22 March 2000
Source: US national newspaper.
By GERALD F. SEIB
HANY KIARELDEEN HAS survived the kind of judicial nightmare the State Department likes to criticize in its annual report on human-rights problems around the globe.
For 19 months, he was held in jail on vague assertions that he was involved in terrorism. He wasn't told of the specific evidence against him, and the courts refused to disclose who had accused him. That information, he was told, would be kept secret from him and his lawyers on national-security grounds. For a year and a half he was in limbo, he says, never charged with any terrorist act or even questioned.
The most noteworthy aspect of the Kiareldeen case is the country where it transpired: He was held in the U.S., under a little-known "secret evidence" law that was part of an antiterrorism act passed in 1996.
The battle against terrorism continues, of course, as underscored by yesterday's disclosure by the White House that a planned visit to a Bangladeshi village by President Clinton was canceled due to fears of a terrorist attack. But there is a growing feeling that the secret-evidence law has taken the battle on terrorism a bridge too far.
An odd-bedfellow group in Congress, led by Republican Rep. Thomas Campbell of California and Michigan Democratic Rep. David Bonior, is sponsoring "The Secret Evidence Repeal Act," which would roll back the 1996 statute. As evidence that civil-liberties issues can unite wildly incompatible liberals and conservatives, they are joined by leftist Democrat John Conyers of Michigan and rightist Republican Bob Barr of Georgia.
In a private meeting with Arab-American leaders three weeks ago, President Clinton also expressed interest in changes. Thus, in an election year when partisan politics promise to halt many initiatives, change is possible in the secret-evidence law.
"Nothing, frankly, is more important," Rep. Campbell says. "It's a violation of the Constitution. It's that simple and that outrageous, and we shouldn't tolerate it."
REP. CAMPBELL GUESSES that 90% of his colleagues didn't even realize that the secret-evidence provision was included when they passed the indelicately named "Anti-Terrorism and Effective Death Penalty Act." The provision allows the Immigration and Naturalization Service to arrest, detain and deport noncitizens on the basis of evidence that doesn't have to be disclosed to either the alien or his lawyers.
In practice, this has meant that the Federal Bureau of Investigation passes on evidence to the INS, which grabs immigrants as they try to change or extend their legal status in the U.S. Only a judge sees the evidence. The FBI argued in congressional testimony last month that telling even suspects and their lawyers would compromise foreign intelligence services and confidential informants, who would stop sharing information. The FBI says secret evidence is being used in only about a dozen cases.
BUT THOSE HELD, most often Arabs and Muslims, find that they have no way to respond to charges they aren't told about. Mazen al-Najjar is a Palestinian college professor and father of three young daughters who has lived in the U.S. for 18 years. Almost three years ago, he was arrested in Florida on charges of a visa violation, and then learned he was being held as a national-security threat for an alleged association with a terrorist group. He now has been in jail for more than 1,000 days, though David Cole, one of his attorneys, says he has never received even a summary of the evidence against him.
Mr. Kiareldeen is more lucky. After his 19 months in jails in New Jersey, a series of judges who saw the evidence against him decided it didn't justify holding him, and he was freed in October. The government eventually provided summaries alleging, among other things, that he hosted a meeting at his New Jersey apartment to discuss plans to bomb the World Trade Center. Once they learned of that assertion, Mr. Kiareldeen's attorneys successfully showed that he didn't actually live in the apartment until a year and a half after the Trade Center bombing. Mr. Kiareldeen and his lawyers strongly suspect the allegations originated with a disgruntled former wife, with whom he has been locked in bitter child-custody proceedings, but they can't be sure.
Rep. Campbell sees a possible compromise, in which new legislation might put a limit of 30 days on the time anyone could be held on secret evidence. The Clinton administration might not accept the compromise, but it would represent movement on what the congressman calls "the most important constitutional issue that we will have presented to us this year."
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html
[DOCID: f:h2121ih.txt]
106th CONGRESS
1st Session
H. R. 2121
To ensure that no alien is removed, denied a benefit under the
Immigration and Nationality Act, or otherwise deprived of liberty,
based on evidence that is kept secret from the alien.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 10, 1999
Mr. Bonior (for himself and Mr. Campbell, Mr. Barr of Georgia, and Mr.
Conyers) introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To ensure that no alien is removed, denied a benefit under the
Immigration and Nationality Act, or otherwise deprived of liberty,
based on evidence that is kept secret from the alien.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Secret Evidence Repeal Act of
1999''.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) No person physically present in the United States,
including its outlying possessions, should be deprived of
liberty based on evidence kept secret from that person,
including information classified for national security reasons.
(2) Removal from the United States can separate a person
from the person's family, may expose the person to persecution
and torture, and amounts to a severe deprivation of liberty.
(3) Use of secret evidence in immigration proceedings
deprives the alien of due process rights guaranteed under the
United States Constitution and undermines our adversarial
system, which relies on cross-examination as an engine of
truth-seeking.
SEC. 3. REPEAL OF SECRET EVIDENCE COURT PROCEDURES.
(a) Repeal.--Title V of the Immigration and Nationality Act (8
U.S.C. 1531-1537) is repealed.
(b) Clerical Amendment.--The table of contents for such Act is
amended by striking the title heading, and the items, relating to title
V.
SEC. 4. REPEAL OF USE OF SECRET EVIDENCE IN OTHER IMMIGRATION
PROCEEDINGS.
(a) Alien's Rights in Proceedings.--Section 240(b)(4)(B) of the
Immigration and Nationality Act (8 U.S.C. 1229a(b)(4)(B)) is amended to
read as follows:
``(B) the alien shall have a reasonable opportunity
to examine all of the evidence against the alien, to
present evidence on the alien's own behalf, and to
cross-examine all witnesses presented by the
Government, and''.
(b) Burden on Alien.--Section 240(c)(2) of such Act (8 U.S.C.
1229a(c)(2)) is amended by striking the last sentence and inserting the
following:
``In meeting the burden of proof under subparagraph (B), the
alien shall have access to the alien's visa or other entry
document, if any, and any other records and documents
pertaining the alien's admission or presence in the United
States.'''.
SEC. 5. REPEAL OF USE OF SECRET EVIDENCE TO DENY AFFIRMATIVE
APPLICATIONS FOR IMMIGRATION BENEFITS.
(a) In General.--Title I of the Immigration and Nationality Act is
amended by adding at the end the following:
``SEC. 106. REPEAL OF USE OF SECRET EVIDENCE TO DENY AFFIRMATIVE
APPLICATIONS FOR IMMIGRATION BENEFITS.
``No decision on any immigration benefit (including the granting of
asylum, the withholding of deportation or removal, adjustment of
status, naturalization, or the granting of temporary protected status)
shall be made on the basis of any evidence not shared with the
applicant.''.
(b) Clerical Amendment.--The table of sections for such Act is
amended by adding at the end of the items relating to title I the
following new item:
``Sec. 106. Repeal of use of secret evidence to deny affirmative
applications for immigration benefits.''.
SEC. 6. REPEAL OF USE OF SECRET EVIDENCE IN BOND PROCEEDINGS AND
JUDICIAL REVIEW OF BOND DETERMINATIONS.
(a) Judicial Review.--Section 236(e) of the Immigration and
Nationality Act (8 U.S.C. 1226(e)) is amended to read as follows:
``(e) Judicial Review.--Notwithstanding any other provision of law,
any alien against whom an order concerning detention, release on bond
or parole pending or subsequent to an order of deportability,
excludability, or removability shall be entitled to judicial review
thereof in habeas corpus proceedings to determine whether the Attorney
General is acting in violation of the laws or Constitution of the
United States, or is not proceeding with such reasonable dispatch as
may be warranted by the particular facts and circumstances of the
case.''.
(b) Aliens' Rights in Bond Proceedings.--Section 236 of the
Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at
the end the following:
``(f) Aliens' Rights in Bond Proceedings.--In proceedings under
this section--
``(1) the alien shall have the privilege of being
represented, at no expense to the Government, by counsel of the
alien's choosing who is authorized to practice in such
proceedings;
``(2) the alien shall have a reasonable opportunity to
examine all of the evidence against the alien, to present
evidence on the alien's own behalf, and to cross-examine all
witnesses presented by the Government; and
``(3) a complete record shall be kept of all testimony and
evidence produced at the proceeding.''.
SEC. 7. REPEAL OF USE OF SECRET EVIDENCE AGAINST LAWFUL PERMANENT
RESIDENTS, ASYLUM SEEKERS, AND ALIENS PAROLED INTO THE
UNITED STATES.
Section 235(c)(1) of the Immigration and Nationality Act (8 U.S.C.
1225(c)(1)) is amended by striking ``If'' and inserting: ``Except in
the case of an alien who (i) is a lawful permanent resident; (ii) was
granted advance parole; (iii) was paroled into the United States under
section 212(d)(5); or (iv) is seeking asylum, if''.
SEC. 8. TRANSITION.
(a) Application to Detainees.--Not more than 30 days after the
effective date of this Act, the Attorney General shall, with respect to
any alien then detained or whose liberty is otherwise restricted by the
Attorney General, on the basis in whole or in part of information
submitted by the Government ex parte and in camera to an immigration
judge, to the Board of Immigration Appeals or to any court--
(1) provide such alien a copy or transcript of such
information, and provide the alien with a redetermination of
bond (or a reconsideration of the terms of custody, as the case
may be) based on evidence disclosed to the alien and the
alien's response to such evidence; or
(2) withdraw from the record of any proceedings involving
such alien any and all evidence, testimony, or other
information submitted by the Government ex parte and in camera
to the immigration judge, the Board of Immigration Appeals, or
to any court, as the case may be, and--
(A) release such alien if such alien is detained;
and
(B) cease all restrictions on the liberty of such
alien if such restrictions exist,
unless detention is warranted solely on the basis of evidence
disclosed to the alien; or
(3) release such alien.
(b) Application to Aliens Seeking Immigration Benefits.--Not more
than 30 days after the effective date of this Act, the Attorney General
shall, with respect to any alien physically present in the United
States whose application for an immigration benefit is or was opposed
by the Government on the basis in whole or in part of information
submitted by the Government ex parte and in camera to an immigration
judge, to the Board of Immigration Appeals, or to any court--
(1) provide such alien a copy or transcript of such
information and a reasonable opportunity to respond to such
information, and grant or deny the application or reopen the
proceedings and afford the alien de novo reconsideration of the
application, as the case may be, based solely on evidence in
the public record; or
(2) withdraw from the record of any proceedings involving
such alien any and all evidence, testimony, or other
information submitted by the Government ex parte and in camera
to the immigration judge, the Board of Immigration Appeals, or
to any court, as the case may be, and grant or deny the
application or reopen the proceedings and afford the alien de
novo reconsideration of the application, as the case may be,
based solely on evidence in the public record; or
(3) grant the application.
(c) Termination of Proceedings.--In the case of an alien in
immigration proceedings as of the effective date of this Act conducted
under title V of the Immigration and Nationality Act--
(1) such proceedings are terminated as of the effective
date of this Act without prejudice to the Attorney General or
the alien; and
(2) the Attorney General may, in his or her discretion,
commence de novo removal proceedings within 10 days thereafter
under section 240 of the Immigration and Nationality Act (8
U.S.C. 1229a).
SEC. 9. REGULATIONS.
The Attorney General shall promulgate regulations, including
regulations governing applications for asylum, withholding of
deportation or removal, adjustment of status, naturalization, temporary
protected status, and relief from deportation, exclusion, or removal to
implement this Act not more than 90 days after the effective date of
this Act.
SEC. 10. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of
the enactment of this Act and shall apply to all aliens without regard
to the date of arrival, admission, entry, or parole into the United
States.
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