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House Immigration Subcommittee hearing
on the "Secret Evidence Repeal Act Of 1999"
On February 10, 2000, the House Immigration Subcommittee held a hearing on HR 2121, the Secret Evidence Repeal Act of 1999. HR 2121 would prohibit the US government from using classified evidence ex parte in immigration proceedings. Subcommittee Chairman Lamar Smith (R-TX) and Ranking Member Sheila Jackson-Lee (D-TX) made opening statements. Representatives Edward Pease (R-IL), Howard Berman (D-CA), Joe Scarborough (R-FL), and John Conyers (D-MI) also attended, but did not make opening remarks.Opening Statements
Chairman Smith: Chairman Smith said, "Federal court cases have established the INS' right to use classified evidence ex parte to deny admission to terrorists or deny claims for relief made by illegal alien terrorists who are trying to avoid deportation." He said classified evidence is rarely used, wherein out of 300,000 cases, only 12 involve secret evidence and out of the 12, only 5 are incarcerated. Chairman Smith said, "HR 2121 would prohibit the government from using undisclosed classified evidence to deny immigration benefits, including asylum, permanent residence, and US citizenship." He said, this bill would require 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."
Representative Jackson Lee: Ms. Jackson Lee said HR 2121 would restore in immigration proceedings "the basic notion of due process under the Fifth Amendment to the US Constitution." She said, the Secret Evidence Repeal Act would either reveal the evidence against a non-citizen, or keep evidence fully secret and outside of immigration proceedings and determinations. Ms. Jackson Lee said the INS has used secret evidence to deny non-citizens bond and relief from deportation, such as asylum.
Panel I
Representative Tom Campbell (R-CA): Mr. Campbell said the "INS is allowed to arrest, detain, and deport non-citizens on the basis of secret evidence." He said, "I am very concerned about the arrest, imprisonment and even forced deportation of individuals based on the evidence that the individual is not afforded an opportunity to review or challenge." Mr. Campbell stated "the Bonior-Campbell bill would ensure that no one is removed, or otherwise deprived of liberty based on evidence kept secret from them." He concluded by saying, "the fight against terrorism need not involve compromise of our most cherished constitutional rights."
Panel II
Mr. Larry Parkinson, FBI General Counsel: Mr. Parkinson said, "the use of such information is necessary to adequately protect the national security," and that the laws currently in place, "strike the best balance between the various interests affected in these cases." He said, "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." Mr. Parkinson emphasized the value to the US in preserving the INS' ability to present appropriately classified evidence in ex parte, in camera proceedings. Quoting the United States v. Mendoza case, Mr. Parkinson said, "the full range of rights guaranteed a criminal defendant, including the Sixth Amendment's right to confrontation of evidence, are not applicable in immigration proceedings."
Panel II: Question and Answer Period
Chairman Smith asked Mr. Parkinson how many people were excluded from secret evidence out of the 300,000 pending cases. Mr. Parkinson responded by saying 12 out of the 300,000 pending cases have used secret evidence against the defendents.
Chairman Smith asked the panel whether the system needs to be improved or is it adequate. Mr. Bo Cooper, INS general counsel said, "secret evidence is a necessary authority for us to have." Mr. Parkinson said there might be room for improvement, but it is certainly a valuable tool in combating terrorism.
Ms. Jackson Lee said she was worried secret evidence is being used as tool by foreign countries to oppress people. She worries other countries could provide false information to US authorities to prevent people from entering the US or facilitate the return of foreign nationals, where they then could face prosecution. Mr. Parkinson said the FBI has a very thorough internal review process, which determines the credibility of the evidence, and what if any repercussions will happen to the person being deported. Mr. Parkinson said, the judges who decide whether the FBI can use secret evidence "are not rubber stamps."
Panel III
Professor David Cole, Georgetown University Law Center: Mr. Cole said the INS' use of secret evidence contains practically no safeguards against abuse. He said the FBI cannot declassify information another agency has classified, even if the information in question should not have been classified. Mr. Cole said "secret evidence is used for guilt by association, and noted that almost all of the aliens have been from the Middle East. He said there is no reason we should not extend due process to immigrants when we seek to deprive them of their liberty and either imprison or deport them. Mr. Cole concluded by saying secret evidence is a practice that cannot be mended, and therefore should simply end.
Mrs. Nahla Al-Arian, Relative of an Affected Alien: Mrs. Al-Arian told the subcommittee that her brother, Mazzen Al-Najjar, is incarcerated under the use of secret evidence. Mr. Al-Najjar is one of the five people incarcerated by use of secret evidence by the FBI. The prior witness, Professor Davis Cole, is the attorney for both Mrs. Al-Arian and Mr. Al-Najjar.
Panel III: Question and Answer Period
Chairman Smith asked the panel whether Mr. Al-Najjar could have left the country when he was originally order deported Mr. Cole answered by saying originally Mr. Al-Najjar could have, but he overstayed his student visa and then was suspected of having terrorist ties.
Chairman Smith asked if law enforcement officials should be concerned when they find reports that individuals are linked to terrorist organizations. Mr. Cole responded by saying yes, but said individuals should be targeted because of criminal conduct, not because they may have associated with someone who committed a crime.
Ms. Jackson-Lee asked the panel about the severity and or legitimacy of secret evidence. Mr. Cole responded by saying classified material is not always highly sensitive and a threat to national security.
Chairman Smith asked the panel whether Mr. Al-Najjar could have left the country when he was originally order deported Mr. Cole answered by saying originally Mr. Al-Najjar could have, but he overstayed his student visa and then was suspected of having terrorist ties.
Chairman Smith asked if law enforcement officials should be concerned when they find reports that individuals are linked to terrorist organizations. Mr. Cole responded by saying yes, but said individuals should be targeted because of criminal conduct, not because they may have associated with someone who committed a crime.
Ms. Jackson-Lee asked the panel about the severity and or legitimacy of secret evidence. Mr. Cole responded by saying classified material is not always highly sensitive and a threat to national security.
http://www.fairus.org/html/08246002.htm
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