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. [...]