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Statement of Hon. Henry J. Hyde
House Committee on the Judiciary

at a hearing on H.R. 2121, the Secret Evidence Repeal Act of 1999

May 23, 2000

The United States faces a growing threat from international terrorism. Twenty years ago, Americans regarded terrorism as something that only threatened other countries. But since 1983 Americans have suffered deadly attacks like the car-bombing of U.S. Marines in Beirut, the bombing of Pan Am flight 103, the Unabomber, the World Trade Center bombing, the Oklahoma City bombing, the truck-bombing of U.S. troops in Dhahran, and the bombing of U.S. embassies in Kenya and Tanzania. Those tragedies, along with close calls like the foiled Brooklyn subway bombing and the recent capture of Algerians smuggling bombs across the Canadian border, have shattered the image of American invincibility to terrorism, either foreign or domestic.

When terrorists try to enter the United States, the INS, with help from other law enforcement and intelligence agencies, is responsible for protecting national security by excluding them. Similarly, when terrorists succeed in getting past the border, the INS must locate and deport them.

In some cases the evidence that an alien is a terrorist is sensitive information that is classified for national security purposes. Classified evidence may be presented to immigration judges presiding over removal proceedings but is not fully disclosed to the alien, although a summary may be provided. The rationale has been that full disclosure of classified information might endanger U.S. intelligence sources and operations abroad.

Since the 1950's, a long line of federal court cases has established the INS' right to use classified evidence to deny admission to terrorists, and to deny claims for asylum or other relief made by illegal alien terrorists who are trying to avoid deportation.

The 1996 anti-terrorist reforms codified those court decisions and also created the Alien Terrorist Removal Court, a specialized court where classified evidence may be used to deport terrorists.

In each case of the use of classified information, the Attorney General or Deputy Attorney General must personally certify that the alien is a terrorist and that public disclosure of classified evidence would threaten national security.

Out of 300,000 immigration court proceedings brought by INS each year, fewer than twenty cases involve the use of classified evidence.

Three criticisms have been leveled at the use of classified evidence. First, opponents say that it denies the alien the opportunity to see all the evidence against him. Supporters of the use of classified evidence respond that deportation proceedings are not criminal trials, and that the government should not have to choose between endangering its intelligence sources or allowing terrorists to roam freely the United States.

The second criticism against the use of classified evidence is that the INS is biased against Middle Eastern immigrants. Almost all of the aliens affected by classified evidence have been from the Middle East.

Supporters of classified evidence respond that a disproportionate number of terrorist attacks against Americans are perpetrated by Middle Eastern groups or individuals, a position supported by the State Department's latest survey of global terrorism.

The third criticism arises from media reports of a number of cases where alleged terrorists were detained for long periods based on classified evidence, but then ultimately released by INS. Questions have been raised regarding the necessity of these detentions and the quality of the classified evidence used, especially when the aliens were ultimately released.

Legitimate concerns about national security and public safety should not blind us to the potential for hardship and abuse for aliens who are excluded or removed based on classified evidence. In removal cases criminals or suspected terrorists are often held in detention facilities to ensure they do not abscond, and such detention can stretch out for months or years while the case is litigated. Removal based on classified evidence is a delicate procedure that, if mishandled, can create oppressive situations.

This hearing will give witnesses an opportunity to address mistakes or abuses that may have occurred and discuss corrective measures that may be necessary.

H.R. 2121, authored by Representatives Campbell and Bonior, would prohibit the U.S. government from using classified evidence ex parte in immigration proceedings.

Specifically, it would abolish the Alien Terrorist Removal Court, making the government forego the use of undisclosed classified evidence as grounds for removal.

The bill also prohibits the use of undisclosed classified evidence against claims for asylum or other relief made by illegal aliens who are trying to avoid deportation.

H.R. 2121 would prohibit the government from using undisclosed classified evidence to deny immigration benefits, including asylum, permanent residence, and United States citizenship. The bill would also prohibit the use of such evidence to deny admission to the United States.

Currently, terrorist or criminal aliens in removal proceedings or under removal orders may be detained by INS so that they do not abscond. The aliens' claims are heard and decided by immigration judges.

H.R. 2121 would give all detained aliens the additional right to challenge their detention by filing habeas corpus petitions in federal district court. The government would be prohibited from using undisclosed classified evidence to prevent the release of a terrorist or other criminal alien.

Finally, H.R. 2121 would take effect on enactment, requiring the government either to disclose classified evidence to affected aliens or to immediately terminate all immigration proceedings against such aliens and release them from detention within 30 days.

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