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Statement of Anti-Defamation League And

American Jewish Congress B'nai B'rith International, Hadassah, and

The Jewish Council for Public Affairs


H.R. 2121 -- The Secret Evidence Repeal Act Before the

House Committee on the Judiciary

May 23, 2000

I am Thomas C. Homburger, Vice Chair of the Anti-Defamation League's National Commission. I have chaired both the League's National Civil Rights Committee and its Chicago Regional Board. ADL is pleased to testify today as the Judiciary Committee considers H.R. 2121, the Secret Evidence Repeal Act. Together with the American Jewish Congress, B'nai B'rith International, Hadassah, and the Jewish Council for Public Affairs, we represent organizations that have played leadership roles in support of civil rights and civil liberties in America, as well as international human rights and religious freedom.

We have also stressed America's importance as a haven for persons persecuted and oppressed in their native lands. Working with other religious and ethnic groups, the Jewish community has championed America's historic commitment to fair treatment for all immigrants. For decades, our organizations have strongly supported broad social welfare coverage and robust legal and due process protections for new immigrants. However, we oppose the drastic approach embodied in H.R. 2121, which would strip the government of important protections against compromising counterterrorism intelligence sources.

The current system, prescribed by the 1996 immigration reform law, under which aliens may be detained or denied immigration benefits without access to full information about the allegations of wrongdoing against them, clearly falls below the normal standards which form the basis of our justice system. But any change in law governing the detention of suspected terrorists, for example, must appropriately balance national security interests with individual liberty.

At oversight hearings on the threat of terrorism before the Immigration and Claims Subcommittee in January, 2000, Members heard extensive testimony about continuing efforts by foreign terrorists to infiltrate the United States to carry out criminal acts here -- and about individuals who come to the United States to raise funds for and organize terrorist activity abroad. Investigating and preventing such acts requires law enforcement officials and investigators to be able to protect sources and methods.

As this Committee examines the necessary balancing test between an individual's rights and national security interests, we urge Members to reject the approach of H.R.2121 and look to existing models, approved by Congress and upheld by Federal Courts. These provisions more appropriately balance the legitimate efforts of the government to protect Americans from foreign security threats with the responsibility to provide an appropriate level of due process for aliens at the same time.

Models supported by Congress and the Federal Courts.

Congress has long grappled with the unique challenge of deterring and preventing terrorism in a free society -- balancing the need to protect confidential sources and methods with the due process rights of suspected terrorists. In 1996, Congress overwhelmingly passed the Antiterrorism and Effective Death Penalty Act [Public Law 104-132 (1996)] (AEDPA), which provided one useful model for balancing national security concerns and the due process rights of aliens accused of terrorist crimes.

The AEDPA established a workable mechanism for addressing sensitive, classified evidence. Under that law's carefully crafted provisions, such information was not required to be entirely revealed to the alien -- but neither was it permissible to utterly deny aliens (even suspected terrorists) access to evidence being used against them. Under AEDPA, if the Attorney General determines that public disclosure of evidence "would pose a risk to the national security of the United States," a judge must examine, ex parte and in camera, that evidence and approve an unclassified summary of the evidence "sufficient to enable the alien to prepare a defense." This standard affords necessary due process protection for the alien, while allowing the government, in these limited circumstances, to protect its confidential sources and methods. The 1996 immigration reform act amended AEDPA, and modified these standards, significantly reducing due process protections for these aliens.

Similar procedures which seek to strike this balance are contained within the Classified Information Procedures Act (CIPA), a statute which has been upheld against due process challenges. CIPA, 18 U.S.C. App. 1-16, provides another useful guide for how to provide an alien with limited access to classified information -- without unduly compromising national security interests. Under this procedure, classified evidence may be withheld -- even from US citizens -- where "disclosure of classified information would cause identifiable damage to the national security." The court, upon a sufficient showing, may permit a substitute -- either a summary of the classified information "admitting relevant facts that the classified information would tend to prove" or a summary of the specific classified information." In either case, the court must find that the statement or summary "will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information."

Strangely, H.R. 2121 would extend greater due process protection to aliens suspected of terrorist activity than is currently accorded to American citizens and other defendants who seek access to confidential information in their defense against criminal wrongdoing.

The Use Of Classified Evidence Should be Rare -- and Oversight by Justice Department Officials is Appropriate.

Aliens entering the US are entitled to significant procedural due process protections -- including the opportunity to defend themselves against unfounded criminal charges. These rights should be safeguarded, but full disclosure of classified evidence should not be required in those limited circumstances in which the government can appropriately demonstrate that a specific alien is suspected of involvement in terrorist activities and that the release of classified evidence will pose a danger to other persons or threaten national security. According to press reports, the Deputy Attorney General is now reviewing each new circumstance in which government officials seek to limit the evidence provided to a particular alien suspected of involvement in criminal activities. We welcome this step.

In addition, we believe the Attorney General should review the particular circumstances of those individuals currently being detained based, in part, on undisclosed classified information and determine whether relevant evidence of suspected wrongdoing has been properly withheld. This oversight function provides another important safeguard against inappropriate withholding of classified evidence from aliens suspected of terrorist involvement.

Providing an Appropriate Summary of Classified Evidence Would Help Balance Competing Concerns.

Any circumstance in which an alien is provided with less than full disclosure of the evidence against him raises serious concerns. In those limited circumstances in which national security interests conflict with an individual's reasonable due process expectations, we believe the law should require disclosure of, at least, the nature of the charges and an appropriate summary of the evidence -- sufficient to permit the alien to prepare a defense. This approach ensures that the alien would have a more meaningful chance to respond to unfounded charges.

Summaries Are Admissible in Immigration Proceedings.

The notion of providing aliens with a summary of evidence against them has been well established within in the statutory scope of immigration court rules of procedure since 1952. Title 8 of the Code of Federal Regulations governing immigration courts, clearly allows the admission of a range of federal investigative reports. These reports are, by their nature, secondary summaries of information gathered from classified as well as other sources that often are not identified. The I-213 Record of Deportable Alien report -- the INS document regarding individual suspected of being present in the US illegally -- can include references to criminal records and other background derived from sources other than writer of the report.

Current law allows immigration judges to make a determination about the probative value of the document and how much relative weight to give a certain piece of evidence, but never deems these summaries inadmissible. The judge is not required to seek original sources and may consider the information, whether or not the source is identified.

State Department reports assessing country conditions which cite the danger an individual may face upon their return are admissible -- even if the report is based on classified information from the CIA, for example, which it does not source.

Suspected Alien Terrorists Deserve Due Process Protection No Greater than that Accorded US Citizens in National Security Cases.

Given the national security concerns in the case of suspected terrorists, why should the law provide a broader mechanism for discovery for these individuals than it does for aliens fearing persecution or others seeking relief from removal?

Our suggested middle-ground approach of providing a summary (such as that prescribed by CIPA) levels the playing field by providing aliens suspected of involvement in terrorism cases with the same measure of due process given other aliens facing removal and the same due process protection given U.S. citizens in cases in which there are national security concerns. But HR 2121 would allow much wider privileges to suspected alien terrorists such as:

Section 4 would allow the alien to "cross-examine all witnesses presented by the Government" -- rights not currently given to other aliens seeking immigration benefits or facing removal.

Section 6 would compel bond hearings to be held on the record -- not current practice for other categories of detained aliens. The current practice has not been found constitutionally deficient.

H.R. 2121 seeks to overhaul of the largely-unregulated process of discovery in immigration law -- but only in terrorism cases.

Moreover, unlike a criminal proceeding, in which a reference to undisclosed "classified CIA information" may make a strong prejudicial impression on jurors against the defendant, immigration judges have more experience with such information and should be better equipped to independently assess the reliability of undisclosed information and evaluate the relative weight that should be given a particular source of information.

H.R. 2121 Unduly Restricts the Ability of Government Officials to Protect Essential Confidential Sources and Methods.

Senior law enforcement authorities in the US have testified on numerous occasions before Congress that terrorist organizations seek to use the United States to plan, organize, and raise funds for terrorist activities here and abroad. H.R. 2121 too-broadly restricts the ability of law enforcement officials to protect intelligence sources. In some instances, because the information provided by intelligence sources is so singular in nature, known only by very few individuals, revealing it to suspected terrorists detained in this country would compromise those sources -- who may risk death if exposed.

H.R.2121 Could Force the Government to Release Terrorists Who Threaten National Security.

Because this legislation forces the government to choose between releasing a suspect or exposing intelligence sources, H.R. 2121 could lead to the release of individuals currently being detained who do, in fact, pose a terrorist threat. Law enforcement officials maintain that they cannot and will not expose sources and threaten the lives of personnel in order to move forward with a prosecution. Forcing this choice is tantamount to the ensuring the release of these suspects.

Discrimination or Profiling Solely on the Basis of Ethnicity or Religion is Always Unacceptable.

Even when faced with the significant threat of international terrorism, law enforcement officials must never engage in inappropriate stereotyping or profiling on the basis of ethnicity or religion. Members of specific ethnic or religious groups should never be singled out for different treatment on the basis of their personal characteristics. The creation of a sound procedural due process framework -- coupled with necessary training -- should help guard against abuses and prevent improper treatment of individuals based on any erroneous preconceived terrorist "profile."

Fighting Terrorism is Not a Zero-Sum Game

It is well established that the government has the constitutional right -- and the duty -- to keep our nation from being used as a base for terrorist activity. Limiting access to the US for individuals involved in terrorism, establishing sanctions on those nations that support terrorism, and banning fundraising and material support for foreign terrorist organizations in this country are important ways in which Congress and the Administration have attempted to prevent acts of terrorism before they occur. In the same way, creative means must be used to balance the government's legitimate security interests with an alien's legitimate expectation of due process protection in immigration proceedings. Congress will continue to grapple with this daunting challenge, but the ongoing threat posed by individuals who come to the US to engage in terrorism demands sustained attention.

Finally, it is important to keep in mind that terrorists do not play by our rules. Given the chance, terrorists and their sponsors in rogue nations will exploit our democratic freedoms to finance and organize terrorist activity here and abroad.

We very much appreciate this Committee's deliberate efforts to examine the existing procedural due process safeguards for aliens. We believe that the Administration and Members of Congress are rightly concerned about preventing misuse of classified information. Rigorous procedures must be in place to prevent the improper use of classified information against any individual. We would support appropriate refinements in existing law or administrative procedures that would provide additional safeguards against abuse, while maintaining the necessary investigative tools to prevent terrorist acts here or abroad. H.R. 2121, however, does not provide the proper balance between national security interests and individual liberty and we urge Congress to reject this extreme measure.

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