DISSENTING VIEWS

While the amendment in the nature of a substitute reported by the committee is an improvement in some respects over the original bill 1

[Footnote] , the reported bill still raises a number of national-security-related concerns regarding its scope and application.

[Footnote 1: The amendment deleted sections 5 and 6 of H.R. 2121, two provisions which if enacted would probably have delayed adjudication of immigration benefits and impaired effective detention of criminal aliens.]

Scope of the Reported Bill

In testimony and public statements made during the 106th Congress, the authors and proponents of H.R. 2121 focused attention on aliens in removal proceedings who were detained for extended periods. However, the scope of the reported bill is significantly broader than necessary to address those concrete concerns. The reported bill would prohibit the INS from using classified or confidential evidence in all immigration proceedings, including those unrelated to removal or long-term detention.

Three such areas should be noted. First, Section 235(c) of the Immigration and Nationality Act allows an INS airport inspector to exclude an arriving alien if confidential evidence indicates that the alien is a security threat. This provision has been used by INS to exclude dangerous aliens from the United States, and the proponents of H.R. 2121 have not demonstrated that this power has been abused. Nonetheless, section 6 of the reported bill would prohibit the INS from using confidential evidence to exclude permanent residents, parolees, or aliens who claim asylum in the United States. Terrorists, including those implicated in the World Trade Center bombings, have in the past used fraudulent asylum claims to remain and operate in the United States. Such abuse should not be facilitated.

Second, section 7(b) of the reported bill would prohibit the INS' use of confidential evidence to deny immigration benefits--including refugee status, asylum, permanent residence, or citizenship--although, again, the proponents of H.R. 2121 have not demonstrated that this power has been abused. Permanent immigration status, if granted, would allow terrorists to remain in the United States indefinitely while raising funds, recruiting personnel, providing logistical support, or planning operations on behalf of their organizations.

Third, section 3(b) of the reported bill would eliminate the Alien Terrorist Removal Court created by the Anti-terrorist and Effective Death Penalty Act of 1996. The ATRC is composed of five district court judges specially designated by the Chief Justice of the United States to preside over terrorist removal proceedings where removal under normal immigration proceedings would pose a risk to national security through disclosure of classified information. The threshold for convening the ATRC is high, and it has not yet been used. Thus, it cannot be claimed that the ATRC has abused the rights of aliens, and eliminating the ATRC is not reasonable or necessary.

Use of Unclassified Summaries

H.R. 2121 as reported would permit the Justice Department to request an unclassified summary of classified information for use in the adjudication of three types of immigration proceedings: removal of an alien who is a threat to national security, opposition to an application for admission, or opposition to an application for discretionary relief from removal. However, before requesting the summary, the Department would first have to request that the evidence be declassified; in other words, if the Department took the position that the evidence should not be declassified, it could not request an unclassified summary. This exception would probably swallow the rule. It stands to reason that in most cases the Department would believe that sensitive classified information about international terrorists should remain classified. The Department would then be unable to request preparation of an unclassified summary.

In addition, in the rare instance where an unclassified summary was requested and provided, its usefulness would be limited at best. Proponents of H.R. 2121 like Professor David Cole of Georgetown University Law Center and Mr. Gregory Nojeim of the American Civil Liberties Union testified to the committee that unclassified summaries provided to aliens in immigration proceedings are generally insufficient to inform the aliens of the charges against them. 2

[Footnote] Yet H.R. 2121 would require immigration judges to rely on unclassified summaries in their adjudications; the judges would not be allowed to see the classified information itself. The unclassified summaries would most likely not identify sources of classified information for fear of endangering those sources, making it difficult or impossible to judge their credibility. Anticipating this result, many judges would probably refuse to prepare or utilize unclassified summaries in the first place.

[Footnote 2: Legislative hearing on H.R. 2121, the `Secret Evidence Repeal Act of 1999,' House Judiciary Committee, 106th Congress, 2nd Session (May 23, 2000).]

While the reported bill appears to allow some limited use of unclassified summaries of classified evidence, in practice it is likely to eliminate the use of classified evidence in immigration proceedings as completely and effectively as the original bill would have done. This is an absolutist approach that is likely to endanger national security. The government would be forced to choose between allowing terrorists to enter and remain in the United States or disclosing classified information that would endanger U.S. intelligence agents and operations.

For the aforementioned reasons, H.R. 2121 should be re-examined and modified to incorporate a more balanced approach.
Bill McCollum.
Lamar S. Smith.
Anthony D. Weiner.