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2000
SECRET EVIDENCE REPEAL ACT OF 1999,
PART II
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 2121
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
HEARING DATE
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OPENING STATEMENT
Hyde, Hon. Henry J., a Representative in Congress From the State of Illinois, and chairman, Committee on the Judiciary
WITNESSES
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 DOCHomburger, 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
APPENDIX
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,
Washington, DC.
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 DOCMr. 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 actions—the 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 Florida—not 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 evidence—his 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.
Mr. Campbell.
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 distinction—and 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 suspend—I 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 out—a 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 to—time 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, 1903—four separate opinions—held 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 deported—fallen 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 way—remember, 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 residence—it has four times—then 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 being—are 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 evidence—and my preference, which I put in this bill—and 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 that—and this is what I am asking—if 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 days—come 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.
Thanks.
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 1992–Feb. 1998. In one secret evidence case, Nasser Ahmed, a 38-year old Egyptian was denied bond, asylum and withholding based on secret evidence. The immigration judge who heard the evidence said that he had ''no doubt'' that Mr. Ahmed would be tortured if returned to Egypt. If the decision in his case had been based only on the evidence in the public record—evidence that Mr. Ahmed had the chance to challenge—Mr. Ahmed would have won his case immediately. Instead, he was held in solitary confinement for approximately three years and was only recently released upon the order of an immigration judge, who ruled that the secret evidence the Government offered it was inadmissable as double or triple hearsay.
Perhaps the most egregious case is that of Dr. Mazen Al-Najjar of Tampa, Florida. Dr. Al-Najjar, a Palestinian-American, 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 oath—it 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 encapsulate—and 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 whichever—Mr. 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 DOCBefore 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 DOCIt 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 removal—asylum, withholding of removal, suspension, or adjustment of status—and other agencies have provided substantive, credible, and relevant classified information which indicates that the alien is ineligible for such relief or does not merit the exercise of discretion, the INS should bring such information to the attention of the immigration court in the interest of the national security.
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There are times when the government has highly relevant classified information that should be considered in determining an alien's immigration status, but the information cannot be made public or disclosed to the alien without harming the national security by compromising intelligence-gathering operations and sources. In such cases the FBI, or whatever other agency has the information, shares it with the INS, and the information is subjected to a clearance process within the Justice Department by all concerned components, at a high level. Once consensus is reached that the alien poses a risk to the national security, or that the classified information is otherwise material to national security issues in the case, the INS presents the information to the immigration judge. The immigration judge then determines how much weight he or she will give to the information. It is important to note that while the ex parte, in camera use of classified information has garnered much media attention, it is in fact quite rare. Classified evidence is involved in only 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 DOCI 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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CASE #2:
Subject #2 applies for immigration relief. He comes to FBI attention as a result of reporting from a very singular and highly reliable source. Information from that source and further FBI investigation demonstrate that Subject #2 is in a leadership position of an organization that assumes responsibilities for gathering intelligence on behalf of a foreign power. Additionally, the FBI investigation shows that the foreign power directly contacts and tasks the individual and provides him with funds. Through the investigation, focusing on Subject #2's contacts, the FBI learns of intelligence activities being conducted by a number of individuals, as well as the methods of operation of both the organization and the individuals. Through a court-authorized electronic intercept targeting a person other than Subject #2, the FBI learns of significant activities by Subject #2 to circumvent United States laws for the benefit of the foreign power.
Disclosure of the classified information in this scenario would reveal the source of the information and, in all likelihood, would preclude further receipt of information from the source. It would reveal, as well, knowledge of the United States concerning the activities of the organization and the individuals supporting it. It would reveal our knowledge of a foreign power's efforts to circumvent United States law, and thereby alert the foreign power to the need to switch to new tactics. Disclosure of the electronic intercept would reveal the investigation and targeting of the other person. In short, the inability to use classified information in this case would do serious damage to the national security.
For all these reasons, the Justice Department is opposed to HR 2121.
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Mr. Chairman, this concludes my statement, and I would be happy to answer the Committee's questions.
Mr. 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 DOCSo 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 use—and this has been clearly sanctioned by the Supreme Court and most the lower Federal courts—the 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 DOCMr. 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.
Hypothetical Example
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 person—perhaps 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
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.
Conclusion
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 authority—we made separately the argument that this is a necessary authority—but 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 use—constitutionally 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 some