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AND H.R. 2121


MAY 23, 2000

I. Introductory Statement

My name is Bruce Ramer. I am National President of the American Jewish Committee, the nation's premiere human relations organization with some 105,000 members and supporters, and with 32 regional chapters across the United States. Mr. Chairman and Ranking Member Conyers, I appreciate the opportunity to appear before the House Judiciary Committee today to address the concerns of the American Jewish Committee with respect to the Secret Evidence Repeal Act (H.R.2121).

Since 1906, the American Jewish Committee has fostered understanding and cooperation among Americans across religious, ethnic and racial lines. We have fought bigotry and anti-Semitism in our own country and around the world, seeking to protect Jewish communities and other religious minorities abroad while advancing the cause of human rights. We have sought, as well, to promote the civil liberties that are the bulwark of the American democratic enterprise and to ensure an equitable immigration policy founded on the understanding that this nation is, fundamentally, a Nation of Immigrants.

As I will discuss more fully, we believe that H.R.2121's categorical ban on the use of classified information in immigration proceedings fails to draw a balance between due process concerns and national security interests. It is a hatchet taken to a set of serious and difficult issues that require, instead, a scalpel. Before I discuss H.R.2121, however, I want to make some brief comments on the role that AJC has played in two disparate areas -- the battle against terrorism and, as mentioned above, the promotion of a fair and generous immigration policy -- that are both pertinent to the scope of this hearing.

Firstly, the AJC has consistently advocated a broad and multifaceted response to the global and domestic threats of terrorism, including the enactment of tough legislation that is mindful of preserving the liberties we all cherish while giving law enforcement authorities the tools not only to apprehend terrorists but also, to the maximum extent feasible, to prevent the commission of such crimes. The carnage resulting from terrorist attacks -- of which the Oklahoma City and World Trade Center bombings are the most notorious examples to have occurred on American soil -- demands a vigorous national and international response. Neither this nation, nor any other, is obligated to stand idly by while the sworn enemies of all we hold dear attack us frontally and with unspeakable brutality. And, as demonstrated by the arrest in December of Ahmed Ressam, who has ties to Osama bin Ladin -- as he allegedly attempted to bring into the United States a rented car full of enough explosives to kill hundreds of people -- terrorists continue to pose a substantial threat to the values and enduring interests of the United States, and civilized society generally.

Secondly, and no less crucially, the AJC has a historic commitment to the United States maintaining a fair and generous immigration policy. We are mindful that in the first decades of this century, more than two million East European Jews came to America fleeing poverty and persecution, seeking freedom and opportunity, and, save a sad, long period when the gates of this nation were slammed shut to those literally seeking to escape extermination, many more of our people have followed since. Bearing in mind the contribution we and other immigrants have made to this nation, and all that this nation has meant to those who have arrived on its shores, the AJC works in many ways on the state and national levels to insure that all immigrants continue to see America as a symbol of hope.

There is absolutely no inconsistency between assuring that law enforcement authorities are properly equipped to respond to the threat of terrorism and, at the same time, assuring that immigrants and refugees are treated fairly and decently.

II. The Threat of Terrorism

Before I turn to the problematic nature of the Secret Evidence Repeal Act itself, a review of the nature of the threat posed to the United States by the forces of international terrorism is in order. It is crucial to understand that we are dealing here not with some will-o'-the-wisp, but with a palpable and growing danger to each of us and to all that we hold dear.

The menace of terrorism threatens America and its allies and the core values and institutions of democratic societies around the world. It appears that a substantial part of this threat is fueled by, or linked to, militant Islamic extremism but by no means does this movement pose the only threat of terrorism to Americans on the international scene. Let me be clear on one point -- from whatever place the threat of terrorism emerges, and whatever philosophy supports it, our view as to the measures necessary to counteract this peril remain the same. And let me be just as clear on another crucial point -- by no means does the existence of such a threat justify the taking of legal action against an individual on the basis of his or her ethnic identity or religion, as opposed to evidence of that individual's culpability for wrongdoing. But these weighty concerns as to fairness and the need to foreswear discrimination cannot allow us to blink at the reality of the ongoing threat.

Four categories of terrorism confront the United States today:

· Terrorism carried out by organizations that possess an international infrastructure, such as Al-Qa'ida headed by Usama Bin Ladin, and Hizballah;

· Domestic terrorist organizations located in the United States that are comprised of American citizens, such as The Order, the Aryan Nations, and certain extremist militia groups;

· Acts of terrorism carried out by individuals motivated by the extremist ideology and propaganda of a terrorist group, but with no formal ties to such groups. One example of such an incident may be the August 1999 attack carried out by Buford Furrow against a Jewish day care center in the Los Angeles area; and

· Terrorism carried out via state sponsorship. While state-sponsored terrorism has declined through the 1990s, it has continued to play a role in regard to Middle Eastern terrorist organizations, such as Hamas and Hizballah which have received funds and logistical support for their activities from Iran.

One factor heightening the threat of terrorism against the United States over the last two decades has been extreme religious fanaticism. Leaders of terrorist groups who employ this type of ideology present a perverted form of religious tenets to justify their attacks. The abuse of the trappings of religion by these organizations gives them the ability to take advantage of the freedoms provided by Western societies. In contrast to terrorist organizations that have a specifically declared political goal, the potential of these organizations for carrying out ever more deadly attacks is much higher. Another factor is the ability and willingness of terror organizations to pursue ever more deadly means of carrying out attacks. These include the use of powerful improvised explosive devices, as were used in the suicide attack carried out by Hizballah against the U.S Embassy in Beirut in 1983 and the truck bombing attacks carried out at the World Trade Center in 1993 and at the Murrah Building in Oklahoma City in 1995. Over the past decade, terrorist organizations such as Al-Qa'ida have made efforts to acquire weapons of mass destruction. And although the Japanese terrorist organization Aum Shin Ri Kyo does not include the United States among its declared targets, its successful use of sarin gas in the Tokyo subway in 1995 --resulting in 12 fatalities and the hospitalization of over 5,000 individuals -- has paved the way for other groups to do so.

Funds are raised to support the social service systems of these terrorist movements in order to maintain their current capabilities and ensure the continuity of these organizations. Terrorist organizations have taken advantage of the freedom of movement and privacy enjoyed by citizens of the United States and other Western countries in order to establish ostensibly charitable organizations to raise funds for their activities abroad.

As one means of weakening the infrastructure that produces operatives for these organizations, the American Jewish Committee supports the implementation of provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "Antiterrorism Act") that would impede the efforts of terrorist organizations to raise money on American soil. To date, certain organizations have been investigated for these activities but, regrettably, so far as we know no further concrete action under the 1996 act has been taken.

Nearly a decade ago, senior federal law enforcement officials stated that every significant Middle Eastern terrorist organization has an infrastructure in the United States. There is no reason to believe that the situation is any different today. The American Jewish Committee supports the aggressive investigation of terrorist organizations and their apparatus in the United States, consistent with existing investigative guidelines.

And, turning to the provisions of the 1996 Antiterrorism Act that the Secret Evidence Repeal Act would remove in toto, when investigations reveal that noncitizens present in the United States have been involved in terrorist activities, we support the policy that law enforcement authorities should be enabled to seek the deportation of those individuals without revealing or endangering sensitive sources of information, utilizing procedures that recognize due process concerns. Classified information often includes sensitive material that cannot be revealed, such as the identities of well placed operatives whose lives would be jeopardized if their identities or whereabouts were revealed. Disclosure of classified information will also mean, in many cases, that sources of intelligence crucial to national security -- whether individuals or foreign nations -- will be lost. Supporters of H.R.2121 would present us with a Hobson's choice of either bringing classified information into open court for discovery and examination, with these potential baleful consequences, or be left without recourse against -- not even by removal from the United States of -- noncitizens known on the basis of classified information to be involved in terrorist activities. For the reasons we discuss below, we reject this false and debilitating choice.

III. The Secret Evidence Repeal Act Over recent months, we have seen severe criticisms of the INS for its use of classified information, not shared with the potential deportee, in detaining aliens who are alleged to have been involved in terrorist activity. Such advocates have asserted that the information on which the INS relies in detaining these individuals and in seeking deportation, turns out, once revealed, to call into question the merits of the case. They further allege that the use of what they call "secret evidence" deprives immigrants of basic civil liberties and due process, such as the opportunity to refute evidence used to justify their deportation.

The campaign against government reliance on classified evidence was given additional momentum last year with judicial determinations in two cases. In one case, Hany Kiareldeen was freed from a New Jersey jail in October after a federal district judge ruled that his detention violated due process because it was based on evidence that he had not had the opportunity to examine or confront, and because the government's evidence, including information made available to the court in camera, consisted of "uncorroborated hearsay accusations which [Kiarledeen] ha[d] rebutted." In the other case, an immigration judge freed Nasser Ahmed from detention because, the court concluded, Mr. Ahmed successfully rebutted the INS' assertion that he was a threat to national security. The court noted that this rebuttal was only made possible once Mr. Ahmed was afforded access to a declassified version of evidence to which he had earlier been denied access altogether and cautioned against "the possibilities for abuse" in the use of "secret evidence." The court's determination was upheld by the Board of Immigration Appeals in November.

H.R.2121 would respond to the perceived problem of the use of "secret evidence" by forbidding the use of classified information in any immigration proceeding, unless that information is subject to discovery and examination on the same basis as any other evidence. Current provisions of immigration law that allow the INS or the courts to rely on classified information to which an alien does not have access would be repealed, including pertinent provisions of the Antiterrorism Act.

But, significantly, neither of the aforementioned high-profile cases -- nor, to the best of our knowledge, any other case -- has involved the special "removal court" procedure created by the 1996 antiterrorism law. Even as we underline our commitment to safeguarding the civil liberties of every individual, we believe that it is noteworthy that the FBI recently stated that classified information is involved in only twelve pending cases out of some 300,000 pending immigration cases overall. The "removal court" procedure, perhaps with some modifications, provides an appropriate response to those rare situations in which law enforcement authorities must rely in an immigration proceeding on classified information tending to show an alien's involvement in terrorist activities.

The procedure is set forth in a section of the Antiterrorism Act called the "Alien Terrorist Removal Act" (ATRA). ATRA, as enacted by the Antiterrorism Act, establishes a removal court of lifetime-appointed federal judges (as opposed to immigration judges) with jurisdiction to hear cases to remove aliens where the Government has classified information demonstrating that the accused aliens have been engaged in terrorist activities. ATRA also establishes rules to assure that the accused has an opportunity for a fair and adequate defense, including the right to a public hearing and counsel; an opportunity to introduce exculpatory evidence; and a reasonable opportunity to examine the evidence, including an unclassified summary of the classified evidence. The special court must find that removal of the alien pursuant to usually applicable procedures "would pose a risk to… national security" before ATRA procedures may be utilized and, thereafter, in order for the case to proceed, the court must approve the unclassified summary to be provided to the alien as sufficient to allow for the preparation of a defense. The accused also has the right to appeal any adverse decision to the U.S. Court of Appeals for the District of Columbia.

It must be noted at this point that the foregoing describes the provisions of ATRA as they were originally enacted. Later in 1996, ATRA was amended by the immigration reform law so as to purport to provide for a process pursuant to which a deportation case may proceed, under certain circumstances, even without provision to the potential deportee of a summary. We have never subscribed to that later-added procedure.

In legislation enacted twenty years ago, Congress recognized that the demands of due process can be reconciled with the use of classified information in legal proceedings in a fashion that safeguards the sensitive nature of that information. Under the Classified Information Procedures Act (CIPA), in a federal criminal proceeding a court may, upon sufficient showing, permit the United States to delete specific items of classified information from documents prior to disclosing them to the defendant in the course of discovery, substitute a summary of the information for the classified material or submit a statement admitting facts that the documents would tend to prove. The determination of the court as to the procedure to be followed is made after an in camera and ex parte examination of both the classified information, and the summary to be provided to the defendant (if that is the course approved by the court) must be found by the court to provide the defense with substantially the same ability to mount a defense as would full disclosure of the classified information. CIPA has overwhelmingly been upheld by the federal courts against constitutional challenge.

As I indicated earlier, so far as we know the ATRA has yet to be invoked, even though judges have been named to sit on the removal court contemplated by its provisions. In addition, ATRA is, by its terms, to be utilized in cases where the basis for deportation is involvement of the potential deportee in terrorist activities. It is not available in cases in which classified information demonstrating such involvement is used to deny, for instance, an asylum claim or as a basis to deny release from detention while an immigration proceeding based on other grounds for deportation is under way.

Thus, ironically, while the Kiareldeen and Ahmed cases, and others reported in the press, have been cited as justification for repeal of ATRA, the ATRA procedures have not been utilized in those, or any other, cases. In reviewing the Kiareldeen and Ahmed cases, it appears that the procedures there utilized by the INS were not as protective of due process concerns as a proceeding brought pursuant to ATRA, as originally enacted, would have been. The initial proceedings were before an immigration judge, not an Article III court; no court was involved in the initial determination that the case should proceed without ordinary disclosure; and any summary of classified information provided to the potential deportee does not seem to have been reviewed by a court to determine if it was sufficient to enable the preparation of a defense.

It is notable that both Kiareldeen and Ahmed were able to persuade the courts that they should not continue to be detained once some additional information was provided to them. Their cases thus seem to stand not for the proposition that the ATRA should be repealed in its entirety but, rather, as an argument for why the procedures of the type contemplated by ATRA, as originally enacted, are adequate and should be expanded to situations to which they are currently not applicable, such as denial of asylum or denial of release.

As is evident from the positions AJC has taken on other immigration-related matters now before the Congress, we do not regard the record of today's immigration system in treating immigrants equitably as spotless. We are not here today to argue that the INS should be defended in every case in which it has chosen to rely upon information not disclosed to a potential deportee, nor do we argue that the procedures set forth in the ATRA are not susceptible to improvement. For starters, as to this last point, Congress might consider rescinding the amendment to the ATRA -- enacted in the closing days of the 104th Congress -- which allows authorities, under certain circumstances, to bypass the requirement that an unclassified summary be provided to a potential deportee of classified information that serves as the basis for the action against him. In addition, the Justice Department may at some point issue new guidelines as to procedures for the use of classified information in immigration proceedings, an effort that we hope will provide greater clarity and assure less opportunity for abuse.

IV. Conclusion

In sum, the tack taken by the pending bill is untenable. H.R.2121 makes no accommodation whatsoever to the national security concerns to which the Alien Terrorist Removal Act was addressed. Its categorical ban on the use of classified information in immigration proceedings fails to draw the balance between due process concerns and national security interests for which AJC advocated during Congress' consideration of the Antiterrorism Act in which those provisions were included. We urge this committee, and the Congress as a whole, to reject the Secret Evidence Repeal Act and to adopt a more balanced approach.

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