The legislation, HR 1266, was introduced in the 107th Congress by Reps. David Bonior (D-MI), Bob Barr (R-GA), John Conyers (D-MI) and Tom Davis (R-VA), with more than 100 co-sponsors, would ensure that no immigrant is deported, detained or denied any benefit under the Immigration and Nationality Act based on secret evidence. The bill is expected to be re-introduced.
The bill would establish procedures for handling classified information in immigration cases that are similar to the procedures used in criminal cases to protect both the due process rights of the accused and the government's national security interests. Instead of using secret evidence, the Government would submit to the immigration judge and the non-citizen a court-approved unclassified summary of the classified information.
The FBI testified last year that secret evidence is being used in 11 cases. In one of these cases, the ACLU represents Mazen Al-Najjar, a Palestinian resident of the United States who was detained for more than three years on the basis of secret evidence.
The use of secret evidence is a feature of totalitarian governments, not of a democracy. Former CIA director R. James Woolsey is a member of a legal team helping defend five Iraqis denied asylum because of secret evidence. Woolsey commented that the use of secret evidence is a practice "one would expect to find in Iraq, not the U.S."
Secret evidence in the form of classified information often consists of nothing more than rumor and innuendo. It is often unverified and unverifiable. It has not, and cannot be, tested for reliability in cross-examination during a trial. In a case from the 1950's, secret evidence was used to deny a WWII "war bride" the opportunity to come to the U.S. and join her husband. When eventually she was granted a hearing, the secret evidence was found to be worthless because the "confidential source" that offered it turned out to be a jilted former lover of her husband.
The Secret Evidence Repeal Act will NOT require the release of dangerous terrorists. It merely establishes fair procedures for dealing with classified information in immigration cases similar to the procedures used in criminal cases. Those procedures require the government to give the alien an unclassified summary of the classified information. Though prosecutors have used these procedures in other cases, truly dangerous terrorists, such as those who bombed the World Trade Center and the federal building in Oklahoma City, have been successfully prosecuted.
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