Testimony of Congressman Tom Campbell
Committee on the Judiciary
Subcommittee on Immigration and Claims
Hearing on H.R.2121, the Secret Evidence Repeal Act
February 10, 2000
10:00 A.M.
Room 2226 Rayburn House Office Building
Thank you, Chairman Lamar Smith, for allowing me to testify at this hearing today. I would also like to thank Subcommittee Ranking Member Sheila Jackson-Lee, a co-sponsor of H.R.2121, and other Members of the Subcommittee for being present at this important hearing. Today I am pleased to testify in favor of "The Secret Evidence Repeal Act of 1999," a bill to repeal the use of 'secret evidence' in Immigration and Naturalization Service deportation hearings.
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.
According to the Immigration and Naturalization Service, about 25 secret evidence cases are pending currently, and approximately 50 secret evidence cases were filed from 1992 - Feb. 1998. In one secret evidence case, Nasser Ahmed, a 38-year old Egyptian was denied bond, asylum and withholding based on secret evidence. The immigration judge who heard the evidence said that he had "no doubt" that Mr. Ahmed would be tortured if returned to Egypt. If the decision in his case had been based only on the evidence in the public record -- evidence that Mr. Ahmed had the chance to challenge -- Mr. Ahmed would have won his case immediately. Instead, he was held in solitary confinement for approximately three years and was only recently released upon the order of an immigration judge, who ruled that the secret evidence the Government offered it was inadmissable as double or triple hearsay.
Perhaps the most egregious case is that of Dr. Mazen Al-Najjar of Tampa, Florida. Dr. Al-Najjar, a Palestinian-American, is about to mark his 1,000th day of detention based on secret evidence. This 19-year resident of the U.S. was first detained almost three years ago! I'm glad to see that Mr. Al-Najjar's sister, Mrs. Nahla Al-Arian, will be testifying today and I look forward to her testimony.
Virtually all of the "secret evidence" cases have been directed at Muslims and people of Arab descent. This has created a perception in those communities that the Government is targeting them with the most repressive tools available to it. This law is clearly discriminatory and unconstitutional, and we need to take a strong stand against it.
The Secret Evidence Repeal Act would not require the government to release dangerous terrorists. It merely requires the Government to choose whether to reveal the evidence against a non-citizen whose liberty is in jeopardy, or keep that information fully secret and outside of immigration proceedings and determinations. It is common for prosecutors to make similar choices in criminal cases where a person's liberty is likewise at stake. These requirements were applied in prosecutions of truly dangerous terrorists, such as those who bombed the World Trade Center and the federal building in Oklahoma City, and those cases have been successfully prosecuted.
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.
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