Congressional Record: August 5, 1999 (House)
Page H7357-H7367
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS BILL, FISCAL YEAR 2000 (H.R. 2670)
[...]
Amendment No. 5 offered by Mr. Campbell:
Amendment No. 5. At the end of the bill, insert after the
last section (preceding the short title) the following:
Sec. . None of the funds appropriated under this Act may
be used to enforce the provisions of 8 U.S.C.
1534(e)(3)(F)(ii).
The CHAIRMAN. Under a previous order, the gentleman from California
(Mr. Campbell) is recognized for 5 minutes.
Mr. CAMPBELL. Mr. Chairman, I yield myself 2 minutes.
Mr. Chairman, there are 24 persons either in jail or otherwise facing
deportation in the United States under a very unusual law. I am quoting
from the Washington Post description:
"A little-known provision of immigration law in effect since the
1950s allows secret evidence to be introduced in certain immigration
proceedings. The classified information, usually from the FBI, is
shared with judges but withheld from the accused and their lawyers.
"Lately, the rarely used provision has fallen most heavily on Arabs,
and their advocates say this is no coincidence."
Mr. Chairman, this use of secret evidence, the evidence that the
accused cannot see, has been held unconstitutional every time it has
been challenged: the Ninth Circuit, the D.C. Circuit; just in the last
year, three immigration judges. But the Department of Justice
nevertheless continues to use secret evidence in the other circuits,
where they can get away with it. This to me is unconstitutional.
It strikes the editorial boards of the Washington Post, the St.
Petersburg Times, and the Miami Herald as unconstitutional, as well.
The Washington Post, for example, says, "The use of secret evidence in
pursuing adverse judicial actions against people is a blight on our
legal system that ought to be changed."
The St. Petersburg, Florida, Times points out, in the case of Dr.
Mazen Al-Najjar, "If investigators have incriminating evidence against
Al-Najjar, then let him, his family, and the rest of the Nation see it.
Either Al-Najjar should be tried with evidence of his activities in
plain view, or he should be set free. The U.S. Constitution calls for
no less. He deserves no less."
The Miami Herald concludes "The INS and Justice Department must
cease immediately this condemnation by innuendo, denial of liberty
based on secret testimony, and destruction of reputation on the basis
of guilt by association."
Mr. Chairman, my coauthor in this effort is the gentleman from
Michigan (Mr. Bonior), the distinguished minority whip. If he comes to
the floor, I wish to reserve time for him. If not, I will have
additional comments.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN. Who seeks time in opposition?
Mr. DIXON. Mr. Chairman, I rise in opposition.
The CHAIRMAN. The gentleman from California (Mr. Dixon) is recognized
for 5 minutes.
Mr. DIXON. Mr. Chairman, I yield such time as he may consume to the
gentleman from Ohio (Mr. Kucinich).
(Mr. KUCINICH asked and was given permission to revise and extend his
remarks.)
Mr. KUCINICH. Mr. Chairman, I rise in support of the Campbell
amendment.
Mr. Chairman, I rise today in support of the amendment to the
Commerce-Justice-State Appropriations Bill offered by Mr. Campbell.
This amendment stops the funding for the use of secret evidence by the
Immigration Naturalization Service.
In 1996 an amendment was added to the Antiterrorism and Effective
Death Penalty Act, authorizing the INS to use secret evidence in
barring or deporting immigrants as well as denying benefits such as
asylum. However, this law restricts two rights Americans hold very
dear: (1) the right to due process and (2) the right to free speech.
This country has always and must continue to value the right to a fair
trial and the freedom to hold and practice personal beliefs.
However, allowing the use of secret evidence undermines the rights
and liberty of both citizens and legal aliens alike because it lessens
the constraints of both Constitutional considerations and conscience on
INS cases. The case of the Iraqi seven clearly illustrates the flawed
use of secret evidence.
Seven Iraq individuals were among the many Iraqi Arabs and Kurds who
were part of a CIA-backed plot to overthrow Saddam Hussein. While
attempting to gain political asylum in the United States after their
work in Iraq with 1,200 other Iraqis, these seven individuals were
singled out and detained by the United States Immigration and
Naturalization Service on the claim that they were a risk to national
security. These seven individuals, who had worked with the U.S. in
opposition to Saddam Hussein, were now seen as a threat to our national
security based on secret evidence. Evidence that no one was allowed to
see. Not the 7 Iraqis. And not their attorneys. Evidence that could be
used to deny them asylum and deport them back to Iraq where they would
surely meet their death.
After much pressure, 500 pages of this so-called secret evidence was
released. Closer examination revealed the evidence was tarnished due to
its faulty translations, misinformation and use of ethnic and religious
stereotyping. There have been about 50 cases where secret evidence was
used to detain and deport individuals. This is unAmerican. The
cornerstone of our judicial system is that evidence cannot be used
against someone unless he or she had the chance to confront it. The INS
is relying more and more on the use of secret evidence. If we continue
to fund the use of secret evidence against non-citizens, then soon
secret evidence will be used against American citizens too. There will
be no limit to its use.
So, I encourage my colleagues to support this amendment. I ask you to
maintain and defend the civil rights of all citizens living in the
United States under the U.S. Constitution. Vote "yes" on the Campbell
amendment.
Mr. Chairman, I include material relating to this matter for the
Record.
The material referred to is as follows:
Congress of the United States,
House of Representatives,
August 2, 1999.
Dear Colleague, we invite you to join us in cosponsoring
"The Secret Evidence Repeal Act of 1999," a bill to repeal
the use of "secret evidence" in Immigration and
Naturalization Service deportation hearings.
Under the Anti-Terrorism and Effective Death Penalty Act of
1996, the INS is allowed to arrest, detain and deport non-
citizens on the basis of "secret evidence"--evidence whose
source and substance is not revealed to those who are
targeted or their counsel.
The right to confront your accuser, hear the evidence
against you and secure a speedy trial are fundamental tenets
of the American justice system. This violates our deepest
faith in the right to due process, and violates our
democracy's most sacred document, the United States
Constitution.
We are very concerned about the arrest, imprisonment and
even forced deportation of individuals here in the United
States based on evidence that the individual is not afforded
an opportunity to review or challenge. The use of such
"secret evidence" directly contradicts our sense of due
process and fairness.
The Bonior-Campbell bill would correct this injustice by
ensuring that no one is removed, or otherwise be deprived of
liberty based on evidence kept secret from them.
People should know the crimes with which they are being
charged and should be given a chance to challenge their
accusers in court. I am proud to join my colleague,
Congressman David Bonior, in proposing legislation to end
this practice.
Most affected by the INS and Justice Department's use of
"secret evidence" are Muslims and perhaps the most
egregious case is that of Dr. Mazen Al-Najjar of Tampa,
Florida, arrested two years ago by INS agents.
Virtually all of the "secret evidence" cases have been
directed at Muslims and people of Arab descent. This law is
clearly discriminatory and unconstitutional, and we need to
take a strong stand against it.
[[Page H7359]]
Tom Campbell.
David Bonior.
It's Unthinkable That in America an Individual Could be Imprisoned
Without Showing That Person the Evidence
our amendment would block funding only for this section:
"(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,
imprisoned for not less than 10 years nor more than 25 years,
or both."
Amendment to H.R. 2670, as Reported Offered by Mr. Campbell of
California
At the end of the bill, insert after the last section
(preceding the short title) the following:
Sec. . None of the funds appropriated under this Act may
be used to enforce the provision of 8 U.S.C.
1534(e)(3)(F)(ii).
[From the LA Times, Dec. 15, 1997]
Use of Secret Evidence by INS Assailed
(By Jeff Leeds)
While a judge weighs a decision in his case, Ali Mohammed-
Karim is still waiting to hear the evidence against him.
Along with hundreds of other Iraqis who worked with the
Central Intelligence Agency in a failed effort to oust Saddam
Hussein, he fled northern Iraq last year and sought political
asylum in this country.
Upon his arrival, he and 12 other refugees were thrown in
jail, accused by the Immigration and Naturalization Service
of posing a "danger to the security of the United States,"
an allegation the agency has refused to explain.
The case of the Iraqi refugees is the latest front in the
widening legal battle over the INS use of classified
evidence.
In the proceedings against the refugees, the INS has argued
its case and questioned its witnesses--one of whom is
employed by an agency it will not identify--behind closed
doors. Lawyers for the refugees were not present. They had to
put on a defense based essentially on guesswork.
"It's completely frustrating," said Niels Frenzen, an
attorney with Public Counsel, who represents the eight Iraqi
men who are jailed in San Pedro. "How are we doing? We don't
know. Have we guessed the secret evidence? We don't know."
Both sides have rested their cases and are awaiting
immigration Judge D.D. Sitgraves' decision. She has indicated
that she may not rule until early 1998 on whether six of the
men jailed in San Pedro are security risks.
Sitgraves already has ruled that two others are not, but
they remain incarcerated while they seek political asylum.
Another group of Iraqis faces similar proceedings in Northern
California.
In a telephone interviews from the INS detention facility
in San Pedro, Mohammed-Karim, 35, said he is a doctor who was
excited about starting a new life with his family in the
United States. He said he once treated an American CIA
operative in Iraq for a migraine headache, and denied that he
was an agent for Hussein.
"I was never a single agent," he said. "How could I be a
doubt agent?" He added that the allegations against them are
"just illusions."
Although the use of secret evidence is prohibited in
criminal courts, the INS says its use of such information to
deny political asylum is permitted under Supreme Court
decisions dating from the 1950s. And under new legislation,
the immigration service is allowed to use secret evidence to
deport residents suspected of associating with terrorists.
David Cole, a Georgetown University law professor who is
suing the federal government over its use of secret evidence
in a New York immigration case, says the Iraqi men were
evacuated and transported to this country by the government
and are entitled to due process.
"Even the most minimal due process protection would
invalidate the use of secret evidence," Cole said.
But the INS has refused to reveal the nature of its
suspicions about the Iraqis. INS officials noted that
national security is typically used as a basis for keeping
out spies or potential terrorists, and has been used to block
members of the Irish Republican Army from staying in the
country.
Before being flown to the United States, the jailed Iraqi
men worked for their country's two main resistance groups:
the Iraqi National Congress and the Iraqi National Accord.
Those groups produced newspaper articles and radio broadcasts
critical of Hussein, and mobilized soldiers to battle his
forces.
Many experts believe that despite the CIA's support, the
resistance was never strong enough to pose a serious threat
to the Iraqi leadership, in part because the groups were
riven by internal political disputes. And even the resistance
leaders concede that Hussein's spies may have infiltrated the
groups.
In August, Iraqi military forces rolled into northern Iraq
and crushed the resistance effort. U.S. forces evacuated more
than 6,000 Iraqis and Kurds to a NATO air base in Turkey
before flying them to Guam.
During their five-month stay in Guam, the refugees were
taught American civics--including, Frenzen notes with irony,
the right to face one's accuser in court. They also submitted
to FBI interviews.
Frenzen contends that disgruntled resistance workers,
motivated in some cases by petty personal disputes with his
clients, intentionally misled the FBI about their
backgrounds.
But because the FBI's reports of those interviews are
classified, federal authorities will not disclose why the
refugees are considered potential threats to national
security. The INS has granted asylum to their wives and
children.
The proceedings--at least the portion that was open to the
public--have shed little light on the evidence. Sitgraves has
repeatedly stopped the Iraqis' lawyers from probing too
deeply into classified evidence, forcing them to essentially
guess what in their clients' background raised red flags for
the FBI.
In a typical exchange recently, FBI Agent Mark Merfalen
testified that he interviewed one of the refugees about his
experience with chemical weapons, his service in the Iraqi
military before he deserted to join the resistance and his
earlier request for political asylum filed in Saudi Arabia.
But Merfalen, a counterintelligence specialist assigned to
the FBI's Oakland office, did not indicate what information
led him to conclude that the man, Mohammed Al-Ammary, posed a
security threat.
"I don't have enough facts" to form an opinion about
whether Al-Ammary represented a threat, Merfalen said at one
point.
A key witness for the accused was Ahmad Chalabi, president
of the Iraqi National Congress, who testified by telephone
from an INS office in Arlington, Va.
"I do not believe that any of them is an agent for the
Iraqi government," Chalabi said. He said the congress
conducted background checks on its members, and that he was
also assured that the men were not spies for Iran, Syria or
Turkey.
"It is inconceivable to the Iraqi people why these people
are jailed," he said.
[From the LA Times, Aug. 15, 1997]
Secret Evidence--A Local Professor Languishes in Jail, Even Though He
Has Been Charged With No Crime, Thanks to a Troubling Provision of a
New Anti-Terrorism Law.
In their zeal to protect U.S. citizens against acts of
domestic terrorism, such as the World Trade Center and
Oklahoma City bombings, President Clinton and Congress passed
the Anti-terrorism and Effective Death Penalty Act of 1996.
Unfortunately, the legislation undermines some of the
constitutional rights that make America the free nation it
is.
Nothing illustrates this dilemma better than the case
involving Palestinian refugee Mazen Al-Najjar, a 40-year-old,
American-educated engineer who taught Arabic part time at the
University of South Florida in Tampa. He was not rehired
after his visa was not renewed.
Al-Najjar has been in an Immigration and Naturalization
Service holding facility at the Manatee County Jail since
four agents grabbed him from his northeast Tampa home the
morning of May 19. He has been denied bail based on "secret
evidence" said to connect him with the Islamic Jihad, a
notorious terrorist organization in the Middle East.
INS officials allege that the World and Islam Studies
Enterprise, the USF think tank that Al-Najjar managed, is a
fund-raising front for terrorists and that Al-Najjar is an
Islamic Jihad shill. Troubles started for Al-Najjar and
others connected to WISE on Oct. 26, 1995, when the head of
Palestine Islamic Jihad was shot to death on the
Mediterranean island of Malta. Days later, Ramadan Shallah,
who had been an instructor at USF and a member of WISE,
became the new leader of Islamic Jihad.
Authorities assumed they would find a terrorist cell at
USF. But no convincing evidence to support that suspicion has
been made public. After an internal investigation. USF
President Betty Castor said: "Was there illegal activity,
subversive activity, terrorist activity? We don't have any
evidence of that."
Was USF's investigation incomplete? Were Castor's
conclusions self-serving? If the government possesses
evidence that the USF investigation missed, it isn't
revealing it.
Yet Al-Najjar remains in jail. No formal charges have been
brought against him. He is being held under an
unconstitutional provision of the Anti-terrorism Act. The
merit of the case notwithstanding, the anti-terrorism
legislation allows the government to use informant testimony
or other forms of secret evidence to imprison and deport
legal immigrants suspected of terrorism without letting the
suspects cross-examine their accusers.
Remember, the U.S. supreme Court has ruled that aliens have
the same rights of due process that U.S. citizens enjoy. U.S.
citizens should expect their government to take all
reasonable steps to protect them from terrorism, both foreign
and domestic. But officials have a responsibility to balance
the need for security with the obligation to protect the
constitutional rights of everyone.
If investigators have incriminating evidence against Al-
Najjar, then let him, his family and the rest of the nation
see it. Either Al-Najjar should be tried--with evidence of
his activities in plain view--or he should be set free. The
U.S. Constitution calls for no less. He deserves no less.
Mr. DIXON. Mr. Chairman, I yield myself such time as I may consume.
[[Page H7360]]
Mr. Chairman, there is certainly no one more distinguished here in
the Chamber on constitutional law than the gentleman from California
(Mr. Campbell).
Mr. Chairman, I will be brief. In Jay versus Boyd, a U.S. Supreme
Court decision, the court ruled that classified information could be
used in an in camera or ex parte proceeding.
Now, there are clearly are constitutional grounds that do not exist
for this. However, it is a policy issue. What this amendment says is
that if an alien is being held for deportation and is going through a
hearing process, one, that if the Justice Department does not disclose
to him all of the facts in the case, or evidentiary material that they
held against him, then he should be released from custody and obviously
not deported.
I would point out first that these are not criminal proceedings.
Therefore, the alien is not subject to the protection of the Sixth
Amendment. These are administrative proceedings, and as I have
indicated, under certain circumstances where the national security of
our country is at risk, where disclosing the entire information to the
alien would risk either sources and methods or individuals, as to how
they obtained the information, I think it is appropriate for the court
to allow ex parte hearing.
The gentleman from California (Mr. Campbell) recognizes that this is
very rarely used. In over hundreds of thousands of cases in the past 2
years dealing with deportation, there have been only 30.
But most importantly, this is a very complicated issue, and there are
merits on both sides of the issue. It should not be decided on the
State-Commerce-Justice bill. It should be, rather, examined quite
thoroughly in the appropriate committees of the House and we then
should make some recommendation.
Mr. Chairman, on those grounds I would oppose the amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. CAMPBELL. Mr. Chairman, I yield 2 minutes to the distinguished
gentleman from Michigan (Mr. Bonior), the Democratic whip.
Mr. BONIOR. Mr. Chairman, I want to thank my colleague for this
amendment. This is a serious issue that needs to be addressed.
Our country was founded on the principles of individual liberty, and
our Constitution deliberately and specifically protects the rights of
individuals against the abuses of government. But unfortunately, we in
this country have not always fulfilled this essential promise. It
started out with Native Americans, affected African-Americans, it
affected Japanese Americans, it affected German Americans during World
War II, and now it is affecting Arab Americans and Muslim Americans in
this country.
The anti-terrorism law that was passed in 1996 allows the Immigration
and Naturalization Service to arrest, to detain, and to deport legal
immigrants on the basis of secret evidence, evidence which is not
revealed to the detainee. These legal immigrants are not charged with a
crime, they are not allowed to see the evidence against them. Some of
them are not even allowed to post bail.
In this country, if we can imagine, some of the detainees have not
been charged with any crime, have been in jail for over 2 years, not
knowing why, their attorneys not knowing why, languishing there, and
their families not having any recourse to get them out or have them
have a hearing.
The right to confront one's accuser, to hear the evidence against
you, and to secure a speedy trial are fundamental tenets of the
American justice system, and secret evidence violates our deepest faith
in the right of due process, and violates our democracy's most sacred
document, which is the Constitution.
The Washington Post said, "Nothing is more inimical to the American
system of justice than the use of secret evidence to deprive someone of
his liberty." This practice is clearly discriminatory, it is
unconstitutional, and we need to stand up here in this body and take a
strong stand against it; if not tonight, certainly in the future.
Virtually all the secret evidence, as I said, in these cases are
against Arabs and Muslims in this country, some of whom have lived here
for years with their families and with their children. I would just ask
my friends to pay attention to this issue.
I want to commend my colleague, the gentleman from California, for
raising this tonight. I hope that we can address this issue tonight and
in the months to come.
Mr. DIXON. Mr. Chairman, I yield one minute to the gentleman from
Kentucky (Mr. Rogers), the distinguished chairman of the subcommittee.
Mr. ROGERS. Mr. Chairman, I am opposed to this amendment. The Justice
Department has supported this proceeding as a necessary tool to fight
terrorism. They oppose the amendment, as does the gentleman from Texas
(Chairman Smith) of the Subcommittee on Immigration and Claims, as does
the gentleman from Illinois (Mr. Hyde), the chairman of the Committee
on the Judiciary, the gentleman from Florida (Mr. Goss), the chairman
of the Permanent Select Committee on Intelligence, and the gentleman
from Florida (Mr. McCollum), the chairman of the Subcommittee on Crime.
We all urge a no vote on the amendment.
{time} 1845
Mr. DIXON. Mr. Chairman, I yield 1 minute to the gentleman from San
Diego, California (Mr. Filner).
Mr. FILNER. Mr. Chairman, I rise in support of the amendment offered
by the gentleman from California (Mr. Campbell) and thank him for his
recognition that legal residents in our country have human and
constitutional rights.
As his amendment shows, many changes to our Nation's immigration laws
in 1996 have proven to be anti-American, denying those living in the
United States the right to due process and judicial review of their
cases. Remember, we are talking about legal immigrants, many who have
been in the United States for most of their lives and are the primary
bread winners for their families.
They are denied due process, denied bail, and cannot even see the
evidence in many cases with which they are accused. We are deporting as
criminals thousands of legal residents who committed minor crimes 20 or
30 years ago, served their sentences or probations and have become
hard-working taxpayers, men and women with families. They are being
ripped from those families, their children, their jobs, their
businesses, and held without bail. This is not what America should be,
Mr. Chairman.
I support this amendment to reinstate a little bit of sunshine into
our deportation process. This House needs to go further and reverse
many of the unintended consequences of so-called immigration reform
bills of 1996.
Mr. CAMPBELL. Mr. Chairman, parliamentary inquiry. Do I have the
right to close?
The CHAIRMAN. The gentleman from California (Mr. Dixon) has the right
to close.
Mr. CAMPBELL. Mr. Chairman, I reserve the balance of my time.
Mr. DIXON. Mr. Chairman, I do have the right to close. I am allowing
anyone who wanted to speak on this issue, not necessarily for or
against; and I have two speakers. I am wondering if the gentleman from
California (Mr. Campbell) will yield to one of those speakers.
Mr. CAMPBELL. Mr. Chairman, I have a minute left. I would like a half
a minute to close.
Mr. DIXON. Mr. Chairman, I yield 30 seconds to the gentleman from New
York (Mr. Meeks).
Mr. CAMPBELL. Mr. Chairman, I yield 30 additional seconds to the
gentleman from New York (Mr. Meeks).
Mr. MEEKS of New York. Mr. Chairman, I want to thank the gentlemen
for giving me this time.
I rise to support the amendment of the gentleman from California (Mr.
Campbell) because this amendment will withhold funds when enforcing
provisions that deny legal immigrants evidence on why they were
arrested, detained, or deported.
This secret evidence provision is unfair. As a former prosecutor, I
am a firm believer of the discovery period and due process. When all
the facts are presented, only then will the court of law be able to
adequately decide if a person is innocent or guilty.
The American justice system is built on the fundamental tenets of a
fair
[[Page H7361]]
trial and innocent until proven guilty. The current provisions under
the Anti-terrorism and Effective Death Penalty Act of 1996 violates an
individual's constitutional right to know why they are being charged.
Noncitizens who are legal immigrants who are detained by the INS are
individuals who have the same rights as U.S. citizens. Why are they
punishing legal immigrants?
What if the U.S. citizens visiting a foreign country were unjustly
charged and detained without any evidence provided? As Members of
Congress, we would be outraged and demand intervention by the State
Department. In fact, we would probably reevaluate our relationship with
that nation, whether that nation be friend or foe.
Mr. CAMPBELL. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, it is unthinkable that in our country people are in
jail tonight based on evidence that they could not see. That is not my
country. I would hazard to guess that most of us are shocked that that
is the law. But it is the law, and it should be changed.
I want to thank the gentleman from Texas (Mr. Smith), the chairman of
the subcommittee, who has agreed to hold a one-panel hearing on this
subject.
Mr. RODRIGUEZ. Mr. Chairman, I rise in support of the Campbell
amendment. I think in this day and age it is unfair to hold anyone with
secret evidence.
I have met with families of some non-citizens who have been held.
It is very frustrating when you have people held in such a manner.
These are people with families and ties to the community here. Some
have fled and sought asylum. None have been shown to be a threat to
society.
But, neither the individual nor the lawyer can see the evidence. So
they wait in jail, with no country to go to.
I urge adoption of this amendment so the INS would be forced to
disclose evidence on these people it continues to detain.
I thank the gentleman for his work on this issue.
Mr. CAMPBELL. Mr. Chairman, in recognition of the kindness of the
gentleman from Texas (Mr. Smith) I ask unanimous consent to withdraw
the amendment.
The CHAIRMAN. Is there objection to the request of the gentleman from
California?
There was no objection.
[...]