House Report 106-981 - SECRET EVIDENCE REPEAL ACT OF 2000

[House Report 106-981]
[From the U.S. Government Publishing Office]

106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-981

======================================================================

SECRET EVIDENCE REPEAL ACT OF 2000

_______

October 17, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following

R E P O R T

together with

DISSENTING AND ADDITIONAL VIEWS

[To accompany H.R. 2121]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the
bill (H.R. 2121) to ensure that no alien is removed, denied a
benefit under the Immigration and Nationality Act, or otherwise
deprived of liberty, based on evidence that is kept secret from
the alien, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.

TABLE OF CONTENTS

Page
The Amendment.............................................. 2
Purpose and Summary........................................ 5
Background and Need for the Legislation.................... 6
Hearings................................................... 15
Committee Consideration.................................... 16
Vote of the Committee...................................... 16
Committee Oversight Findings............................... 17
Committee on Government Reform Findings.................... 17
New Budget Authority and Tax Expenditures.................. 17
Congressional Budget Office Cost Estimate.................. 17
Constitutional Authority Statement......................... 18
Section-by-Section Analysis and Discussion................. 18
Agency Views............................................... 20
Changes in Existing Law Made by the Bill, as Reported...... 20
Dissenting Views........................................... 37
Additional Views........................................... 39

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Secret Evidence Repeal Act of
2000''.

SEC. 2. FINDINGS.

The Congress makes the following findings:
(1) No person physically present in the United States,
including its outlying possessions, should be deprived of
liberty based on evidence kept secret from that person,
including information classified for national security reasons.
(2) Removal from the United States can separate a person
from the person's family, may expose the person to persecution
and torture, and amounts to a severe deprivation of liberty.
(3) Use of secret evidence in immigration proceedings
deprives the alien of due process rights guaranteed under the
United States Constitution and undermines our adversarial
system, which relies on cross-examination as an engine of
truth-seeking.

SEC. 3. APPLICATION OF PROCEDURES USED UNDER CLASSIFIED INFORMATION
PROCEDURES ACT (CIPA) TO IMMIGRATION PROCEEDINGS.

(a) Application of Procedures Used under Classified Information
Procedures Act (CIPA) to Immigration Proceedings.--Chapter 9 of title
II of the Immigration and Nationality Act (8 U.S.C. 1351 et seq.) is
amended by adding at the end the following new section:
``application of procedures used under classified information
procedures act to immigration proceedings
``Sec. 295. (a) Notice of Intended Use of Classified Information.--
``(1) In general.--In any immigration proceeding in which
the Attorney General seeks to use classified information, the
Attorney General shall inform the alien and the presiding
officer in advance. To the maximum extent practicable, if the
Attorney General is initiating such proceeding, the Attorney
General shall provide such notice within 15 days after
initiating the proceeding.
``(2) Limitation.--The Attorney General may seek to use
classified information only in an immigration proceeding in
which the alien is alleged to be deportable under section
237(a)(4)(B) or to oppose an application for admission or an
application for discretionary relief from removal and only
after issuing the following certification:
``(A) Substantially the same information could not
reasonably be developed from open sources.
``(B) The Attorney General has informed the
classifying agency of its intent to use the classified
information in connection with immigration proceedings
and has requested such agency to declassify such
information as is permitted to be declassified under
the President's Executive Order on classification.
``(b) Referral of Classified Matters to District Court.--
``(1) In general.--In the case of an immigration proceeding
in which the Attorney General or the alien moves for a referral
under this section to consider matters relating to classified
information that may arise in connection with the proceeding,
the presiding officer shall forward the petition for review to
a Federal district court for the district in which the alien
resides or the place where the immigration proceedings are
pending, of the use of such information in such proceeding
under subsection (c). Any evidence which is the subject of a
petition shall not be considered in the immigration proceeding
and shall not be examined by the presiding officer, except as
provided in paragraph (3).
``(2) Suspension of immigration proceeding.--In the case of
an order or review provided for under paragraph (1), the
immigration proceeding may be suspended by the presiding
officer pending the disposition of such matter by the district
court involved (and any appeals related to such matter).
``(3) Submission of summary.--In the case of a referral
under paragraph (1)(A), after the application of subsection
(c), the district court shall issue an order to the presiding
officer at the proceeding indicating any unclassified summary
of classified information, and admissions in lieu of disclosure
of classified information, that may be used and the conditions
of its use at the proceeding. The presiding officer shall
determine whether any information approved by the order may be
offered at the immigration proceeding.
``(c) Application of CIPA.--
``(1) In general.--Subject to the succeeding provisions of
this section, in the cases described in subsection (b)(1)
involving review by a Federal district court of the use of
classified information in an immigration proceeding, the
provisions of the Classified Information Procedures Act (18
U.S.C. Appendix III) (in this section referred to as `CIPA')
shall apply to an alien who is a subject of the immigration
proceeding in the same manner as it applies to a defendant in a
criminal proceeding subject to CIPA.
``(2) General rules of application.--In applying subsection
(a), the following general rules apply:
``(A) Any reference in CIPA to--
``(i) a criminal defendant or a trial (or
pre-trial) proceeding is deemed to be a
reference to the alien who is the subject of
the immigration proceeding and to the
immigration proceeding;
``(ii) an indictment or information at
issue is deemed to be a reference to a notice
to appear;
``(iii) a dismissal of an indictment or
information is deemed a reference to
termination of the immigration proceeding
against an alien; and
``(iv) a trial court is deemed a reference
(in the case of an administrative immigration
proceeding) to the presiding officer in such
proceeding.
``(B) The provisions of section 2 of CIPA (other
than the last sentence) shall not be applied.
``(C) The Attorney General shall prescribe rules
establishing procedures for the protection against
unauthorized disclosure of classified information in
the custody of the Federal non-judicial officials in
immigration proceedings. Such rules shall apply instead
of the rules described in section 9 of CIPA.
``(D) Section 12 of CIPA shall not be applied to
immigration proceedings.
``(E) In lieu of the reports described in section
13 of CIPA, the Attorney General shall report annually
and in writing to the chairmen and ranking minority
members of the Committees on the Judiciary of the
Senate and the House of Representatives on the
implementation of this section. Such reports shall
include the following information about each case
brought under this section:
``(i) The alien's country of citizenship
or, if the alien was stateless, the country in
which the alien last habitually resided outside
of the United States.
``(ii) The alien's immigration status.
``(iii) The immigration benefit for which
the alien applied (if any).
``(iv) Whether the Federal district court
approved the summary of classified information
and the deletions or admissions proffered by
the Attorney General.
``(v) Whether the alien was ultimately
ordered removed under section 237(a)(4)(B) or
was granted or denied admission or the benefit
for which the alien applied.
``(d) Disclosure of Exculpatory Evidence.--In any immigration
proceeding under this section, the Attorney General shall disclose to
the alien information that it would be required to disclose to a
defendant in an analogous criminal proceeding under CIPA.
``(e) Construction Concerning Declassification of Information.--
Nothing in this section shall be construed as preventing an alien in an
immigration proceeding from seeking access to classified information
under section 552 of title 5, United States Code, or, in the case of
information which is not disclosed based on section 552(b)(1) of such
title, from initiating an action to seek to declassify some or all of
the information involved.
``(f) Definitions.--For purposes of this section:
``(1) Immigration proceeding.--The term `immigration
proceeding' means any administrative proceeding under this Act.
``(2) Presiding officer.--The term `presiding officer'
means, with respect to an immigration proceeding, the
administrative or judicial official who is presiding over the
immigration proceeding.''.
(b) Conforming Amendment.--Title V of the Immigration and
Nationality Act (8 U.S.C. 1531-1537) is repealed.
(c) Clerical Amendments.--The table of contents for the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended--
(1) by inserting after the item relating to section 294 the
following new item:

``Sec. 295. Application of procedures used under Classified Information
Procedures Act to immigration proceedings.''; and
(2) by striking the title heading, and the items, relating
to title V.

SEC. 4. REPEAL OF USE OF SECRET EVIDENCE IN OTHER IMMIGRATION
PROCEEDINGS.

(a) Alien's Rights in Proceedings.--Section 240(b)(4)(B) of the
Immigration and Nationality Act (8 U.S.C. 1229a(b)(4)(B)) is amended to
read as follows:
``(B) subject to section 295, the alien shall have
a reasonable opportunity to examine all of the evidence
against the alien, to present evidence on the alien's
own behalf, and to cross-examine all witnesses
presented by the Government, and''.
(b) Burden on Alien.--Section 240(c)(2) of such Act (8 U.S.C.
1229a(c)(2)) is amended by striking the last sentence and inserting the
following:
``In meeting the burden of proof under subparagraph (B),
subject to section 295, the alien shall have access to the
alien's visa or other entry document, if any, and any other
records and documents pertaining the alien's admission or
presence in the United States.''.

SEC. 5. REPEAL OF USE OF SECRET EVIDENCE IN BOND PROCEEDINGS.

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226)
is amended by adding at the end the following:
``(f) Aliens' Rights in Bond Proceedings.--Subject to section 295,
in proceedings under this section--
``(1) the alien shall have the privilege of being
represented, at no expense to the Government, by counsel of the
alien's choosing who is authorized to practice in such
proceedings;
``(2) the alien shall have a reasonable opportunity to
examine all of the evidence against the alien, to present
evidence on the alien's own behalf, and to cross-examine all
witnesses presented by the Government; and
``(3) a complete record shall be kept of all testimony and
evidence produced at the proceeding.''.

SEC. 6. REPEAL OF USE OF SECRET EVIDENCE AGAINST LAWFUL PERMANENT
RESIDENTS, ASYLUM SEEKERS, AND ALIENS PAROLED INTO
THE UNITED STATES.

Section 235(c)(1) of the Immigration and Nationality Act (8 U.S.C.
1225(c)(1)) is amended to read as follows:
``(1) Removal without further hearing.--
``(A) In general.--Except in the case of an alien
described in subparagraph (B), if an immigration
officer or an immigration judge suspects that an
arriving alien may be inadmissible under subparagraph
(A) (other than clause (ii)), (B), or (C) of section
212(a)(3), the officer or judge shall--
``(i) order the alien removed, subject to
review under paragraph (2);
``(ii) report the order of removal to the
Attorney General; and
``(iii) not conduct any further inquiry or
hearing until ordered by the Attorney General.
``(B) Excepted aliens described.--An alien
described in this subparagraph is an alien who--
``(i) is a lawful permanent resident;
``(ii) was granted advance parole;
``(iii) was paroled into the United States
under section 212(d)(5); or
``(iv) is seeking asylum.''.

SEC. 7. TRANSITION.

(a) Application to Detainees.--Not more than 30 days after the
effective date of this Act, the Attorney General shall, with respect to
any alien then detained or whose liberty is otherwise restricted by the
Attorney General, on the basis in whole or in part of information
submitted by the Government ex parte and in camera to an immigration
judge, to the Board of Immigration Appeals or to any court--
(1) provide such alien a copy or transcript of such
information, and provide the alien with a redetermination of
bond (or a reconsideration of the terms of custody, as the case
may be) based on evidence disclosed to the alien and the
alien's response to such evidence;
(2) withdraw from the record of any proceedings involving
such alien any and all evidence, testimony, or other
information submitted by the Government ex parte and in camera
to the immigration judge, the Board of Immigration Appeals, or
to any court, as the case may be, and--
(A) release such alien if such alien is detained;
and
(B) cease all restrictions on the liberty of such
alien if such restrictions exist,
unless detention is warranted solely on the basis of evidence
disclosed to the alien; or
(3) release such alien.
(b) Application to Aliens Seeking Immigration Benefits.--Not more
than 30 days after the effective date of this Act, the Attorney General
shall, with respect to any alien physically present in the United
States whose application for an immigration benefit is or was opposed
by the Government on the basis in whole or in part of information
submitted by the Government ex parte and in camera to an immigration
judge, to the Board of Immigration Appeals, or to any court--
(1) provide such alien a copy or transcript of such
information and a reasonable opportunity to respond to such
information, and grant or deny the application or reopen the
proceedings and afford the alien de novo reconsideration of the
application, as the case may be, based solely on evidence in
the public record;
(2) withdraw from the record of any proceedings involving
such alien any and all evidence, testimony, or other
information submitted by the Government ex parte and in camera
to the immigration judge, the Board of Immigration Appeals, or
to any court, as the case may be, and grant or deny the
application or reopen the proceedings and afford the alien de
novo reconsideration of the application, as the case may be,
based solely on evidence in the public record; or
(3) grant the application.
(c) Termination of Proceedings.--In the case of an alien in
immigration proceedings as of the effective date of this Act conducted
under title V of the Immigration and Nationality Act--
(1) such proceedings are terminated as of the effective
date of this Act without prejudice to the Attorney General or
the alien; and
(2) the Attorney General may, in his or her discretion,
commence de novo removal proceedings within 10 days thereafter
under section 240 of the Immigration and Nationality Act (8
U.S.C. 1229a).

SEC. 8. REGULATIONS.

The Attorney General shall promulgate regulations, including
regulations governing applications for asylum, withholding of
deportation or removal, adjustment of status, naturalization, temporary
protected status, and relief from deportation, exclusion, or removal to
implement this Act not more than 90 days after the effective date of
this Act.

SEC. 9. EFFECTIVE DATE.

The amendments made by this Act shall take effect on the date of
the enactment of this Act and shall apply to all aliens without regard
to the date of arrival, admission, entry, or parole into the United
States.

Purpose and Summary

The Secret Evidence Repeal Act, H.R. 2121, is intended to
apply quasi-criminal procedures to quasi-criminal allegations
that arise in the immigration context involving people who are
alleged terrorists or threats to national security. Because the
allegations are grave, and the procedures used to address those
allegations raise substantial due process issues, the committee
has ordered reported a bill that would impose, in those few
extraordinary cases involving classified information,
procedures similar to those used in criminal cases involving
classified information.
The use of Classified Information Procedures Act (``CIPA'')
procedures in the immigration context was raised in debate over
5 years ago and suggested in recent hearings before both the
Full Committee and the subcommittee by proponents and opponents
of H.R. 2121.\1\ The CIPA procedures in H.R. 2121 have been
adapted to ensure that where the Government has classified
information relating to truly dangerous aliens, it may use the
information if it provides an unclassified summary of the
classified information that gives the alien ``substantially the
same ability to make his defense as would disclosure of the
specific classified information.'' This standard, drawn from
CIPA, has successfully and constitutionally balanced national
security interests and the rights of the defendant in criminal
cases involving classified information.
---------------------------------------------------------------------------
\1\ C.I.P.A., 18 U.S.C.A. App. 3. See Infra.
---------------------------------------------------------------------------

Background and Need for the Legislation

I. Statutes Codifying Use of Secret Evidence

Since the 1950's, the government has maintained that secret
evidence, information not disclosed to a defendant for national
security or other reasons, could be used in deportation
proceedings. In 1996, Congress passed a series of immigration
measures that codified the use of this implied authority by the
Immigration and Naturalization Service (``INS'') in certain
immigration proceedings. These statutes have had the effects of
depriving immigrants of the most basic due process rights
afforded by the fifth amendment of the Constitution in the
immigration context.
In addition, the 1996 Antiterrorism and Effective Death
Penalty Act established an ``Alien Terrorist Removal Court''
that was charged only with hearing cases in which the
Government seeks to deport aliens accused of engaging in
terrorist activity based on secret evidence submitted in the
form of classified information.\2\ By effectively prohibiting
defendants from confronting the evidence in their deportation
proceedings, the procedures of this court are substantially
more restrictive than those employed in the criminal context
under Classified Information Protection Act.
---------------------------------------------------------------------------
\2\ See title V of the Immigration and Nationality Act, 8 U.S.C.A.
1531-1537.
---------------------------------------------------------------------------
The 1996 Illegal Immigration Reform and Immigrant
Responsibility Act (IIRAIRA) expanded the secret evidence court
so that secret evidence could be more easily used to deport
even lawful permanent residents as terrorists.\3\ The statute
also included provisions the Government relies upon to use
secret evidence to deny a bond to any detained non-citizen
(regardless of whether the person is accused of engaging in
``terrorist activity'') and to deny various discretionary
immigration benefits such as asylum to any non-citizen,
including those not accused of being terrorists.
---------------------------------------------------------------------------
\3\ See, e.g., The Immigration and Nationality Act, 8 U.S.C.A.
1225, 1226, 1229.
---------------------------------------------------------------------------
While the Alien Terrorist Removal Court has not yet heard
its first case, the INS has moved in dozens of other
proceedings to use secret evidence against non-citizens to deny
them bond and relief from deportation. Persons from the Middle
Eastern community have been particularly hard hit by these
measures. In some cases, defendants have been denied open
hearings and the ability to confront the evidence against them
for a term of years.

II. Courts Have Held the Use of Secret Evidence in Deportation Cases
Unconstitutional

Prior to the passage of the 1996 legislation, the INS
relied upon its implied authority to use secret evidence in
deportation cases.\4\ In Jay v. Boyd, the government's
principal case, the Supreme Court considered a statutory
challenge to a decision denying suspension of deportation as a
matter of discretion.\5\ The court expressly indicated that it
was deciding the case on statutory, as opposed to
constitutional grounds, and decided that the statute did not
preclude the use of secret evidence.\6\ The Government,
however, relies on dictum in a footnote in the case suggesting
that the particular use of secret evidence in the exercise of
discretion in that case would not give it ``difficulty'' as a
constitutional matter.\7\ Recently, courts have distinguished
Jay because the Court did not reach the constitutional issue of
whether use of secret evidence in an immigration proceeding
violated the Due Process Clause of the fifth amendment.
---------------------------------------------------------------------------
\4\ Secret evidence in the form of classified information often
consists of mere rumor and innuendo, inherently unverified and
unverifiable. Sometimes, it can be something as ``secret'' as a
newspaper clipping the substance of which could be refuted if only it
was known. In U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950),
secret evidence was used to deny a WWII ``war bride'' the opportunity
to come to the U.S. and join her husband. When eventually she was
granted a hearing, the secret evidence was found to be worthless
because the ``confidential source'' that offered it turned out to be a
jilted former lover of her husband.
\5\ 351 U.S. 345 (1945).
\6\ 351 U.S. at 358, fn. 21.
\7\ Id.
---------------------------------------------------------------------------
In Mathews v. Diaz, the Supreme Court noted that ``There
are literally millions of aliens within the jurisdiction of the
United States. The fifth amendment, as well as the 14th
amendment, protects every one of these persons from deprivation
of life, liberty or property without due process of law. Even
one whose presence in this country is unlawful, involuntary or
transitory is entitled to constitutional protection.'' \8\
Accordingly, every court to address the constitutional question
in the last dozen years has found the use of secret evidence in
immigration proceedings against a person admitted to the United
States, or seeking admission as a lawful permanent resident
returning from a trip abroad, unconstitutional under the Due
Process Clause of the fifth amendment.\9\
---------------------------------------------------------------------------
\8\ 426 U.S. 67, 77 (1976) (emphasis added).
\9\ The sixth amendment to the U.S. constitution prohibits the
government from using secret evidence in criminal proceedings against
both citizens and non-citizens. Instead of using secret evidence, the
government relies on the Classified Information Procedures Act, 18
U.S.C. App. 3, to protect classified information in criminal cases.
CIPA does not permit the use of evidence that is not also provided the
accused and sets out procedures to redact classified information for
use in those proceedings. Such procedure are not required by statute in
the civil immigration context, but have been implemented to a degree by
INS regulation. See, Infra.
---------------------------------------------------------------------------
For example, In Rafeedie v. INS, the court rejected an
attempt by the INS to use secret evidence to exclude a lawful
permanent resident from the United States upon his return from
a trip abroad.\10\ In reaching this decision, the court said,
``. . . Rafeedie--like Joseph K. in Kafka's `The Trial'--can
prevail . . . only if he can rebut the undisclosed evidence
against him, i.e. prove that he is not a terrorist regardless
of what might be implied by the government's confidential
information. It is difficult to imagine how even someone
innocent of all wrongdoing could meet such a burden . . .''
\11\
---------------------------------------------------------------------------
\10\ 880 F.2d 506 (D.C. Cir. 1989)
\11\ Id. at 516.
---------------------------------------------------------------------------
Similarly, in American-Arab Anti-Discrimination Committee
v. Reno, the court rejected an attempt by the INS to deny
legalization to two Palestinians it accused of associating with
a terrorist organization.\12\ In characterizing the INS use of
secret evidence in that case, the court said, ``One would be
hard pressed to design a procedure more likely to result in
erroneous deprivations.'' \13\
---------------------------------------------------------------------------
\12\ 70 F.3d 1045 (9th Cir. 1995).
\13\ Id. at 1069 [citations omitted].
---------------------------------------------------------------------------
Most recently, a Federal district court ordered the release
of hearing witness Hany Kiareldeen after he had been detained
for 19 months based on secret evidence that is believed to have
been offered by his estranged wife, with whom he was having a
custody battle. In granting Mr. Kiareldeen's petition for
habeas corpus, the court cited the Supreme Court's decision in
Bridges v. Wixon and said, ``The court cannot justify the
government's attempt to `allow [persons] to be convicted on
unsworn testimony of witnesses--a practice which runs counter
to the notions of fairness on which our legal system is
founded.'' \14\
---------------------------------------------------------------------------
\14\ Kiareldeen v. Reno, 71 F.Supp.2d 402, 419 (D.N.J. 1999).
---------------------------------------------------------------------------
These cases establish the simple proposition that the use
of secret evidence cannot be squared with due process. When the
government is free to introduce its evidence behind closed
doors, all the requisites of a fair adversarial process have
been abandoned. No person should be deprived of liberty on the
basis of evidence kept secret from that person. This simple
statement is a fundamental requisite of any fair legal system.
This legislation would restore the most basic notions of due
process to immigration proceedings and promote the Supreme
Court's promise that citizens and non-citizens alike are
protected by the Due Process clause of the fifth amendment.

III. The INS's Use of Secret Evidence Lacks Meaningful Safeguards

The INS is currently using secret evidence to detain and/or
deny immigration benefits such as political asylum to at least
11 aliens. It has admitted to using secret evidence
approximately 50 times from 1992-98. It detained one Egyptian
man, Nasser Ahmed, for over 3\1/2\ years mostly in solitary
confinement--based on secret evidence. He was released last
year by an immigration judge who found that the secret evidence
was unreliable and that some of it could have been gathered
from non-confidential sources and used in open court.
Initially, he was given a one-sentence summary of the
classified information that the immigration judge deemed
``largely useless.'' Similarly, Dr. Mazen Al-Najjar has been
detained in Tampa, Florida for over 3 years based on secret
evidence. The only summary of the secret evidence he has
received is a single sentence stating that it concerns his
alleged association with an organization that has engaged in
terrorism.
A. The use of secret evidence is not restricted to individuals posing a
threat to national security
As currently applied, INS policy does not limit its use of
secret evidence to national security risks. Its regulations
permit the use of secret evidence anytime that it deems
classified information relevant to an application for an
immigration benefit. If the INS had classified evidence that an
individual's marriage was not bona fide, for example, an issue
that in itself poses no security concern, its regulations would
nonetheless permit it to present that evidence behind closed
doors. There is no requirement that it first attempt to make
its case without relying on secret evidence. Most
problematically, there is no requirement that the INS limit its
use of secret evidence to individuals who truly pose a threat
to national security, such as, for example, individuals who
have committed or were planning to commit criminal conduct
threatening national security.
B. The INS often uses improperly classified evidence, and only
declassifies it when its actions are challenged
Notwithstanding the question of the validity of secret
procedures where evidence is properly classified, there is no
justification for using those procedures where evidence does
not in fact need to be confidential. However, advocates
maintain that the INS and FBI have repeatedly presented
evidence in camera and ex parte that could and should have been
disclosed from the outset. While this is more an issue with the
FBI, which is generally the classifying agency, than the INS,
overclassification is a critical problem with current
practices.
For example, in 1998, the INS initially relied on secret
evidence to exclude several Iraqis who were accused of being
double-agents after the United States airlifted them from Iraq
on the heels of a failed coup attempt against Saddam Hussein.
When former Director of Central Intelligence James Woolsey took
their case on and brought substantial congressional and media
pressure to bear on the INS, the government found that it was
suddenly able to declassify over 500 pages of the previously
secret evidence. One of the Iraqis initially detained on secret
evidence, Dr. Ali Yasin Mohammed Karim, has now had an
opportunity to respond to the declassified evidence, and on
that basis the immigration judge in his case has reversed
herself and tentatively ruled that Dr. Karim is not a threat to
national security and should be granted asylum and released
from custody.
These cases illustrate an inherent structural problem. The
evidence that the INS generally presents in secret is not
classified by it, but by another agency, usually the FBI. If
the FBI overclassifies, as it apparently did in the cases
described above, the INS has no authority to second-guess the
FBI's judgment. Nor does the immigration judge. Moreover, when
an FBI agent makes a decision to classify, it is usually in the
context of a counterterrorism investigation, where he is
effectively weighing an abstract public right to know against
the need for confidentiality of an investigation. In that
situation, agents naturally err on the side of classifying. But
when that evidence is then used to deprive an alien of his
liberty, there is no requirement that anyone review the
classification decision. In other words, no one asks whether
the classification decision might come out differently when the
interest on the other side of the balance is not an abstract
public right to know, but the very specific interest of a human
being seeking to regain his liberty. This structural flaw can
lead to years of wholly unnecessary detention.
C. The INS uses secret evidence without clear statutory authority
One of the most common uses of secret evidence by INS is to
justify detaining an alien without bond while his deportation
hearing is pending. This practice can and has resulted in the
detention of aliens for years without ever seeing the evidence
against them, even where the only formal charge against them is
that they overstayed their visa. Yet there is no statutory
authority for this practice. While Congress has authorized the
INS to use secret evidence in a variety of settings, the only
statutory authorization to use secret evidence to detain an
individual while his deportation proceedings are pending is 8
U.S.C. Sec. 1536(a)(2)(B) (1997), which applies only to ``alien
terrorists'' under special deportation hearings held in the
Alien Terrorist Removal Court. The INS has never invoked the
Alien Terrorist Removal Court procedures, but nonetheless has
repeatedly used secret evidence to detain aliens not in those
procedures, and not accused of being ``alien terrorists.''
D. INS regulations do not require that the alien be provided a
meaningful declassified summary of secret evidence
INS regulations permit the use of secret evidence without
providing a summary of the evidence to the alien. While the
regulations state that a summary should be provided when
possible, there is no requirement that a summary be provided,
or that the summary afford the alien a meaningful opportunity
to respond. See, e.g., 8 C.F.R. Sec. 103.2(a)(16) (1996),
242.17(a), (c)(4)(iv)(1996); 8 CFR Sec. 240.11(c)(3)(iv)
(1997). An alien may be told only that secret evidence shows
that he must be detained, without even a hint as to what the
evidence consists of or the allegation contained therein. In
such a situation, it is literally impossible to present a
defense.

IV. Secret Evidence Provisions Have Had a Disparate Impact on the Arab
Community

The case of Nasser Ahmed, a 37-year old Egyptian who was
denied bond, asylum and withholding based on secret evidence,
is typical. If the decision in his case had been based on the
evidence in the public record--evidence that Mr. Ahmed had the
chance to challenge--he could have had a fair chance at a
timely hearing. Instead, Mr. Ahmed spent 3 years in detention,
mostly in solitary confinement, while fighting secret evidence.
On granting his release and political asylum, an immigration
judge found the secret evidence to be unreliable because it
consisted of double or triple hearsay. The immigration judge
also was troubled by the fact that a lot of the evidence
appeared to originate from the Egyptian government, the alleged
persecutor.
Secret evidence is also being used to detain in Florida,
without bond, Mazen Al-Najjar, a stateless Palestinian and 18-
year resident of the United States. Despite his long residence
and community contacts, his request for bond was denied on te
basis of secret evidence. The full committee hearing marked his
1,000th day in detention, without disclosure of the allegations
that form the basis for his detention.
The INS is also using secret evidence in cases involving
seven Iraqis airlifted by the U.S. from Northern Iraq because
they were part of a failed CIA plot to destabilize the regime
in Iraq headed by Saddam Hussein. The INS the Iraqis political
asylum based on secret evidence. A legal team including former
Director of Central Intelligence R. James Woolsey represents
this group. Mr. Woolsey, who was himself denied the opportunity
to see the evidence against his clients, commented that secret
evidence is what ``one would expect to find in Iraq, not the
U.S.'' Five of the seven recently agreed to be deported in
exchange for release from custody with certain limitations on
their liberty while they search for a foreign country that will
accept them.
As a general matter, the use of secret evidence has
undermined the confidence of the Middle Eastern community in
law enforcement. Cases around the country have highlighted how
current secret evidence procedures have led investigators to
focus on the wrong people and sow further community mistrust.
If investigators believe that arab communities really contain
serious numbers of terrorists (and there is no evidence to
support this conclusion), the last thing we should do is adopt
tactics that make an entire community view law enforcement as
the enemy.

V. Analysis of Procedures Established in H.R. 2121

The use of procedures similar to those set out in the
Classified Information Procedures Act in the immigration
context was suggested in hearings before both the Full
Committee and the subcommittee by proponents and opponents of
H.R. 2121. In fact, the committee heard testimony as many as 5
years ago about how CIPA procedures might be adapted to
immigration proceedings involving classified information. The
committee was spurred to action by the failure of the
Department of Justice to utilize similar procedures, even when
required to do so by a Federal court and even after promising
for nearly 2 years to issue regulations that would ensure
fairness when it uses classified information.
This legislation is narrowly tailored and designed to
ensure that where the Government has classified information
relating to truly dangerous aliens, it may use the information
if it provides an unclassified form of the classified
information that gives the alien ``substantially the same
ability to make his defense as would disclosure of the specific
classified information.'' This legal standard is familiar to
the government and is drawn from CIPA, a set of Congressionally
mandated procedures with a proven track record for
constitutionally balancing national security interests and the
rights of the defendant in criminal cases involving classified
information.
A. H.R. 2121 is focused on a narrow class of immigration cases
Currently, the Immigration and Nationality Act authorizes
the INS to use classified information to deny admission, to
deny immigration benefits such as political asylum, and, at the
Alien Terrorist Removal Court established under title V of the
INA, to affirmatively remove a person under INA section
237(a)(4)(B) who is alleged to have engaged in terrorist
activities. The Secret Evidence Repeal Act is crafted to limit
the use of classified information to these situations, and no
others. The legislation gives the Government the option to keep
classified information fully secret and outside of the
proceedings altogether, to disclose it to the alien so he can
defend against it, to continue to investigate until it develops
information from other sources that can be used publicly, or,
to employ new procedures set out here in Federal district
court.
Under this H.R. 2121, when the Attorney General is
authorized to use classified information, the Department of
Justice is empowered to ask that the immigration proceedings be
suspended so that the classified information can be handled by
a Federal district court. The court would, as it does in a pre-
trial hearing under CIPA, oversee the creation of an
unclassified summary of the classified information that meets
the standard set forth in section 6(c) of CIPA.\15\ The judge
could also order certain deletions of classified information.
The substituted summary--which would be given to the
immigration judge and the alien--must provide the alien with
substantially the same opportunity to make his defense and
rebut the allegations against him as would disclosure of the
specific classified information. It is the committee's intent
that this strict standard drawn from CIPA and explained in its
legislative history apply in proceedings brought under the new
section 295 in the same manner CIPA applies to defendants in
criminal proceedings.
---------------------------------------------------------------------------
\15\ 18 U.S.C.A. App. 3.
---------------------------------------------------------------------------
The Federal district court is expected to address any
constitutional questions in these proceedings, including
questions as to whether the substituted evidence adequately
protects the due process rights of the alien. If the Attorney
General believes that the judge's decision about the summary is
incorrect, she can take an interlocutory appeal to the
appellate court with jurisdiction. However, the alien would
appeal any such findings only in connection with review of any
final order of deportation.
The Federal district court judge would provide the
unclassified summary and any other documents (with classified
information deleted) to the immigration judge and to the alien
so that the proceedings could continue, in the open. There
would be no ``secret evidence'' as such in the immigration
proceeding because the immigration judge would base his
decision on the same information that is shared with the alien
and made part of the public record. This procedure ensures that
the immigration judge will not be prejudiced by information
kept secret from the alien, just as a jury in a CIPA case is
not prejudiced by information kept secret from the defendant.
The Secret Evidence Repeal Act also repeals title V of the INA,
which established the Alien Terrorist Removal Court. The court,
which has never been invoked by the INS, is unnecessary because
all immigration matters in which classified information is
authorized to be used will be handled as indicated in this
legislation.
Section 3 adds a new section 295(a) to the INA that limits
the circumstances in which classified information can be
considered to those in which the INA currently permits
consideration of classified information. It also requires the
Attorney General to certify that use of the information is
necessary because substantially the same information cannot be
reasonably developed from open sources. It also requires the
Attorney General to seek declassification of the classified
information. This section does not require declassification,
but is instead intended to trigger an expedited process wherein
the classified information is evaluated for declassification.
It is the committee's intent that the certification required by
this section be made by the Deputy Attorney General or the
Attorney General, or a person acting in such position, and that
authority to make the certification may not be delegated to
another person.
Section 3 also adds a new section 295(b) that establishes
procedures for referral of classified matters to the Federal
district court. The matter can be referred either to the court
in which the alien resides, or the place where the proceedings
are pending, but not to both. While the district court
considers the classified information, the presiding officer may
suspend the proceedings, or allow them to continue while
matters that do not relate to the classified information are
addressed.
The Secret Evidence Repeal Act does not require the
presiding officer to accept into evidence all of the
information approved for disclosure by the Federal district
court. The presiding officer retains discretion as to what
evidence will be admitted. For example, a confession made
abroad and approved by the district court with certain
classified information deleted may be excluded from evidence if
the presiding officer believes the confession is unreliable
because the confessant was tortured.
The committee intends that the Federal district court
conduct its review of the classified information expeditiously
and in the same manner it would review classified information
in a CIPA case, subject to the rules of application in section
3. New section 295(d) is intended to give an alien in the
Federal district court proceedings authorized under this act
access to the same information against him that would be
required to be disclosed in analogous proceedings under CIPA.
This provision requires the disclosure of no more information
than would be disclosed to a defendant in a criminal
proceeding. It is intended, among other things, to ensure that
the alien has the information he or she would need to contest
the adequacy (under the strict CIPA standard) of the
substituted information that is to be provided the presiding
officer.
Section 4 of the bill amends section 240 of the INA to make
it clear that subject to section 295, the alien shall have
access to all of the evidence against the alien and an
opportunity to cross-examine all witnesses presented by the
Government. Likewise, section 5 of the bill is intended to make
it clear that in bond proceedings, the alien shall have access
to all of the evidence against him and to cross-examine all of
the Government's witnesses. It also requires the keeping of a
complete record of the testimony and evidence produced at the
proceeding.
Section 6 excepts from the procedures in section 235(c)
returning lawful permanent residents, aliens granted advance
parole, parole under section 212(d)(5) and aliens seeking
asylum. Section 7 establishes rules for pending cases.
H.R. 2121 effects only a small percentage of all
immigration cases and leaves the Government's ability to use
confidential information largely intact. For example, section
235(c) provides that if an immigration officer or immigration
judge suspects that an arriving alien may be inadmissible on
certain national security grounds, the person may be ordered
removed without further review, except by the Attorney General,
who is empowered to base her decision on ``confidential
information'' that need not even be classified. Section 6 of
H.R. 2121 does not prohibit the use of secret evidence in
removal proceedings under section 235(c).
In fact, it preserves the use section 235(c) against the
vast majority of aliens seeking admission. It excepts asylum
seekers, parolees, and returning lawful permanent residents
from section 235(c). They represent only a tiny proportion of
the 29 million people the INS admits each year. In the rare
case when an asylum seeker, parolee, or returning lawful
permanent resident is believed inadmissible based on secret
evidence alleged to show that the person is a threat to
national security, the procedures in section 295 would be
available to the Attorney General. They would both protect the
national security and preserve the rights of the person seeking
admission.
B. H.R. 2121 does not ban the use of classified information
Arguments that H.R. 2121 would effectively ban the use of
classified information in immigration proceedings misread the
legislation. Rather than banning the use of classified evidence
in immigration proceedings, the legislation establishes a
procedure under a new section 295 of the INA for handling
classified information. Section 3 of the bill eliminates the
Alien Terrorist Removal Court because the class of cases that
would have gone to the ATRC would now go to Federal district
court under section 295.
The establishment of the procedures in H.R. 2121 are
consistent with Congress's duty to protect due process and a
recognition of the liberty interests at stake in immigration
proceedings. For example, under section 237(a)(4), an alien can
be deported as a ``terrorist'' if he has ``engaged in terrorist
activity'' by preparing, planning or otherwise assisting in
activity such as hijacking, assassination, kidnapping and using
bombs and guns with intent to endanger the safety of the person
or damage property. In 1996, the committee recognized the
extraordinary nature of such proceedings, and the need for
additional procedural protections, when it created the Alien
Terrorist Removal Court, ensured that it was composed of
independent article III judges, and gave indigent aliens
appearing before the ATRC a right to counsel at taxpayer
expense. The limitation language in section 3(a) of H.R. 2121
reflects the current circumstances in which the government is
empowered by statute, in title V, section 240(b)(4)(B) and
section 235(c), to use classified information in the
immigration context. This legislation neither expands nor
contracts these circumstances.
In the extraordinary case that would be brought under
section 295, immigration adjudicators would be given access
only to the same evidence that is in the public record and made
available to the alien. This would include the summary of
classified information and any other material provided by the
Federal district court, with classified information deleted.
The immigration adjudicator as the trier of fact would thus be
put in a position analogous to a jury in a CIPA case, when it
acts as a trier of fact. To suggest that the immigration
adjudicator ought to have access to as well to national
security information that is kept secret from the alien is to
condone the use of secret evidence and denigrate due process--
exactly what the bill is designed to prevent.
C. H.R. 2121 does not endanger national security by expanding the
rights of aliens
Some have claimed that limitation on the use of secret
evidence would allow dangerous aliens to go free. These claims,
however, lack merit. For example, it is difficult to understand
why the INS would seek to remove from the United States an
alien suspected of being involved in the Khobar Towers bombing
that claimed the lives of 19 American servicemen where such a
bombing is a crime under our laws, as some have argued. It
seems that the better course of action would be to charge the
person and try them here. To remove such a person runs the risk
that they will escape prosecution abroad, and attempt more
murderous activity against Americans. Nonetheless, under H.R.
2121, the Attorney General would not be required to bring
criminal charges. Under H.R. 2121, such a suspect seeking
admission would be removed under section 235(c) or under
section 295, depending on whether the suspect arrived seeking
asylum.
Similarly, claims that H.R. 2121 expands the discovery
rights of aliens in immigration proceedings is exaggerated.
Under section 240(b)(4)(B), an alien in removal proceedings is
guaranteed a reasonable opportunity to examine the evidence
against the alien, present evidence on the alien's own behalf
and cross-examine witnesses presented by the Government. The
section includes an exception for ``national security''
information in some circumstances. This right is similarly
guaranteed under H.R. 2121 in new INA section 295.
Further, under rule 16 of the Federal Rules of Criminal
Procedure, a person accused of a crime is entitled to
information relevant to his or her defense. This rule governs
access to information in criminal proceedings involving
classified information brought under the Classified Information
Procedures Act. H.R. 2121 gives an alien in proceedings under
section 295 the same discovery rights as a person accused of a
crime in a CIPA case to ensure that the alien will have the
information necessary to contest the adequacy of the summary of
classified information prepared by the Government for approval
by the judge. This provision will not give aliens accused of
being terrorists ``free reign'' to rummage through classified
information and discover sources and methods.\16\ Moreover,
section 3(d) does not confer discovery rights on any person who
is not in section 295 proceedings.
---------------------------------------------------------------------------
\16\ See, e.g., U.S. v. Yunis, 867 F.2d 617 (D.C. Cir. 1989)
(defendant's access to information in a CIPA case is limited by
governmental privilege similar to informant's privilege identified in
Rovario v. U.S., 353 U.S. 53 (1957)).
---------------------------------------------------------------------------

Conclusion

The defects of legal proceedings conducted in secret have
been recognized for centuries. In the Bible, under Roman law, a
man charged with criminal conduct should ``have the accuser
face to face, and have license to answer for himself concerning
the crime laid against him.'' \17\ Similarly, Wigmore, the
noted expert on evidence, has written that ``[f]or two
centuries past, the policy of the Anglo-American system of
evidence has been to regard the necessity of testing by cross-
examination as a vital feature of the law.'' \18\ It would be
difficult to identify anything more as fundamental to a fair
legal process than the right of each party to examine and
confront the evidence against it. When we deny that right to
aliens, we not only denigrate their rights, but demean our own
system of justice. As a matter of consistent constitutional
policy, procedures for the use of secret evidence should be
corrected to reflect the values articulated by our courts and
the Constitution.
---------------------------------------------------------------------------
\17\ Acts 25:16 (King James).
\18\ 5 Wigmore on Evidence 1367 (3d ed. 1940) (quoted in Greene v.
McElroy, 360 U.S. 474, 497 (1959)).
---------------------------------------------------------------------------

Hearings

The committee's Subcommittee on Immigration and Claims held
a hearing on H.R. 2121 on February 10, 2000. Testimony was
received from Rep. Bonior of Michigan; Rep. Campbell of
California; Professor David Cole of Georgetown University Law
Center; Ms. Nahla Al-Arian; and Mr. Larry Parkinson, General
Counsel for the Federal Bureau of Investigation, with
additional material submitted by six individuals and
organizations. The committee held a hearing on H.R. 2121 on May
23, 2000. Testimony was received from Reps. Bonior and
Campbell; Mr. Parkinson; Mr. Bo Cooper, General Counsel of the
Immigration and Naturalization Service; Mr. Gregory Nojeim of
the American Civil Liberties Union; Professor Cole; Mr. Hany
Kiareldeen; Ms. Al-Arian; Mr. Bruce Ramer of the American
Jewish Committee; Mr. Thomas Homburger of the Anti-Defamation
League; Mr. Steven Emerson; and Mr. Stephen Flatow.

Committee Consideration

On Tuesday, September 26, the committee met in open session
and ordered favorably reported the bill H.R. 2121 with an
amendment in the nature of a substitute by voice vote, a quorum
being present.

Vote of the Committee

There was one recorded vote on an amendment in the nature
of a substitute offered by Rep. Barr of Georgia. The amendment
made three changes to the bill as introduced: 1) modifying
section 3 to allow an unclassified summary of classified
evidence prepared in accordance with the Classified Information
Procedures Act to be used in some immigration proceedings; 2)
deleting section 5, which would have prohibited any immigration
benefit from being adjudicated on the basis of any evidence not
shared with the applicant; and 3) deleting section 6(a), which
would have provided an additional habeas corpus appeal to any
alien held in detention or released on bond or parole. Adopted
26-2.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. X .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Rogan....................................................... X .............. ..............
Mr. Graham...................................................... X .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... X .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... X .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... .............. X ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
-----------------------------------------------
Total....................................................... 26 2 ..............
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

Committee on Government Reform Findings

No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 2121, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, October 12, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2121, the Secret
Evidence Repeal Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.

Enclosure

cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 2121--Secret Evidence Repeal Act of 2000.
H.R. 2121 would prohibit the use of classified evidence
against aliens in immigration proceedings. Because there are
only about 10 proceedings involving such evidence in any year,
CBO estimates that enacting the bill would have no significant
impact on federal spending. H.R. 2121 would not affect direct
spending or receipts, so pay-as-you-go procedures would not
apply.
Section 4 of the Unfunded Mandates Reform Act excludes from
the application of that act legislative provisions that enforce
constitutional rights of individuals. CBO has determined that
the provisions of H.R. 2121 deal with the due process rights of
aliens in immigration proceedings and thus would fall within
that exclusion.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in article I, section 8, clause 4 of the
Constitution.

Section-by-Section Analysis and Discussion

Sec. 1. Short Title. The short title for H.R. 2121 is the
``Secret Evidence Repeal Act of 2000.''
Sec. 2. Findings. No person physically present in the
United States should be deprived of liberty based on evidence
kept secret from that person, including information classified
for national security reasons. Removal from the United States
can separate a person from the person's family, may expose the
person to persecution and torture, and amounts to a severe
deprivation of liberty. The use of secret evidence in
immigration proceedings deprives an alien of due process rights
guaranteed under the United States constitution and undermines
our adversarial system, which relies on cross-examination as an
engine of truth seeking.
Sec. 3(a). Application of Procedures Used Under Classified
information Procedures Act (``CIPA'') to Immigration
Proceedings. Requires the Attorney General to notify the alien
and the presiding officer in advance if she intends to use
classified information in immigration proceedings. Limits the
use of classified information to cases in which the Attorney
General currently has statutory authority to do so, i.e., where
the alien is alleged to be deportable under section
237(a)(4)(B) and in cases where the Attorney General opposes an
application for admission or an application for discretionary
relief from removal. Prior to initiating section 295
proceedings, the Attorney General must certify that the use of
classified information is necessary. The certificate must state
that: (A) The information could not have been developed from
open sources, and (B) she has informed the classifying agency
of the intention to use the information and asked the agency to
declassify such information as is permitted to be declassified
under the President's Executive Order on Classification.
Nothing in this section requires the classifying agency or the
Attorney General to declassify information..
Sec. 3(b). Referral of Classified Matters to District
Court. Upon request from the Attorney General or the alien, the
presiding officer shall forward the classified evidence to a
Federal district court for review. This section requires the
Federal district court judge to review the classified
information, in lieu of review by the presiding officer in the
immigration proceeding. The presiding officer may continue with
the rest of the proceedings when it is appropriate to do so.
The district court will issue an order indicating any
unclassified summary of the classified information that may be
used in the proceedings and dictate the conditions of its use.
Sec. 3(c). Application of CIPA. For example, the
unclassified summary of classified information must provide the
alien with substantially the same ability to make his defense
as would the specific classified information. In lieu of the
reports described in section 13 of CIPA, the Attorney General
shall report annually to the chairman and ranking minority
members of the Committees on the Judiciary of the Senate and
the House of Representatives on the implementation of this
section.
Sec. 3(d). Disclosure of Exculpatory Evidence. To ensure
that the alien can contest the adequacy of the summary of
classified information to the same extent as would a defendant
in a criminal case, this section requires the Attorney General
to disclose to the alien the information, and only that
information, that would have to be disclosed to a defendant in
an analogous criminal proceeding under CIPA.
Sec. 3(e). Construction Concerning Declassification of
Information. This section reflects current law and clarifies
that the Secret Evidence Repeal Act does not bar an alien under
the Freedom of Information Act (``FOIA'') from obtaining
information that relates to his case. Nothing in this section
requires the declassification of any information that would not
otherwise be made available to the public under FOIA.
Sec. (f). Definitions. The term ``immigration proceeding''
means any administrative proceeding under this act. The term
``presiding officer'' means the administrative or judicial
official who is presiding over the immigration proceeding.
Sec. 4. Repeal of Use of Secret Evidence in Other
Immigration Proceedings. Subject to the limitations of section
295 relating to procedures for handling classified information,
an alien shall have access to the evidence that is used against
him or her in removal proceedings.
Sec. 5. Repeal of Use of Secret Evidence in Bond
Proceedings. Subject to the limitations of section 295 relating
to procedures for handling classified information, an alien
shall have access to the evidence that is used against him or
her in bond proceedings.
Sec. 6. Repeal of Use of Secret Evidence Against Lawful
Permanent Residents, Asylum Seekers, and Aliens Paroled into
the United States. The provision of the act which permits the
Attorney General to exclude an arriving alien on the basis of
confidential information showing that the alien is a spy,
saboteur, criminal, terrorist, or foreign policy threat does
not apply to lawful permanent residents, aliens paroled into
the United States, or aliens who are seeking asylum.
Sec. 7(a). Application to Detainees. Not more than 30 days
after the effective date of this act, the Attorney General
shall provide a bond redetermination, with the rights provided
by this section, for any alien who is detained on the basis of
classified information that was considered ex parte.
Sec. 7(b). Application to Aliens Seeking Immigration
Benefits. Not more than 30 days after the effective date of
this act, the Attorney General shall provide an opportunity for
any alien physically present in the United States who had an
application for an immigration benefit denied on the basis of
classified information considered ex parte to seek reopening
and consideration de novo of his or her benefits application.
Sec. 7(c). Termination of Proceedings. Requires termination
in the case of any alien who is in Alien Terrorist Removal
Court proceedings as of the effective date of this act.
Sec. 8. Regulations. Requires the Attorney General to
promulgate implementing regulations within 90 days of the
effective date of this act.
Sec. 9. Effective Date. Amendments made by this act shall
take effect on the date of enactment and shall apply to all
aliens without regard to their date of arrival, admission,
entry, or parole into the United States.

Agency Views

The views of the FBI and the INS are contained in their
testimony in opposition to H.R. 2121 at the committee's
hearings. These views do not address H.R. 2121 as ordered
reported and the administration has taken no position on the
legislation in its current form.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):

IMMIGRATION AND NATIONALITY ACT

Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
this Act, divided into titles, chapters, and sections according
to the following table of contents, may be cited as the
``Immigration and Nationality Act''.

TABLE OF CONTENTS

Title I--General

Sec. 101. Definitions.
* * * * * * *

Title II--Immigration

chapter 9--miscellaneous

Sec. 281. Nonimmigrant visa fees.
* * * * * * *
Sec. 295. Application of procedures used under Classified Information
Procedures Act to immigration proceedings.
* * * * * * *

[TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

[Sec. 501. Definitions.
[Sec. 502. Establishment of removal court.
[Sec. 503. Removal court procedure.
[Sec. 504. Removal hearing.
[Sec. 505. Appeals.
[Sec. 506. Custody and release pending removal hearing.
[Sec. 507. Custody and release after removal hearing.]

* * * * * * *

TITLE II--IMMIGRATION

* * * * * * *

Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal

* * * * * * *

inspection by immigration officers; expedited removal of inadmissible
arriving aliens; referral for hearing

Sec. 235. (a) * * *

* * * * * * *

(c) Removal of Aliens Inadmissible on Security and Related
Grounds.--
[(1) Removal without further hearing.--If an
immigration officer or an immigration judge suspects
that an arriving alien may be inadmissible under
subparagraph (A) (other than clause (ii)), (B), or (C)
of section 212(a)(3), the officer or judge shall--
[(A) order the alien removed, subject to
review under paragraph (2);
[(B) report the order of removal to the
Attorney General; and
[(C) not conduct any further inquiry or
hearing until ordered by the Attorney General.]
(1) Removal without further hearing.--
(A) In general.--Except in the case of an
alien described in subparagraph (B), if an
immigration officer or an immigration judge
suspects that an arriving alien may be
inadmissible under subparagraph (A) (other than
clause (ii)), (B), or (C) of section 212(a)(3),
the officer or judge shall--
(i) order the alien removed,
subject to review under paragraph (2);
(ii) report the order of removal to
the Attorney General; and
(iii) not conduct any further
inquiry or hearing until ordered by the
Attorney General.
(B) Excepted aliens described.--An alien
described in this subparagraph is an alien
who--
(i) is a lawful permanent resident;
(ii) was granted advance parole;
(iii) was paroled into the United
States under section 212(d)(5); or
(iv) is seeking asylum.

* * * * * * *

apprehension and detention of aliens

Sec. 236. (a) * * *

* * * * * * *

(f) Aliens' Rights in Bond Proceedings.--Subject to section
295, in proceedings under this section--
(1) the alien shall have the privilege of being
represented, at no expense to the Government, by
counsel of the alien's choosing who is authorized to
practice in such proceedings;
(2) the alien shall have a reasonable opportunity
to examine all of the evidence against the alien, to
present evidence on the alien's own behalf, and to
cross-examine all witnesses presented by the
Government; and
(3) a complete record shall be kept of all
testimony and evidence produced at the proceeding.

* * * * * * *

removal proceedings

Sec. 240. (a) * * *
(b) Conduct of Proceeding.--
(1) * * *

* * * * * * *

(4) Aliens rights in proceeding.--In proceedings
under this section, under regulations of the Attorney
General--
(A) * * *
[(B) the alien shall have a reasonable
opportunity to examine the evidence against the
alien, to present evidence on the alien's own
behalf, and to cross-examine witnesses
presented by the Government but these rights
shall not entitle the alien to examine such
national security information as the Government
may proffer in opposition to the alien's
admission to the United States or to an
application by the alien for discretionary
relief under this Act, and]
(B) subject to section 295, the alien shall
have a reasonable opportunity to examine all of
the evidence against the alien, to present
evidence on the alien's own behalf, and to
cross-examine all witnesses presented by the
Government, and

* * * * * * *

(c) Decision and Burden of Proof.--
(1) * * *
(2) Burden on alien.--In the proceeding the alien
has the burden of establishing--
(A) * * *

* * * * * * *

[In meeting the burden of proof under subparagraph (B),
the alien shall have access to the alien's visa or
other entry document, if any, and any other records and
documents, not considered by the Attorney General to be
confidential, pertaining to the alien's admission or
presence in the United States.] In meeting the burden
of proof under subparagraph (B), subject to section
295, the alien shall have access to the alien's visa or
other entry document, if any, and any other records and
documents pertaining the alien's admission or presence
in the United States.

* * * * * * *

Chapter 9--Miscellaneous

* * * * * * *

application of procedures used under classified information procedures
act to immigration proceedings

Sec. 295. (a) Notice of Intended Use of Classified
Information.--
(1) In general.--In any immigration proceeding in
which the Attorney General seeks to use classified
information, the Attorney General shall inform the
alien and the presiding officer in advance. To the
maximum extent practicable, if the Attorney General is
initiating such proceeding, the Attorney General shall
provide such notice within 15 days after initiating the
proceeding.
(2) Limitation.--The Attorney General may seek to
use classified information only in an immigration
proceeding in which the alien is alleged to be
deportable under section 237(a)(4)(B) or to oppose an
application for admission or an application for
discretionary relief from removal and only after
issuing the following certification:
(A) Substantially the same information
could not reasonably be developed from open
sources.
(B) The Attorney General has informed the
classifying agency of its intent to use the
classified information in connection with
immigration proceedings and has requested such
agency to declassify such information as is
permitted to be declassified under the
President's Executive Order on classification.
(b) Referral of Classified Matters to District Court.--
(1) In general.--In the case of an immigration
proceeding in which the Attorney General or the alien
moves for a referral under this section to consider
matters relating to classified information that may
arise in connection with the proceeding, the presiding
officer shall forward the petition for review to a
Federal district court for the district in which the
alien resides or the place where the immigration
proceedings are pending, of the use of such information
in such proceeding under subsection (c). Any evidence
which is the subject of a petition shall not be
considered in the immigration proceeding and shall not
be examined by the presiding officer, except as
provided in paragraph (3).
(2) Suspension of immigration proceeding.--In the
case of an order or review provided for under paragraph
(1), the immigration proceeding may be suspended by the
presiding officer pending the disposition of such
matter by the district court involved (and any appeals
related to such matter).
(3) Submission of summary.--In the case of a
referral under paragraph (1)(A), after the application
of subsection (c), the district court shall issue an
order to the presiding officer at the proceeding
indicating any unclassified summary of classified
information, and admissions in lieu of disclosure of
classified information, that may be used and the
conditions of its use at the proceeding. The presiding
officer shall determine whether any information
approved by the order may be offered at the immigration
proceeding.
(c) Application of CIPA.--
(1) In general.--Subject to the succeeding
provisions of this section, in the cases described in
subsection (b)(1) involving review by a Federal
district court of the use of classified information in
an immigration proceeding, the provisions of the
Classified Information Procedures Act (18 U.S.C.
Appendix III) (in this section referred to as ``CIPA'')
shall apply to an alien who is a subject of the
immigration proceeding in the same manner as it applies
to a defendant in a criminal proceeding subject to
CIPA.
(2) General rules of application.--In applying
subsection (a), the following general rules apply:
(A) Any reference in CIPA to--
(i) a criminal defendant or a trial
(or pre-trial) proceeding is deemed to
be a reference to the alien who is the
subject of the immigration proceeding
and to the immigration proceeding;
(ii) an indictment or information
at issue is deemed to be a reference to
a notice to appear;
(iii) a dismissal of an indictment
or information is deemed a reference to
termination of the immigration
proceeding against an alien; and
(iv) a trial court is deemed a
reference (in the case of an
administrative immigration proceeding)
to the presiding officer in such
proceeding.
(B) The provisions of section 2 of CIPA
(other than the last sentence) shall not be
applied.
(C) The Attorney General shall prescribe
rules establishing procedures for the
protection against unauthorized disclosure of
classified information in the custody of the
Federal non-judicial officials in immigration
proceedings. Such rules shall apply instead of
the rules described in section 9 of CIPA.
(D) Section 12 of CIPA shall not be applied
to immigration proceedings.
(E) In lieu of the reports described in
section 13 of CIPA, the Attorney General shall
report annually and in writing to the chairmen
and ranking minority members of the Committees
on the Judiciary of the Senate and the House of
Representatives on the implementation of this
section. Such reports shall include the
following information about each case brought
under this section:
(i) The alien's country of
citizenship or, if the alien was
stateless, the country in which the
alien last habitually resided outside
of the United States.
(ii) The alien's immigration
status.
(iii) The immigration benefit for
which the alien applied (if any).
(iv) Whether the Federal district
court approved the summary of
classified information and the
deletions or admissions proffered by
the Attorney General.
(v) Whether the alien was
ultimately ordered removed under
section 237(a)(4)(B) or was granted or
denied admission or the benefit for
which the alien applied.
(d) Disclosure of Exculpatory Evidence.--In any immigration
proceeding under this section, the Attorney General shall
disclose to the alien information that it would be required to
disclose to a defendant in an analogous criminal proceeding
under CIPA.
(e) Construction Concerning Declassification of
Information.--Nothing in this section shall be construed as
preventing an alien in an immigration proceeding from seeking
access to classified information under section 552 of title 5,
United States Code, or, in the case of information which is not
disclosed based on section 552(b)(1) of such title, from
initiating an action to seek to declassify some or all of the
information involved.
(f) Definitions.--For purposes of this section:
(1) Immigration proceeding.--The term ``immigration
proceeding'' means any administrative proceeding under
this Act.
(2) Presiding officer.--The term ``presiding
officer'' means, with respect to an immigration
proceeding, the administrative or judicial official who
is presiding over the immigration proceeding.

* * * * * * *

[TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

[SEC. 501. DEFINITIONS.

[As used in this title--
[(1) the term ``alien terrorist'' means any alien
described in section 241(a)(4)(B);
[(2) the term ``classified information'' has the
same meaning as in section 1(a) of the Classified
Information Procedures Act (18 U.S.C. App.);
[(3) the term ``national security'' has the same
meaning as in section 1(b) of the Classified
Information Procedures Act (18 U.S.C. App.);
[(4) the term ``removal court'' means the court
described in section 502;
[(5) the term ``removal hearing'' means the hearing
described in section 504;
[(6) the term ``removal proceeding'' means a
proceeding under this title; and
[(7) the term ``special attorney'' means an
attorney who is on the panel established under section
502(e).

[SEC. 502. ESTABLISHMENT OF REMOVAL COURT.

[(a) Designation of Judges.--The Chief Justice of the
United States shall publicly designate 5 district court judges
from 5 of the United States judicial circuits who shall
constitute a court that shall have jurisdiction to conduct all
removal proceedings. The Chief Justice may, in the Chief
Justice's discretion, designate the same judges under this
section as are designated pursuant to section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a)).
[(b) Terms.--Each judge designated under subsection (a)
shall serve for a term of 5 years and shall be eligible for
redesignation, except that of the members first designated--
[(1) 1 member shall serve for a term of 1 year;
[(2) 1 member shall serve for a term of 2 years;
[(3) 1 member shall serve for a term of 3 years;
and
[(4) 1 member shall serve for a term of 4 years.
[(c) Chief Judge.--
[(1) Designation.--The Chief Justice shall publicly
designate one of the judges of the removal court to be
the chief judge of the removal court.
[(2) Responsibilities.--The chief judge shall--
[(A) promulgate rules to facilitate the
functioning of the removal court; and
[(B) assign the consideration of cases to
the various judges on the removal court.
[(d) Expeditious and Confidential Nature of Proceedings.--
The provisions of section 103(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(c)) shall apply to
removal proceedings in the same manner as they apply to
proceedings under that Act.
[(e) Establishment of Panel of Special Attorneys.--The
removal court shall provide for the designation of a panel of
attorneys each of whom--
[(1) has a security clearance which affords the
attorney access to classified information, and
[(2) has agreed to represent permanent resident
aliens with respect to classified information under
section 504(e)(3) in accordance with (and subject to
the penalties under) this title.

[SEC. 503. REMOVAL COURT PROCEDURE.

[(a) Application.--
[(1) In general.--In any case in which the Attorney
General has classified information that an alien is an
alien terrorist, the Attorney General may seek removal
of the alien under this title by filing an application
with the removal court that contains--
[(A) the identity of the attorney in the
Department of Justice making the application;
[(B) a certification by the Attorney
General or the Deputy Attorney General that the
application satisfies the criteria and
requirements of this section;
[(C) the identity of the alien for whom
authorization for the removal proceeding is
sought; and
[(D) a statement of the facts and
circumstances relied on by the Department of
Justice to establish probable cause that--
[(i) the alien is an alien
terrorist;
[(ii) the alien is physically
present in the United States; and
[(iii) with respect to such alien,
removal under title II would pose a
risk to the national security of the
United States.
[(2) Filing.--An application under this section
shall be submitted ex parte and in camera, and shall be
filed under seal with the removal court.
[(b) Right To Dismiss.--The Attorney General may dismiss a
removal action under this title at any stage of the proceeding.
[(c) Consideration of Application.--
[(1) Basis for decision.--In determining whether to
grant an application under this section, a single judge
of the removal court may consider, ex parte and in
camera, in addition to the information contained in the
application--
[(A) other information, including
classified information, presented under oath or
affirmation; and
[(B) testimony received in any hearing on
the application, of which a verbatim record
shall be kept.
[(2) Approval of order.--The judge shall issue an
order granting the application, if the judge finds that
there is probable cause to believe that--
[(A) the alien who is the subject of the
application has been correctly identified and
is an alien terrorist present in the United
States; and
[(B) removal under title II would pose a
risk to the national security of the United
States.
[(3) Denial of order.--If the judge denies the
order requested in the application, the judge shall
prepare a written statement of the reasons for the
denial, taking all necessary precautions not to
disclose any classified information contained in the
Government's application.
[(d) Exclusive Provisions.--If an order is issued under
this section granting an application, the rights of the alien
regarding removal and expulsion shall be governed solely by
this title, and except as they are specifically referenced in
this title, no other provisions of this Act shall be
applicable.

[SEC. 504. REMOVAL HEARING.

[(a) In General.--
[(1) Expeditious hearing.--In any case in which an
application for an order is approved under section
503(c)(2), a removal hearing shall be conducted under
this section as expeditiously as practicable for the
purpose of determining whether the alien to whom the
order pertains should be removed from the United States
on the grounds that the alien is an alien terrorist.
[(2) Public hearing.--The removal hearing shall be
open to the public.
[(b) Notice.--An alien who is the subject of a removal
hearing under this title shall be given reasonable notice of--
[(1) the nature of the charges against the alien,
including a general account of the basis for the
charges; and
[(2) the time and place at which the hearing will
be held.
[(c) Rights in Hearing.--
[(1) Right of counsel.--The alien shall have a
right to be present at such hearing and to be
represented by counsel. Any alien financially unable to
obtain counsel shall be entitled to have counsel
assigned to represent the alien. Such counsel shall be
appointed by the judge pursuant to the plan for
furnishing representation for any person financially
unable to obtain adequate representation for the
district in which the hearing is conducted, as provided
for in section 3006A of title 18, United States Code.
All provisions of that section shall apply and, for
purposes of determining the maximum amount of
compensation, the matter shall be treated as if a
felony was charged.
[(2) Introduction of evidence.--Subject to the
limitations in subsection (e), the alien shall have a
reasonable opportunity to introduce evidence on the
alien's own behalf.
[(3) Examination of witnesses.--Subject to the
limitations in subsection (e), the alien shall have a
reasonable opportunity to examine the evidence against
the alien and to cross-examine any witness.
[(4) Record.--A verbatim record of the proceedings
and of all testimony and evidence offered or produced
at such a hearing shall be kept.
[(5) Removal decision based on evidence at
hearing.--The decision of the judge regarding removal
shall be based only on that evidence introduced at the
removal hearing.
[(d) Subpoenas.--
[(1) Request.--At any time prior to the conclusion
of the removal hearing, either the alien or the
Department of Justice may request the judge to issue a
subpoena for the presence of a named witness (which
subpoena may also command the person to whom it is
directed to produce books, papers, documents, or other
objects designated therein) upon a satisfactory showing
that the presence of the witness is necessary for the
determination of any material matter. Such a request
may be made ex parte except that the judge shall inform
the Department of Justice of any request for a subpoena
by the alien for a witness or material if compliance
with such a subpoena would reveal classified evidence
or the source of that evidence. The Department of
Justice shall be given a reasonable opportunity to
oppose the issuance of such a subpoena.
[(2) Payment for attendance.--If an application for
a subpoena by the alien also makes a showing that the
alien is financially unable to pay for the attendance
of a witness so requested, the court may order the
costs incurred by the process and the fees of the
witness so subpoenaed to be paid from funds
appropriated for the enforcement of title II.
[(3) Nationwide service.--A subpoena under this
subsection may be served anywhere in the United States.
[(4) Witness fees.--A witness subpoenaed under this
subsection shall receive the same fees and expenses as
a witness subpoenaed in connection with a civil
proceeding in a court of the United States.
[(5) No access to classified information.--Nothing
in this subsection is intended to allow an alien to
have access to classified information.
[(e) Discovery.--
[(1) In general.--For purposes of this title--
[(A) the Government is authorized to use in
a removal proceedings the fruits of electronic
surveillance and unconsented physical searches
authorized under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) without regard to subsections (c), (e),
(f), (g), and (h) of section 106 of that Act
and discovery of information derived pursuant
to such Act, or otherwise collected for
national security purposes, shall not be
authorized if disclosure would present a risk
to the national security of the United States;
[(B) an alien subject to removal under this
title shall not be entitled to suppress
evidence that the alien alleges was unlawfully
obtained; and
[(C) section 3504 of title 18, United
States Code, and section 1806(c) of title 50,
United States Code, shall not apply if the
Attorney General determines that public
disclosure would pose a risk to the national
security of the United States because it would
disclose classified information or otherwise
threaten the integrity of a pending
investigation.
[(2) Protective orders.--Nothing in this title
shall prevent the United States from seeking protective
orders and from asserting privileges ordinarily
available to the United States to protect against the
disclosure of classified information, including the
invocation of the military and State secrets
privileges.
[(3) Treatment of classified information.--
[(A) Use.--The judge shall examine, ex
parte and in camera, any evidence for which the
Attorney General determines that public
disclosure would pose a risk to the national
security of the United States or to the
security of any individual because it would
disclose classified information and neither the
alien nor the public shall be informed of such
evidence or its sources other than through
reference to the summary provided pursuant to
this paragraph. Notwithstanding the previous
sentence, the Department of Justice may, in its
discretion and, in the case of classified
information, after coordination with the
originating agency, elect to introduce such
evidence in open session.
[(B) Submission.--With respect to such
information, the Government shall submit to the
removal court an unclassified summary of the
specific evidence that does not pose that risk.
[(C) Approval.--Not later than 15 days
after submission, the judge shall approve the
summary if the judge finds that it is
sufficient to enable the alien to prepare a
defense. The Government shall deliver to the
alien a copy of the unclassified summary
approved under this subparagraph.
[(D) Disapproval.--
[(i) In general.--If an
unclassified summary is not approved by
the removal court under subparagraph
(C), the Government shall be afforded
15 days to correct the deficiencies
identified by the court and submit a
revised unclassified summary.
[(ii) Revised summary.--If the
revised unclassified summary is not
approved by the court within 15 days of
its submission pursuant to subparagraph
(C), the removal hearing shall be
terminated unless the judge makes the
findings under clause (iii).
[(iii) Findings.--The findings
described in this clause are, with
respect to an alien, that--
[(I) the continued presence
of the alien in the United
States would likely cause
serious and irreparable harm to
the national security or death
or serious bodily injury to any
person, and
[(II) the provision of the
summary would likely cause
serious and irreparable harm to
the national security or death
or serious bodily injury to any
person.
[(E) Continuation of hearing without
summary.--If a judge makes the findings
described in subparagraph (D)(iii)--
[(i) if the alien involved is an
alien lawfully admitted for permanent
residence, the procedures described in
subparagraph (F) shall apply; and
[(ii) in all cases the special
removal hearing shall continue, the
Department of Justice shall cause to be
delivered to the alien a statement that
no summary is possible, and the
classified information submitted in
camera and ex parte may be used
pursuant to this paragraph.
[(F) Special procedures for access and
challenges to classified information by special
attorneys in case of lawful permanent aliens.--
[(i) In general.--The procedures
described in this subparagraph are that
the judge (under rules of the removal
court) shall designate a special
attorney to assist the alien--
[(I) by reviewing in camera
the classified information on
behalf of the alien, and
[(II) by challenging
through an in camera proceeding
the veracity of the evidence
contained in the classified
information.
[(ii) Restrictions on disclosure.--
A special attorney receiving classified
information under clause (i)--
[(I) shall not disclose the
information to the alien or to
any other attorney representing
the alien, and
[(II) who discloses such
information in violation of
subclause (I) shall be subject
to a fine under title 18,
United States Code, imprisoned
for not less than 10 years nor
more than 25 years, or both.
[(f) Arguments.--Following the receipt of evidence, the
Government and the alien shall be given fair opportunity to
present argument as to whether the evidence is sufficient to
justify the removal of the alien. The Government shall open the
argument. The alien shall be permitted to reply. The Government
shall then be permitted to reply in rebuttal. The judge may
allow any part of the argument that refers to evidence received
in camera and ex parte to be heard in camera and ex parte.
[(g) Burden of Proof.--In the hearing, it is the
Government's burden to prove, by the preponderance of the
evidence, that the alien is subject to removal because the
alien is an alien terrorist.
[(h) Rules of Evidence.--The Federal Rules of Evidence
shall not apply in a removal hearing.
[(i) Determination of Deportation.--If the judge, after
considering the evidence on the record as a whole, finds that
the Government has met its burden, the judge shall order the
alien removed and detained pending removal from the United
States. If the alien was released pending the removal hearing,
the judge shall order the Attorney General to take the alien
into custody.
[(j) Written Order.--At the time of issuing a decision as
to whether the alien shall be removed, the judge shall prepare
a written order containing a statement of facts found and
conclusions of law. Any portion of the order that would reveal
the substance or source of information received in camera and
ex parte pursuant to subsection (e) shall not be made available
to the alien or the public.
[(k) No Right to Ancillary Relief.--At no time shall the
judge consider or provide for relief from removal based on--
[(1) asylum under section 208;
[(2) by withholding of removal under section
241(b)(3);
[(3) cancellation of removal under section 240A;
\1\
[(4) voluntary departure under section 244(e);
[(5) adjustment of status under section 245; or
[(6) registry under section 249.

[SEC. 505. APPEALS.

[(a) Appeal of Denial of Application for Removal
Proceedings.--
[(1) In general.--The Attorney General may seek a
review of the denial of an order sought in an
application filed pursuant to section 503. The appeal
shall be filed in the United States Court of Appeals
for the District of Columbia Circuit by notice of
appeal filed not later than 20 days after the date of
such denial.
[(2) Record on appeal.--The entire record of the
proceeding shall be transmitted to the Court of Appeals
under seal, and the Court of Appeals shall hear the
matter ex parte.
[(3) Standard of review.--The Court of Appeals
shall--
[(A) review questions of law de novo; and
[(B) set aside a finding of fact only if
such finding was clearly erroneous.
[(b) Appeal of Determination Regarding Summary of
Classified Information.--
[(1) In general.--The United States may take an
interlocutory appeal to the United States Court of
Appeals for the District of Columbia Circuit of--
[(A) any determination by the judge
pursuant to section 504(e)(3); or
[(B) the refusal of the court to make the
findings permitted by section 504(e)(3).
[(2) Record.--In any interlocutory appeal taken
pursuant to this subsection, the entire record,
including any proposed order of the judge, any
classified information and the summary of evidence,
shall be transmitted to the Court of Appeals. The
classified information shall be transmitted under seal.
A verbatim record of such appeal shall be kept under
seal in the event of any other judicial review.
[(c) Appeal of Decision in Hearing.--
[(1) In general.--Subject to paragraph (2), the
decision of the judge after a removal hearing may be
appealed by either the alien or the Attorney General to
the United States Court of Appeals for the District of
Columbia Circuit by notice of appeal filed not later
than 20 days after the date on which the order is
issued. The order shall not be enforced during the
pendency of an appeal under this subsection.
[(2) Automatic appeals in cases of permanent
resident aliens in which no summary provided.--
[(A) In general.--Unless the alien waives
the right to a review under this paragraph, in
any case involving an alien lawfully admitted
for permanent residence who is denied a written
summary of classified information under section
504(e)(3) and with respect to which the
procedures described in section 504(e)(3)(F)
apply, any order issued by the judge shall be
reviewed by the Court of Appeals for the
District of Columbia Circuit.
[(B) Use of special attorney.--With respect
to any issue relating to classified information
that arises in such review, the alien shall be
represented only by the special attorney
designated under section 504(e)(3)(F)(i) on
behalf of the alien.
[(3) Transmittal of record.--In an appeal or review
to the Court of Appeals pursuant to this subsection--
[(A) the entire record shall be transmitted
to the Court of Appeals; and
[(B) information received in camera and ex
parte, and any portion of the order that would
reveal the substance or source of such
information, shall be transmitted under seal.
[(4) Expedited appellate proceeding.--In an appeal
or review to the Court of Appeals under this
subsection--
[(A) the appeal or review shall be heard as
expeditiously as practicable and the court may
dispense with full briefing and hear the matter
solely on the record of the judge of the
removal court and on such briefs or motions as
the court may require to be filed by the
parties;
[(B) the Court of Appeals shall issue an
opinion not later than 60 days after the date
of the issuance of the final order of the
district court;
[(C) the court shall review all questions
of law de novo; and
[(D) a finding of fact shall be accorded
deference by the reviewing court and shall not
be set aside unless such finding was clearly
erroneous, except that in the case of a review
under paragraph (2) in which an alien lawfully
admitted for permanent residence was denied a
written summary of classified information under
section 504(c)(3), the Court of Appeals shall
review questions of fact de novo.
[(d) Certiorari.--Following a decision by the Court of
Appeals pursuant to subsection (c), the alien or the Attorney
General may petition the Supreme Court for a writ of
certiorari. In any such case, any information transmitted to
the Court of Appeals under seal shall, if such information is
also submitted to the Supreme Court, be transmitted under seal.
Any order of removal shall not be stayed pending disposition of
a writ of certiorari, except as provided by the Court of
Appeals or a Justice of the Supreme Court.
[(e) Appeal of Detention Order.--
[(1) In general.--Sections 3145 through 3148 of
title 18, United States Code, pertaining to review and
appeal of a release or detention order, penalties for
failure to appear, penalties for an offense committed
while on release, and sanctions for violation of a
release condition shall apply to an alien to whom
section 507(b)(1) applies. In applying the previous
sentence--
[(A) for purposes of section 3145 of such
title an appeal shall be taken to the United
States Court of Appeals for the District of
Columbia Circuit; and
[(B) for purposes of section 3146 of such
title the alien shall be considered released in
connection with a charge of an offense
punishable by life imprisonment.
[(2) No review of continued detention.--The
determinations and actions of the Attorney General
pursuant to section 507(b)(2)(C) shall not be subject
to judicial review, including application for a writ of
habeas corpus, except for a claim by the alien that
continued detention violates the alien's rights under
the Constitution. Jurisdiction over any such challenge
shall lie exclusively in the United States Court of
Appeals for the District of Columbia Circuit.

[SEC. 506. CUSTODY AND RELEASE PENDING REMOVAL HEARING.

[(a) Upon Filing Application.--
[(1) In general.--Subject to paragraphs (2) and
(3), the Attorney General may--
[(A) take into custody any alien with
respect to whom an application under section
503 has been filed; and
[(B) retain such an alien in custody in
accordance with the procedures authorized by
this title.
[(2) Special rules for permanent resident aliens.--
[(A) Release hearing.--An alien lawfully
admitted for permanent residence shall be
entitled to a release hearing before the judge
assigned to hear the removal hearing. Such an
alien shall be detained pending the removal
hearing, unless the alien demonstrates to the
court that the alien--
[(i) is a person lawfully admitted
for permanent residence in the United
States;
[(ii) if released upon such terms
and conditions as the court may
prescribe (including the posting of any
monetary amount), is not likely to
flee; and
[(iii) will not endanger national
security, or the safety of any person
or the community, if released.
[(B) Information considered.--The judge may
consider classified information submitted in
camera and ex parte in making a determination
whether to release an alien pending the removal
hearing.
[(3) Release if order denied and no review
sought.--
[(A) In general.--Subject to subparagraph
(B), if a judge of the removal court denies the
order sought in an application filed pursuant
to section 503, and the Attorney General does
not seek review of such denial, the alien shall
be released from custody.
[(B) Application of regular procedures.--
Subparagraph (A) shall not prevent the arrest
and detention of the alien pursuant to title
II.
[(b) Conditional Release if Order Denied and Review
Sought.--
[(1) In general.--If a judge of the removal court
denies the order sought in an application filed
pursuant to section 503 and the Attorney General seeks
review of such denial, the judge shall release the
alien from custody subject to the least restrictive
condition, or combination of conditions, of release
described in section 3142(b) and clauses (i) through
(xiv) of section 3142(c)(1)(B) of title 18, United
States Code, that--
[(A) will reasonably assure the appearance
of the alien at any future proceeding pursuant
to this title; and
[(B) will not endanger the safety of any
other person or the community.
[(2) No release for certain aliens.--If the judge
finds no such condition or combination of conditions,
as described in paragraph (1), the alien shall remain
in custody until the completion of any appeal
authorized by this title.

SEC. 507. CUSTODY AND RELEASE AFTER REMOVAL HEARING.

[(a) Release.--
[(1) In general.--Subject to paragraph (2), if the
judge decides that an alien should not be removed, the
alien shall be released from custody.
[(2) Custody pending appeal.--If the Attorney
General takes an appeal from such decision, the alien
shall remain in custody, subject to the provisions of
section 3142 of title 18, United States Code.
[(b) Custody and Removal.--
[(1) Custody.--If the judge decides that an alien
shall be removed, the alien shall be detained pending
the outcome of any appeal. After the conclusion of any
judicial review thereof which affirms the removal
order, the Attorney General shall retain the alien in
custody and remove the alien to a country specified
under paragraph (2).
[(2) Removal.--
[(A) In general.--The removal of an alien
shall be to any country which the alien shall
designate if such designation does not, in the
judgment of the Attorney General, in
consultation with the Secretary of State,
impair the obligation of the United States
under any treaty (including a treaty pertaining
to extradition) or otherwise adversely affect
the foreign policy of the United States.
[(B) Alternate countries.--If the alien
refuses to designate a country to which the
alien wishes to be removed or if the Attorney
General, in consultation with the Secretary of
State, determines that removal of the alien to
the country so designated would impair a treaty
obligation or adversely affect United States
foreign policy, the Attorney General shall
cause the alien to be removed to any country
willing to receive such alien.
[(C) Continued detention.--If no country is
willing to receive such an alien, the Attorney
General may, notwithstanding any other
provision of law, retain the alien in custody.
The Attorney General, in coordination with the
Secretary of State, shall make periodic efforts
to reach agreement with other countries to
accept such an alien and at least every 6
months shall provide to the attorney
representing the alien at the removal hearing a
written report on the Attorney General's
efforts. Any alien in custody pursuant to this
subparagraph shall be released from custody
solely at the discretion of the Attorney
General and subject to such conditions as the
Attorney General shall deem appropriate.
[(D) Fingerprinting.--Before an alien is
removed from the United States pursuant to this
subsection, or pursuant to an order of removal
because such alien is inadmissible under
section 212(a)(3)(B), the alien shall be
photographed and fingerprinted, and shall be
advised of the provisions of section 276(b).
[(c) Continued Detention Pending Trial.--
[(1) Delay in removal.--The Attorney General may
hold in abeyance the removal of an alien who has been
ordered removed, pursuant to this title, to allow the
trial of such alien on any Federal or State criminal
charge and the service of any sentence of confinement
resulting from such a trial.
[(2) Maintenance of custody.--Pending the
commencement of any service of a sentence of
confinement by an alien described in paragraph (1),
such an alien shall remain in the custody of the
Attorney General, unless the Attorney General
determines that temporary release of the alien to the
custody of State authorities for confinement in a State
facility is appropriate and would not endanger national
security or public safety.
[(3) Subsequent removal.--Following the completion
of a sentence of confinement by an alien described in
paragraph (1), or following the completion of State
criminal proceedings which do not result in a sentence
of confinement of an alien released to the custody of
State authorities pursuant to paragraph (2), such an
alien shall be returned to the custody of the Attorney
General who shall proceed to the removal of the alien
under this title.
[(d) Application of Certain Provisions Relating to Escape
of Prisoners.--For purposes of sections 751 and 752 of title
18, United States Code, an alien in the custody of the Attorney
General pursuant to this title shall be subject to the
penalties provided by those sections in relation to a person
committed to the custody of the Attorney General by virtue of
an arrest on a charge of a felony.
[(e) Rights of Aliens in Custody.--
[(1) Family and attorney visits.--An alien in the
custody of the Attorney General pursuant to this title
shall be given reasonable opportunity, as determined by
the Attorney General, to communicate with and receive
visits from members of the alien's family, and to
contact, retain, and communicate with an attorney.
[(2) Diplomatic contact.--An alien in the custody
of the Attorney General pursuant to this title shall
have the right to contact an appropriate diplomatic or
consular official of the alien's country of citizenship
or nationality or of any country providing
representation services therefore. The Attorney General
shall notify the appropriate embassy, mission, or
consular office of the alien's detention.]
Dissenting Views

While the amendment in the nature of a substitute reported
by the committee is an improvement in some respects over the
original bill \1\, the reported bill still raises a number of
national-security-related concerns regarding its scope and
application.
---------------------------------------------------------------------------
\1\ The amendment deleted sections 5 and 6 of H.R. 2121, two
provisions which if enacted would probably have delayed adjudication of
immigration benefits and impaired effective detention of criminal
aliens.
---------------------------------------------------------------------------
Scope of the Reported Bill
In testimony and public statements made during the 106th
Congress, the authors and proponents of H.R. 2121 focused
attention on aliens in removal proceedings who were detained
for extended periods. However, the scope of the reported bill
is significantly broader than necessary to address those
concrete concerns. The reported bill would prohibit the INS
from using classified or confidential evidence in all
immigration proceedings, including those unrelated to removal
or long-term detention.
Three such areas should be noted. First, Section 235(c) of
the Immigration and Nationality Act allows an INS airport
inspector to exclude an arriving alien if confidential evidence
indicates that the alien is a security threat. This provision
has been used by INS to exclude dangerous aliens from the
United States, and the proponents of H.R. 2121 have not
demonstrated that this power has been abused. Nonetheless,
section 6 of the reported bill would prohibit the INS from
using confidential evidence to exclude permanent residents,
parolees, or aliens who claim asylum in the United States.
Terrorists, including those implicated in the World Trade
Center bombings, have in the past used fraudulent asylum claims
to remain and operate in the United States. Such abuse should
not be facilitated.
Second, section 7(b) of the reported bill would prohibit
the INS' use of confidential evidence to deny immigration
benefits--including refugee status, asylum, permanent
residence, or citizenship--although, again, the proponents of
H.R. 2121 have not demonstrated that this power has been
abused. Permanent immigration status, if granted, would allow
terrorists to remain in the United States indefinitely while
raising funds, recruiting personnel, providing logistical
support, or planning operations on behalf of their
organizations.
Third, section 3(b) of the reported bill would eliminate
the Alien Terrorist Removal Court created by the Anti-terrorist
and Effective Death Penalty Act of 1996. The ATRC is composed
of five district court judges specially designated by the Chief
Justice of the United States to preside over terrorist removal
proceedings where removal under normal immigration proceedings
would pose a risk to national security through disclosure of
classified information. The threshold for convening the ATRC is
high, and it has not yet been used. Thus, it cannot be claimed
that the ATRC has abused the rights of aliens, and eliminating
the ATRC is not reasonable or necessary.
Use of Unclassified Summaries
H.R. 2121 as reported would permit the Justice Department
to request an unclassified summary of classified information
for use in the adjudication of three types of immigration
proceedings: removal of an alien who is a threat to national
security, opposition to an application for admission, or
opposition to an application for discretionary relief from
removal. However, before requesting the summary, the Department
would first have to request that the evidence be declassified;
in other words, if the Department took the position that the
evidence should not be declassified, it could not request an
unclassified summary. This exception would probably swallow the
rule. It stands to reason that in most cases the Department
would believe that sensitive classified information about
international terrorists should remain classified. The
Department would then be unable to request preparation of an
unclassified summary.
In addition, in the rare instance where an unclassified
summary was requested and provided, its usefulness would be
limited at best. Proponents of H.R. 2121 like Professor David
Cole of Georgetown University Law Center and Mr. Gregory Nojeim
of the American Civil Liberties Union testified to the
committee that unclassified summaries provided to aliens in
immigration proceedings are generally insufficient to inform
the aliens of the charges against them. \2\ Yet H.R. 2121 would
require immigration judges to rely on unclassified summaries in
their adjudications; the judges would not be allowed to see the
classified information itself. The unclassified summaries would
most likely not identify sources of classified information for
fear of endangering those sources, making it difficult or
impossible to judge their credibility. Anticipating this
result, many judges would probably refuse to prepare or utilize
unclassified summaries in the first place.
---------------------------------------------------------------------------
\2\ Legislative hearing on H.R. 2121, the ``Secret Evidence Repeal
Act of 1999,'' House Judiciary Committee, 106th Congress, 2nd Session
(May 23, 2000).
---------------------------------------------------------------------------
While the reported bill appears to allow some limited use
of unclassified summaries of classified evidence, in practice
it is likely to eliminate the use of classified evidence in
immigration proceedings as completely and effectively as the
original bill would have done. This is an absolutist approach
that is likely to endanger national security. The government
would be forced to choose between allowing terrorists to enter
and remain in the United States or disclosing classified
information that would endanger U.S. intelligence agents and
operations.
For the aforementioned reasons, H.R. 2121 should be re-
examined and modified to incorporate a more balanced approach.

Bill McCollum.
Lamar S. Smith.
Anthony D. Weiner.
Additional Views

We join with our colleagues in the dissenting views
expressed above. However, it is our further belief that
legislation creating a time limitation on the period in which
an alien may be detained on the basis of classified evidence
would create an appropriate balance between the need to protect
the national security and the due process rights that should be
afforded to aliens in immigration proceedings. While we have
concerns with the scope of H.R. 2121, we agree with the authors
of the bill that a time limitation is necessary.

Mary Bono.
Bob Goodlatte.