Statement on H.R. 2121 -- The Secret Evidence Repeal Act
Before the House Committee on the Judiciary May 23, 2000
Why ADL opposes the Secret Evidence Repeal Act
ADL is pleased to testify today as the Judiciary Committee considers H.R.
2121, the Secret Evidence Repeal Act. Together with the American Jewish
Congress, B’nai B’rith International, Hadassah, and the Jewish Council for
Public Affairs, we represent organizations that have played leadership roles
in support of civil rights and civil liberties in America, as well as
international human rights and religious freedom.
We have also stressed America’s importance as a haven for persons
persecuted and oppressed in their native lands. Working with other religious
and ethnic groups, the Jewish community has championed America’s historic
commitment to fair treatment for all immigrants. For decades, our
organizations have strongly supported broad social welfare coverage and robust
legal and due process protections for new immigrants. However, we oppose
the drastic approach embodied in H.R. 2121, which would strip the government
of important protections against compromising counterterrorism intelligence
sources.
The current system, prescribed by the 1996 immigration reform law,
under which aliens may be detained or denied immigration benefits without
access to full information about the allegations of wrongdoing against them,
clearly falls below the normal standards which form the basis of our
justice system. But any change in law governing the detention of suspected
terrorists, for example, must appropriately balance national security
interests with individual liberty.
At oversight hearings on the threat of terrorism before the Immigration and
Claims Subcommittee in January, 2000, Members heard extensive testimony about
continuing efforts by foreign terrorists to infiltrate the United States to
carry out criminal acts here -- and about individuals who come to the United
States to raise funds for and organize terrorist activity abroad.
Investigating and preventing such acts requires law enforcement officials and
investigators to be able to protect sources and methods.
As this Committee examines the necessary balancing test between an
individual’s rights and national security interests, we urge Members to
reject the approach of H.R.2121 and look to existing models, approved by
Congress and upheld by Federal Courts. These provisions more appropriately
balance the legitimate efforts of the government to protect Americans from
foreign security threats with the responsibility to provide an appropriate
level of due process for aliens at the same time.
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Models balancing national security concerns and the due process rights
supported by Congress and the Federal Courts.
Congress has long grappled with the unique challenge of deterring and
preventing terrorism in a free society -- balancing the need to protect
confidential sources and methods with the due process rights of suspected
terrorists. In 1996, Congress overwhelmingly passed the Antiterrorism and
Effective Death Penalty Act [Public Law 104-132 (1996)] (AEDPA), which provided
one useful model for balancing national security concerns and the due process
rights of aliens accused of terrorist crimes.
The AEDPA established a workable mechanism for addressing sensitive,
classified evidence. Under that law’s carefully crafted provisions, such
information was not required to be entirely revealed to the alien -- but neither
was it permissible to utterly deny aliens (even suspected terrorists) access to
evidence being used against them. Under AEDPA, if the Attorney General
determines that public disclosure of evidence "would pose a risk to the
national security of the United States," a judge must examine, ex parte
and in camera, that evidence and approve an unclassified summary of the
evidence "sufficient to enable the alien to prepare a defense." This
standard affords necessary due process protection for the alien, while allowing
the government, in these limited circumstances, to protect its confidential
sources and methods. The 1996 immigration reform act amended AEDPA, and modified
these standards, significantly reducing due process protections for these
aliens.
Similar procedures which seek to strike this balance are contained within the
Classified Information Procedures Act (CIPA), a statute which has been upheld
against due process challenges. CIPA, 18 U.S.C. App. §§1-16, provides another
useful guide for how to provide an alien with limited access to classified
information -- without unduly compromising national security interests. Under
this procedure, classified evidence may be withheld -- even from US citizens --
where "disclosure of classified information would cause identifiable damage
to the national security.…" The court, upon a sufficient showing, may
permit a substitute -- either a summary of the classified information
"admitting relevant facts that the classified information would tend to
prove" or a summary of the specific classified information." In either
case, the court must find that the statement or summary "will provide the
defendant with substantially the same ability to make his defense as would
disclosure of the specific classified information."
Strangely, H.R. 2121 would extend greater due process protection to aliens
suspected of terrorist activity than is currently accorded to American citizens
and other defendants who seek access to confidential information in their
defense against criminal wrongdoing.
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The Use Of Classified Evidence Should be Rare -- and Oversight by Justice
Department Officials is Appropriate.
Aliens entering the US are entitled to significant procedural due process
protections -- including the opportunity to defend themselves against unfounded
criminal charges. These rights should be safeguarded, but full disclosure of
classified evidence should not be required in those limited circumstances in
which the government can appropriately demonstrate that a specific alien is
suspected of involvement in terrorist activities and that the release of
classified evidence will pose a danger to other persons or threaten national
security. According to press reports, the Deputy Attorney General is now
reviewing each new circumstance in which government officials seek to limit the
evidence provided to a particular alien suspected of involvement in criminal
activities. We welcome this step.
In addition, we believe the Attorney General should review the particular
circumstances of those individuals currently being detained based, in part, on
undisclosed classified information and determine whether relevant evidence of
suspected wrongdoing has been properly withheld. This oversight function
provides another important safeguard against inappropriate withholding of
classified evidence from aliens suspected of terrorist involvement.
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Providing an Appropriate Summary of Classified Evidence Would Help Balance
Competing Concerns.
Any circumstance in which an alien is provided with less than full disclosure
of the evidence against him raises serious concerns. In those limited
circumstances in which national security interests conflict with an individual’s
reasonable due process expectations, we believe the law should require
disclosure of, at least, the nature of the charges and an appropriate summary of
the evidence -- sufficient to permit the alien to prepare a defense. This
approach ensures that the alien would have a more meaningful chance to respond
to unfounded charges.
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Summaries of Classified Evidence Are Admissible in Immigration Proceedings.
The notion of providing aliens with a summary of evidence against them has
been well established within in the statutory scope of immigration court rules
of procedure since 1952. Title 8 of the Code of Federal Regulations governing
immigration courts, clearly allows the admission of a range of federal
investigative reports. These reports are, by their nature, secondary summaries
of information gathered from classified as well as other sources that often are
not identified. The I-213 Record of Deportable Alien report -- the INS document
regarding individual suspected of being present in the US illegally -- can
include references to criminal records and other background derived from sources
other than writer of the report.
Current law allows immigration judges to make a determination about the
probative value of the document and how much relative weight to give a certain
piece of evidence, but never requires their automatic rejection. The judge is
not required to seek original sources and may consider the information, whether
or not the source is identified.
State Department reports assessing country conditions which cite the danger
an individual may face upon their return are admissible -- even if the report is
based on classified information from the CIA, for example, which it does not
source.
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Suspected Alien Terrorists Deserve Due Process Protection No Greater than
that Accorded US Citizens in National Security Cases.
Given the national security concerns in the case of suspected terrorists, why
should the law provide a broader mechanism for discovery for these individuals
than it does for aliens fearing persecution or others seeking relief from
removal?
Our suggested middle-ground approach of providing a summary (such as that
prescribed by CIPA) levels the playing field by providing aliens suspected of
involvement in terrorism cases with the same measure of due process given other
aliens facing removal and the same due process protection given U.S. citizens in
cases in which there are national security concerns. But HR 2121 would allow
much wider privileges to suspected alien terrorists such as:
- Section 4 would allow the alien to "cross-examine all witnesses
presented by the Government" -- rights not currently given to other
aliens seeking immigration benefits or facing removal.
- Section 6 would compel bond hearings to be held on the record -- not
current practice for other categories of detained aliens. The current
practice has not been found constitutionally deficient.
H.R. 2121 seeks to overhaul of the largely-unregulated process of
discovery in immigration law -- but only in terrorism cases.
Moreover, unlike a criminal proceeding, in which a reference to
undisclosed "classified CIA information" may make a strong
prejudicial impression on jurors against the defendant, immigration judges
have more experience with such information and should be better equipped to
independently assess the reliability of undisclosed information and evaluate
the relative weight that should be given a particular source of information.
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H.R. 2121 Unduly Restricts the Ability of Government Officials to Protect
Essential Confidential Sources and Methods.
Senior law enforcement authorities in the US have testified on numerous
occasions before Congress that terrorist organizations seek to use the United
States to plan, organize, and raise funds for terrorist activities here and
abroad. H.R. 2121 too-broadly restricts the ability of law enforcement
officials to protect intelligence sources. In some instances, because the
information provided by intelligence sources is so singular in nature, known
only by very few individuals, revealing it to suspected terrorists detained in
this country would compromise those sources -- who may risk death if exposed.
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H.R.2121 Could Force the Government to Release Terrorists Who Threaten
National Security.
Because this legislation forces the government to choose between releasing
a suspect or exposing intelligence sources, H.R. 2121 could lead to the
release of individuals currently being detained who do, in fact, pose a
terrorist threat. Law enforcement officials maintain that they cannot and will
not expose sources and threaten the lives of personnel in order to move
forward with a prosecution. Forcing this choice is tantamount to the ensuring
the release of these suspects.
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Discrimination or Profiling Solely on the Basis of Ethnicity or Religion is
Always Unacceptable.
Even when faced with the significant threat of international terrorism, law
enforcement officials must never engage in inappropriate stereotyping or
profiling on the basis of ethnicity or religion. Members of specific ethnic or
religious groups should never be singled out for different treatment on the
basis of their personal characteristics. The creation of a sound procedural
due process framework -- coupled with necessary training -- should help guard
against abuses and prevent improper treatment of individuals based on any
erroneous preconceived terrorist "profile."
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Fighting Terrorism is Not a Zero-Sum Game
It is well established that the government has the constitutional right --
and the duty -- to keep our nation from being used as a base for terrorist
activity. Limiting access to the US for individuals involved in terrorism,
establishing sanctions on those nations that support terrorism, and banning
fundraising and material support for foreign terrorist organizations in this
country are important ways in which Congress and the Administration have
attempted to prevent acts of terrorism before they occur. In the same way,
creative means must be used to balance the government’s legitimate security
interests with an alien’s legitimate expectation of due process protection
in immigration proceedings. Congress will continue to grapple with this
daunting challenge, but the ongoing threat posed by individuals who come to
the US to engage in terrorism demands sustained attention.
Finally, it is important to keep in mind that terrorists do not play by our
rules. Given the chance, terrorists and their sponsors in rogue nations will
exploit our democratic freedoms to finance and organize terrorist activity
here and abroad.
We very much appreciate this Committee’s deliberate efforts to examine
the existing procedural due process safeguards for aliens. We believe that the
Administration and Members of Congress are rightly concerned about preventing
misuse of classified information. Rigorous procedures must be in place to
prevent the improper use of classified information against any individual. We
would support appropriate refinements in existing law or administrative
procedures that would provide additional safeguards against abuse, while
maintaining the necessary investigative tools to prevent terrorist acts here
or abroad. H.R. 2121, however, does not provide the proper balance between
national security interests and individual liberty and we urge Congress to
reject this extreme measure.
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