying out attacks. These include the use of powerful improvised explosive devices, as were used in the suicide attack carried out by Hizballah against the U.S Embassy in Beirut in 1983 and the truck bombing attacks carried out at the World Trade Center in 1993 and at the Murrah Building in Oklahoma City in 1995. Over the past decade, terrorist organizations such as Al-Qa'ida have made efforts to acquire weapons of mass destruction. And although the Japanese terrorist organization Aum Shin Ri Kyo does not include the United States among its declared targets, its successful use of sarin gas in the Tokyo subway in 1995resulting in 12 fatalities and the hospitalization of over 5,000 individualshas paved the way for other groups to do so.
Funds are raised to support the social service systems of these terrorist movements in order to maintain their current capabilities and ensure the continuity of these organizations. Terrorist organizations have taken advantage of the freedom of movement and privacy enjoyed by citizens of the United States and other Western countries in order to establish ostensibly charitable organizations to raise funds for their activities abroad.
As one means of weakening the infrastructure that produces operatives for these organizations, the American Jewish Committee supports the implementation of provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the ''Antiterrorism Act'') that would impede the efforts of terrorist organizations to raise money on American soil. To date, certain organizations have been investigated for these activities but, regrettably, so far as we know no further concrete action under the 1996 act has been taken.
Page 140 PREV PAGE TOP OF DOC Nearly a decade ago, senior federal law enforcement officials stated that every significant Middle Eastern terrorist organization has an infrastructure in the United States. There is no reason to believe that the situation is any different today. The American Jewish Committee supports the aggressive investigation of terrorist organizations and their apparatus in the United States, consistent with existing investigative guidelines.
And, turning to the provisions of the 1996 Antiterrorism Act that the Secret Evidence Repeal Act would remove in toto, when investigations reveal that noncitizens present in the United States have been involved in terrorist activities, we support the policy that law enforcement authorities should be enabled to seek the deportation of those individuals without revealing or endangering sensitive sources of information, utilizing procedures that recognize due process concerns. Classified 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. Disclosure of classified information will also mean, in many cases, that sources of intelligence crucial to national securitywhether individuals or foreign nationswill be lost. Supporters of H.R.2121 would present us with a Hobson's choice of either bringing classified information into open court for discovery and examination, with these potential baleful consequences, or be left without recourse againstnot even by removal from the United States ofnoncitizens known on the basis of classified information to be involved in terrorist activities. For the reasons we discuss below, we reject this false and debilitating choice.
III. THE SECRET EVIDENCE REPEAL ACT
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.
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The campaign against government reliance on classified evidence was given additional momentum last year with judicial determinations in two cases. 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.
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 Antiterrorism Act.
But, significantly, neither of the aforementioned high-profile casesnor, to the best of our knowledge, any other casehas involved the special ''removal court'' procedure created by the 1996 antiterrorism law. Even as we underline our commitment to safeguarding the civil liberties of every individual, we believe that it is noteworthy that the FBI recently stated that classified information is involved in only twelve pending cases out of some 300,000 pending immigration cases overall. The ''removal court'' procedure, perhaps with some modifications, provides an appropriate response to those rare situations in which law enforcement authorities must rely in an immigration proceeding on 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 Antiterrorism Act called the ''Alien Terrorist Removal Act'' (ATRA). ATRA, as enacted by the Antiterrorism Act, 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.
It must be noted at this point that the foregoing describes the provisions of ATRA as they were originally enacted. Later in 1996, ATRA was amended by the immigration reform law so as to purport 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 have never subscribed to that later-added procedure.
In legislation enacted twenty years ago, Congress recognized that the demands of due process can be reconciled with the use of classified information in legal proceedings in a fashion that safeguards the sensitive nature of that information. Under the Classified Information Procedures Act (CIPA), in a federal criminal proceeding a court may, upon sufficient showing, permit 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.
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As I indicated earlier, so far as we know the ATRA has yet to be invoked, even though judges have been named to sit on the removal court contemplated by its provisions. 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.
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.
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As is evident from the positions AJC has taken on other immigration-related matters now before the Congress, we do not regard the record of today's immigration system in treating immigrants equitably as spotless. 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, nor do we argue that the procedures set forth in the ATRA are not susceptible to improvement. For starters, as to this last point, Congress might consider rescinding the amendment to the ATRAenacted in the closing days of the 104th Congresswhich allows authorities, under certain circumstances, to bypass the requirement that an unclassified summary be provided to a potential deportee of classified information that serves as the basis for the action against him. In addition, the Justice Department may at some point issue new guidelines as to procedures for the use of classified information in immigration proceedings, an effort that we hope will provide greater clarity and assure less opportunity for abuse.
In sum, the tack taken by the pending bill is untenable. H.R.2121 makes no accommodation whatsoever to the national security concerns to which the Alien Terrorist Removal Act was 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 Act in which those provisions were included. We urge this committee, and the Congress as a whole, to reject the Secret Evidence Repeal Act and to adopt a more balanced approach.
Page 145 PREV PAGE TOP OF DOC Mr. HYDE. Professor Cole.
STATEMENT OF PROFESSOR DAVID COLE, GEORGETOWN UNIVERSITY LAW CENTER
Mr. COLE. Thank you, Mr. Chairman. I have represented 13 people in the last 13 years against whom the INS has sought to use secret evidence, and I think the record in those cases belies the testimony of Mr. Parkinson and Mr. Cooper that the government only uses secret evidence where there are true threats to national security and, therefore, we can trust the government with this remarkable power that it has taken upon itself.
Of the 13 people that I have represented, all 13 were at one time alleged by the government to be threats to national security. Yet in none of those cases did the secret evidence charge the alien with engaging in any criminal activity, much less terrorist activity. In every case, the basic charge was guilt by association, not that they did something wrong, but they were associatedwith the wrong people.
Twelve of those 13 people are now living freely and peaceably in the United States with no apparent undermining of the national security. The thirteenth case, involving Mr. Mazen Al-Najjar is still pending.
In every case that has reached final resolution, the courts have ruled against the INS, and the INS has forgone appeals available to it.
I want to briefly touch on some of the stories in those cases, but first I want to make one legal point, going to the initial exchange between Mr. Chairman and Congressman Campbell regarding due process and aliens.
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The Supreme Court has said absolutely clearly that due process protects all persons. It talks about persons. All persons in the United States, whether citizen or alien, whether here illegally or legally. And the case is Matthews v. Diaz. It is cited in footnote 4 of my testimony. So there is no distinction between aliens and citizens and there is no distinction between illegal aliens and legal aliens.
Secondly, the Supreme Court has repeatedly said that the due process clause provides no lesser protections for aliens than for citizens.
In Galvin v. Press, an immigration case, the Supreme Court said that since the alien is a person, an alien has the same protection for his life, liberty and property under the due process clause as is afforded the citizen. The Supreme Court said the same thing in Kwong Hai Chew: ''The fifth amendment knows no distinction between citizens and aliens residing in the United States.''
Mr. Cooper erroneously misled this committee in saying that the Supreme Court has sanctioned this practice as constitutional for 50 years. The case he referred to is Jay v. Boyd. In that case the Supreme Court said no constitutional claim is presented. No constitutional claim was presented.
In 1953, the Supreme Court decided in Kwong Hai Chew v. Colding, in which a constitutional challenge to the use of secret evidence was presented, that the secret evidence could not be used to expel an alien who was living here.
Page 147 PREV PAGE TOP OF DOC It is interesting that Mr. Cooper twice conceded, both in his opening remarks and in his response to questions, that the INS cannot constitutionally use secret evidence to establish deportability. That is precisely what the 1996 Alien Terrorist Removal Act allows the INS to do. What Mr. Ramer has said this committee should look to, the INS has conceded here is unconstitutional.
Now just a couple of remarks about some of these cases, because I think it is a record that really speaks for itself.
Nasser Ahmed, an Egyptian man locked up for 3 1/2 years, released in November in New York: When he was initially locked up, the INS told him they couldn't tell him anything, not a word about the secret evidence against him. When we brought a constitutional challenge to the INS's practice, all of a sudden they found themselves able to divulge pages and pages of information which they previously said couldn't even be summarized without jeopardizing national security.
The immigration judge ultimately found that he didn't pose a threat to national security, the BIA affirmed, and Janet Reno declined to intervene and overturn that finding. And he was released.
Hany Kiareldeen, to my left, locked up for 19 months as a threat to national security: Again, initially told almost nothing about why he was locked up. Ultimately, all seven immigration judges who looked at the complete record in case found there was no basis to conclude that Mr. Kiareldeen was a threat to national security, and what became clear is that the principal source that the FBI relied upon was his ex-wife who was in a custody proceeding with him and had made repeated false accusations against him.
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Fouad Rafeedie, another Palestinian: The INS sought to expel him on the basis of secret evidence that he was associated with the Popular Front for the Liberation of Palestine. That is all he was told. He was not alleged to have engaged in any illegal activity on their behalf. The District Court for the District of Columbia and the D.C. Circuit for the District of Columbia held that the use of secret evidence against him was unconstitutional, the government declined to take an appeal, and let him remain in this country.
Imad Hamad, a Palestinian in Dearborn: The government sought to use secret evidence to oppose his application for permanent resident status. The evidence showed only that he had attended a Palestinian dinner. The immigration judge found that there was nothing there that showed that he was a threat to national security. The BIA affirmed.
The Los Angeles Eight, a group of seven Palestinians and a Kenyan woman who were arrested in 1987 and locked up in a maximum security prison: The INS charged that they all posed a threat to national security and had to be detained based on secret evidence. The immigration judge refused to consider secret evidence.
Did the government appeal? No. It just let them all out, all eight, who it originally said could not be freed without jeopardizing national security.
A month later, FBI Director William Webster testified in Congress that the FBI had found no evidence that any of these people had engaged in any criminal or terrorist activity. All eight have now been out for 13 years. The INS has granted three of them permanent resident status.
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Finally, Mr. Mazen Al-Najjar, the one pending case, still detained: The only thing he has ever been told is that he is alleged to be associated with a terrorist organization. They have not said how he is associated, what he did, they have never charged him with any criminal conduct, notwithstanding 5 years of criminal investigation in that case.
This record, I think illustrates that when you give the government this kind of power, when you give them the power to use secret evidence to present evidence behind closed doors which they know will not be challenged, you cannot trust them. Our Constitution and our legal system are not based on trust of the government; they are based on a notion that what best serves everyone's interest is an open process in which everyone can see the evidence, in which the evidence can be challenged and in which the truth can be discerned.
Justice Frankfurter said, no better test for discerning the truth has ever been divulged than the opportunity to confront the evidence and cross-examine adverse witnesses. This procedure denies that test for truth. So even if we are concernedand we should be concerned about terrorist threatswhy should we sanction a procedure which is designed to get the wrong people, as it did in the cases of all the people that I have represented?
Mr. HYDE. Could you bring ityou are through?
Mr. COLE. I have come to my conclusion.
Mr. HYDE. Thank you very much, Professor Cole.
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PREPARED STATEMENT OF PROFESSOR DAVID COLE, GEORGETOWN UNIVERSITY LAW CENTER
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 1) 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 revealedin many instances could not even be summarizedwithout 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 1/2 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, has been detained for three years, 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 evidencean uncorroborated bare-bones hearsay reportthat 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 rebuttalthe judge who conducted the immigration hearing and two separate three-judge panels of the Board of Immigration Appeals. It is rare for any judgeeven an Article III judgeto 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, A77025332, 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, A77025332, 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 12.(see footnote 2)
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 *1418. 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' charges against him.(see footnote 3)
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 4)
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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, 106970 (9th Cir. 1995).(see footnote 5)
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 106671. 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 60003.
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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 6)
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In hearings before the Immigration Subcommittee in February, Deputy General Counsel for the FBI argued in defense of the use of secret evidence that while aliens are entitled to due process in immigration proceedings, they are not necessarily entitled to the full panoply of due process rights that citizens must be afforded when their liberty is deprived. No precedent supports a sliding scale of procedural due process protections depending on whether the person being deprived of his liberty is citizen or noncitizen. But even if there were, it would not support the use of secret evidence, which deprives its targets not of some sort of deluxe options but of the most basic elements of due process: notice and a meaningful opportunity to defend oneself.
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.
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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.
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, 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 7) 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, 106970 (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).
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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.
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.
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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 groupneither 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, A26599077, Bond Decision of Immigration Judge 6 (June 23, 1997); Matter of Al Najjar, A26599077, Bond Decision of BIA 12 (Sept. 15, 1998).
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
Page 165 PREV PAGE TOP OF DOC 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. One of the Iraqis initially detained on secret evidence, Dr. Ali Yasin Mohammed Karim, has now had an opportunity to respond to the declassified evidence, and on that basis the immigration judge in his case has reversed herself and tentatively ruled that Dr. Karim is not a threat to national security and should be granted asylum and released.(see footnote 8)
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).
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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.
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.
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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.''
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.
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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.
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.
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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.
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, 123435 (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.
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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.
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.
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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.
Page 174 PREV PAGE TOP OF DOC 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.
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. HYDE. Mr. Homburger.
STATEMENT OF THOMAS HOMBURGER, NATIONAL EXECUTIVE COMMITTEE, ANTI-DEFAMATION LEAGUE
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Mr. HOMBURGER. Thank you, Mr. Chairman, and good afternoon. I am Tom Homburger and I am Vice Chair of the Anti-Defamation League's National Commission. In the past, I have chaired the Commission'sthe League's National Civil Rights Committee as well as the Chicago Regional Board. ADL is pleased to testify today as the Judiciary Committee considers H.R. 2121.
Together with the American Jewish Congress, B'nai B'rith International, Hadassah and the Jewish Council for Public Affairs, we represent organizations that have played leadership roles in support of civil rights, liberties and religious freedom in America and abroad.
We have long stressed America's importance as a haven for persons persecuted in their native land and have strongly supported broad due process protections for aliens. However, we strongly oppose the approach embodied in H.R. 2121 because it destroys a balance which we find so important: the need for due process for immigrants and the need of the United States to deter and protect against terrorism. And we believe it does so because it would strip the government of an essential shield for confidential intelligence sources needed to prevent terrorist acts.
Now, Congress has long grappled with the unique challenge of deterring and preventing terrorism in a free society by balancing the need to protect confidential sources and methods with the due process rights of suspected terrorists. As Congress has determined and as we strongly believe, fighting terrorism and protecting civil liberties are notnot mutually exclusive.
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It is interesting, if you look to existing law passed by Congress, there are useful examples of how Congress has, we believe, achieved a more appropriate balance between an individual's rights and national security interests. And those have been talked about, and I don't want to repeat what you have heard so many times today. The Antiterrorism Act of 1996 and CIPA, both of those statutes were efforts to try to balance these two competing efforts.
H.R. 2121, on the other hand, really abandons this balanced approach. It forces the government to choose between releasing an individual suspected of terrorist activities or exposing intelligence sources to that person and to the public.
That is a particularly anomalous result, that of extending greater due process protection to suspected alien terrorists than is currently accorded to American citizens and other defendants in criminal actions who seek access to confidential information in their defense as you have heard in the discussion today about the CIPA procedures.
So what are our recommendations to try to achieve this balance, the balancing of interests, which at first may seem conflicting but can be reconciled?
First, we suggest that the use of undisclosed classified evidence should be used, only, if set criteria are met. Aliens entering the United States are entitled to significant procedural due process protections, including the opportunity to defend themselves against unfounded criminal charges. Suspected alien terrorists in this process should only be denied access to classified evidence if the government can appropriately demonstrate, (a), that a specific alien is suspected of involvement in terrorist activities, and (b), that full disclosure of the classified evidence against him would pose a national security risk.
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Second, we think oversight by the Justice Department officials is both appropriate and vital. We believe the Attorney General should, first of all, review all current cases of any individual who has been detained in part on the basis of classified information, a subject that has been widely discussed today. And secondly, we believe the Justice Department should carefully review each new circumstance and determine whether each case truly merits withholding information from suspected terrorists.
Thirdand Mr. Ramer covered this, but let me mention it because it is so importantdiscrimination or profiling solely on the basis of ethnicity or religion is totally unacceptable. Questions were raised today as to whether a disproportionate number of people who are subject to the use of the classified evidence procedures are of Middle East origin. We find that totally unacceptable. Even when faced with the significant threat of international terrorism, law enforcement officials must never engage in inappropriate stereotyping or profiling solely on the basis of ethnicity or religion. Procedures can be put in place; training can be put in place. That is what the ADL stands for and that is a crucial part of what is being considered today.
This is not an Arab-Jewish issue. The government has a constitutional right and the duty to keep our Nation from being used as a base for terrorist activities. Mr. Chairman, as you observed, terrorist activities really affect the whole United States population. Limiting access to the United States for individuals involved in terrorism, establishing sanctions on those nations that support terrorism, and banning fund-raising 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. But we have towe can never lose sight of the need to craft this balance between the defendant's legitimate expectations of due process and our need for national security.
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We very much appreciate this committee's deliberate efforts to examine this issue, and we believe that the administration and Members of Congress are rightly concerned about preventing misuse of classified information.
The ADL strongly supports appropriate refinements in existing law or administrative proceedings to provide additional safeguards against abuse while maintaining the necessary investigative tools to prevent terrorist activities both here and abroad.
Mr. HYDE. Could you bring your remarks to a close?
Mr. HOMBURGER. I am just about to do that.
But we also strongly feel that H.R. 2121 doesn't provide the proper balance between national security interests and individual liberties and we urge the committee to reject the measure. Thank you.
Mr. HYDE. Thank you very much.
[The prepared statement of Mr. Homburger follows:]
PREPARED STATEMENT OF THOMAS HOMBURGER, NATIONAL EXECUTIVE COMMITTEE, ANTI-DEFAMATION LEAGUE
I am Thomas C. Homburger, Vice Chair of the Anti-Defamation League's National Commission. I have chaired both the League's National Civil Rights Committee and its Chicago Regional Board. ADL is pleased to testify today as the Judiciary Committee considers H.R. 2121, the Secret Evidence Repeal Act. Together with the American Jewish Congress, B'nai B'rith International, Hadassah, and the Jewish Council for Public Affairs, we represent 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.
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We have also stressed America's importance 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. For decades, our organizations have strongly supported broad social welfare coverage and robust legal and due process protections for new immigrants. However, we oppose the drastic approach embodied in H.R. 2121, which would strip the government of important protections against compromising counterterrorism intelligence sources.
The current system, prescribed by the 1996 immigration reform law, under which aliens may be detained or denied immigration benefits 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 any change in law governing the detention of suspected terrorists, for example, must appropriately balance national security interests with individual liberty.
At oversight hearings on the threat of terrorism before the Immigration and Claims Subcommittee in January, 2000, Members heard extensive testimony about continuing efforts by foreign terrorists to infiltrate the United States to carry out criminal acts hereand about individuals who come to the United States to raise funds for and organize terrorist activity abroad. Investigating and preventing such acts requires law enforcement officials and investigators to be able to protect sources and methods.
As this Committee 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 Federal Courts. 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.
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Models supported by Congress and the Federal Courts.
Congress has long grappled with the unique challenge of deterring and preventing terrorism in a free societybalancing 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 [Public Law 104132 (1996)] (AEDPA), which provided one useful model for balancing national security concerns and the due process rights of aliens accused of terrorist crimes.
The AEDPA established a workable mechanism for addressing sensitive, classified evidence. Under that law's carefully crafted provisions, such information was not required to be entirely revealed to the alienbut neither was it permissible to utterly deny aliens (even suspected terrorists) access to evidence being used against them. Under AEDPA, if the Attorney General determines that public disclosure of evidence ''would pose a risk to the national security of the United States,'' a judge must examine, ex parte and in camera, that evidence and approve an unclassified summary of the evidence ''sufficient to enable the alien to prepare a defense.'' This standard affords necessary due process protection for the alien, while allowing the government, in these limited circumstances, to protect its confidential sources and methods. The 1996 immigration reform act amended AEDPA, and modified these standards, significantly reducing due process protections for these aliens.
Similar procedures which seek to strike this balance are contained within the Classified Information Procedures Act (CIPA), a statute which has been upheld against due process challenges. CIPA, 18 U.S.C. App. §116, provides another useful guide for how to provide an alien with limited access to classified informationwithout unduly compromising national security interests. Under this procedure, classified evidence may be withheldeven from US citizenswhere ''disclosure of classified information would cause identifiable damage to the national security. . . .'' The court, upon a sufficient showing, may permit a substituteeither a summary of the classified information ''admitting relevant facts that the classified information would tend to prove'' or a summary of the specific classified information.'' In either case, the court must find that the statement or summary ''will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.''
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Strangely, H.R. 2121 would extend greater due process protection to aliens suspected of terrorist activity than is currently accorded to American citizens and other defendants who seek access to confidential information in their defense against criminal wrongdoing.
The Use Of Classified Evidence Should be Rareand Oversight by Justice Department Officials is Appropriate.
Aliens entering the US are entitled to significant procedural due process protectionsincluding the opportunity to defend themselves against unfounded criminal charges. These rights should be safeguarded, but full disclosure of classified evidence should not be required in those limited circumstances in which the government can appropriately demonstrate that a specific alien is suspected of involvement in terrorist activities and that the release of classified evidence will pose a danger to other persons or threaten 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 suspected wrongdoing has been properly withheld. This oversight function provides another important safeguard against inappropriate withholding of classified evidence from aliens suspected of terrorist involvement.
Page 182 PREV PAGE TOP OF DOCProviding 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 evidencesufficient 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.
Summaries Are Admissible in Immigration Proceedings.
The notion of providing aliens with a summary of evidence against them has been well established within in the statutory scope of immigration court rules of procedure since 1952. Title 8 of the Code of Federal Regulations governing immigration courts, clearly allows the admission of a range of federal investigative reports. These reports are, by their nature, secondary summaries of information gathered from classified as well as other sources that often are not identified. The I213 Record of Deportable Alien reportthe INS document regarding individual suspected of being present in the US illegallycan include references to criminal records and other background derived from sources other than writer of the report.
Current law allows immigration judges to make a determination about the probative value of the document and how much relative weight to give a certain piece of evidence, but never deems these summaries inadmissible. The judge is not required to seek original sources and may consider the information, whether or not the source is identified.
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State Department reports assessing country conditions which cite the danger an individual may face upon their return are admissibleeven if the report is based on classified information from the CIA, for example, which it does not source.
Suspected Alien Terrorists Deserve Due Process Protection No Greater than that Accorded US Citizens in National Security Cases.
Given the national security concerns in the case of suspected terrorists, why should the law provide a broader mechanism for discovery for these individuals than it does for aliens fearing persecution or others seeking relief from removal?
Our suggested middle-ground approach of providing a summary (such as that prescribed by CIPA) levels the playing field by providing aliens suspected of involvement in terrorism cases with the same measure of due process given other aliens facing removal and the same due process protection given U.S. citizens in cases in which there are national security concerns. But HR 2121 would allow much wider privileges to suspected alien terrorists such as:
Section 4 would allow the alien to ''cross-examine all witnesses presented by the Government''rights not currently given to other aliens seeking immigration benefits or facing removal.
Section 6 would compel bond hearings to be held on the recordnot current practice for other categories of detained aliens. The current practice has not been found constitutionally deficient.
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H.R. 2121 seeks to overhaul of the largely-unregulated process of discovery in immigration lawbut only in terrorism cases.
Moreover, unlike a criminal proceeding, in which a reference to undisclosed ''classified CIA information'' may make a strong prejudicial impression on jurors against the defendant, immigration judges have more experience with such information and should be better equipped to independently assess the reliability of undisclosed information and evaluate the relative weight that should be given a particular source of information.
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 sourceswho 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. Law enforcement officials maintain that they cannot and will not expose sources and threaten the lives of personnel in order to move forward with a prosecution. Forcing this choice is tantamount to the ensuring the release of these suspects.
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Discrimination or Profiling Solely 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 frameworkcoupled with necessary trainingshould 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 rightand the dutyto 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 an alien's legitimate expectation of due process protection in immigration proceedings. 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 Committee'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.
Mr. HYDE. Mr. Kiareldeen.
STATEMENT OF HANY KIARELDEEN, FORMERLY DETAINED ALIEN
Mr. KIARELDEEN. Thank you, Mr. Chairman. My name is Hany Kiareldeen. I was born back in Gaza in 1968. I arrived in the United States on a student visa to pursue my college education. In 1993, I got married to Amal Mohamed and I had my daughter Nour, and then in 1994, I dropped out of college to work to support my family.
My first marriage was very troubled. My ex-wife had accused me numerous timesfalse accusations, false allegations about domestic abuse and terrorist threats.
I have obtained a divorce with her, and then I got visitation rights, and she stilleven after the divorce, she kept maintaining those allegations, and accusing me of more false allegations. All these accusations have been dropped or dismissed by the courts.
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In 1997, I got married to Carmen Negron, my recent wife. We live in Bloomfield with my stepson, Bryantin New Jersey. In 1998, March 26, I have been arrested by the joint terrorist task force for overstaying my visa.
It never occurred to me that I would have to endure 19 months in jail and being accused of being a national security threat. But I was confident always that the judicial system would not fail me and that is what gave me the strength to fight these allegations and clear my name. The immigration judge has denied me a bond, just based on classified information, and upon these classified information, it took me even more time to try to disprove these allegations.
I have been in the United States since 1990, and I have little interest in politics or religion. No one who knows anything about me could say that I am Islamic fundamentalist or I have an interest in politics or religion. I am afraid that the government accredited these allegations just because I was of an Arab origin.
I had faith that the American judicial system would not tolerate such an injustice, and that is exactly what had happened. I have won in the immigration court in 1999on April 1999, almost over a year after my detention. But still the government appealed that decision and kept me in jail for 6 months more.
The question that always came to my mind is, why do I have to stay 19 months in jail? Why it is so easy for the INS and the FBI to know these allegations were made by my ex-wife and why they kept me in jail even after they knew this?
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I am very thankful to all my friends and my family that supported me through this ordeal. My wife, my brother, my sister-in-law. They would have to endure tremendous emotional distress, financial burden and harassment by the government trying just to fight to prove my innocence.
I was imprisoned on secret evidence for more than 19 months. Even after the first judgment, the government appealed that decision and another decision came down from a Federal court on a habeas corpus, and even after that decision, they appealed it. And then the immigration appealtwo panels of the immigration appeal upheld the immigration decision, and they still appealed their decision by obtaining emergency stay.
I was finally released in October 1999. And I am a free man right now. My suffering is not completely over. One of the things that came out of that, that my ex-wife ran away with my daughter, and I have no way to locate her or know where she is at. I am trying to pursue this now in a different separate court system, which is State court.
I would like just to take advantage of this opportunity of speaking to you today to urge you to reconsider the use of secret evidence. I hope that you can see the human side of my story and realize that the use of secret evidence is profoundly contradictory to our principles of fairness and due process. I understand the need to be vigilant, to protect public safety, but the use of secret evidence itself undermines the safety of the most vulnerable group of our society. And ultimately undermining our legal system.
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Mr. HYDE. Thank you very much, Mr. Kiareldeen.
[The prepared statement of Mr. Kiareldeen follows:]
PREPARED STATEMENT OF HANY KIARELDEEN, FORMERLY DETAINED ALIEN
My name is Hany Kiareldeen and I was born in Gaza in 1968. I arrived in the United States in 1990 to pursue my college education. In 1993 I got married to Amal Mohamed and had my daughter Nour. In 1994 I dropped out of college and worked at a restaurant to support my family.
My first marriage was very turbulent. My ex-wife made many false accusations of domestic abuse against me and tried to keep me from seeing my daughter Nour. All of those accusations were either dropped or dismissed, and the court gave me visitation rights after my divorce in 1997. However, my ex-wife continued to make false accusations against me of assault, child abuse and terrorist threats. She also told the police that I was a terrorist. I was cleared of all charges by the Superior Court of New Jersey.
In 1997 I married Carmen Negron and we lived in Bloomfied, New Jersey with my stepson Bryant. I also applied for adjustment of status based on my marriage to a US citizen. In March 1998 I was arrested by the Joint Terrorist Task Force for overstaying my student visa. Then, it never occurred to me that I would have to endure 19 months in jail for being a threat to national security. I was confident that it was another false accusation by my ex-wife and I was looking forward to proving my innocence in court.
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The immigration judge denied my request for bond based on classified information presented by the government. I was shocked to know that I was accused of being suspected of terrorism. Later, the government issued a brief summary of the evidence against me in which I was accused of making a credible threat against Janet Reno. Until that summary was given to my lawyer, I didn't even know who Janet Reno was, but I knew that such ludicrous allegations could only be made by my ex-wife.
I have been in the United States since 1990, and I love this country and call it my home. I have little interest in politics or religion, and I was always critical of political extremism. No one who knows anything about me could consider me an Islamic fundamentalist. I am afraid that the government credited those accusations because I was of Arab origin. I decided to fight deportation to clear my name and prove my innocence, and I had faith that the American judicial system would not tolerate such an injustice. In the end, I prevailed and am now a free man, and a permanent resident. Not a single judge who reviewed the full record in my case agreed with the INS that I was a threat to national security. However, I still do not understand why I had to spend 19 months in jail, when the FBI and the INS could easily have found out that the information they had gathered was false. From almost the first day, they should have known that my ex-wife had a long history of making false accusations. But because the evidence was kept secret, I could not easily and quickly disprove it.
I am very thankful to my family and friends who supported me through this ordeal. My wife, my brother, and my sister-in law had to endure tremendous emotional distress, financial burden, and harassment by the government as they fought to prove my innocence. The efforts of my lawyers and of members of the National Coalition to Protect Political Freedom finally bore fruit. When I think of America, I think of all the good people that stood by me and endured so much for the sake of justice. When I sat in jail trying to fight evidence that I couldn't see, I found comfort in the fact that I was in America, and that the American system of justice would not fail me.
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I was imprisoned on secret evidence in March 1998. More than a year later, in April 1999, the Immigration Judge in my case granted me adjustment of status, and ordered that I be released on bond. The judge found that I had successfully refuted all allegations made by the government, and was not a threat to national security. Yet I remained imprisoned for six more months. The government appealed the decision and obtained an emergency stay from the Board of Immigration Appeals. A federal judge later found that my detention based on secret evidence was unconstitutional, and the government still tried to appeal his decision. Later, two panels at the Board of Immigration Appeals upheld the Immigration Judge's decision on adjustment of status and bond, and the INS still tried to keep me in jail.
I was finally released from prison in October 1999 after 19 agonizing months, but my suffering is not completely over. While I was in jail, my wife ran off with my daughter Nour. Since I was released, I've not found my daughter and been able to tell her I love her. Every night I have nightmares about being in jail, about the federal agents coming to my house to take me again. Even when I am awake at work, I have flashbacks of my tormenting jail experience. My lawyers are seeking to obtain declassification of the FBI information regarding my case under the Freedom of Information Act. I hope that by obtaining such information, I will be able to further prove my innocence.
I would like to take advantage of the opportunity of speaking to you today to urge you to reconsider the use of secret evidence. I hope that you can see the human side of my story, and that you will realize that the use of secret evidence is profoundly contradictory to our principles of fairness and due process. I understand the need to be vigilant to protect public safety, but secret evidence itself undermines the safety of the most vulnerable group of our society, and ultimately undermines our legal system.
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Thank you for the opportunity to testify.
Mr. HYDE. Mr. Flatow.
STATEMENT OF STEPHEN FLATOW, VICTIM OF TERRORISM
Mr. FLATOW. Mr. Chairman, good afternoon. My name is Stephen Flatow. My 20-year-old daughter, Alisa, was murdered in a 1995 bomb attack in Gaza. She was a passenger in a public bus heading to a beach resort when a suicide bomber of the Palestinian Islamic Jihad, PIJ, rammed that bus with a van loaded with explosives. Eight others died that April morning.
While I am by profession a lawyer, with all due respect to my colleagues who have testified before, I think you need to hear it from another one likeso instead, rather, I address you in my role as a father who has been working for more than 5 years on accomplishing two things: first, to bring his daughter's killers to justice; and second, to put terrorists, wherever they may be found, out of business. I am driven by the belief that no other father, mother, brother, sister, aunt or uncle should have to experience what my family and many others have gone through these past years.
In the fall of 1995, 6 months after Alisa's murder, I was shocked to learn that associates of PIJ, those terrorists who killed my daughter, were freely operating here in the United States in Florida. Due to great work by the FBI, INS and Customs, several arrests of PIJ activists were made and bases of operation were broken up. As a result of these operations, I believe this country and the world became a place far safer from the threat of terrorism than it was previously.
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I do not consider myself a constitutional scholar, Mr. Chairman, but I believe it is obvious that the guarantees of our great Constitution do not require us to stand by idly while people use their residence in this country for the purpose of using it as a base for terrorist activity.
On April 9, 1995, while my daughter was boarding that bus for her vacation, Ramadan Abdallah Shallah, the current head of PIJ, was with others raising money for PIJ from his base of operations in southern Florida. Obviously he did not, could not, act alone.
Having crossed the line of human decency by murdering innocent civilians, terrorists and those who aid and abet them forfeit some of the protections law-abiding citizens so highly value and take for granted in the United States. It is terrorists' blatant disregard for the sanctity of human life that requires us to assist those who are committed to protect us by giving them special tools to fight it, even if some would usually call those tools a violation of one's constitutional rights. Sadly, if one's knowledge of secret evidence was solely dependent on various civil liberty and Arab-American and Muslim groups, one could not help but say that the law has to go. After we have been told by the ACLU that, ''Virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab.''
I do not believe for a second, Mr. Chairman, that one's ethnicity or religion should be the focus of attention here. And inserting that charge into the discussion diverts us from the real issue: Will this country use all tools at its disposal to make this country and the world safe from terrorism?
Page 194 PREV PAGE TOP OF DOC The focus of your attention as you debate H.R. 2121 should be how best to protect America and the rest of the world from the threat of terrorism. Neither our legal system nor the rights of its law-abiding citizens will be weakened one iota by the continued use of secret evidence in its strictly limited application and with review procedures found nowhere else when classified secret evidence is used.
I know, I have been myself subject to the use of secret evidence against me in our own case against the Islamic Republic of Iran for its role in Alisa's death. If we are going to eliminate terrorism, we must deny its supporters a base of operations. Terrorists and their compatriots must not be allowed to hide behind the facade of a normal family life, because their sole purpose is to deny the rest of us that normal family life.
We must not allow them to set down roots in this country, and we must remind those who raise the banner of civil liberty that victims and potential victims have rights, too, Mr. Chairman.
I urge to you reject H.R. 2121. Thank you, sir.
Mr. HYDE. Thank you, sir.
[The prepared statement of Mr. Flatow follows:]
PREPARED STATEMENT OF STEPHEN FLATOW, VICTIM OF TERRORISM
Mr. Chairman, good morning. Thank you for inviting me to testify this morning about H.R. 2121, the Secret Evidence Repeal Act of 1999. My 20 year old daughter Alisa was murdered in a 1995 bomb attack in Gaza. She was a passenger in a public bus when a suicide bomber of the Palestinian Islamic Jihad rammed the bus with a van loaded with explosives. Seven others died that April morning.
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While I am by profession a lawyer, I appear before you this morning not as such but in my role as a father who has been working for more than five years to accomplish two things. First, to bring his daughter's killers to justice, and, second, to put terrorists wherever they may be found out of business. I am driven by the belief that no other father, mother, brother or sister should have to experience what my family and many others have gone through these past years.
In the fall of 1995, six months after Alisa's murder, I was shocked to learn that associates of the Palestinian Islamic Jihad terrorists who killed my daughter were freely operating here in the United States in Tampa, Florida.
Due to great work by the Federal Bureau of Investigation, the Immigration and Naturalization Service and U.S. Customs, several arrests of Palestinian Islamic Jihad activists were made and bases of operations were broken-up. As a result of these operations, I believe this country became a place far safer from the threat of terrorism than it was previously.
I do not consider myself a constitutional scholar but I should believe it is obvious that the guarantees of our great Constitution do not require us to allow us to stand-by idly while people take up residence in this country for the purpose of using it a base for terrorist activity.
On April 9, 1995, while my daughter was boarding a bus for a few days vacation, Ramadan Abdallah Shallah, the current head of Palestinian Islamic Jihad was raising money from his base of operations in Florida. He was assisted by one Mazzen Al-Najjar who is now in American custody and who has become a ''poster boy'' for proponents of HR 2121.
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Having crossed the line of human decency by murdering innocent civilians, terrorists and those who aid and abet them forfeit some of the protection law abiding citizens so highly value and take for granted in the United States. It is the terrorist's blatant disregard for the sanctity of human life that requires us to assist those who are committed to protect us by giving them special tools to fight it; even if some would usually call those tools a violation of one's constitutional rights.
Sadly, if one's knowledge of the use of secret evidence was solely dependent upon various civil liberty and Arab and Muslim American advocacy groups, one could not help but say that the law has to go. After all, we are told by the American Civil Liber ties Union that ''virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab.'' I do not believe for a second that one's ethnicity or religion should be the focus of attention here. And inserting that charge into the discussion diverts us from the real issuewill this country use all tools at its disposal to make this country, indeed the world, safe from terrorism.
The focus of your attention as you debate H.R. 2121 should be how to best protect America and the rest of the world from the threat of terrorism. Neither our legal system nor the rights of its law abiding citizens will be weakened one iota by the contin ued use of secret evidence in its strictly limited application.
If we are going to eliminate terrorism, we must deny its supporters a base of operations. Terrorists and their compatri ots must not be allowed to hide behind the facade of a ''normal family life'' because their sole purpose is to deny law abiding citizens a normal and tranquil family life. We must not allow them to set down roots in this country and we must be ever vigilant to remind those who raise the banner of civil liberty that victims have rights, too.
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Thank you, Mr. Chairman.
Mr. HYDE. Mrs. Al-Arian, please.
STATEMENT OF NAHLA A. AL-ARIAN, RELATIVE OF DETAINED ALIEN
Ms. AL-ARIAN. Mr. Chairman, Honorable Henry Hyde and the honorable members of the committee, I would like to thank you for inviting me to testify in support of H.R. 2121 and against the use of secret evidence in immigration proceedings.
I am Nahla Al-Arian, an American citizen of Palestinian descent and the mother of five children. I am also the proud sister of Dr. Mazen Al-Najjar, who has been detained and deprived of his freedom for 1,100 days today because of the use of secret evidence. This past Friday, my brother entered his fourth year of incarceration without knowing why.
Three years ago on May 19, 1997, Mazen was handcuffed in front of his three young daughters and taken to a detention facility, supposedly for a visa violation. We thought that he would be released on bail in a day or two like thousands of other similar cases. However, we were shocked to hear that he would be indefinitely detained because so-called secret evidence was used against him.
The immigration judge in the hearing said that my brother is respected 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. And this is very important, you know, in response to those who say that Mazen is this and that, because the judge himself said the only reason that kept Mazen in jail was the secret evidence.
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It was impossible for my brother to defend himself against these Kafkaesque proceedings. He was denied the right to face his accusers, to question them or present evidence on his own behalf that would establish his innocence. It was like fighting ghosts.
This is the issue before us today, pure and simple. My brother is facing an indefinite sentence without any charges, indictment, trial or conviction.
Mr. Chairman, throughout this whole ordeal, we feel as though we have not been treated as real people who have been greatly distressed by this injustice. 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. The pain they feel when they visit their educated, respected, kind and loving son in the detention facility he is kept in cannot be described.
This spring I took my 66-year-old father and 63-year-old mother to attend the ceremonies in which they became citizens of this great country. On this joyous occasion, my parents and I felt sad that my brother Mazen couldn't join us to celebrate one of the happiest days in their lives.
Everyone who knows Mazen knows that he is an academic, a pastor and a very peaceful man who has never been charged with anything, not even a traffic violation.
Of all his achievements, Mazen's most rewarding is raising his three beautiful American-born daughters, Yara, 11, and Sara, 9, and Safa, 5. Mazen's unfair detention was debilitating to these young girls psychologically, emotionally, and academically. They have been traumatized by this horrible experience. During the 1,100 days of Mazen's unjust incarceration, they were only allowed to hug him four times. This, my brother told me, was the hardest thing in this ordeal, the fact this his daughters have to live almost like orphans. When he was taken away, his youngest daughter, Safa, was barely 2; and she is 5 now, living most of her life so far, more time without him than with him. She refused to eat dinner for many days without her father's presence.
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The middle child, Sara, had nightmares for weeks while the oldest, Yara, who is 11, as I said, had withdrawal symptoms that affected her personality and behavior. Last week, I talked to her school psychologist, who shared with me deeply a troubling assessment of her. She told me that Yara has grown angry, even with her own family, that there is a lot of hatred and confusion inside her, and that she has been extremely distrustful of everybody.
Mazen's daughters are growing up fatherless during a time in their lives when they need him most. Why should three beautiful girls be deprived of their father who didn't commit any crime? We can expect this to happen in a totalitarian country, but not here, not in America, a Nation admired for its exemplary judicial system and upholding of human rights.
Mr. Chairman, some individuals who are driven by their anti-Arab and anti-Muslim hysteria and biases want to confuse and muddy the issue by introducing irrelevant information and unsubstantiated allegations in order to try and convict my brothernot on the basis of any facts, not on the basis of our adversarial system of justice, but at best, on the basis of guilt by association, by resorting to Nazi tactics of spreading fear and suspicion against a whole community.
I would like to state here for the record that Mazen never advocated violence or terrorist activity against any innocent civilians, and no one even claimed that he did anything illegal or said anything that could be construed as supportive of violence or terrorism.
And, in addition, my community has fallen victim to an incitement campaign against Arabs and Muslims in this country by some Islamiphobes and discredited journalists or self-appointed experts in order to silence and intimidate us, and that is the very reason for everything happening. It is the same tactic that was used in the 1880's in France against the then-vulnerable Jewish community at the time of the infamous Dreyfus affair. As Americans, we have come too far to allow such attempts to prevail.
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And, Mr. Chairman, if you allow me just to respond to one of the government's allegations here, that Mazen can find a country any time he wants to leave and that it is him who does not want to leave. It is not true. Mazenwe tried very hard to find him a country, and the Guyanese Government last year give us visa; as soon as they found out there was secret evidence, they canceled the visa. We have been looking, again, as I said, very hard; and we couldn't find anything. That is the erroneous conception that the government was spreading.
At the end, I would like to say that although we visited Justice Department officials, we saw no sign of hope, but there are countless fair-minded men and women of this country that gave us their support in this struggle. The support and love that we received from the Tampa community and the public at large have enriched our lives and taught all of us the true meaning of humanity and loving our neighbors. And it is heartening to note that the media and major civil and human and constitutional rights organizations in this country from across the political spectrum have joined together to support H.R. 2121 and abhor secret evidence.
At the end, I would like to extend my gratitude and appreciation to the original cosponsors in the House, Mr. David Bonior, Mr. Tom Campbell, Mr. John Conyers and Mr. Bob Barr, all of them, and the 90 Congressmen and Congresswomen who joined their efforts to repeal this shameful procedure. We are extremely grateful for living in an open political system that allows us to freely express our opinions and views and allows us access to address our concerns to the highest officials in this country. That is what is great about America.
We must keep it as a beacon of freedom and democracy.
Page 201 PREV PAGE TOP OF DOC Mr. HYDE. Could you bring your remarks to a close?
Ms. AL-ARIAN. Mr. Chairman, I want to encourage everybody to vote for their conscience, to vote for their country, and I would like to thank everybody. Thank you.
Mr. HYDE. Thank you.
[The prepared statement of Ms. Al-Arian follows:]
PREPARED STATEMENT OF NAHLA A. AL-ARIAN, RELATIVE OF DETAINED ALIEN
Mr. Chairman, the Honorable Henry Hyde, Ranking member, the Honorable John Conyers, Honorable members of the Committee, I thank you for inviting me to testify in support of HR 2121 and against the use of secret evidence in immigration proceedings.
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 1100 days today, because of the use of secret evidence. This past Friday, my brother entered his 4th year of incarceration without knowing why.
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.
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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. The insinuation was 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 a house and a family in Tampa and had no other country that he could to go, they said that they would use secret evidence. The immigration Judge in the hearing said that my brother is respected 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.
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. This is what the issue before us today is, pure and simple. My brother is facing an almost indefinite sentence without any charges or indictment, trial, conviction or sentence! Not only has he not faced his accusers, but also he does not even know what the accusation is. There have been numerous examples that proved beyond the shadow of a doubt that when the so-called evidence is cross-examined, the accused immigrant 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 through court actions, are just two examples of how this process is flawed. They were also labeled as threats to national security. But they were easily able to defend themselves after obtaining even a small part of the secret evidence that was used against them. When judges hear one side of the story they will rule on the cautious side, but when they hear both sides they render justice. That's what our Constitution has guaranteed to all of us. That's why we are proud of our system. 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.
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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, respected, kind, and loving son in the detention facility he is kept in cannot be described.
This spring, I took my 66-year-old father and 63-year-old mother to attend the oath ceremonies, in which they became citizens of this great country. On these joyous occasions, my parents and I felt sad that my brother, Dr. Mazen Al-Najjar, could not be with us to celebrate one of the happiest days in their lives.
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. In addition, over 50 editorials and columns have condemned the use of secret evidence and have called on the government to abolish this un-American procedure including the Washington Post, the New York Times, The L.A. Times, the Boston Globe, The Detroit Free Press, the Miami Herald, the St. Petersburg Times, USA Today, Forbes Magazine and numerous other newspapers and magazines. Not a single respectable mainstream or alternative newspaper or magazine has called for the use of secret evidence.
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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 (5). Mazen's unfair detention was devastating to these young girls psychologically, emotionally, and academically. They have been traumatized by this horrible experience. During the 1100 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 ordealthe 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. Last week, I talked to her school's psychologist who shared with me a deeply troubling assessment of her. She has told that Yara has grown very angry even towards her own family. There is a lot of resentment and confusion inside her, and that she has been extremely distrustful of everybody. 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 1100 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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Some individuals, who are driven by their anti-Arab and anti-Muslim hysteria and biases, want to confuse and muddy the issue by introducing irrelevant information and unsubstantiated allegations in order to try and convict my brother, not on the basis of any facts, not on the basis of our adversarial system of justice, but at best on the basis of guilt by association, by resorting to Nazi tactics of spreading fear and suspicion against a whole community. I'd like to state for the record that my brother, Dr. Mazen Al-Najjar, has never ever advocated violence or terrorism against any innocent civilians. No one has ever claimed that he did anything illegal nor even said anything that could be construed as support of violence or terrorism. Not a single statement of support to terrorism has ever been attributed to him, let alone an illegal act. In fact, after 5 years of intensive investigation no one has been charged with a single crime. Fear and prejudice should never win the day. We've come too far to allow such convoluted logic to prevail.
We believe that the repeal of the current use of secret evidence would not hinder the government's ability to appropriately fight terrorism and political violence. It would nearly require the government to address these issues in the adversarial legal framework, which this country has traditionally operated under.
We've fallen victims to an incitement campaign against Arabs and Muslims in this country, by some Islamophobes and discredited journalists or self-prescribed experts, in order to silence and intimidate our community. It's the same tactic that was used in the 1880's in France against the then vulnerable Jewish community at the time of the infamous Dreyfus affair. A. Engler Anderson, who is a Jewish journalist and a former student of my brother, has recently written an article in which he said:
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''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.'' He then continues to say ''Mazen . . . is the Dreyfusard of our time.''
(attached article enclosed).
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?
The U.S. has ratified the convention against torture. This honorable body has passed legislation to enforce U.S. obligations under article 3 of the convention prohibiting return against torture in the country of return. This honorable body should also recognize that the use of secret evidence to continue detention without criminal charges violates U.S obligations under article 1 and the Constitution not to engage in torture.
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As a stateless 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, parents, and many members of his family, it would be impossible to use secret evidence against him. We must uphold our belief in the equality of all human beings. In the words of our 16th president Abraham Lincoln:
''I leave you, hoping that the lamp of liberty will burn in your bosoms until there shall no longer be a doubt that all men are created free and equal.''
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 by government agencies. The founding father and first president of this great nation, George Washington said:
''Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.''
Page 208 PREV PAGE TOP OF DOC There is an erroneous conception 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 1/2 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 fact, when his daughters were told at one time that they might go to Guyana they refused to eat for several days. If many members of congress feel that Elian Gonzales should stay in this country, shouldn't my three American born nieces also stay united in this country with their father and mother?
In April 1998, I came with a group of 11 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. It's heartening to note that the major civil rights, human rights, and constitutional rights organizations in this country from all political spectrum, such as Amnesty International, American Civil Liberties Union, National Lawyers Guild, Americans for Tax Reform, National Association of Criminal Defense Lawyers, American Immigration Lawyers' Association, as well as many religious organizations and affiliations from all faiths, have joined together to support HR 2121 and oppose secret evidence.
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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 other 90 Congressmen and women who have since joined the effort to repeal the use of this shameful procedure. For the past year, my husband and I have talked to many lawmakers 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 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.
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 in this honorable committee 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 justicebut 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.
Page 210 PREV PAGE TOP OF DOCFREE MAZEN AL-NAJJAR!
JEWISH JOURNALIST CALLS FOR RELEASE OF US POLITICAL PRISONER
BY A. ENGLER ANDERSON
I call on the United States immediately to release the political prisoner Mazen Al-Najjar, and on the Attorney General to begin an immediate review into the circumstances that led to his clearly and illegal detention.
Never charged with a crime, much less any act of violence, this distinguished scholar and gentleman has languished in prison for two years owing to INSTITUTIONALIZED RACISM, jingoism and the terrorism bogeyman that masquerades as public policy in the United States of the 1990s. In my call, I join the growing chorus of outrage that has developed around the United States treatment of Maze, from august voices such as the St. Petersburg Times, to the Arab American Anti-Discrimination Committee.
I had the pleasure of studying a year of Arabic in the late 1980s with Mazen Al-Najjar at the University of South Florida in Tampa. Mazen is NOT a terrorist, nor from my year-long association with him did I ever discern that he had so much as a malicious bone in his body. At the time, I was politically oriented toward the Likud, and subscribed to the muscular, Revisionist Zionism of Vladimir Jabotinsky, and later Menachem Begin. In fact, for most of my youth, Begin and Richard Nixon were my personal political heroes. Despite my views, Maze always treated me with courtesy and respect, always taking time to chat with me, and on more than once occasion introducing me to his family and sitting down with myself and other students for coffee.
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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 spends 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. Oddly, the most ''subversive'' thing that ever happened to me in the time I was Mazen's student was when another student, a Palestinian, showed me a PLO propaganda film about the massacre at Kfar Kassem . . . an catastrophe which is now included in the Israeli school curriculum. And I was most grateful to see there was another side to the complex mosaic that is the ongoing Arab-Israeli political polemic. Maze never once asked me to change my political views, and certainly never advocated terrorism or violence!
At the time, I was a journalist, and took Mazen's two-semester Modem Standard Arabic course to prepare for what I thought would be a career in the Middle East. Those were the heady days of the Intifada, and I was not the only journalist to believe that the Middle East would be the preeminent stage for political journalism for decades to come. I had already attained fluency in Modem Hebrew during my rabbinical college days at the Lubavitcher yeshiva in Kefar Habad, Israel.
No, the Mideast did not ultimately pan out to be the only international flashpoint of the period. The Gulf War (during which I interviewed Mrs. Schwarzkopf for the TIME cover story on her husband, ''Stormin' Norman'') had yet to happen. And the Soviet Union was just then in the process of disintegration. And I ended up later as religion editor of the Jewish Exponent weekly in Philadelphia for several years. Still, I owe a tremendous debt of personal gratitude to Mazen, who introduced me not only to the Arabic language, but to so many facets of Middle Eastern culture . . . among them the essential kindness and ultimate goodness of the Arab peoples, despite the jingoistic treatment so often afforded them in the xenophobic yellow press here.
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The United States has yet to even concoct one iota of evidence that Maze is dangerous to anybody, or that he violated a single American law. His continued and illegal detention on ''secret evidence'' offends the basic sense of justice of every American, and makes a mockery of our common law heritage and the great juridical traditions of America.
In fact, the record speaks of Mazen as an upstanding pillar of his community in Tampa: a professor and PhD, teacher of religious subjects and president of his community mosque! Yes, Mazen was so upstanding that he was in effect, his temple's president, his church's elder!
Every American Jew will recall that it was ''secret evidence'' that convicted Jonathan Pollard, and forms the basis of the draconian persecution still being leveled against him by the national security establishment. Mazen, as much as Pollard, perhaps more, is the Dreyfusard of our time.
It is probably ironic that Mazen, as a youth, looked up to America as a land of fairness and opportunity for all. An engineer by training, Mazen dedicated himself, in effect, serving the foreign policy interests of the US by offering Arabic language instruction to cohorts of future American administrators, soldiers and businessmen Rather than imprisonment, I think we all owe a thank you to Mazen Al-Najjar.
I call on the Attorney General, Janet Reno, to take a personal interest in Mazen's plight, and in the conduct of the federal officials who apparently think it is safer to jail Arabs than to uphold the letter and spirit of American law and culture. Finally, I would like to add another personal aspect to this appeal. I have only met Ms. Reno a few times mostly at social functions connected with the University of Miami and its law school, but I doubt she remembers me personally. But she may remember my family name from old Miami, Engler.
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In Dade County, Ms. Reno won her spurs as a prosecutor by going after what she is reported to have called, the ''baddies''the high level drug dealers, the ringleaders of criminal enterprises, and so on, while at the same time showing concern for the common people who might have been caught up in the merciless teeth of what is the current American justice system.
I say to you, General Reno, Mazen Al-Najjar is not one of the ''baddies.'' He is one of the good guys.
ABRAM ENGLER ANDERSON
Mr. HYDE. Mr. Emerson.
STATEMENT OF STEVEN EMERSON, EXECUTIVE DIRECTOR, TERRORISM NEWSWIRE
Mr. EMERSON. I am Steven Emerson. I am a terrorist investigator, and I specialize in tracking and investigating radical Middle Eastern terrorist networks, particularly their nexus in the United States, their method of financing clandestine activities and other actions that are deemed injurious to U.S. national security.
I was the producer of the film ''Jihad in America'' in 1994. Currently I investigate these groups; and I should say parenthetically that, unfortunately, I myself experienced a personal component of the terrorist threat, as I myself experienced an assassination threat in 1995, for which I have had to change some of my personal lifestyles.
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Terrorism is one of the major threats facing U.S. national security today. I believe that H.R. 2121 would be injurious to trying to protect the United States from the terrorist threat. In circumstances where a classified record is relevant to an alien seeking relief from removal or deportation, the intelligence cannot be ignored. And the maintenance of its classified nature does not violate due process.
The alien is not picked up by armed thugs or beaten or tortured for information, nor is the alien summarily placed on the next plane home. Though the course may be a long process, the alien is guaranteed the right to counsel. The classified record is provided to an immigration judge, who must weigh and consider its merit. The alien is provided an opportunity to argue for bond. An unclassified summary of the classified record may be provided to the alien, and the highest level of the Department of Justice rigorously reviews the classified record.
These legal and administrative guarantees strike a fair and appropriate balance of due process, the rights of illegal aliens with the interest of national security.
My testimony today covers a lot of information regarding some of the cases that have been mentioned today, and some cases that have been the subject of newspaper articles. And I will suggest that for more information on cases related to Monzer Chehab or Mazen Al-Najjar or Nasser Ahmed, that the testimony be referred to.
One of the issues that has come up repeatedly is the issue of whether there is stereotyping or deliberate targeting or profiling of Arabs or Muslims. The majority of the dozen pending cases today are believed to involve suspects who are indeed militant Muslims or Arabs. According to their advocates, the disproportionate application directly demonstrates a policy of discrimination.
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However, let the record show exactly what the figures are. There are over 1 billion Muslims the world over, an estimated 5 to 6 million in the U.S. The vast, overwhelming majority aspire to live in peace and do not approve of terrorism or violence in any case or in any situation at all. However, according to the latest report of Patterns of Global Terrorism, ''The primary terrorist threats to the U.S. emanate from two regions, South Asia and the Middle East.'' In fact, an analysis of international terrorist statistics provided annually by the Patterns of Global Terrorism show that 98.3 percent of American citizens killed or wounded from 1993 through 1999 were inflicted in incidents either within the territorial integrity of the Middle East or South Asia, or were perpetrated by an organization or individual indigenous or associated with the Middle East or South Asia.
Islamic terrorism and Middle East extremist groups pose the greatest international threat at present to U.S. national security. That they are responsible for more than 98 percent of U.S. casualties and terrorist attacks is not an invention of Hollywood nor a stereotype, but reflects an accurate and sober assessment of the truth.
Over the last years several cases involving the government's use of classified information have garnered much attention in the media. I must tell you that, as a journalist and as a writer, I am somewhat embarrassed by the majority of these stories. Many of these stories focus only on a human interest element, providing comments from family members, friends, advocates of the suspected terrorists who, of course, deny any connection to terrorist groups. In fact, the alien terrorist suspects have portrayed themselves as victims, victims of discrimination or victims of some type of government conspiracy.
Page 216 PREV PAGE TOP OF DOC The bottom line, however, is, when one looks at the record of materials disseminated by various suspected terrorist aliens or at some of the materials associated with their incarceration, one finds a great degree of radicalism.
For example, in the case of Mazen Al-Najjar, William West, a supervisory special agent with the INS and expert witness in the case stated under oath July 18, 1996, ''I believe the respondent [Al-Najjar], is a mid-level operative functionary within the WISE [the World Islamic Studies Enterprise] and the ICP [Islamic Committee for Palestine], and his responsibilities primarily include the day-to-day running of the operations of both the WISE and the ICP.''
West further stated, and it is borne out by the record that is now publicly available, that ''WISE and ICP exist as fronts for the purpose of fund-raising activities for the Islamic Jihad and the Hamas terrorist organizations and to also engage in other support type of support activities'' that allowed the entry into the United States of other terrorist aliens, including Ramadan Abdallah Shallah who is now head of the Palestine Islamic Jihad.
There is indeed a strong record of Mr. Al-Najjar's coordination of terrorist conferences in St. Louis and Chicago in which various calls were made, exhortations issued to attack Israel, attack Jews, and attack the West. This was done in accordance with his association with and sponsorship of membership in the Islamic Jihad organization as part of their front groups in the United States.
I believe it is imperative to understand that we are facing a problem that is only going to increase in complexity with the advent of front groups, the advent of clandestine operations; and I believe that it is imperative for U.S. national security that government agencies, with the appropriate oversight, have the right to determine whether illegal alien suspects should be subject to deportation or not, based on classified evidence. Thank you very much.
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Mr. GEKAS. [Presiding.] We thank the gentleman.
[The prepared statement of Mr. Emerson follows:]
PREPARED STATEMENT OF STEVEN EMERSON, EXECUTIVE DIRECTOR, TERRORISM NEWSWIRE
Overview of ''Secret Evidence''
As long and hard as one may look, there is no provision in any government law or regulation for the use of ''secret evidence.'' The issue stated accurately concerns the balancing of national security with individual liberty in the context of the government's use of classified information in immigration proceedings. As proposed, enactment of H.R. 2121 would repeal all sections of the Immigration and Nationality Act providing for the government to enter classified information in camera and ex parte against illegal alien suspected terrorists that threaten national security. Creating the perception that this process is some kind of new phenomena, much ado is made over the ''pernicious secret evidence'' provisions in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA); however, classified information was used against non-citizens suspected of threatening national security for more than five decades and is permitted by United States Supreme Court precedent.
Over the last few years, the issue of ''secret evidence'' came to the fore as the foremost legislative and public relations priority of an emerging new and unprecedented force in the American political landscapea coalition (partly) composed of elements seeking to roll back counterterrorism laws, deter their enforcement, and in the end, make the United States a safe haven for international terrorists and their supporters. With an estimated 300,000 cases adjudicated each year in immigration courts, the Immigration and Naturalization Service (INS) bears the enormous task of distinguishing between those aliens who deserve welcome, and those who do nota small few for reasons of national security. FBI General Counsel Larry R. Parkinson testified in opposition to H.R. 2121 in the February 10, 2000 hearing on H.R. 2121 before the Judiciary Subcommittee on Immigration and Claims and stated, ''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.'' Parkinson testified that there are ''only twelve pending cases'' involving classified information and only five cases where suspects are currently incarcerated.
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The majority of pending cases are believed to involve Muslims and/or Arabs. According to their advocates, this disproportionate application directly demonstrates a policy of discriminationframing the issue as an intolerable, unconscionable and racist attack by the United States government against the deprived and suspect class of Arabs and Muslims. While wholly unfounded, appeals for due process and human rights have afforded militant Islamic groups proliferating in the US the ideal opportunity to appear as genuine representatives for civil rights. Disguised under this humanitarian veneer, they have garnered sympathetic ears at the U.S. Department of State, the U.S. Department of Justice, Capitol Hill and almost all of the national media. Although many supporters of H.R. 2121 deserve credit for their esteemed records of defending the fundamental principles of civil liberties and human rights, by failing to look at the issue of ''secret evidence'' beyond the politically correct buzz words, they have unwittingly provided dangerous traction for the political interests of militant Islamic organizations operating in the U.S.skilled in talking the talk of democracy and human rights, but walking a walk in the exact opposite direction.
Indeed, there are over a billion Muslims the world over and an estimated five to six million in the U.S., the majority of whom aspire to live in peace and despise terrorism. Nonetheless, ''the primary terrorist threats to the United States emanate from two regions, South Asia and the Middle East,'' states the latest report of Patterns of Global Terrorism, released May 1, 2000 by the U.S. Department of State. In fact, an analysis of international terrorist statistics provided annually by Patterns of Global Terrorism shows that 98.3 percent of American citizens killed or wounded from 1993 through 1999 were inflicted in incidents either within the territorial integrity of the Middle East and South Asia or were perpetrated by an organization or individual indigenous to or associated with the Middle East or South Asia. Recognition of this reality irrefutably discredits allegations of discrimination and racial bias and reflects an accurate and directed response to the terrorists that are inflicting American casualties. Only against this backdrop may national security and individual liberty be balanced appropriately in the context of so-called ''secret evidence.''
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Over the last year, several cases involving the government's use of classified information have garnered much attention in the national media and drawn harsh criticism of the INS. Although there are many instances where the government effectively uses classified information to prevent the infiltration and presence of terrorists in the U.S.; the majority of these cases are not reported in the media nor made available for public scrutiny. In this vacuum where most successful cases remain classified and confidential, publicly available material typically involves exceptional circumstances or complicated issuesthe cases that pose the greatest challenge for the government in achieving the appropriate balance of individual liberty with national security. Moreover, with government officials constrained from speaking publicly on pending cases, news reports are roundly unbalanced and unobjective, disproportionately emphasizing the ''human interest'' element of the story and relying on comments from family members, friends and advocates for suspected terrorists. Often, the choices for the public servants involved are not a matter of choosing between good and bad alternatives, but rather, isolating the least of several highly volatile, sensitive and/or dangerous scenarios.
Current Cases Reported in the Media
To objectively analyze some of the recent cases that have drawn media attention, it is important to do so on a case-by-case basis, rather than simply condemning all cases where classified information is used as predicated on hearsay and guilt by association. Furthermore, a conclusive analysis of whether an individual is or is not a threat to national security is impossible without viewing the entire classified record; and conclusive proof is not the standard for the admission of classified information in the context at issue. Current immigration law provides for the use of classified information where there are reasonable grounds and/or information relevant that shows an alien is a threat to national security. Typically, classified information is not entered to prove that the alien is deportable. In most cases, the alien is deportable for violations that do not involve threats to national security, such as overstaying a visa, engaging in a sham marriage, or engaging in some other kind of fraud on the government in furtherance of an immigration benefit. Once ordered deported on any one or more of these types of grounds, immigration law allows the illegal alien to seek various forms of relief from the order of deportation.
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For instance, the illegal alien may file for asylum, arguing for the benefit of U.S. citizenship despite prior immigration violations. To protect an individual from the cruelty that could be inflicted if deported, there are instances where fairness and justice require the granting of asylum despite past immigration violations. Nonetheless, in these circumstances, which are typical of the cases that have propelled us here today, it is vital to the national security and safety of the public at large that where classified information is relevant, and/or where there are reasonable grounds to believe that an illegal alien in this or a similar position is a threat, he be detained where necessary on the basis of the classified record without any requirement that the sources and methods of the intelligence be compromised. Under these circumstances, the alien holds his own key out of detention by accepting deportation or removal. As previously considered by Congress, the law is reasonable and appropriate in its current form in striking the proper balance of the rights of the alien with the interests of national security. Whether improvements are necessary in the application of the law is a separate question for those vested with the power of enforcement.
Nasser Ahmeda Case of Judicial Error
Under the banner of the ''International Islamic Front for Jihad Against the Jews and the Crusaders,'' Usamah Bin Laden and other master terrorists issued a fatwa (religious edict) on February 23, 1998 which states, ''The ruling to kill the Americans and their alliescivilians and militaryis an individual duty for every Muslim who can do it in any country in which it is possible to do it. . . .'' In addition to Bin Laden, the leaders of four other terrorist organizations signed the fatwa, including the leaders of the Egyptian Gama' at al-Islamiya (the Islamic Group), the Egyptian Al-Jihad, the Jamiat-ul-Ulema-e-Pakistan, and the Jihad Movement in Bangladesh. Under this directive, the United States Embassies in Kenya and Tanzania were bombed on August 7, 1998 killing 301 people including twelve Americans and injuring thousands.
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Since the dual Embassy attack, U.S. intelligence and law enforcement, working in coordination with their friendly counterparts world-wide, have thwarted over a half dozen other plots against U.S. interests sponsored by Bin Laden's network including the millenium plots to strike western targets in the Hashemite Kingdom of Jordan and the related plot foiled in Washington state where Ahmed Ressam was caught by Customs officials smuggling explosives across the border from Canada. FBI Director Louis Freeh warned in a January 1998 testimony before the Senate Select Committee on Intelligence, ''Extremist groups such as Lebanese Hizballah, the Egyptain Gama'at al-Islamiya, and the Palestinian Hamas have placed followers inside the United States who could be used to support an act of terrorism here.'' With knowledge that the Egyptian Gama'at al-Islamiya, a signatory organization to the fatwa, maintains a presence in the United States, common sense dictates the necessity of identifying and arresting the components of the organization based on U.S. soil. Indeed, where an illegal alien living in the U.S. openly admits membership, publicly demonstrates support, and acts on behalf of Gama'at al-Islamiya, reasonable minds would concur with government action to arrest the illegal alien terrorist and bring charges against him. At minimum, deportation or removal from the U.S. would be expected; but this was not the case with alleged terrorist Nasser Ahmed.
Late Monday night on November 29, 1999, Nasser Ahmed, (a/k/a Nasser Ahmed Homosany, a/k/a Nasser Ahmed Kadri, a/k/a Ahmed Aly El-Homosany) was released from the Metropolitan Correctional Center in lower Manhattan. In custody since April 23, 1996, Ahmed's release was widely reported in the national media as another blow to the INS use of ''secret evidence.'' Procured under the Freedom of Information Act from the Executive Office of Immigration Review, a review of the declassified record in the Nasser Ahmed matter evinces multiple grounds demonstrating Ahmed's threat to national security.
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Born February 6, 1960 in Cairo, Egypt, Ahmed is a citizen of Egypt that came to the United States on July 17, 1983 as a nonimmigrant visitor. With authorization to remain in the U.S. until January 16, 1984, Ahmed sought to stay longer and filed for a change of visa status; but the request was denied and he was ordered to leave the country. Instead, he remained illegally and settled in Brooklyn, New York.
Ahmed was not just another one of the estimated five to six million aliens living illegally in the U.S. In 1991, Ahmed was elected to the Board of Directors of the Islamic Community Inc., otherwise known as the Abu Bakr El-Seddique Mosque (Abu Bakr Mosque or Mosque) located at 115 Foster Avenue, Brooklyn, New York. After arriving in the U.S. in 1990, this is one of the mosques where the militant Islamist Sheikh Omar Abdel Rahman preached hatred and violence against the secular government of Egypt and its allies including the U.S. and Israel. In October 1995, Sheikh Rahman was convicted along with thirteen other co-defendants of seditious conspiracy for leading plots to assassinate Egyptian President Hosni Mubarak and to bomb New York City landmarks including the World Trade Center, the United Nations, the New York Federal Building, the George Washington Bridge, and the Lincoln and Holland Tunnels. The Abu Bakr Mosque where Ahmed was a board member was used as a safe harbor and meeting venue for some of the terrorists that were convicted in the trial. Judge Michael B. Mukasey of Federal Court in Manhattan, who presided over the trial and sentencing, stated, ''You [Sheikh Rahman] were convicted of directing others to perform acts which, if accomplished, would have resulted in the murder of hundreds if not thousands of people . . . and would have made the related 1993 bombing of the World Trade Center seem insignificant.'' Sheikh Rahman was sentenced to life on January 17, 1996 and is confined in Federal Prison in Springfield, Missouri.
Page 223 PREV PAGE TOP OF DOC During the seditious conspiracy trial, Ahmed worked as Sheikh Rahman's paralegal and interpreter until his arrest by the INS on April 24, 1995. He was charged with deportability as an overstay and released on $15,000 bail on or about April 27. Although Ahmed's ''professional'' relationship with Sheikh Rahman was terminated by Judge Mukasey following his arrest, his relationship with the Sheikh continued. According to Federal Bureau of Prisons records entered into evidence in Ahmed's deportation proceedings, Ahmed flew to Springfield, Missouri and visited Sheikh Rahman on March 22, 23 and 24, 1996 and spoke with the Sheikh by phone on February 29, 1996 and on March 8, 14 and 25, 1996.
Shortly after these visits and phone calls, a letter authored by Sheikh Rahman was published in the April 14, 1996 edition of the Saudi owned London daily newspaper Al-Hayat. Bitter with prison's hardships, Sheikh Rahman delivered a message to his supporters: ''People of manhood, support, sacrifice and dignity: Rise up from your deep slumber and make your voice heard . . . Rise up and see justice done.'' Four days later, on April 19, 1996, Islamic militants armed with automatic weapons and pistols opened fire on a group of mostly elderly Greek tourists waiting to board a bus outside their Cairo hotel. After about three minutes of gunfire, fourteen Greek women, three Greek men, and an Egyptian parking attendant were dead and many others were wounded. Gama' at al-Islamiya claimed responsibility.
Ahmed's release was revoked shortly after the terrorist attack on April 23, 1996. Determined to remain free, Ahmed requested a bond redetermination hearing which was held on April 29, 1996. His attorneys argued for his release and presented testimony that he and his wife intended to apply for various immigration benefits including asylum. Believing that Ahmed posed a threat to national security, the INS submitted classified information in camera and ex parte. A redacted and declassified copy of the information the INS submitted to the Immigration Judge states in part, ''Investigation of [Ahmed] Homosamy has confirmed that he is a known member of Al-Gama Al-Islamiyya (AGAI).'' The document further states, ''[Ahmed] Homosamy, is a loyal supporter of Sheikh Omar Abdel Rahman, the spiritual leader of Al-Gama Al-Islamiya, who was convicted of conspiracy for his role in assassination and bombing plots in the United States and Egypt.'' Under provisions of the Antiterrorism and Effective Death Penalty Act of 1996, AGAI was designated by the United States Department of State as a foreign terrorist organization on October 8, 1997. Patterns of Global Terrorism 1999 states that Sheikh Rahman, ''is al-Gama'at's preeminent spiritual leader, and the group publicly has threatened to retaliate against US interests for his incarceration.''
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In a decision dated May 1, 1996, the Immigration Judge ordered Ahmed detained without bail, pending the completion of his deportation proceedings concluding that he was a threat to national security (and that he was likely to abscond if released). On appeal, Ahmed argued that the Immigration Judge's ruling was in error; essentially, because he was not given an opportunity to rebut the information against him. But Section 240(b)(4)(B) of the Immigration and Nationality Act provides, ''The alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this Act.'' The Board of Immigration Appeals ruled, ''We find the respondent's [Ahmed's] contentions regarding the in camera use of classified information against him, and his right to review such evidence, to be unavailing. We have reviewed the classified information which was presented to the Immigration Judge, and we find that there are reasonable grounds for considering the respondent to be a risk to the security of the United States. We also affirm the Immigration Judge's decision not to provide a summary of material presented in camera.''
Still seeking recourse, Ahmed filed a motion for another bond hearing. But with no changed circumstances, the request was denied. Pursuing a channel outside of the immigration courts, Ahmed filed a habeas corpus petition in the United States District Court for the Southern District of New York seeking release from detention. However, while Ahmed's deportation case was pending, classified information previously submitted in camera was declassified and by stipulation of the parties, in August 1998 the habeas corpus action was remanded to the Immigration Judge. More information was declassified, and after a thorough declassification review, Ahmed was afforded the opportunity to challenge most of the facts demonstrating his threat to national security.
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On July 30, 1999, Immigration Judge Don Livingston withdrew his original order and granted Ahmed asylum and withholding of deportation. The ruling states, ''Armed with a better understanding of the government's case, the respondent was successful in rebutting most of the factual allegations underlying the charge that he is a danger to the security of the United States.'' The INS appeal of this ruling is pending as of mid-March 2000, but an examination of the declassified and redacted documents submitted into evidence shows serious flaws in the Immigration Judge's decision and raises questions about U.S. counterterrorism policy in general.
While the INS (coordinating with the FBI) relied on multiple reliable sources in determining Ahmed a threat to national security, the testimony of Sheikh Mohamed Mohamed Hassan ElShariff alone is compelling. With Sheikh Rahman behind bars, the Board of Directors of the Abu Bakr Mosque (which at that time included Ahmed) sought a new Imam. On April 22, 1995, Sheikh ElShariff arrived in the U.S from Egypt and shortly thereafter began to perform the duties of Imam. He entered into an employment contract in July of 1995, but the contract was terminated by Ahmed (and others) in September 1995 and litigation ensued.
According to ElShariff's Affidavit dated August 27, 1996 submitted in the contract dispute to the Supreme Court of the State of New York County of Kings, at the time he was hired the mosque was controlled by three individuals including Ahmed. The Affidavit merits quoting in large part:
''. . . Sattar [an unindicted co-conspirator in the World Trade Center bombing], Faramawi and Hommosany [Ahmed] . . . believe in an ''extreme'' form of Islam which often calls for them to engage in and advocate actions that are illegal in the United States or, based on my expert knowledge and learning of Islam, immoral. My teachings and sermons . . . are based on a more mainstream interpretation of Islam and have attracted more moderate Muslims to the Mosque . . . they [Sattar, Faramawi and Hommosany] were not able to account for where the funds of the Mosque were going, and so I refused to collect even more funds for them . . . Therefore, [they] threatened to hurt me unless I left the Mosque. . . . I and the great majority of the members of the Islamic community believe that Sattar and Faramawi, along with the small number of their followers, do not represent the religious beliefs of the rest of the Islamic Community, and they are not tolerant of more moderate Islamic beliefs . . . Sattar and Faramawi and their followers have tried to remain in power by violent threats and acts. To try to force me to leave, they and their followers have broken into my room in the Mosque several times . . . In addition, they have ripped the microphone out of my hands in the middle of sermons, cursed me infront of the Islamic community . . . and threatened to hurt me or to ''put me in a box'' (to kill me).
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According to the INS' Memorandum in Opposition to Respondent's Applications for Asylum, Withholding of Deportation, Voluntary Departure and Release from Custody (INS Memorandum) dated May 14, 1999, ''. . . Sheik [sic] ElShariff testified that on numerous occasions, the respondent asserted his affiliation with the terrorist organization, al-Gama'a al-Islamiyya . . . the respondent [Ahmed] accused him of being an agent of the Egyptian Government and defiantly informed him, 'I am from al-Gama'a al-Islamiyya and al-Jiahd and go tell the Egyptian Government that.' . . . Sheikh ElShariff testified that the respondent did not conceal his affiliation with the terrorist organization, al-Gama'a al-Islamiyya, among the community of the mosque; to the contrary, 'he'd advertise himself as being from al-Gama'a al-Islamiyya.'. . .''
The INS Memorandum states that Ahmed verbally threatened ElShariff three or four times, ''Sheik [sic] ElShariff testified that he believed that the respondent would carry out his threats if he were released from custody,'' and explicitly details one of the threats, ''the respondent [Ahmed] advised him [ElShariff] 'we have Brothers in Egypt who will deal with your family and we will send you to Egypt in a box.' He testified that he interpreted this to mean that he would be killed and that his body would travel back to Egypt in a coffin.'' Furthermore, Sheikh ElShariff is cited in the INS Memorandum as testifying to personally witnessing Ahmed distribute pamphlets in the Mosque in support of al-Gama'a al-Islamiyya which characterized U.S. courts as ''courts of infidels.''
This evidence notwithstanding, the Immigration Judge did not credit Sheikh ElShariff's testimony. The July 30, 1999 ruling states, ''. . . Sheik [sic] Al-Sharif's interest in employment by the mosque and his interest in remaining in the United States would be threatened by respondent's release from INS custody . . . Sheik [sic] Al-Sharif is considered by this court to be seriously prejudiced against the respondent, highly interested in the outcome of this case and he appears to be under the control of the INS which holds his future immigration status in its hands.'' By discrediting Sheikh Al-Sharif's testimony solely because he was a non-citizen, the Immigration Judge assumed duties beyond what is authorized and according to the Service's Brief on Appeal, ''caused reversible error.''
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Submitted by the INS on April 27, 1999, another compelling piece of evidence erroneously discounted by the Immigration Judge is the Affidavit of New York City Detective Thomas F. Corrigan and a report of his September 6, 1996 debriefing of Abdo Rahman Haggag, a government witness in the seditious conspiracy trial of Sheikh Rahman. The report is an unrebutted account showing Ahmed's participation in a meeting at Sheikh Rahman's apartment dedicated to planning acts of terrorism, identifying targets, and measuring the benefits of various terrorist acts. The report states, ''. . . Sheik [sic] Rahman, Ahmed Sattar, Nassar Homosamy [Ahmed] . . . discussed hijacking an airplane. They believed this would enable them to put pressure on the United States Government, as well as make the public aware of their plight in Egypt. They determined that there would be no benefit from this action, as hijackings for the most part are unsuccessful . . .''
To any objective observer, the nature of this meeting is plain and straight forward; but the Immigration Judge ruled, ''The most that could be made from this document is that some irresponsible comments about airplane hijacking were made and the idea was rejected . . . This incident cannot be seen as any form of direct or indirect threat to the security of this country.''
Other evidence discounted by the immigration Judge includes Ahmed's attempts to obtain bomb-making manuals to send to overseas terrorist groups; his function as an informational conduit for Sheikh Rahman; his involvement in the sale of fraudulent immigration documents; and his obtaining false Afghanistan passports for himself and his family. Much of this evidence comes from a variety of other sources that remain confidential and the testimony of other law enforcement personnel whose names were redacted. The Immigration Judge found most of this evidence unreliable, not credible and/or hearsay. Rather than plainly measuring the merit of the classified evidence, the Services Brief on Appeal states, ''. . . the Immigration Judge admitted the evidence, but declined to assign weight to it because of its classified nature and because he was not satisfied it was properly classified . . . The Immigration Judge did not weigh the classified evidence against other evidence and find it less persuasive. Instead, he discounted the classified evidence entirely because it was classified and he did not have the means to evaluate the reasons for the classification.''
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Furthermore, apart from all the evidence demonstrating Ahmed's engagement in terrorist activities, on June 8, 1999 a jury in the Eastern District of New York rendered Nasser Ahmed guilty of violating Title 18, United States Code, Section 1426(b) for submitting false statements of fact and a false Affidavit in support of his Application for Temporary Residence Status as a Special Agricultural Worker.
While the INS appeal of the ruling is pending, a free, soft spoken, and triumphant Nasser Ahmed has joined forces in the effort on Capitol Hill to bring an end to the use of ''secret evidence.'' Exploiting the same civil rights banner as some of his colleagues, Ahmed was a featured speaker and guest at a February 16, 2000 ''Summit on Secret Evidence'' held in Caucus Room 345 of the Cannon House Office Building (the room was reserved by Representative Ciro Rodriguez (DTX). The founder and former Executive Director of the American Muslim Council (AMC) and current President of the American Muslim Foundation Abdurahman Alamoudi recognized Nasser Ahmed as a hero to the audience of over 500 assembled before him. Encouraged by their political success with ''secret evidence'', a confidant and empowered Alamoudi expressed his vision for future efforts, ''. . . ladies and gentleman, brothers and sisters, we have to take this to a second level. I would like to give you a piece of my mind. I will not rest, . . . [until] we reach the apex and the extent of revisiting Sheik [sic] Omar Abdel Rahman's case.'' This call was received by an enthusiastic round of applause.
A Special Agent of the FBI (whose name was redacted on documents made public) warned in the October 7, 1998 bond hearing that if released, ''he [Ahmed] would be more well known, lending to his credibility in the community both inside the United States and outside the United States . . . people would be more inclined to listen to him.''
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As a free man, there is no argument that Nasser Ahmed should be stifled from exercising his First Amendment rights; nonetheless, it is interesting to hear what he is saying. Taking his case of ''political and religious prosecution'' from Capitol Hill to the University lecture circuit, Ahmed wears his contempt for the United States and it's institutions on his sleeve. ''The FBI has a problem with informants. All the informants are liars,'' he told a group of about 50 mostly Muslim students and local residents on March 8, 2000 at Columbia University. ''There is not even one shred of evidence against Abdul Rahman . . . it was politically motivated and used then to serve the Egyptian regime. . . .''
Describing the terrorist group that he is accused of being a member, ''The Islamic Group [al Gamma al Islamiyya] is the biggest organization [sic] work peacefully and work around poor people and work to bring the life standard of the people to a higher standard . . . what they do basically is collect the money from the rich and distribute it to the poor. Honestly and fairly. . . .''
But the State Department's Patterns of Global Terrorism 1998 provides this description of AGAI's activities, ''Armed attacks against Egyptian security and other government officials, Coptic Christians, and Egyptian opponents of Islamic extremism. Al-Gama'at has launched attacks on tourists in Egypt since 1992, most notably the attack in November 1997 at Luxor that killed 58 foreign tourists. Also claimed responsibility for the attempt in June 1995 to assassinate Egyptian President Hosni Mubarak in Addis Ababa, Ethiopia.''
Failing to condemn, criticize, or even acknowledge the massacres of innocent civilians, Ahmed rationalized, ''The Islamic group that the government claimed I belonged to never used violence since it was established in 1976 up until 1992when the government assassinated the spokesperson . . . they assassinated him right in front of his kids and wife. That's a time when revenge start[ed] between the Islamic groups and the govt. So I don't support violence and I don't believe that violence can establish anything [but] I don't say that these guys are terrorists and they are bad.''
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Ahmed goes on to state, ''once you [Al-Gama'at] start to grow up politically, you are going to start to ask for other rightsfor applying Islamic rules which the U.S. will never let [happen] . . . the U.S. don't want any country in the world ruled by Islam.'' Unlike some of Ahmed's politically savvy colleagues against ''Secret Evidence'' who are masters of confining their public statements to issues appealing to the Western ear, Ahmed openly discloses that when he is talking about rightsit is not individual rights that he is talking about, but ShariaIslamic law, and the rights of Muslims to live under an Islamic system of government similar to Iran, Sudan, and Afghanistan. Indeed, it is a fundamental right that any Muslim, Christian, Jew or member of any faith be allowed to practice their religion freely, but the notion of imposing the dictates of one religion (or an interpretation of one religion) on others must be unequivocally challenged and condemned as has been the case in civilized societies for centuries.
Mazen Al-NajjarTarget in an On-going Grand Jury Investigation
On May 13, 1997, an order of deportation was entered against Al-Najjar in Immigration Court in Orlando, Florida. The basis for the order of deportation was that 1) Al-Najjar had overstayed his visa; 2) admitted his deportability and; 3) failed, in his petition for asylum and suspension of deportation to prove that he would face persecution if deported to his previous country of residence. As a matter of procedure, Al-Najjar was incarcerated on May 19, 1997, pending either his removal from the United States per the order of deportation or a ruling by the Board of Immigration Appeals on his appeal for asylum and suspension of deportation.
The classified information against Al-Najjar was not submitted until his bond redetermination hearings commenced in Bradenton, Florida, on May 29, 1997. On June 6, 1997, the Immigration Judge ordered that bond be denied based on the classified information presented by the Government against Al-Najjar showing his involvement with terrorism. The order read in part, ''I find that the respondent [Al-Najjar] is a threat to national security. Specifically, because of his association with the Palestinian Islamic Jihad terrorist organization.''
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William West, a Supervisory Special Agent with the INS and an expert witness in the case stated under oath on July 18, 1996, ''I believe the respondent [Al-Najjar] is a mid-level-mid-level operative functionary within the WISE [World and Islam Studies Enterprise] and the ICP [Islamic committee for Palestine], and his responsibilities primarily include the day-to-day running of the operations of both the WISE and the ICP.'' West further elaborated that, ''the WISE and the ICP exist as fronts for the purpose of fund-raising activities for the Islamic Jihad and the Hamas terrorist organizations and to also engage in other support-type activities primarily to allow for the perceptually legitimate entry of foreign nationals, aliens into the United States who are leaders and/or operatives of the Islamic Jihad, the Hamas and other terrorist organizations.''
The case of Mazen Al-Najjar demonstrates multiple instances where the classified record was reviewed to determine its merit and appropriateness in supporting continued detention. On September 15, 1998, the Board of Immigration Appeals entered an order on Al-Najjar's appeal for bond redetermination. This appeal was dismissed by the Board with the following conclusion: ''. . . we find that the Immigration Judge conducted the bond proceedings in a fundamentally fair manner and reached a proper determination that the respondent should not be released from the custody of the Service.'' Furthermore, the Board stated in its decision: ''Upon careful review of the record and the classified information considered by the Immigration Judge in camera, we affirm the Immigration Judge's denial of the respondent's request for a change in custody status.''
Al-Najjar's case was also reviewed, prior to the Board's decision, by Deputy Attorney General Eric Holder at the behest of Al-Najjar's supporters in Tampa, Florida. In an undated letter from early July 1998, Holder wrote: ''After careful review, the Department's [Department of Justice] lawyers have concluded that the evidence used against Mr. Al-Najjar in the bond redetermination hearing is properly classified and cannot be declassified. Furthermore, they have determined that it is highly relevant and, therefore, appropriately used.''
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In addition to the Board of Immigration Appeals ruling on his claim against ''secret evidence'', Al-Najjar's appeal for suspension of his deportation was also denied based in an October 26, 1999 ruling of the Board of Immigration Appeals. Habeas Corpus proceedings have been held in federal court in Miami regarding Al-Najjar in the past month. The decision in these proceedings is currently pending in the Southern District of Florida.
There exists unclassified material in the public domain showing the links between ICP, WISE and the Palestinian Islamic Jihad. Presumably, the classified material would serve to strengthen these links. Both of the these organizations were inextricably tied to Al-Najjar's brother-in-law, Dr. Sami Al-Arian who is one of the primary foci of the federal investigation into the activities of these organizations. According to the Affidavit of FBI Special Agent M. Barry Carmody, ''Located and seized a the residence of Sami Al-Arian on November 20, 1995, was a letter written by Sami Al-Arian in which Al-Arian is soliciting funds for the Islamic movement in Palestine. This solicitation letter states that despite obstacles, the Islamic movement operates at a time when combined scores of Arab armies fail to accomplish its goal, and the Hamas brothers continue improving. This letter also appeals for support for the Jihad so that the people will not lose faith in Islam. As noted previously, the Jihad has been declared an international terrorist organization by the Department of State.'' At issue is the extent of the connection between Al-Najjar, WISE, ICP and the Palestinian Islamic Jihad.
Al-Najjar and the World & Islam Studies Enterprise (WISE)
Mazen Al-Najjar was one of the founders of WISE in 1990 and served as an editor for its academic journal, Qira'at Siyasiyyah (Political Readings). He also acted as a director at WISE by writing checks on behalf of WISE to various individuals, including himself, for reimbursement and for salary purposes. The Chairman of the Board of Directors, according to visa applications filed by WISE on behalf of Palestinian Islamic Jihad leaders who were visiting the United States, was Dr. Sami Al-Arian, Al-Najjar's brother-in-law.
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The Director of Administration at WISE and co-editor of WISE's journal from 1991 until June 1995 was Dr. Ramadan Abdullah. Abdullah is better known for his current role as the Secretary-General of the Palestinian Islamic Jihad. He assumed the post in October 1995, just months after leaving WISE and Tampa. Al-Najjar took over the post of Director of Administration of WISE following Abdullah's departure, but the two had worked together since Abdullah's arrival in Tampa in 1991.
In an interview with the publication Al-Hayah (as translated by the Foreign Broadcast Information Service) soon after his appointment as the head of the Palestinian Islamic Jihad in late October 1995, Abdullah was asked about his previous role in the organization. Abdullah stated that, ''when he [Fathi Shikaki, the preceding leader of the Palestinian Islamic Jihad who was assassinated in Malta in October 1995] traveled, he asked me to run the affairs of the movement in his absence.'' This shows that Abdullah's role in the Palestinian Islamic Jihad was operational during his tenure with WISE and Al-Najjar in Tampa.
Another link between WISE and the Palestinian Islamic Jihad was established by Dr. Khalil Shikaki (Fathi Shikaki's brother), the first director of WISE when it was founded in late 1990. Khalil Shikaki was also a speaker at the ICP annual conferences from 1989 until 1992 at which point he returned to a teaching post in the West Bank. Documents seized by federal agents at the WISE office in November 1995 show that Khalil Shikaki, after his departure from WISE in 1992, contacted his brother Fathi Shikaki through Ramadan Abdullah. Evidence released in the federal investigation against WISE and ICP included a letter and a fax between Abdullah and Khalil Shikaki showing that Abdullah served as a go-between for the brothers. These communications contained references to various matters including support for a project headed by ''Abu Omar,'' a nom de guerre of Hamas leader Musa Abu Marzook. In addition, Khalil Shikaki appeared together with Abdullah on December 30, 1990 on a panel at the ICP Annual Conference in which Abdullah recounted Palestinian Islamic Jihad operations. In comments made by Khalil Shikaki on December 24, 1989 at the ICP Annual Conference, he proclaimed support for the Palestinian Islamic Jihad as a unifying element of the Islamic resistance in Palestine. In addition, Al-Najjar worked closely with both of these individuals as they were his predecessors in the leadership positions of WISE.
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Another of Al-Najjar's colleagues at WISE was Dr. Bashir Nafi. Nafi was also a co-editor of WISE's journal and primarily worked out of his office in London. He did, however, come to the United States on a number of occasions to work with both WISE and ICP. He spoke at the annual ICP conferences in 1988 and 1989. In 1991, he participated in a panel on behalf of WISE with University of South Florida (USF), located in Tampa, to discuss plans for a joint research agreement between the two entities. (The WISEUSF agreement was formally instituted in the Spring of 1992 and involved the co-sponsorship of academic conferences on the Middle East.)
In 1994, Nafi, traveling on a visa procured by WISE, moved to the United States. The purpose of this move was for Nafi to work in Tampa with the staff of WISE. After Abdullah's appointment to the head of the Palestinian Islamic Jihad, immigration officials began to look more closely at Nafi. News reports surfaced in the Middle East suggesting that Nafi, along with Abdullah, had been in charge of the Palestinian Islamic Jihad's British office in London where he and Abdullah wrote and distributed communiqués for the group. The publication Al-Urdun on November 6, 1995 referred to Nafi as one of the possible successors to Fathi Shikaki after Shikaki's assassination in October 1995. Rather than undergo the arduous process of instituting charges of terrorist affiliations against Nafi, the Immigration and Naturalization Service used the more expeditious route of deportation by charging him with violating the stipulations of his visa, which had stated that he would be working in Tampa at WISE. In fact, since 1994, Nafi had been working as a Research Associate with the International Institute of Islamic Thought, an Islamic ''think tank'' based in Herndon, Virginia, which, according to letters exchanged between WISE and USF in 1991, served as the primary source of funding for WISE. After an order for his deportation was filed, Nafi left the United States voluntarily in mid-1996.
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An interesting side note to Nafi's deportation lies in the fact that the INS, in its Order to Show Cause, which enumerated the immigration violations by Nafi, listed an alias for Nafi in the name of Ahmed Sadiq. This alias is important to his connections to terrorism. To those in the Palestinian Islamic Jihad, he was better known by this name. Under this pseudonym, Nafi wrote scores of articles in journals referred to by Palestinian Islamic Jihad head Fathi Shikaki as publications of the movement. Included among these are Al-Mukhtar Al-Islami, which is published in Cairo, and Al-Taliah Al-Islamiah, which was published in London (Nafi being on the Editorial Boards of both publications during the time that he wrote for them).
In addition, there are a number of references to Nafi as one of the ''key players'' in the Palestinian Islamic Jihad. One among these struck close to home in Tampa. A master's thesis presented by Abdul Aziz Zamel at the University of South Florida in Tampa (with whom WISE had signed a cooperative agreement) on April 17, 1991 referred to Nafi as an ideological head of the Palestinian Islamic Jihad along with Fathi Shikaki. Based on interviews with an anonymous individual identified by Zamel as a ''founder'' of the Palestinian Islamic Jihad, Zamel wrote, on page 192 of his thesis, that Nafi had actually ''published and edited a journal, al-Taliah al-Islamiah (The Islamic Vanguard) [sic] specifically for the [Palestinian Islamic Jihad], which was sent to the occupied territories for reproduction, in the same shape and form, and distribution.'' Thomas Mayer, a researcher who wrote an article in Emmanuel Sivan and Menachem Friedman's 1990 book entitled Religious Radicalism and Politics in the Middle East, stated that Fathi Shikaki regarded Bashir Nafi as ''an ideological friend.'' Mayer also discussed the cooperation between Nafi and Fathi Shikaki in distributing Al-Taliah Al-Islamiah throughout the West Bank and Gaza Strip. These references suggest that Nafi was not merely a member of the movement, but a spokesperson with close ties to Shikaki.
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Al-Najjar and the Islamic Committee for Palestine (ICP)
Al-Najjar's ties to the Palestinian Islamic Jihad front groups in Tampa were strengthened by his role with the Islamic Committee for Palestine (ICP). ICP was incorporated in 1988, and its registered agent was Sami Al-Arian, Al-Najjar's brother-in-law. Al-Arian is currently one of the foci in the federal investigation of both ICP and WISE (Al-Arian was also the registered agent for WISE). Al-Najjar was on the Board of Directors of ICP and, according to his resume, he served as co-organizer of its annual conferences from 1988 until 1992. He also wrote many checks on behalf of ICP to a number of sources including WISE.
According to his resume (which is in the public domain as a result of his deportation proceedings), Al-Najjar served as a co-organizer of the ICP annual conferences from 1988 through 1992. These conferences, held in St. Louis in 1988 and in Chicago from 1989 through 1992, played host to a number of radicals from around the world who called for a continuing jihad against Israel and the West. Among the many radicals who spoke at these conferences, two of the key speakers were: Sheikh Abdel Aziz Odeh, the spiritual leader of the Palestinian Islamic Jihad, who had been deported from Israel in 1988 for fomenting violence against the Israelis; and Sheikh Omar Abdel Rahman, who was sentenced to life in prison for his role in the conspiracy to blow up landmarks and tunnels in New York City.
INS Special Agent Bill West, in his testimony in the Al-Najjar deportation proceedings, described what went on at the annual ICP conferences as follows:
''. . . Many of the speakers will, uh, will essentially, uh, condone violent acts against Israel, and Israelis, and Jews and Western targets. There will then be a period where the speakers will say that money is needed to support the various activities of the Jihad movement, and then they will solicit funds. . . . That'sandand these are done against the backdrop of Islamic Jihad banners. . . .''
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Some of the speeches at these conferences specifically decry the ties between ICP and the Palestinian Islamic Jihad. The following statements are examples of this support. Sheikh Abdel Aziz Odeh, the spiritual leader of the Palestinian Islamic Jihad, recounted the bloody achievements of the movement at the ICP's 1988 conference held in St. Louis, Missouri:
''People began to say, well, we are able to achieve victory against this enemy. We are in a position to inflict defeat on it. And we are able to finish him [the enemy] off and cause him pain. Then occurred the decisive event of 6 October 1987, wherein four holy warriors met their martyrs' death after they killed the big Israeli intelligence boss in Gaza, and his name is Victor Arouan. And from that day on, Gaza was never quiet again. Gaza stood up. And then there was the revenge operation for those young martyrs, on 6 March in Gaza. And then came the event that was most decisive, where an Israeli settler was killed. That was the Maqsura Operation on 8 December, which made the Intifadah spread through Gaza and also throughout the West Bank.''
Fawwaz Damrah, an unindicted co-conspirator in the World Trade Center bombing and a radical Islamic notable from the Cleveland, Ohio, area, also spoke at this conference about the importance to engage in ''terrorism'' against their enemies, including the United States:
''The first principle in which I believeand it is also found in the words of Allah the Almighty, in the Holy Qur'anthis first principle is that terrorism and terrorism alone is the way to liberation''. [O]ur struggle with the Israeli enemy is the heart of the struggle, as Sheikh Abdel Aziz Odeh said. And that has to proceed from Palestine. I say, why don't we get in touch with those young men who went to Afghanistan, and make them open a front in Palestine? By causing a breach, I don't mean opening a door. Rather, it is proceeding on the basis of the words of Allah Almighty, and the gate that leads to them. And if you advance, you will defeat them. May God bestow his blessings upon them. Enter the gate toward them. We have advance upon the children of Israel, who fear death. As Sheikh Abdel Aziz Odeh also said, if there are men who love death, the problem will be solved. Therefore, we want to transfer those young men, who love death, and they are around, and there are lots of Palestinians among themthey are around in Afghanistanand we want to establish military bases in Jordan, and in Egypt, and wherever we can find a way to do itand that is my simple and humble conviction. And I request Sheikh Abdel Aziz Odeh to answer, or to respond. The military solution: shall we continue the Intifadah just with stones, or use the same weapons that our enemy is using, including America? We are driving our children into death, so why not with proper weapons? Why don't we Muslims do it in the proper military fashion, for their liberation?''
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When Odeh responded that perhaps ''terrorism'' was not the right word to use in these circumstances, Damrah retorted, ''But we are terrorists!'' Odeh then conceded this point.
Sami Al-Arian delivered a speech to the opening session of 1990 ICP conference convened in Chicago, Illinois, in which he stated:
''We assemble today to stand up and pay our respects to the march of the martyrs, which increases, does not decrease, and to the river of blood that gushes forth and does not extinguish. From butchery to butchery and from martyrdom to martyrdom, from Jihad to Jihad.''
In another speech at this conference, Sheikh Odeh stated, ''They (the Jews) understand only one language: the language of Jihad, and the language of confrontation, and the language of sacrifice.''
Ramadan Abdullah, former director of WISE and current Secretary-General of the Palestinian Islamic Jihad, made his first appearance at an ICP conference in 1990. In his speech, Shallah recounted the story of a Palestinian Islamic Jihad martyr by the name of Iyad Abid who had died in a terrorist operation. In his speech, he stated:
''There is currently a pervasive lie that there should be no armed Intifadah. And we say that it is a lie because no one can claim that the armed struggle means arming the people in its entirety to face the occupation forces [using] weapons and fire instead of the stone. Demanding armed struggle means that the rifle which has been fighting throughout the years of jihad and struggle in Palestine must not cease and must not be silenced, rather, it [the rifle] must re-fire.''
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In another speech at the 1990 conference, Sheikh Muharram Al-Arifi of Masjid (Mosque) Sidon in Lebanon made the statement:
''The Intifadah means that our children, our brothers, and our sisters that were brought up under the rule of the Israelites and under the grasp of the Jews will not be Judaised and will not kneel to the Zionists. As long as the Aqsa Mosque, Omar al Mukhtar Mosque, Salah Al Din Mosque, Izz Al-Din Al-Qassam Mosque [this is the mosque in which Odeh had once preached and it still serves as a Palestinian Islamic Jihad bastion] and the rest of the mosques are still educating the generations of Mujahedeen, the generations will convene in these houses [of worship] and burst forth from them roaring:
Khaybar, Khaybar oh Jews,
The armies of Muhammad shall return.
We are all Salah Al Din.
Do not worry, oh Palestine!''
The conclusions adopted by the conference participants, distributed by the ICP in its booklet containing selected speeches from the conference, included the following points:
''The participants assert that Jihad is the only way to get back the whole Palestinian holy land, which is a property of the whole Islamic nation, and of a hand, or recognize the Zionist existence on any part of it, because this is considered as treason for Allah, his prophet, our Muslim nation, their Jihad, martyrs, and their sacrifices which did not stop at any time.''
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At an ICP rally held in Chicago in September 1991 on behalf of Sheikh Abdel Aziz Odeh (which was memorialized on videotape), Ghassan Ballut, who was introduced as the ICP representative in Chicago, described the tremendous contributions of Palestinian Islamic Jihad and its operations for the Intifadah. After a brief break in the tape, Ballut's voice is again heard praising Fathi Ibrahim [Shikaki]:
''This enemy who executed the deportation of the Islamic thinker, Al-Mujahid, Dr. Fathi Ibrahim [Shikaki], and accused him of leading the Intifadah from inside the prison of the enemy. Dr. Fathi is the brain of the Islamic Jihad.''
This is significant because it is another direct link between ICP and the Palestinian Islamic Jihad. The ICP representative, Ballut, is referring to the known terrorist leader and the brain behind Palestinian Islamic Jihad operations. Ballut also made the following statement at the rally: ''The road is straight ahead of us and may our guns be [aimed] one wayto the chest of the enemy.''
Later in this rally, Al-Arian spoke. In his speech, Al-Arian made the following statement:
''Here in front of us, it can only be said the path is clear and we are here today in a free positionnot like those under occupation [unintelligible] we should present an example and a modelthere will be no concession on even one single inch of [our] holy land. Yes to the Intifadah, yes to jihad for the sake of Allah, yes to Islam, protect this Intifadah, protect [the Islamic] nations and gather the nation until we see the future promised by Allah the Exalted. [1 unintelligible sentence] Allah is one, Muhammad is the leader, the Koran is our constitution, jihad is our path, victory to Islam and death to Israel. Revolution, revolution is the covenant of the people, marching onward toward Jerusalem. Revolution, revolution is the covenant of the people, marching onward toward Jerusalem. There is no God but Allah.''
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In the opening session of the 1992 ICP conference held in Chicago, Sheikh Naim Nasser stated, ''The Jews' . . . plotting and scheming, their moral corruption . . . spreading corruption on earth . . . in all this darkness, there is one light, and this light is the Jihad Movement. Our hearts are with those in the cold of Lebanon, but they are kept warm with their faith.''
In another panel at this conference, an unknown individual engaged in a fundraising campaign on behalf of the ICP for the ''martyrs'' and their families.
''. . . Palestine, in respect to us in the United States, does not need martyrs. They have more who are prone to Shahada than we have here in the United States. They have the tears of the orphans and the widows. Brother Sami [Al-Arian] tells me before coming to the podium, there is a mother who has given three martyrs, and the fourth is under detention in Egypt, and she says, All thanks are due to Allah. Your brothers need your participation, that will be felt in Palestine. . . . What is your contribution to Palestine? We are giving you a list of 16 martyrs. This is a narration of some people who would like to sponsor the martyrs or the family of the martyrs. I want you to think with me, and to remember two things, that you now, there is a satan among us. There is always discussion and argument. Umar is quoted as having said, You only can tell the nature of a man when you enter into a financial transaction with him. I say the following to you. The list of martyrs who were killed in defense of their deen and their land in Palestine, they have families, children, orphans. The name of these martyrs are the following. . . . [The list of martyrs is almost exclusively those of the Palestinian Islamic Jihad.]
Page 242 PREV PAGE TOP OF DOC ''. . . [S]ome of these Shuhada [martyrs] died defending mosques in the occupied lands. Some of them died in amphibious operations. Some of them died in assault then died in amphibious operations. Some of them died in assault operations. Their families need your assistance.''
According to informational brochures distributed by the ICP at its conferences, the ICP disseminated a number of radical Islamic publications in the United States that were primarily associated with the Palestinian Islamic Jihad. Among these were: Al-Mujahid, an official newspaper distributed by the Palestinian Islamic Jihad from Lebanon; and Al-Islam wa Filastin, a magazine published in Cyprus that was identified by former Palestinian Islamic Jihad leader, Fathi Shikaki, as a publication of his movement. Al-Islam wa Filastin listed in each issue both a return address in Cyprus and a P.O. Box for the ICP in Tampa, Florida. This magazine often published communiqués from the Palestinian Islamic Jihad in addition to interviews with the leadership of the movement, including the head of the Palestinian Islamic Jihad, Fathi Shikaki.
As stated previously, Al-Najjar's relationship with both WISE and ICP extended beyond simple peripheral association. In addition to editing the WISE journal and being on the ICP Board of Directors, Al-Najjar wrote checks for both WISE and ICP to individuals and organizations relating to these two groups. These included checks from ICP to WISE and from WISE to individuals including Abdullah and Nafi.
Al-Najjar, in interviews since his arrest, has claimed that he had no knowledge of any terrorist links in Tampa. However, audio tapes, video tapes, Islamic Jihad publications and other material evidence shows that Al-Najjar was aware of the activities of his colleagues and their involvement with the Palestinian Islamic Jihad. His role in organizing conferences by the ICP where funds were explicitly solicited to support the widows and children of ''martyrs,'' or suicide bombers, constitutes further evidence. The fact that he wrote checks for two organizations alleged to be terrorist ''fronts'' further casts suspicion on his protests to have no knowledge of any terrorist links in Tampa.
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Civil rights organizations speaking on Al-Najjar's behalf feel that he has been the subject of a governmental violation of his due process rights vis-à-vis the government's use of ''secret evidence'' against him. The information that is available in the public domain, however, is at the very least, compelling that something nefarious was afoot regarding Al-Najjar's connections with both WISE and ICP. In addition, the bottom line regarding Al-Najjar is that his deportation proceedings were conducted free from the use of any such evidence and his appeal for suspension of deportation was denied free from the specter of secret evidence.
Hany Mahmoud Kiareldeena Case where the Process took its Course
Wholly different than the case of Al-Najjar, the Kiareldeen matter demonstrates a scenario where the evidence the government presented was refuted. A native and citizen of Israel, Kiareldeen was admitted to the United States on April 27, 1990 with a student visa authorizing him to remain in the US through the course of his studies. Admitting that he failed to comply with the terms of his nonimmigrant status, Kiareldeen sought relief from removal by filing for adjustment of status, asylum, withholding of removal, Torture Convention protection and, in the alternative, voluntary departure. Opposing Kiareldeen's applications for relief, the INS presented classified evidence from the FBI and the respondent [Kiareldeen] was provided an unclassified summary.
The unclassified summary dated May 22, 1998 states that the information ''was obtained from multiple reliable sources who have provided reliable information in the past.'' The allegations in the unclassified summary include assertions that Kiareldeen ''is a suspected member of a terrorist organization[;]'' ''maintains relationships with other members and or suspected members of terrorist organizations dedicated to committing acts of violence against the people of the United States . . .;'' that he hosted a meeting at this home in Nutley, New Jersey a week before the World Trade Center (WTC) bombing with ''individuals who were talking about plans to bomb the WTC'' including Nidal Ayyad who ''(. . . is a convicted co-conspirator in the WTC bombing . . .);'' and that ''HANY expressed a desire to murder Attorney General JANET RENO for her role in the conviction of those responsible for the bombing of the World Trade Center.''
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After numerous court filings by the INS and Kiareldeen, the allegations of terrorist activity were refuted to the satisfaction of the Immigration Judge and the Board of Immigration Appeals with documentary evidence and credible testimony from several witnesses. On October 15, 1999, the Board of Immigration Appeals ruled, ''The FBI's classified evidence and unclassified summaries, standing alone, may have been sufficient to establish a 'reasonable ground to believe' that the respondent is engaged in or is likely to engage in terrorist activity. The evidence submitted by the respondent to rebut the allegations raised therein, however, significantly diminishes the reasonableness of that belief.''
Interestingly however, Kiareldeen was not released and the case was brought to the United States District Court for the District of New Jersey. In a ruling handed down on October 21, 1999, Kiareldeen's petition for a writ of habeas corpus was granted and he was ordered to be released immediately. But he was still considered a terrorist threat by the government and a stay of execution of the Writ of Habeas Corpus was sought in the United States Court of Appeals for the Third Circuit. Unsuccessful in this petition, after spending nearly nineteen months in INS custody, Hani Kiareldeen was finally released from jail in New Jersey on October 25, 1999.
Indeed, it is a grave injustice if Kiareldeen spent one day, let alone over a year and a half in jail based on allegations that were fabricated by his ex-wife as he and his supporters have successfully contended; however, examination of the unclassified record discloses reliance on only one of the ''multiple reliable sources'' and a conclusive analysis on this case is impossible without access to the entire classified record.
Page 245 PREV PAGE TOP OF DOC Proponents of H.R. 2121 argue that the case of Kiareldeen epitomizes the dangers of the use of ''secret evidence.'' The ruling of the United States District Court for the District of New Jersey granting Kiareldeen's petition for a writ of habeas corpus is roundly and mistakenly cited by H.R. 2121's advocates and almost all of the national media as striking down the use of ''secret evidence;'' but this is not the case. The ruling applies explicitly to the application of the law to Kiareldeen, not the law itself. The ruling states, ''The petitioner's due process claims are treated as challenges to the validity of the statute and regulation as they were applied to his case. Also, because it is clear the petitioner [Kiareldeen] is not mounting a facial challenge to the statute, but instead questions the constitutionality of its application to his case, the court expresses no comment on the overall validity of 8 U.S.C. §1229a (b) (4) (B) [which provides that 'the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief. . . .'].''
The Kiareldeen case does not reflect the majority of immigration cases where classified information is entered; but rather, is an example of an exceptional case. As demonstrated by the case study of Monzer Khalil Chehab below, there are many cases where classified information is used effectively to preserve the national security against the threat of suspected terrorists.
Monzer Khalil ChehabNew Information on the Removal of an Illegal Alien Suspected Terrorist
Page 246 PREV PAGE TOP OF DOC Normally portrayed as the villains with regard to the issue of ''secret evidence,'' the case of Monzer Khalil Chehab unequivocally demonstrates a success story for the INS and FBI whose agents are often the anonymous and unsung heroes in the war against international terrorism. Born in Kuwait, Chehab is a citizen of Lebanon that last arrived in the United States on January 26, 1993. While in the United States, he was a resident in the Boston, Massachusetts area and married an American citizen in 1997. Pursuant to the issuance of his Notice to Appear in Removal Proceedings, Chehab was detained by the INS on September 9, 1999. The charges enumerated in this Notice to Appear state that Chehab was not in possession of a ''valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document'' and was thus subject to removal based on Section 212(a)(7)(A)(1)(I) of the Immigration and Nationality Act.
Prior to Chehab's Master Calendar Hearing on September 24, 1999 before the Immigration Judge in Boston, the INS served notice on September 22, 1999 saying that ''in the event that respondent [Chehab] is found removable and that he applies for relief from removal,'' the INS would reserve the right to use classified information authorized under the Foreign Service Intelligence Act (50 U.S.C. §1801 et. seq.).
On September 24, 1999, Immigration Judge Patricia Sheppard ordered Chehab to be removed to Lebanon with his right of appeal reserved for one month. Though Chehab still retained the right to appeal, a letter dated October 7, 1999 from Chehab's lawyer waived this right to appeal and accepted the decision of the Immigration Judge ordering Chehab's removal.
In an unclassified draft of the ''Unclassified Extract and Summary of Classified Information'' against Chehab, the ''Summary of Classified Information'' states the following, ''Based upon its national security investigation, the FBI has determined that CHEHAB has been integrally involved in a terrorist organization since his most recent arrival in the United States and has made numerous misrepresentations to the INS concerning his connections to that terrorist organization.'' The summary concludes with the statement that this information ''has created a serious concern within the FBI that Monzer Khalil Chehab poses a threat to the national security of the United States.''
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This case is significant because although the classified information was never entered, the mere discretion of the INS to use classified information against this suspected illegal alien terrorist effected an expedited removal. Under amendments to the law sought by H.R. 2121, Chehab could have filed any number of applications for relief from removal and the government would have faced a nightmare scenariohaving to choose between compromising its sources and methods of intelligence, or allowing someone actively involved in a terrorist organization to remain free in the US to seek benefits under immigration law that could culminate in permanent residence or citizenship. Indeed, neither of these choices is tenable and the consequences of enacting H.R. 2121 could be catastrophic.
CONCLUSIONS AND RECOMMENDATIONS
Aliens should be afforded the maximum in due process protections, but not to the extent that national security is jeopardized. Ensured the right to confront the accuser, advocates for H.R. 2121 argue that illegal aliens should be afforded the same due process rights as criminal defendants. In this regard they contend, charge the illegal alien with a crime if they are suspected of threatening national security. This argument is simple, shortsighted, and reflects a wonton disregard for matters of national security generally and counterterrorism specifically.
To charge someone with a crime, means to hold evidence that will likely demonstrate proof beyond a reasonable doubt. But in dealing with matters of national security, even a scrap of information may contribute to protecting lives. As was recognized by the United States Court of Appeals for the Ninth Circuit in a January 1998 ruling, ''. . . the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate.'' Kasza v. Perry, 133 F.3d 1159, 1166 (9th Cir. 1998).
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Presented with any piece of information showing that an alien present in the US is a threat to national security, the US government must chart a course of action. Indeed, no reasonable person would argue to ignore the information; but the classified record may only meet the reasonable grounds standard and not support proof beyond a reasonable doubt. Furthermore, disclosure of the classified record, especially in cases involving singular or limited sources, may compromise the sources and methods of intelligence gathering. Where the alien is present in the US illegally (a common thread in all the cases discussed above), the most appropriate action usually is to deport or remove the alien based on the illegal status, irrespective of the classified record.
Emphasizing that the language reads ''person'' and not ''citizen'', the argument under the Fifth Amendment that, ''No person . . . be deprived of life, liberty, or property, without due process of law'' as demonstrating that ''secret evidence'' violates due process is misguided. In circumstances where a classified record is relevant to an alien seeking relief from removal/deportation, the intelligence cannot be ignored; and the maintenance of its classified nature does not violate due process. The alien is not picked up by armed thugs and beaten or tortured for information; nor is the alien summarily placed on the next boat home. Through the course of what may be a long process, the alien is guaranteed the right to counsel, the classified record is provided to the Immigration Judge who must weigh and consider its merit, the alien is provided an opportunity to argue for bond, an unclassified summary of the classified record may be provided to the alien, and the highest levels of all Department of Justice components rigorously review the classified record before a final decision is made on its use. These legal and administrative guarantees strike a fair and appropriate balance of the due process rights of illegal aliens with the interests of national security.
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Terrorists, their supporters, and their sympathizers do not advertise themselves as such, but rather, use coversometimes the cover is a business that seems legitimate and sometimes the cover is an argument that sounds appealing. As we enter the Twenty First Century, terrorism is the greatest threat to the United States and the world and it is important to recognize that the ''secret evidence'' issue is not beyond the radar screen of our enemies abroad. Recognizing that supporters and sympathizers of terrorists abroad were active participants in bringing this issue to the fore, it is vital that a strong and unequivocal message be sent from Congressional leadership that the US will not play host for the safe harbor and proliferation of international terrorists on US soil. Pronouncements to support a strong counterterrorism policy must be supported with action.
Mr. GEKAS. The Chair will yield itself 5 minutes for the first set of questions.
Mr. Homburger, I was struck by the fact that after you elementarily denounced, or at least criticized, the final aspects of the legislation in front of us, you returned to say that only in questions of strict national security should there be classified information withheld and used, meaning to me, we beg the question. Either you do not favor the use of classified information or you do. You do or you don't.
Mr. HOMBURGER. Let me clarify that, Congressman. What I think I saidsort of what I intended to say was that the withholding of classified evidence in proceedings is appropriate only in, A, rare cases, and B, where there can be appropriate due process protections for the defendant.
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Now, what the details of those due process protections are are things that have to be worked out. But we feel that there is a way in which one can accommodate both the due process concerns of the individual defendants and our legitimate national security interests.
Mr. GEKAS. You say there is a way, or you know of a way, or you think
Mr. HOMBURGER. We believe there is a way.
We think there are currently models in existence, which have attempted to do it, that Congress has passed. CIPA is certainly one of them. Certainly the 1996 Antiterrorism Act is another in which procedures were set out in which appropriate safeguards were prescribed, so that the due process concerns of suspected terrorists, alien terrorists, could be accommodated and our national security concerns also accommodated.
I think it is very important thatto remember that we do not ever want to be in a position where our government is being forced to either disclose sources of evidence or let terrorists run free in our society. But having said that, we believe it is also important that a procedure be set out by which suspected alien terrorists be allowed to mount a proper defense.
We think there was a valiant effort made in CIPA to do that. We think there was an important effort made to do that in the 1996 Antiterrorism bill. And we feel comfortable that a model could be found to accommodate both those almost apparently conflicting, but not conflicting, issues.
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Mr. GEKAS. You say ''could be found,'' and then you say CIPA could be the model or is a model. Do you reendorse CIPA for these procedures or not?
Mr. HOMBURGER. I think that it is fair to say at this point we have not analyzed the specific details of a model. We are prepared to go ahead and work withwe are prepared to lend our expertise to try to determine something that would work along the CIPA model, along the 1996 Antiterrorism model.
But I would like to comment on a specific proposal that we saw. Within that model, within those two models, within a concept of a procedure which allows careful oversight by the Justice Department, which allows an independent judicial determination of a recommendation and provides appropriate summaries to defendants of what they are accused of so they can mount a proper defense, there is a solution.
Mr. GEKAS. Professor Cole, you, of course, in your description of guilt by association, struck a chord which is repulsive to us.
Is known membership in a known terrorist organization abroad guilt by association? Is that enough evidence upon which the Justice Department and the INS can proceed, membership?
Mr. COLE. Right. Membership itself is the definition of guilt by association.
Page 252 PREV PAGE TOP OF DOC The Supreme Court's casesthe Supreme Court has stressed this issue repeatedly, guilt by association, and did so primarily in the context of the Communist Party. The Communist Party was an organization which Congress foundand the Supreme Court accepted these findingswas a foreign organization that used terrorism for the purpose of overthrowing the United States by force or violence. But the U.S. Supreme Court repeatedly held that no criminal sanction or denial of civil benefit could be predicated on membership in the Communist Party, because to punish someone for membership, even though it was a terrorist group centered abroad that was directly targeting the United States to overthrow by force or violence, it also engaged in legal activities and the Supreme Court therefore repeatedly said, you cannot impose any sanction whatsoever based on membership in the Communist Party.
What you have to show is specific intent to further the illegal ends of the Communist Party, an allegation that the government has never made with respect to any of the aliens in the cases that I have represented.
Mr. GEKAS. I want to follow up on that, but time constraints have now forced us to have to recess for the purpose of reporting to the floor for four votes as we understand it. One 15-minute vote and three 5-minute votes. So this committee will stand in recess until 2:45.
Mr. CONYERS. Mr. Chairman, could we recommend a place for lunch for all of our
Mr. GEKAS. Until 2:45. They can get Lance crackers.
Page 253 PREV PAGE TOP OF DOC Mr. CONYERS. Why not let them go downstairs to the B level?
Mr. GEKAS. Make it until 6 o'clock?
Mr. DELAHUNT. Mr. Chairman, I don't think we will be here by 2:30.
Mr. GEKAS. 2:45.
Mr. DELAHUNT. Two 5-minute or three 5-minute votes?
Mr. GEKAS. Let's make it 3 o'clock.
Mr. NADLER. No, no, Mr. Chairman.
Mr. GEKAS. Mr. Nadler wants to debate 3 o'clock?
Mr. NADLER. I have to be somewhere else at 3:00, and I would like to get my questioning in before that.
Mr. DELAHUNT. Could I make a suggestion, Mr. Chairman?
Ms. JACKSON LEE. If I could have 1 minute.
Mr. DELAHUNT. If ''the Court'' would entertain allowing Mr. Nadler to go first, and if we reconvened at 10 minutes of 3.
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Mr. NADLER. Why don't we come back as soon as the vote is over?
Mr. GEKAS. We will be back at ''10 of'' to accommodate Mr. Nadler and Mr. Delahunt.
We stand in recess until 2:50.
Mr. GEKAS. The hour of 2:50 having arrived, the committee will come to order.
The next order of business will be to recognize the gentleman from New York Mr. Nadler for a period of 5 minutes and any questions that he might wish to pose.
Mr. NADLER. Thank you, Mr. Chairman. Thank you, Mr. Chairman.
First let me make a comment to Mr. Flatow. I must say obviously we feel that the terrorist murder of your daughterand I have to say I agree in part with you and disagree in part with two things. I mention this because it goes to the heart of what we are talking about. Part of your testimony you say thatwe are told that virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab. You don't believe that people's ethnicity or religion should be the focus of attention here, and obviously I agree with that. That is certainly true. I have to say that the fact that most such cases have been with regard to Arabs or Muslims does not by itself indicate any discrimination, simply that it simply indicates where the perceived and real threat of terrorism or large source of it may come from.
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But you also say, ''Inserting that charge into the discussion diverts us from the real issuewill this country use all tools at its disposal to make this country, indeed the world, safe from terrorism.'' and I think that that is half the issue. The other half is, without shredding the liberty and freedoms that make ours a society worth defending, because you have to balance that.
The second comment you make is that it is the terrorist's blatant disregard for the sanctity of human life that requires us to assist those who are committed to protect us by giving them special tools to fight it, even if some would usually call those tools a violation of one's constitutional rights. I must say I could not disagree more. It is the very heinousness of a crime that does not justify shortcuts in due process. The more heinous the crime, the more sensational the crime, the greater the danger that in response to a public outcry to findto solve the crime, the police will get somebody, maybe the wrong somebody. And the due process shortcuthistory shows us that due process shortcuts do often lead to the wrong people being convicted of these heinous crimes and the real criminals going free.
The heinousness or viciousness of a crime argues toward the punishment of the criminal, but does not argue toward the means by which we find the truthfulness of who the criminal is.
Let me askand I think that is very important in considering this question, secret evidence. Let me ask Mr. Cole. Mr. Cole, would you support, would you think thatyou say it is indisputable that secret evidence could never be used in a criminal case whatever the crime is charged, espionage, sabotage, terrorism; we have survived it 200 years despite our adherence to absolute principle, no reason to believe that adoption of a similar practice in deportation cases would pose any greater threat. Would you support extension of CIPA as a reasonable balance?
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And the basis of CIPA is that in criminal cases, if it is deemed by the judge upon application by the prosecution that certain evidence is too sensitive to be handedto be given to the defendant or given out publicly, they must give the defense a summary of the evidence, a summary sufficient to allow the defense to present as substantially as good a defense as had they had the evidence; and if they deem it too sensitive even to do that, then they can't use the evidence.
And in any event, the evidence in front of the court is the summary that they gave. But the key difference from the 1996 law is if you can't giveif you think you can't give the defense a good enough summary that the court will say it was enough to give as good a defense as you would have had with your original evidence, then you have the choice between not giving evidence, not using the evidence, period, whereas under the current law you can use the evidence even if you can't give them a summary, and you totallyget a totally Kafkaesque proceeding.
Mr. COLE. I think if a CIPA-like provision were drafted that permitted the substitution of a summary as evidence, in those cases where a determination was made that the alien would have substantially the same opportunity to defend himself as he would have if the classified information were produced directly, then almost by definition there is not a due process problem. All right. But let me just qualify that slightly.
Almost by definition I say because the CIPA standard that the alien should have the substantially same opportunity to defend himself as he would have with confronting the evidence directly essentially requires that unless he has that same opportunity, then you can't go forward.
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Now, a couple of qualifications. First of all, CIPA was drafted to deal with the reverse problem. It was drafted to deal with gray mail. It was drafted to deal with the Oliver North, who was prosecuted and says, well, I have access to all kinds of information that I absolutely need to use for my defense. Then he tries to get the government to drop the prosecution because it will require the disclosure by the defendant of the secret information. That is thethat is where CIPA is generally used. It is very, very rarely used affirmatively by the government. And I don't think the Supreme Court has ever actually addressed whether it is constitutional to be where it is used in the alternative.
Mr. NADLER. But if Congressif it were proposed that instead of H.R. 2121, which goes all the way in one direction, that we try to balance the competing considerations here of counterterrorism and due process by extending CIPA to cover immigration questions where there are allegations of terrorism or not allegations, would that be a satisfactory resolution?
Mr. COLE. I believe that H.R. 2121 is a better response. I believe that it is still of some constitutionalquestionable constitutionality whether the government can affirmatively use a summary as opposed to the evidence. And I also believe that in immigration proceedings you have a further problem, which is in a criminal case the judge decides whether the summary adequately gives the defendant the same opportunity to defend himself. If he concludes that, then the trier of fact, which is the jury, only sees the summary. But in an immigration proceeding
Mr. NADLER. He sees both.
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Mr. COLE. And this is going to be highlyby definition, highly prejudicial secret information. How is the judge, once he has looked at the secret evidence and substituted a summary, how is he going to sort of wipe that out of his mind? I think it is extremely difficult. So at a minimum, it seems to me, you would need a two-judge process.
Mr. NADLER. Let's assume you had that.
Mr. COLE. Then I think the question which is unresolved in the Supreme Court is can the government go forward in such a circumstance consistent with due process, and I think there may beI don't want to take a positionwith all due respect, I don't want to take a position right now, but I think it would certainly be a huge improvement.
Mr. NADLER. Mr. Homburger.
Mr. GEKAS. The time of the gentleman has expired.
Mr. NADLER. I ask for an additional 2 minutes.
Mr. GEKAS. Without objection. I am trying to keep in mind your 3 o'clock commitment.
Mr. HOMBURGER. I will talk fast. We favor a CIPAwe favor a summary procedure. Whether it is the CIPA procedure or whether it is the procedure of the 1996 antiterrorist law is something that can be worked out by Congress.
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Mr. NADLER. Excuse me. In the interest of time, the key difference, the really bottom-line key difference, I would like you to express yourself on it, is that under CIPA if it is judged by the FBI or whoever that even a summary is too dangerous to give to the defendant, you can still use the secret evidenceI am sorry, under CIPA if it is judged that you can't even give an adequate summary, you cannot use the evidence. And if it is so sensitive that you can't give a summary, you have tothe prosecutor has to make the choice either drop the case or unclassify the evidence. Under the 1996 law that we are operating now, if they make the determination that you can't give a summary because it is too sensitive, they can use the secret evidence anyway. Are you satisfied with CIPA in that connection?
Mr. HOMBURGER. I think in that context our endorsement of the concept of a summary would perforce say that in order to meet due process requirements, some kind of a summary needs to be provided to the defendant, and that, I think, satisfies our concerns of balancing, a test of balancing the security of sources and still providing information necessary.
Mr. NADLER. That is a clear preference for a CIPA-type statute over the current statute. Thank you very much.
Mr. GEKAS. The time of the gentleman has expired. We now grant 5 minutes to the gentleman from Michigan Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. I commend the witnesses for their tenacity, we have had a lot of interruptions today; and also those who are here in the hearing room have been around since this morning.
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I think this is a very important matter we have before us. Steven Emerson, I am glad you are here because you were the one that gave us some information about the Oklahoma City bombing and the downing of the TWA flight that was not quite on the mark in which you suggested it was Middle East Islamic forces that were up to no good. You recall that?
Mr. EMERSON. I am glad you raised that, Congressman, because at the timeand I am glad to have the opportunity to respond, because I still stand by the fact that at the time I made the statement that Middle Eastern Islamic groups were suspect in the Oklahoma City bombing in the first
Mr. CONYERS. Sure they were. That is why I am raising it.
Mr. EMERSON. I am telling you.
Mr. CONYERS. You were helping make them suspect.
Mr. EMERSON. I wasn't helping make them suspect. I did myself a lot of credit for trying to influence the government, but I am sorry I don't have that type of power.
Mr. CONYERS. I will tell you that CBS said you said, this Oklahoma City bombing, this bombing was done with the intent to inflict as many casualties as possible. This is a Middle Eastern trait. And then, same day, Oklahoma City, I can tell you, is probably considered one of the largest centers of Islamic radical activity outside the Middle East.
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And so I am glad your influence with the government was minimal, but I do remember that during that initial outbreak, it was all being turned, a bombing equates with terrorists there, and I am glad you are still standing
Mr. EMERSON. May I respond to just your last comment briefly?
Mr. CONYERS. Very briefly.
Mr. EMERSON. Yes, sir. One of the quotes that you are citing, one of them was half censored. The other part of that quote was, this was an attack that we were not used to in the United States since the World Trade Center bombing. So, in fact, car bombings were primarily carried out by Middle Eastern terrorist groups. That is number one.
In number two, this reference to Oklahoma City, the fact remains that in 1988 and 1992, major Islamic conventions of radical supporters, including conspirators in the World Trade Center bombing, along with the Osama bin Laden conspiracy, met to plan attack acts against various targets.
Mr. CONYERS. That supports your statements. So you have been perfectly consistent. I am happy to know that.
Now, let me turn to some other considerations here. Let me ask the two lawyers on the end, if the government decides not to use secret evidence, does it often have other avenues to contest an immigrant's status? In other words, how much does secret evidence really play into this?
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Mr. COLE. Well, yes, of course, it has other opportunities to contest the alien status, and in many instances they use those. And Mazen Al Najjar's case, for example, they opposed his application for suspension and asylum on the basis of open record evidence, but then they turned around and used secret evidence and solely evidence to detain him. So clearly they didn't need to use secret evidence, and yet they did. So, yes, they have an opportunity to use whatever they can provide in an open proceeding to oppose an application for permanent resident status or to show that a person is a threat to national security and should be detained or to seek someone's deportation.
I also want to refer back to Congressman Gekas' point that was made when Mr. Parkinson was here, which is that this Hobson's choicewe have heard a lot about the Hobson's choice. Either we have to expose classified information, or we have to let this person, this possible terrorist, go free.
That is not the choice that they are presented with. The choice is you provide the person a fair opportunity by presenting the evidence. And if you decide you don't want to present the evidence, you follow that person. Under the Foreign Intelligence Surveillance Act, it is extremely easy to get a wiretap, 24-hour wiretap on the person's phones. You can follow the person. And if that person so much as takes any action to further terrorist activity, you can arrest him and charge him.
And one of the things I think that is lost often in the sort of overarching claims about national security is think about a case in which we have a person who is actuallywe think is a terrorist who is going to take action against the United States. Would we really want to deport that person so that he can go to some other country and take action against the United States, or would we want to arrest that person, would we want to bring criminal charges against him, would we want to incapacitate him? And that is why I think you see in these secret evidence cases in immigration proceedings not a single case in which the alien is actually charged with engaging in criminal conduct. They are all cases in which the FBI and INS have not attained evidence of criminal conduct, and they are proceeding on the basis of guilt by association.
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Mr. CONYERS. So if we had anything that was evidentiary in the secret files, we should bring it forward right away and begin a prosecution, rather than just use it to bar any effectiveness in immigration-type proceeding.
Mr. COLE. That is right.
We also have the Witness Protection Act which is used every day in criminal case where the government makes the decision that it wants to go forward with the criminal case. It has information that is of a confidential nature. It is concerned about the safety of the witness. It has to put its witness on the stand; then it provides that witness protection. It doesn't say, well, because we have this concern, we are not going to provide the defendant with the opportunity to confront the evidence against him.
Mr. CONYERS. Thank you.
Mr. GEKAS. The gentleman's time has expired. We now turn to the gentleman from Massachusetts for a similar period of 5 minutes.
Mr. DELAHUNT. I was simply going to make the point that Professor Cole made. I don't believe it is necessary to make the choice that is being premised here. Clearly there is no one on this panel, no one sitting here on this dias who is not concerned about terrorist threats. And there are significant opportunities. I spent most of my professional life as a prosecutor. And clearly, if we had information regarding a terrorist, the last thing that we would do would be to effect an arrest or to deport. We would attempt to penetrate that organization, we would develop a case, we would want to know who the conspirators are. There would be a 24-hour surveillance. And additionally, there would be court-authorized electronic intercepts.
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And what I found fascinating, and I think the argument was used, I think incorrectly so, that the paucity of times when secret evidence has been used is an argument for its utilization. And I would daresay that the paucity of times that, in effect, it has been used would argue just as Mr. Gekas' line of questioning suggested, that there is a rare opportunity here to penetrate terrorist organizations.
But having said that, I mean, what I hearand I think Mr. Homburger is focusing in on thisis, you know, this conflict that we have in terms of national security. But the United States of America, as others have said on the panel, is all about individual liberties. That is what we are about as a Nation. That is the genesis of our Bill of Rights. That is the genesis of this particular democracy. What separates us even from other democracies are the protections that are afforded the individuals.
And I know all too well that the quality of intelligence, the quality of information is very suspect, and the best evidence is Professor Cole's recitation, 12 out of 13 of these cases. Mr. Emerson was just asked about Oklahoma and TWA.
As a prosecutor I made a number of mistakes. There is a moratorium in the State of Illinois now in terms of the death penalty in our own justice system because of its fragility, and to rely, with all due respect, on an administrative law judge to make these kind of decisions without a demonstrationmaybe I am incorrect and you could help me, Professorwithout a demonstration of real need, that all other investigative avenues have been exhaustedand I wouldn't stop there. But what I am saying is not even requiring what Mr. Nadler was talking about, a two-step process involving two different judgesI think that was in response to a colloquy with youbut going to a Federal district court judge to get the imprimatur where you really do have separation of powers here.
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Let me just pose one question. You heard earlier the testimony of Representative Campbell and his interpretation of the state of the law and the distinction between admission and deportation. And in response to my questioning, I think it was both Mr. Parkinson and Mr. Cooper, they had a disagreement. Would you give us your perspective of what the current state of the law is, and has this particular practice been adjudicated, what were the findings, and if the findings were adverse to the government, have they been appealed? And if they haven't been appealed, were they continuing these practices?
Mr. COLE. Well, the answer is that the Supreme Court has, as Congressman Campbell suggested, drawn a very sharp line between deportation and exclusion, because the Supreme Court has said that aliens outside of our borders who have never set foot in the United States are not protected by the Constitution. Therefore, whatever we do at the border is okay. That is what the Supreme Court has said. But aliens inside the United States, once they are inside the United States, whether they are here legally or illegally, are protected by the due process clause and have the same rights under the due process clause as do citizens. That is a very clear line, and that is the line that the courts have honored.
In terms of what the courts have said about this particular practice, the use of secret evidence, they have said a range of things, but I think the most significant thing is that in the last 12 years, the only Federal courts that have addressed the issue have all held it unconstitutional, three separate cases, I lay them out in my testimony, nine separate judges, because two of them were appealed toone was in California, was appealed to the ninth circuit, the other was in the District of Columbia, appealed to the D.C. circuit, the other in the district of New Jersey, so nine Federal judges. Eight of those Federal judges said it is unconstitutional to use secret evidence. One said he didn't want to reach the issue for jurisdictional reasons, but he had grave doubts about the constitutionality on the merits of using secret evidence.
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And that is the record in terms of recent due process application, and those are all the cases since the Supreme Court made clear in 1982 that aliens are clearly entitled to due process, and that the procedural due process analysis set forth by the Supreme Court in the case called Matthews v. Eldridge applies to deportation proceedings.
Mr. GEKAS. The gentleman is accorded another 1 minute.
Mr. DELAHUNT. Another question. Is there any requirement on the government to establish a showing that the use of secret evidence is essential to meet the burden of proof it carries in these cases?
Mr. COLE. No.
Mr. DELAHUNT. No demonstration.
Mr. COLE. No. All they have to show is that the information is classified and relevant to the proceedings. That is the only legal requirement, classified and relevant.
Mr. GEKAS. Would the gentleman yield the balance of his time to the Chair; then we will end this hearing.
I see something forming in my mind here. I have sincere regrets as one member of what Mr. Kiareldeen had to suffer. That wasthat is totally regrettable. And I remember one time when I was practicing law when a young associate was directed by me to go directly to the jail where one of our clients was imprisoned and to arrange for bail immediately, because you didn't want him to spend 1 minute in jail if he didn't have to, and this young associate failed to do so for a couple of days. And I was infuriated because clearly he was entitled to bail, clearly we could have gotten him out 2 days earlier, and he suffered 2 days of unwarranted imprisonment, and I always felt that I betrayed that youngster who was in jail for 2 extra days.
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Now we are talking about Mr. Kiareldeen, extremely regrettable. I am trying to combine some visions here; one, Mr. Campbell's excellent proposal that perhaps a number of days in jail would prompt either action by the government or release, and then we could combine, I say to the gentleman from Massachusetts, the possible continued surveillance of that individual through legal means to make sure that he did not engage in terrorist activities, et cetera, but at the same time not to permit a long incarceration like the ones we heard here today.
My problem with the 30 days is that there is no judge in the country that can sneeze in 30 days. And I am wondering whether or not we should be using something like 90 days or someeven though that is regrettable in the long run, we have got to combine these visions in some plausible way, in my judgment.
With that, I have indulged long enough. I thank the witnesses, they have helped us a great deal, and we will adjourn with the gratitude of the committee.
[Whereupon, at 3:18 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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(Footnote 1 return)
I speak here in my personal capacity, and not as a representative of Georgetown University Law Center or any other entity or person.
(Footnote 2 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 3 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 4 return)
The due process Clause protects all persons living in this country, whether citizen or alien. It protects even aliens living here unlawfully:
(Footnote 5 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 6 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 7 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 8 return)
Tim Weiner, ''At Rehearing, Iraqi Doctor Wins Round in Deportation,'' N.Y. Times, May 7, 2000, at A19.
(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. 78889 (1950).
(Footnote 10 return)
Acts 25:16 (King James).
(Footnote 11 return)
Wigmore on Evidence 1367 (3d ed. 1940) (quoted in Greene v. McElroy, 360 U.S. 474, 497 (1959)).