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[House Report 106-981]
[From the U.S. Government Publishing Office]

106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-981

======================================================================

 
                   SECRET EVIDENCE REPEAL ACT OF 2000

                                _______
                                

October 17, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                    DISSENTING AND ADDITIONAL VIEWS

                        [To accompany H.R. 2121]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (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, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           5
Background and Need for the Legislation....................           6
Hearings...................................................          15
Committee Consideration....................................          16
Vote of the Committee......................................          16
Committee Oversight Findings...............................          17
Committee on Government Reform Findings....................          17
New Budget Authority and Tax Expenditures..................          17
Congressional Budget Office Cost Estimate..................          17
Constitutional Authority Statement.........................          18
Section-by-Section Analysis and Discussion.................          18
Agency Views...............................................          20
Changes in Existing Law Made by the Bill, as Reported......          20
Dissenting Views...........................................          37
Additional Views...........................................          39

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Secret Evidence Repeal Act of 
2000''.

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. APPLICATION OF PROCEDURES USED UNDER CLASSIFIED INFORMATION 
                    PROCEDURES ACT (CIPA) TO IMMIGRATION PROCEEDINGS.

    (a) Application of Procedures Used under Classified Information 
Procedures Act (CIPA) to Immigration Proceedings.--Chapter 9 of title 
II of the Immigration and Nationality Act (8 U.S.C. 1351 et seq.) is 
amended by adding at the end the following new section:
     ``application of procedures used under classified information 
               procedures act to immigration proceedings
    ``Sec. 295. (a) Notice of Intended Use of Classified Information.--
            ``(1) In general.--In any immigration proceeding in which 
        the Attorney General seeks to use classified information, the 
        Attorney General shall inform the alien and the presiding 
        officer in advance. To the maximum extent practicable, if the 
        Attorney General is initiating such proceeding, the Attorney 
        General shall provide such notice within 15 days after 
        initiating the proceeding.
            ``(2) Limitation.--The Attorney General may seek to use 
        classified information only in an immigration proceeding in 
        which the alien is alleged to be deportable under section 
        237(a)(4)(B) or to oppose an application for admission or an 
        application for discretionary relief from removal and only 
        after issuing the following certification:
                    ``(A) Substantially the same information could not 
                reasonably be developed from open sources.
                    ``(B) The Attorney General has informed the 
                classifying agency of its intent to use the classified 
                information in connection with immigration proceedings 
                and has requested such agency to declassify such 
                information as is permitted to be declassified under 
                the President's Executive Order on classification.
    ``(b) Referral of Classified Matters to District Court.--
            ``(1) In general.--In the case of an immigration proceeding 
        in which the Attorney General or the alien moves for a referral 
        under this section to consider matters relating to classified 
        information that may arise in connection with the proceeding, 
        the presiding officer shall forward the petition for review to 
        a Federal district court for the district in which the alien 
        resides or the place where the immigration proceedings are 
        pending, of the use of such information in such proceeding 
        under subsection (c). Any evidence which is the subject of a 
        petition shall not be considered in the immigration proceeding 
        and shall not be examined by the presiding officer, except as 
        provided in paragraph (3).
            ``(2) Suspension of immigration proceeding.--In the case of 
        an order or review provided for under paragraph (1), the 
        immigration proceeding may be suspended by the presiding 
        officer pending the disposition of such matter by the district 
        court involved (and any appeals related to such matter).
            ``(3) Submission of summary.--In the case of a referral 
        under paragraph (1)(A), after the application of subsection 
        (c), the district court shall issue an order to the presiding 
        officer at the proceeding indicating any unclassified summary 
        of classified information, and admissions in lieu of disclosure 
        of classified information, that may be used and the conditions 
        of its use at the proceeding. The presiding officer shall 
        determine whether any information approved by the order may be 
        offered at the immigration proceeding.
    ``(c) Application of CIPA.--
            ``(1) In general.--Subject to the succeeding provisions of 
        this section, in the cases described in subsection (b)(1) 
        involving review by a Federal district court of the use of 
        classified information in an immigration proceeding, the 
        provisions of the Classified Information Procedures Act (18 
        U.S.C. Appendix III) (in this section referred to as `CIPA') 
        shall apply to an alien who is a subject of the immigration 
        proceeding in the same manner as it applies to a defendant in a 
        criminal proceeding subject to CIPA.
            ``(2) General rules of application.--In applying subsection 
        (a), the following general rules apply:
                    ``(A) Any reference in CIPA to--
                            ``(i) a criminal defendant or a trial (or 
                        pre-trial) proceeding is deemed to be a 
                        reference to the alien who is the subject of 
                        the immigration proceeding and to the 
                        immigration proceeding;
                            ``(ii) an indictment or information at 
                        issue is deemed to be a reference to a notice 
                        to appear;
                            ``(iii) a dismissal of an indictment or 
                        information is deemed a reference to 
                        termination of the immigration proceeding 
                        against an alien; and
                            ``(iv) a trial court is deemed a reference 
                        (in the case of an administrative immigration 
                        proceeding) to the presiding officer in such 
                        proceeding.
                    ``(B) The provisions of section 2 of CIPA (other 
                than the last sentence) shall not be applied.
                    ``(C) The Attorney General shall prescribe rules 
                establishing procedures for the protection against 
                unauthorized disclosure of classified information in 
                the custody of the Federal non-judicial officials in 
                immigration proceedings. Such rules shall apply instead 
                of the rules described in section 9 of CIPA.
                    ``(D) Section 12 of CIPA shall not be applied to 
                immigration proceedings.
                    ``(E) In lieu of the reports described in section 
                13 of CIPA, the Attorney General shall report annually 
                and in writing to the chairmen and ranking minority 
                members of the Committees on the Judiciary of the 
                Senate and the House of Representatives on the 
                implementation of this section. Such reports shall 
                include the following information about each case 
                brought under this section:
                            ``(i) The alien's country of citizenship 
                        or, if the alien was stateless, the country in 
                        which the alien last habitually resided outside 
                        of the United States.
                            ``(ii) The alien's immigration status.
                            ``(iii) The immigration benefit for which 
                        the alien applied (if any).
                            ``(iv) Whether the Federal district court 
                        approved the summary of classified information 
                        and the deletions or admissions proffered by 
                        the Attorney General.
                            ``(v) Whether the alien was ultimately 
                        ordered removed under section 237(a)(4)(B) or 
                        was granted or denied admission or the benefit 
                        for which the alien applied.
    ``(d) Disclosure of Exculpatory Evidence.--In any immigration 
proceeding under this section, the Attorney General shall disclose to 
the alien information that it would be required to disclose to a 
defendant in an analogous criminal proceeding under CIPA.
    ``(e) Construction Concerning Declassification of Information.--
Nothing in this section shall be construed as preventing an alien in an 
immigration proceeding from seeking access to classified information 
under section 552 of title 5, United States Code, or, in the case of 
information which is not disclosed based on section 552(b)(1) of such 
title, from initiating an action to seek to declassify some or all of 
the information involved.
    ``(f) Definitions.--For purposes of this section:
            ``(1) Immigration proceeding.--The term `immigration 
        proceeding' means any administrative proceeding under this Act.
            ``(2) Presiding officer.--The term `presiding officer' 
        means, with respect to an immigration proceeding, the 
        administrative or judicial official who is presiding over the 
        immigration proceeding.''.
    (b) Conforming Amendment.--Title V of the Immigration and 
Nationality Act (8 U.S.C. 1531-1537) is repealed.
    (c) Clerical Amendments.--The table of contents for the Immigration 
and Nationality Act (8 U.S.C. 1101 et seq.) is amended--
            (1) by inserting after the item relating to section 294 the 
        following new item:

``Sec. 295. Application of procedures used under Classified Information 
Procedures Act to immigration proceedings.''; and
            (2) 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) subject to section 295, 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), 
        subject to section 295, 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 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.--Subject to section 295, 
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. 6. 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 to read as follows:
            ``(1) Removal without further hearing.--
                    ``(A) In general.--Except in the case of an alien 
                described in subparagraph (B), if an immigration 
                officer or an immigration judge suspects that an 
                arriving alien may be inadmissible under subparagraph 
                (A) (other than clause (ii)), (B), or (C) of section 
                212(a)(3), the officer or judge shall--
                            ``(i) order the alien removed, subject to 
                        review under paragraph (2);
                            ``(ii) report the order of removal to the 
                        Attorney General; and
                            ``(iii) not conduct any further inquiry or 
                        hearing until ordered by the Attorney General.
                    ``(B) Excepted aliens described.--An alien 
                described in this subparagraph is 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.''.

SEC. 7. 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;
            (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;
            (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. 8. 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. 9. 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.

                          Purpose and Summary

    The Secret Evidence Repeal Act, H.R. 2121, is intended to 
apply quasi-criminal procedures to quasi-criminal allegations 
that arise in the immigration context involving people who are 
alleged terrorists or threats to national security. Because the 
allegations are grave, and the procedures used to address those 
allegations raise substantial due process issues, the committee 
has ordered reported a bill that would impose, in those few 
extraordinary cases involving classified information, 
procedures similar to those used in criminal cases involving 
classified information.
    The use of Classified Information Procedures Act (``CIPA'') 
procedures in the immigration context was raised in debate over 
5 years ago and suggested in recent hearings before both the 
Full Committee and the subcommittee by proponents and opponents 
of H.R. 2121.\1\ The CIPA procedures in H.R. 2121 have been 
adapted to ensure that where the Government has classified 
information relating to truly dangerous aliens, it may use the 
information if it provides an unclassified summary of the 
classified information that gives the alien ``substantially the 
same ability to make his defense as would disclosure of the 
specific classified information.'' This standard, drawn from 
CIPA, has successfully and constitutionally balanced national 
security interests and the rights of the defendant in criminal 
cases involving classified information.
---------------------------------------------------------------------------
    \1\ C.I.P.A., 18 U.S.C.A. App. 3. See Infra.
---------------------------------------------------------------------------

                Background and Need for the Legislation

              I. Statutes Codifying Use of Secret Evidence

    Since the 1950's, the government has maintained that secret 
evidence, information not disclosed to a defendant for national 
security or other reasons, could be used in deportation 
proceedings. In 1996, Congress passed a series of immigration 
measures that codified the use of this implied authority by the 
Immigration and Naturalization Service (``INS'') in certain 
immigration proceedings. These statutes have had the effects of 
depriving immigrants of the most basic due process rights 
afforded by the fifth amendment of the Constitution in the 
immigration context.
    In addition, the 1996 Antiterrorism and Effective Death 
Penalty Act established an ``Alien Terrorist Removal Court'' 
that was charged only with hearing cases in which the 
Government seeks to deport aliens accused of engaging in 
terrorist activity based on secret evidence submitted in the 
form of classified information.\2\ By effectively prohibiting 
defendants from confronting the evidence in their deportation 
proceedings, the procedures of this court are substantially 
more restrictive than those employed in the criminal context 
under Classified Information Protection Act.
---------------------------------------------------------------------------
    \2\ See title V of the Immigration and Nationality Act, 8 U.S.C.A. 
1531-1537.
---------------------------------------------------------------------------
    The 1996 Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRAIRA) expanded the secret evidence court 
so that secret evidence could be more easily used to deport 
even lawful permanent residents as terrorists.\3\ The statute 
also included provisions the Government relies upon to use 
secret evidence to deny a bond to any detained non-citizen 
(regardless of whether the person is accused of engaging in 
``terrorist activity'') and to deny various discretionary 
immigration benefits such as asylum to any non-citizen, 
including those not accused of being terrorists.
---------------------------------------------------------------------------
    \3\ See, e.g., The Immigration and Nationality Act, 8 U.S.C.A. 
1225, 1226, 1229.
---------------------------------------------------------------------------
    While the Alien Terrorist Removal Court has not yet heard 
its first case, the INS has moved in dozens of other 
proceedings to use secret evidence against non-citizens to deny 
them bond and relief from deportation. Persons from the Middle 
Eastern community have been particularly hard hit by these 
measures. In some cases, defendants have been denied open 
hearings and the ability to confront the evidence against them 
for a term of years.

 II. Courts Have Held the Use of Secret Evidence in Deportation Cases 
                            Unconstitutional

    Prior to the passage of the 1996 legislation, the INS 
relied upon its implied authority to use secret evidence in 
deportation cases.\4\ In Jay v. Boyd, the government's 
principal case, the Supreme Court considered a statutory 
challenge to a decision denying suspension of deportation as a 
matter of discretion.\5\ The court expressly indicated that it 
was deciding the case on statutory, as opposed to 
constitutional grounds, and decided that the statute did not 
preclude the use of secret evidence.\6\ The Government, 
however, relies on dictum in a footnote in the case suggesting 
that the particular use of secret evidence in the exercise of 
discretion in that case would not give it ``difficulty'' as a 
constitutional matter.\7\ Recently, courts have distinguished 
Jay because the Court did not reach the constitutional issue of 
whether use of secret evidence in an immigration proceeding 
violated the Due Process Clause of the fifth amendment.
---------------------------------------------------------------------------
    \4\ Secret evidence in the form of classified information often 
consists of mere rumor and innuendo, inherently unverified and 
unverifiable. Sometimes, it can be something as ``secret'' as a 
newspaper clipping the substance of which could be refuted if only it 
was known. In U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), 
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.
    \5\ 351 U.S. 345 (1945).
    \6\ 351 U.S. at 358, fn. 21.
    \7\ Id.
---------------------------------------------------------------------------
    In Mathews v. Diaz, the Supreme Court noted that ``There 
are literally millions of aliens within the jurisdiction of the 
United States. The fifth amendment, as well as the 14th 
amendment, protects every one of these persons from deprivation 
of life, liberty or property without due process of law. Even 
one whose presence in this country is unlawful, involuntary or 
transitory is entitled to constitutional protection.'' \8\ 
Accordingly, every court to address the constitutional question 
in the last dozen years has found the use of secret evidence in 
immigration proceedings against a person admitted to the United 
States, or seeking admission as a lawful permanent resident 
returning from a trip abroad, unconstitutional under the Due 
Process Clause of the fifth amendment.\9\
---------------------------------------------------------------------------
    \8\ 426 U.S. 67, 77 (1976) (emphasis added).
    \9\ The sixth amendment to the U.S. constitution prohibits the 
government from using secret evidence in criminal proceedings against 
both citizens and non-citizens. Instead of using secret evidence, the 
government relies on the Classified Information Procedures Act, 18 
U.S.C. App. 3, to protect classified information in criminal cases. 
CIPA does not permit the use of evidence that is not also provided the 
accused and sets out procedures to redact classified information for 
use in those proceedings. Such procedure are not required by statute in 
the civil immigration context, but have been implemented to a degree by 
INS regulation. See, Infra.
---------------------------------------------------------------------------
    For example, In Rafeedie v. INS, the court rejected an 
attempt by the INS to use secret evidence to exclude a lawful 
permanent resident from the United States upon his return from 
a trip abroad.\10\ In reaching this decision, the court said, 
``. . . Rafeedie--like Joseph K. in Kafka's `The Trial'--can 
prevail . . . only if he can rebut the undisclosed evidence 
against him, i.e. prove that he is not a terrorist regardless 
of what might be implied by the government's confidential 
information. It is difficult to imagine how even someone 
innocent of all wrongdoing could meet such a burden . . .'' 
\11\
---------------------------------------------------------------------------
    \10\ 880 F.2d 506 (D.C. Cir. 1989)
    \11\ Id. at 516.
---------------------------------------------------------------------------
    Similarly, in American-Arab Anti-Discrimination Committee 
v. Reno, the court rejected an attempt by the INS to deny 
legalization to two Palestinians it accused of associating with 
a terrorist organization.\12\ In characterizing the INS use of 
secret evidence in that case, the court said, ``One would be 
hard pressed to design a procedure more likely to result in 
erroneous deprivations.'' \13\
---------------------------------------------------------------------------
    \12\ 70 F.3d 1045 (9th Cir. 1995).
    \13\ Id. at 1069 [citations omitted].
---------------------------------------------------------------------------
    Most recently, a Federal district court ordered the release 
of hearing witness Hany Kiareldeen after he had been detained 
for 19 months based on secret evidence that is believed to have 
been offered by his estranged wife, with whom he was having a 
custody battle. In granting Mr. Kiareldeen's petition for 
habeas corpus, the court cited the Supreme Court's decision in 
Bridges v. Wixon and said, ``The court cannot justify the 
government's attempt to `allow [persons] to be convicted on 
unsworn testimony of witnesses--a practice which runs counter 
to the notions of fairness on which our legal system is 
founded.'' \14\
---------------------------------------------------------------------------
    \14\ Kiareldeen v. Reno, 71 F.Supp.2d 402, 419 (D.N.J. 1999).
---------------------------------------------------------------------------
    These cases establish the simple proposition that the use 
of secret evidence cannot be squared with due process. When the 
government is free to introduce its evidence behind closed 
doors, all the requisites of a fair adversarial process have 
been abandoned. No person should be deprived of liberty on the 
basis of evidence kept secret from that person. This simple 
statement is a fundamental requisite of any fair legal system. 
This legislation would restore the most basic notions of due 
process to immigration proceedings and promote the Supreme 
Court's promise that citizens and non-citizens alike are 
protected by the Due Process clause of the fifth amendment.

   III. The INS's Use of Secret Evidence Lacks Meaningful Safeguards

    The INS is currently using secret evidence to detain and/or 
deny immigration benefits such as political asylum to at least 
11 aliens. It has admitted to using secret evidence 
approximately 50 times from 1992-98. It detained one Egyptian 
man, Nasser Ahmed, for over 3\1/2\ years mostly in solitary 
confinement--based on secret evidence. He was released last 
year by an immigration judge who found that the secret evidence 
was unreliable and that some of it could have been gathered 
from non-confidential sources and used in open court. 
Initially, he was given a one-sentence summary of the 
classified information that the immigration judge deemed 
``largely useless.'' Similarly, Dr. Mazen Al-Najjar has been 
detained in Tampa, Florida for over 3 years based on secret 
evidence. The only summary of the secret evidence he has 
received is a single sentence stating that it concerns his 
alleged association with an organization that has engaged in 
terrorism.
A. The use of secret evidence is not restricted to individuals posing a 
        threat to national security
    As currently applied, INS policy does not limit its use of 
secret evidence to national security risks. Its regulations 
permit the use of secret evidence anytime that it deems 
classified information relevant to an application for an 
immigration benefit. If the INS had classified evidence that an 
individual's marriage was not bona fide, for example, an issue 
that in itself poses no security concern, its regulations would 
nonetheless permit it to present that evidence behind closed 
doors. There is no requirement that it first attempt to make 
its case without relying on secret evidence. Most 
problematically, there is no requirement that the INS limit its 
use of secret evidence to individuals who truly pose a threat 
to national security, such as, for example, individuals who 
have committed or were planning to commit criminal conduct 
threatening national security.
B. The INS often uses improperly classified evidence, and only 
        declassifies it when its actions are challenged
    Notwithstanding the question of the validity of secret 
procedures where evidence is properly classified, there is no 
justification for using those procedures where evidence does 
not in fact need to be confidential. However, advocates 
maintain that the INS and FBI have repeatedly presented 
evidence in camera and ex parte that could and should have been 
disclosed from the outset. While this is more an issue with the 
FBI, which is generally the classifying agency, than the INS, 
overclassification is a critical problem with current 
practices.
    For example, in 1998, the INS initially relied on secret 
evidence to exclude several Iraqis who were accused of being 
double-agents after the United States airlifted them from Iraq 
on the heels of a failed coup attempt against Saddam Hussein. 
When former Director of Central Intelligence James Woolsey took 
their case on and brought substantial congressional and media 
pressure to bear on the INS, the government found that it was 
suddenly able to declassify over 500 pages of the previously 
secret evidence. One of the Iraqis initially detained on secret 
evidence, Dr. Ali Yasin Mohammed Karim, has now had an 
opportunity to respond to the declassified evidence, and on 
that basis the immigration judge in his case has reversed 
herself and tentatively ruled that Dr. Karim is not a threat to 
national security and should be granted asylum and released 
from custody.
    These cases illustrate an inherent structural problem. The 
evidence that the INS generally presents in secret is not 
classified by it, but by another agency, usually the FBI. If 
the FBI overclassifies, as it apparently did in the cases 
described above, the INS has no authority to second-guess the 
FBI's judgment. Nor does the immigration judge. Moreover, when 
an FBI agent makes a decision to classify, it is usually in the 
context of a counterterrorism investigation, where he is 
effectively weighing an abstract public right to know against 
the need for confidentiality of an investigation. In that 
situation, agents naturally err on the side of classifying. But 
when that evidence is then used to deprive an alien of his 
liberty, there is no requirement that anyone review the 
classification decision. In other words, no one asks whether 
the classification decision might come out differently when the 
interest on the other side of the balance is not an abstract 
public right to know, but the very specific interest of a human 
being seeking to regain his liberty. This structural flaw can 
lead to years of wholly unnecessary detention.
C. The INS uses secret evidence without clear statutory authority
    One of the most common uses of secret evidence by INS is to 
justify detaining an alien without bond while his deportation 
hearing is pending. This practice can and has resulted in the 
detention of aliens for years without ever seeing the evidence 
against them, even where the only formal charge against them is 
that they overstayed their visa. Yet there is no statutory 
authority for this practice. While Congress has authorized the 
INS to use secret evidence in a variety of settings, the only 
statutory authorization to use secret evidence to detain an 
individual while his deportation proceedings are pending is 8 
U.S.C. Sec. 1536(a)(2)(B) (1997), which applies only to ``alien 
terrorists'' under special deportation hearings held in the 
Alien Terrorist Removal Court. The INS has never invoked the 
Alien Terrorist Removal Court procedures, but nonetheless has 
repeatedly used secret evidence to detain aliens not in those 
procedures, and not accused of being ``alien terrorists.''
D. INS regulations do not require that the alien be provided a 
        meaningful declassified summary of secret evidence
    INS regulations permit the use of secret evidence without 
providing a summary of the evidence to the alien. While the 
regulations state that a summary should be provided when 
possible, there is no requirement that a summary be provided, 
or that the summary afford the alien a meaningful opportunity 
to respond. See, e.g., 8 C.F.R. Sec. 103.2(a)(16) (1996), 
242.17(a), (c)(4)(iv)(1996); 8 CFR Sec. 240.11(c)(3)(iv) 
(1997). An alien may be told only that secret evidence shows 
that he must be detained, without even a hint as to what the 
evidence consists of or the allegation contained therein. In 
such a situation, it is literally impossible to present a 
defense.

IV. Secret Evidence Provisions Have Had a Disparate Impact on the Arab 
                               Community

    The case of Nasser Ahmed, a 37-year old Egyptian who was 
denied bond, asylum and withholding based on secret evidence, 
is typical. If the decision in his case had been based on the 
evidence in the public record--evidence that Mr. Ahmed had the 
chance to challenge--he could have had a fair chance at a 
timely hearing. Instead, Mr. Ahmed spent 3 years in detention, 
mostly in solitary confinement, while fighting secret evidence. 
On granting his release and political asylum, an immigration 
judge found the secret evidence to be unreliable because it 
consisted of double or triple hearsay. The immigration judge 
also was troubled by the fact that a lot of the evidence 
appeared to originate from the Egyptian government, the alleged 
persecutor.
    Secret evidence is also being used to detain in Florida, 
without bond, Mazen Al-Najjar, a stateless Palestinian and 18-
year resident of the United States. Despite his long residence 
and community contacts, his request for bond was denied on te 
basis of secret evidence. The full committee hearing marked his 
1,000th day in detention, without disclosure of the allegations 
that form the basis for his detention.
    The INS is also using secret evidence in cases involving 
seven Iraqis airlifted by the U.S. from Northern Iraq because 
they were part of a failed CIA plot to destabilize the regime 
in Iraq headed by Saddam Hussein. The INS the Iraqis political 
asylum based on secret evidence. A legal team including former 
Director of Central Intelligence R. James Woolsey represents 
this group. Mr. Woolsey, who was himself denied the opportunity 
to see the evidence against his clients, commented that secret 
evidence is what ``one would expect to find in Iraq, not the 
U.S.'' Five of the seven recently agreed to be deported in 
exchange for release from custody with certain limitations on 
their liberty while they search for a foreign country that will 
accept them.
    As a general matter, the use of secret evidence has 
undermined the confidence of the Middle Eastern community in 
law enforcement. Cases around the country have highlighted how 
current secret evidence procedures have led investigators to 
focus on the wrong people and sow further community mistrust. 
If investigators believe that arab communities really contain 
serious numbers of terrorists (and there is no evidence to 
support this conclusion), the last thing we should do is adopt 
tactics that make an entire community view law enforcement as 
the enemy.

           V. Analysis of Procedures Established in H.R. 2121

    The use of procedures similar to those set out in the 
Classified Information Procedures Act in the immigration 
context was suggested in hearings before both the Full 
Committee and the subcommittee by proponents and opponents of 
H.R. 2121. In fact, the committee heard testimony as many as 5 
years ago about how CIPA procedures might be adapted to 
immigration proceedings involving classified information. The 
committee was spurred to action by the failure of the 
Department of Justice to utilize similar procedures, even when 
required to do so by a Federal court and even after promising 
for nearly 2 years to issue regulations that would ensure 
fairness when it uses classified information.
    This legislation is narrowly tailored and designed to 
ensure that where the Government has classified information 
relating to truly dangerous aliens, it may use the information 
if it provides an unclassified form of the classified 
information that gives the alien ``substantially the same 
ability to make his defense as would disclosure of the specific 
classified information.'' This legal standard is familiar to 
the government and is drawn from CIPA, a set of Congressionally 
mandated procedures with a proven track record for 
constitutionally balancing national security interests and the 
rights of the defendant in criminal cases involving classified 
information.
A. H.R. 2121 is focused on a narrow class of immigration cases
    Currently, the Immigration and Nationality Act authorizes 
the INS to use classified information to deny admission, to 
deny immigration benefits such as political asylum, and, at the 
Alien Terrorist Removal Court established under title V of the 
INA, to affirmatively remove a person under INA section 
237(a)(4)(B) who is alleged to have engaged in terrorist 
activities. The Secret Evidence Repeal Act is crafted to limit 
the use of classified information to these situations, and no 
others. The legislation gives the Government the option to keep 
classified information fully secret and outside of the 
proceedings altogether, to disclose it to the alien so he can 
defend against it, to continue to investigate until it develops 
information from other sources that can be used publicly, or, 
to employ new procedures set out here in Federal district 
court.
    Under this H.R. 2121, when the Attorney General is 
authorized to use classified information, the Department of 
Justice is empowered to ask that the immigration proceedings be 
suspended so that the classified information can be handled by 
a Federal district court. The court would, as it does in a pre-
trial hearing under CIPA, oversee the creation of an 
unclassified summary of the classified information that meets 
the standard set forth in section 6(c) of CIPA.\15\ The judge 
could also order certain deletions of classified information. 
The substituted summary--which would be given to the 
immigration judge and the alien--must provide the alien with 
substantially the same opportunity to make his defense and 
rebut the allegations against him as would disclosure of the 
specific classified information. It is the committee's intent 
that this strict standard drawn from CIPA and explained in its 
legislative history apply in proceedings brought under the new 
section 295 in the same manner CIPA applies to defendants in 
criminal proceedings.
---------------------------------------------------------------------------
    \15\ 18 U.S.C.A. App. 3.
---------------------------------------------------------------------------
    The Federal district court is expected to address any 
constitutional questions in these proceedings, including 
questions as to whether the substituted evidence adequately 
protects the due process rights of the alien. If the Attorney 
General believes that the judge's decision about the summary is 
incorrect, she can take an interlocutory appeal to the 
appellate court with jurisdiction. However, the alien would 
appeal any such findings only in connection with review of any 
final order of deportation.
    The Federal district court judge would provide the 
unclassified summary and any other documents (with classified 
information deleted) to the immigration judge and to the alien 
so that the proceedings could continue, in the open. There 
would be no ``secret evidence'' as such in the immigration 
proceeding because the immigration judge would base his 
decision on the same information that is shared with the alien 
and made part of the public record. This procedure ensures that 
the immigration judge will not be prejudiced by information 
kept secret from the alien, just as a jury in a CIPA case is 
not prejudiced by information kept secret from the defendant. 
The Secret Evidence Repeal Act also repeals title V of the INA, 
which established the Alien Terrorist Removal Court. The court, 
which has never been invoked by the INS, is unnecessary because 
all immigration matters in which classified information is 
authorized to be used will be handled as indicated in this 
legislation.
    Section 3 adds a new section 295(a) to the INA that limits 
the circumstances in which classified information can be 
considered to those in which the INA currently permits 
consideration of classified information. It also requires the 
Attorney General to certify that use of the information is 
necessary because substantially the same information cannot be 
reasonably developed from open sources. It also requires the 
Attorney General to seek declassification of the classified 
information. This section does not require declassification, 
but is instead intended to trigger an expedited process wherein 
the classified information is evaluated for declassification. 
It is the committee's intent that the certification required by 
this section be made by the Deputy Attorney General or the 
Attorney General, or a person acting in such position, and that 
authority to make the certification may not be delegated to 
another person.
    Section 3 also adds a new section 295(b) that establishes 
procedures for referral of classified matters to the Federal 
district court. The matter can be referred either to the court 
in which the alien resides, or the place where the proceedings 
are pending, but not to both. While the district court 
considers the classified information, the presiding officer may 
suspend the proceedings, or allow them to continue while 
matters that do not relate to the classified information are 
addressed.
    The Secret Evidence Repeal Act does not require the 
presiding officer to accept into evidence all of the 
information approved for disclosure by the Federal district 
court. The presiding officer retains discretion as to what 
evidence will be admitted. For example, a confession made 
abroad and approved by the district court with certain 
classified information deleted may be excluded from evidence if 
the presiding officer believes the confession is unreliable 
because the confessant was tortured.
    The committee intends that the Federal district court 
conduct its review of the classified information expeditiously 
and in the same manner it would review classified information 
in a CIPA case, subject to the rules of application in section 
3. New section 295(d) is intended to give an alien in the 
Federal district court proceedings authorized under this act 
access to the same information against him that would be 
required to be disclosed in analogous proceedings under CIPA. 
This provision requires the disclosure of no more information 
than would be disclosed to a defendant in a criminal 
proceeding. It is intended, among other things, to ensure that 
the alien has the information he or she would need to contest 
the adequacy (under the strict CIPA standard) of the 
substituted information that is to be provided the presiding 
officer.
    Section 4 of the bill amends section 240 of the INA to make 
it clear that subject to section 295, the alien shall have 
access to all of the evidence against the alien and an 
opportunity to cross-examine all witnesses presented by the 
Government. Likewise, section 5 of the bill is intended to make 
it clear that in bond proceedings, the alien shall have access 
to all of the evidence against him and to cross-examine all of 
the Government's witnesses. It also requires the keeping of a 
complete record of the testimony and evidence produced at the 
proceeding.
    Section 6 excepts from the procedures in section 235(c) 
returning lawful permanent residents, aliens granted advance 
parole, parole under section 212(d)(5) and aliens seeking 
asylum. Section 7 establishes rules for pending cases.
    H.R. 2121 effects only a small percentage of all 
immigration cases and leaves the Government's ability to use 
confidential information largely intact. For example, section 
235(c) provides that if an immigration officer or immigration 
judge suspects that an arriving alien may be inadmissible on 
certain national security grounds, the person may be ordered 
removed without further review, except by the Attorney General, 
who is empowered to base her decision on ``confidential 
information'' that need not even be classified. Section 6 of 
H.R. 2121 does not prohibit the use of secret evidence in 
removal proceedings under section 235(c).
    In fact, it preserves the use section 235(c) against the 
vast majority of aliens seeking admission. It excepts asylum 
seekers, parolees, and returning lawful permanent residents 
from section 235(c). They represent only a tiny proportion of 
the 29 million people the INS admits each year. In the rare 
case when an asylum seeker, parolee, or returning lawful 
permanent resident is believed inadmissible based on secret 
evidence alleged to show that the person is a threat to 
national security, the procedures in section 295 would be 
available to the Attorney General. They would both protect the 
national security and preserve the rights of the person seeking 
admission.
B. H.R. 2121 does not ban the use of classified information
    Arguments that H.R. 2121 would effectively ban the use of 
classified information in immigration proceedings misread the 
legislation. Rather than banning the use of classified evidence 
in immigration proceedings, the legislation establishes a 
procedure under a new section 295 of the INA for handling 
classified information. Section 3 of the bill eliminates the 
Alien Terrorist Removal Court because the class of cases that 
would have gone to the ATRC would now go to Federal district 
court under section 295.
    The establishment of the procedures in H.R. 2121 are 
consistent with Congress's duty to protect due process and a 
recognition of the liberty interests at stake in immigration 
proceedings. For example, under section 237(a)(4), an alien can 
be deported as a ``terrorist'' if he has ``engaged in terrorist 
activity'' by preparing, planning or otherwise assisting in 
activity such as hijacking, assassination, kidnapping and using 
bombs and guns with intent to endanger the safety of the person 
or damage property. In 1996, the committee recognized the 
extraordinary nature of such proceedings, and the need for 
additional procedural protections, when it created the Alien 
Terrorist Removal Court, ensured that it was composed of 
independent article III judges, and gave indigent aliens 
appearing before the ATRC a right to counsel at taxpayer 
expense. The limitation language in section 3(a) of H.R. 2121 
reflects the current circumstances in which the government is 
empowered by statute, in title V, section 240(b)(4)(B) and 
section 235(c), to use classified information in the 
immigration context. This legislation neither expands nor 
contracts these circumstances.
    In the extraordinary case that would be brought under 
section 295, immigration adjudicators would be given access 
only to the same evidence that is in the public record and made 
available to the alien. This would include the summary of 
classified information and any other material provided by the 
Federal district court, with classified information deleted. 
The immigration adjudicator as the trier of fact would thus be 
put in a position analogous to a jury in a CIPA case, when it 
acts as a trier of fact. To suggest that the immigration 
adjudicator ought to have access to as well to national 
security information that is kept secret from the alien is to 
condone the use of secret evidence and denigrate due process--
exactly what the bill is designed to prevent.
C. H.R. 2121 does not endanger national security by expanding the 
        rights of aliens
    Some have claimed that limitation on the use of secret 
evidence would allow dangerous aliens to go free. These claims, 
however, lack merit. For example, it is difficult to understand 
why the INS would seek to remove from the United States an 
alien suspected of being involved in the Khobar Towers bombing 
that claimed the lives of 19 American servicemen where such a 
bombing is a crime under our laws, as some have argued. It 
seems that the better course of action would be to charge the 
person and try them here. To remove such a person runs the risk 
that they will escape prosecution abroad, and attempt more 
murderous activity against Americans. Nonetheless, under H.R. 
2121, the Attorney General would not be required to bring 
criminal charges. Under H.R. 2121, such a suspect seeking 
admission would be removed under section 235(c) or under 
section 295, depending on whether the suspect arrived seeking 
asylum.
    Similarly, claims that H.R. 2121 expands the discovery 
rights of aliens in immigration proceedings is exaggerated. 
Under section 240(b)(4)(B), an alien in removal proceedings is 
guaranteed a reasonable opportunity to examine the evidence 
against the alien, present evidence on the alien's own behalf 
and cross-examine witnesses presented by the Government. The 
section includes an exception for ``national security'' 
information in some circumstances. This right is similarly 
guaranteed under H.R. 2121 in new INA section 295.
    Further, under rule 16 of the Federal Rules of Criminal 
Procedure, a person accused of a crime is entitled to 
information relevant to his or her defense. This rule governs 
access to information in criminal proceedings involving 
classified information brought under the Classified Information 
Procedures Act. H.R. 2121 gives an alien in proceedings under 
section 295 the same discovery rights as a person accused of a 
crime in a CIPA case to ensure that the alien will have the 
information necessary to contest the adequacy of the summary of 
classified information prepared by the Government for approval 
by the judge. This provision will not give aliens accused of 
being terrorists ``free reign'' to rummage through classified 
information and discover sources and methods.\16\ Moreover, 
section 3(d) does not confer discovery rights on any person who 
is not in section 295 proceedings.
---------------------------------------------------------------------------
    \16\ See, e.g., U.S. v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) 
(defendant's access to information in a CIPA case is limited by 
governmental privilege similar to informant's privilege identified in 
Rovario v. U.S., 353 U.S. 53 (1957)).
---------------------------------------------------------------------------

                               Conclusion

    The defects of legal proceedings conducted in secret have 
been recognized for centuries. In the Bible, under Roman law, a 
man charged with criminal conduct should ``have the accuser 
face to face, and have license to answer for himself concerning 
the crime laid against him.'' \17\ Similarly, Wigmore, the 
noted expert on evidence, has written that ``[f]or two 
centuries past, the policy of the Anglo-American system of 
evidence has been to regard the necessity of testing by cross-
examination as a vital feature of the law.'' \18\ It would be 
difficult to identify anything more as fundamental to a fair 
legal process than the right of each party to examine and 
confront the evidence against it. When we deny that right to 
aliens, we not only denigrate their rights, but demean our own 
system of justice. As a matter of consistent constitutional 
policy, procedures for the use of secret evidence should be 
corrected to reflect the values articulated by our courts and 
the Constitution.
---------------------------------------------------------------------------
    \17\ Acts 25:16 (King James).
    \18\ 5 Wigmore on Evidence 1367 (3d ed. 1940) (quoted in Greene v. 
McElroy, 360 U.S. 474, 497 (1959)).
---------------------------------------------------------------------------

                                Hearings

    The committee's Subcommittee on Immigration and Claims held 
a hearing on H.R. 2121 on February 10, 2000. Testimony was 
received from Rep. Bonior of Michigan; Rep. Campbell of 
California; Professor David Cole of Georgetown University Law 
Center; Ms. Nahla Al-Arian; and Mr. Larry Parkinson, General 
Counsel for the Federal Bureau of Investigation, with 
additional material submitted by six individuals and 
organizations. The committee held a hearing on H.R. 2121 on May 
23, 2000. Testimony was received from Reps. Bonior and 
Campbell; Mr. Parkinson; Mr. Bo Cooper, General Counsel of the 
Immigration and Naturalization Service; Mr. Gregory Nojeim of 
the American Civil Liberties Union; Professor Cole; Mr. Hany 
Kiareldeen; Ms. Al-Arian; Mr. Bruce Ramer of the American 
Jewish Committee; Mr. Thomas Homburger of the Anti-Defamation 
League; Mr. Steven Emerson; and Mr. Stephen Flatow.

                        Committee Consideration

    On Tuesday, September 26, the committee met in open session 
and ordered favorably reported the bill H.R. 2121 with an 
amendment in the nature of a substitute by voice vote, a quorum 
being present.

                         Vote of the Committee

    There was one recorded vote on an amendment in the nature 
of a substitute offered by Rep. Barr of Georgia. The amendment 
made three changes to the bill as introduced: 1) modifying 
section 3 to allow an unclassified summary of classified 
evidence prepared in accordance with the Classified Information 
Procedures Act to be used in some immigration proceedings; 2) 
deleting section 5, which would have prohibited any immigration 
benefit from being adjudicated on the basis of any evidence not 
shared with the applicant; and 3) deleting section 6(a), which 
would have provided an additional habeas corpus appeal to any 
alien held in detention or released on bond or parole. Adopted 
26-2.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................              X   ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............  ..............  ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............              X   ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             26               2   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 2121, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 12, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2121, the Secret 
Evidence Repeal Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Democratic Member
H.R. 2121--Secret Evidence Repeal Act of 2000.
    H.R. 2121 would prohibit the use of classified evidence 
against aliens in immigration proceedings. Because there are 
only about 10 proceedings involving such evidence in any year, 
CBO estimates that enacting the bill would have no significant 
impact on federal spending. H.R. 2121 would not affect direct 
spending or receipts, so pay-as-you-go procedures would not 
apply.
    Section 4 of the Unfunded Mandates Reform Act excludes from 
the application of that act legislative provisions that enforce 
constitutional rights of individuals. CBO has determined that 
the provisions of H.R. 2121 deal with the due process rights of 
aliens in immigration proceedings and thus would fall within 
that exclusion.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in article I, section 8, clause 4 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    Sec. 1. Short Title. The short title for H.R. 2121 is the 
``Secret Evidence Repeal Act of 2000.''
    Sec. 2. Findings. No person physically present in the 
United States should be deprived of liberty based on evidence 
kept secret from that person, including information classified 
for national security reasons. 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. The use of secret evidence in 
immigration proceedings deprives an 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(a). Application of Procedures Used Under Classified 
information Procedures Act (``CIPA'') to Immigration 
Proceedings. Requires the Attorney General to notify the alien 
and the presiding officer in advance if she intends to use 
classified information in immigration proceedings. Limits the 
use of classified information to cases in which the Attorney 
General currently has statutory authority to do so, i.e., where 
the alien is alleged to be deportable under section 
237(a)(4)(B) and in cases where the Attorney General opposes an 
application for admission or an application for discretionary 
relief from removal. Prior to initiating section 295 
proceedings, the Attorney General must certify that the use of 
classified information is necessary. The certificate must state 
that: (A) The information could not have been developed from 
open sources, and (B) she has informed the classifying agency 
of the intention to use the information and asked the agency to 
declassify such information as is permitted to be declassified 
under the President's Executive Order on Classification. 
Nothing in this section requires the classifying agency or the 
Attorney General to declassify information..
    Sec. 3(b). Referral of Classified Matters to District 
Court. Upon request from the Attorney General or the alien, the 
presiding officer shall forward the classified evidence to a 
Federal district court for review. This section requires the 
Federal district court judge to review the classified 
information, in lieu of review by the presiding officer in the 
immigration proceeding. The presiding officer may continue with 
the rest of the proceedings when it is appropriate to do so. 
The district court will issue an order indicating any 
unclassified summary of the classified information that may be 
used in the proceedings and dictate the conditions of its use.
    Sec. 3(c). Application of CIPA. For example, the 
unclassified summary of classified information must provide the 
alien with substantially the same ability to make his defense 
as would the specific classified information. In lieu of the 
reports described in section 13 of CIPA, the Attorney General 
shall report annually to the chairman and ranking minority 
members of the Committees on the Judiciary of the Senate and 
the House of Representatives on the implementation of this 
section.
    Sec. 3(d). Disclosure of Exculpatory Evidence. To ensure 
that the alien can contest the adequacy of the summary of 
classified information to the same extent as would a defendant 
in a criminal case, this section requires the Attorney General 
to disclose to the alien the information, and only that 
information, that would have to be disclosed to a defendant in 
an analogous criminal proceeding under CIPA.
    Sec. 3(e). Construction Concerning Declassification of 
Information. This section reflects current law and clarifies 
that the Secret Evidence Repeal Act does not bar an alien under 
the Freedom of Information Act (``FOIA'') from obtaining 
information that relates to his case. Nothing in this section 
requires the declassification of any information that would not 
otherwise be made available to the public under FOIA.
    Sec. (f). Definitions. The term ``immigration proceeding'' 
means any administrative proceeding under this act. The term 
``presiding officer'' means the administrative or judicial 
official who is presiding over the immigration proceeding.
    Sec. 4. Repeal of Use of Secret Evidence in Other 
Immigration Proceedings. Subject to the limitations of section 
295 relating to procedures for handling classified information, 
an alien shall have access to the evidence that is used against 
him or her in removal proceedings.
    Sec. 5. Repeal of Use of Secret Evidence in Bond 
Proceedings. Subject to the limitations of section 295 relating 
to procedures for handling classified information, an alien 
shall have access to the evidence that is used against him or 
her in bond proceedings.
    Sec. 6. Repeal of Use of Secret Evidence Against Lawful 
Permanent Residents, Asylum Seekers, and Aliens Paroled into 
the United States. The provision of the act which permits the 
Attorney General to exclude an arriving alien on the basis of 
confidential information showing that the alien is a spy, 
saboteur, criminal, terrorist, or foreign policy threat does 
not apply to lawful permanent residents, aliens paroled into 
the United States, or aliens who are seeking asylum.
    Sec. 7(a). Application to Detainees. Not more than 30 days 
after the effective date of this act, the Attorney General 
shall provide a bond redetermination, with the rights provided 
by this section, for any alien who is detained on the basis of 
classified information that was considered ex parte.
    Sec. 7(b). Application to Aliens Seeking Immigration 
Benefits. Not more than 30 days after the effective date of 
this act, the Attorney General shall provide an opportunity for 
any alien physically present in the United States who had an 
application for an immigration benefit denied on the basis of 
classified information considered ex parte to seek reopening 
and consideration de novo of his or her benefits application.
    Sec. 7(c). Termination of Proceedings. Requires termination 
in the case of any alien who is in Alien Terrorist Removal 
Court proceedings as of the effective date of this act.
    Sec. 8. Regulations. Requires the Attorney General to 
promulgate implementing regulations within 90 days of the 
effective date of this act.
    Sec. 9. Effective Date. Amendments made by this act shall 
take effect on the date of enactment and shall apply to all 
aliens without regard to their date of arrival, admission, 
entry, or parole into the United States.

                              Agency Views

    The views of the FBI and the INS are contained in their 
testimony in opposition to H.R. 2121 at the committee's 
hearings. These views do not address H.R. 2121 as ordered 
reported and the administration has taken no position on the 
legislation in its current form.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                    IMMIGRATION AND NATIONALITY ACT

      Be it enacted by the Senate and House of Representatives 
of the United States of America in Congress assembled, That 
this Act, divided into titles, chapters, and sections according 
to the following table of contents, may be cited as the 
``Immigration and Nationality Act''.

                            TABLE OF CONTENTS

                            Title I--General

Sec. 101.  Definitions.
     * * * * * * *

                          Title II--Immigration

                         chapter 9--miscellaneous

Sec. 281.  Nonimmigrant visa fees.
     * * * * * * *
Sec. 295.  Application of procedures used under Classified Information 
          Procedures Act to immigration proceedings.
     * * * * * * *

              [TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

[Sec. 501. Definitions.
[Sec. 502. Establishment of removal court.
[Sec. 503. Removal court procedure.
[Sec. 504. Removal hearing.
[Sec. 505. Appeals.
[Sec. 506. Custody and release pending removal hearing.
[Sec. 507. Custody and release after removal hearing.]

           *       *       *       *       *       *       *

                        TITLE II--IMMIGRATION

           *       *       *       *       *       *       *

   Chapter 4--Inspection, Apprehension, Examination, Exclusion, and 
Removal

           *       *       *       *       *       *       *

 inspection by immigration officers; expedited removal of inadmissible 
                 arriving aliens; referral for hearing

    Sec. 235. (a) * * *

           *       *       *       *       *       *       *

    (c) Removal of Aliens Inadmissible on Security and Related 
Grounds.--
            [(1) Removal without further hearing.--If an 
        immigration officer or an immigration judge suspects 
        that an arriving alien may be inadmissible under 
        subparagraph (A) (other than clause (ii)), (B), or (C) 
        of section 212(a)(3), the officer or judge shall--
                    [(A) order the alien removed, subject to 
                review under paragraph (2);
                    [(B) report the order of removal to the 
                Attorney General; and
                    [(C) not conduct any further inquiry or 
                hearing until ordered by the Attorney General.]
            (1) Removal without further hearing.--
                    (A) In general.--Except in the case of an 
                alien described in subparagraph (B), if an 
                immigration officer or an immigration judge 
                suspects that an arriving alien may be 
                inadmissible under subparagraph (A) (other than 
                clause (ii)), (B), or (C) of section 212(a)(3), 
                the officer or judge shall--
                            (i) order the alien removed, 
                        subject to review under paragraph (2);
                            (ii) report the order of removal to 
                        the Attorney General; and
                            (iii) not conduct any further 
                        inquiry or hearing until ordered by the 
                        Attorney General.
                    (B) Excepted aliens described.--An alien 
                described in this subparagraph is 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.

           *       *       *       *       *       *       *

                  apprehension and detention of aliens

    Sec. 236. (a) * * *

           *       *       *       *       *       *       *

    (f) Aliens' Rights in Bond Proceedings.--Subject to section 
295, 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.

           *       *       *       *       *       *       *

                          removal proceedings

    Sec. 240. (a) * * *
    (b) Conduct of Proceeding.--
            (1) * * *

           *       *       *       *       *       *       *

            (4) Aliens rights in proceeding.--In proceedings 
        under this section, under regulations of the Attorney 
        General--
                    (A) * * *
                    [(B) the alien shall have a reasonable 
                opportunity to examine the evidence against the 
                alien, to present evidence on the alien's own 
                behalf, and to cross-examine witnesses 
                presented by the Government but these rights 
                shall not entitle the alien to examine such 
                national security information as the Government 
                may proffer in opposition to the alien's 
                admission to the United States or to an 
                application by the alien for discretionary 
                relief under this Act, and]
                    (B) subject to section 295, 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

           *       *       *       *       *       *       *

    (c) Decision and Burden of Proof.--
            (1) * * *
            (2) Burden on alien.--In the proceeding the alien 
        has the burden of establishing--
                    (A) * * *

           *       *       *       *       *       *       *

        [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, not considered by the Attorney General to be 
        confidential, pertaining to the alien's admission or 
        presence in the United States.] In meeting the burden 
        of proof under subparagraph (B), subject to section 
        295, 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.

           *       *       *       *       *       *       *

Chapter 9--Miscellaneous

           *       *       *       *       *       *       *

application of procedures used under classified information procedures 
                     act to immigration proceedings

    Sec. 295. (a) Notice of Intended Use of Classified 
Information.--
            (1) In general.--In any immigration proceeding in 
        which the Attorney General seeks to use classified 
        information, the Attorney General shall inform the 
        alien and the presiding officer in advance. To the 
        maximum extent practicable, if the Attorney General is 
        initiating such proceeding, the Attorney General shall 
        provide such notice within 15 days after initiating the 
        proceeding.
            (2) Limitation.--The Attorney General may seek to 
        use classified information only in an immigration 
        proceeding in which the alien is alleged to be 
        deportable under section 237(a)(4)(B) or to oppose an 
        application for admission or an application for 
        discretionary relief from removal and only after 
        issuing the following certification:
                    (A) Substantially the same information 
                could not reasonably be developed from open 
                sources.
                    (B) The Attorney General has informed the 
                classifying agency of its intent to use the 
                classified information in connection with 
                immigration proceedings and has requested such 
                agency to declassify such information as is 
                permitted to be declassified under the 
                President's Executive Order on classification.
    (b) Referral of Classified Matters to District Court.--
            (1) In general.--In the case of an immigration 
        proceeding in which the Attorney General or the alien 
        moves for a referral under this section to consider 
        matters relating to classified information that may 
        arise in connection with the proceeding, the presiding 
        officer shall forward the petition for review to a 
        Federal district court for the district in which the 
        alien resides or the place where the immigration 
        proceedings are pending, of the use of such information 
        in such proceeding under subsection (c). Any evidence 
        which is the subject of a petition shall not be 
        considered in the immigration proceeding and shall not 
        be examined by the presiding officer, except as 
        provided in paragraph (3).
            (2) Suspension of immigration proceeding.--In the 
        case of an order or review provided for under paragraph 
        (1), the immigration proceeding may be suspended by the 
        presiding officer pending the disposition of such 
        matter by the district court involved (and any appeals 
        related to such matter).
            (3) Submission of summary.--In the case of a 
        referral under paragraph (1)(A), after the application 
        of subsection (c), the district court shall issue an 
        order to the presiding officer at the proceeding 
        indicating any unclassified summary of classified 
        information, and admissions in lieu of disclosure of 
        classified information, that may be used and the 
        conditions of its use at the proceeding. The presiding 
        officer shall determine whether any information 
        approved by the order may be offered at the immigration 
        proceeding.
    (c) Application of CIPA.--
            (1) In general.--Subject to the succeeding 
        provisions of this section, in the cases described in 
        subsection (b)(1) involving review by a Federal 
        district court of the use of classified information in 
        an immigration proceeding, the provisions of the 
        Classified Information Procedures Act (18 U.S.C. 
        Appendix III) (in this section referred to as ``CIPA'') 
        shall apply to an alien who is a subject of the 
        immigration proceeding in the same manner as it applies 
        to a defendant in a criminal proceeding subject to 
        CIPA.
            (2) General rules of application.--In applying 
        subsection (a), the following general rules apply:
                    (A) Any reference in CIPA to--
                            (i) a criminal defendant or a trial 
                        (or pre-trial) proceeding is deemed to 
                        be a reference to the alien who is the 
                        subject of the immigration proceeding 
                        and to the immigration proceeding;
                            (ii) an indictment or information 
                        at issue is deemed to be a reference to 
                        a notice to appear;
                            (iii) a dismissal of an indictment 
                        or information is deemed a reference to 
                        termination of the immigration 
                        proceeding against an alien; and
                            (iv) a trial court is deemed a 
                        reference (in the case of an 
                        administrative immigration proceeding) 
                        to the presiding officer in such 
                        proceeding.
                    (B) The provisions of section 2 of CIPA 
                (other than the last sentence) shall not be 
                applied.
                    (C) The Attorney General shall prescribe 
                rules establishing procedures for the 
                protection against unauthorized disclosure of 
                classified information in the custody of the 
                Federal non-judicial officials in immigration 
                proceedings. Such rules shall apply instead of 
                the rules described in section 9 of CIPA.
                    (D) Section 12 of CIPA shall not be applied 
                to immigration proceedings.
                    (E) In lieu of the reports described in 
                section 13 of CIPA, the Attorney General shall 
                report annually and in writing to the chairmen 
                and ranking minority members of the Committees 
                on the Judiciary of the Senate and the House of 
                Representatives on the implementation of this 
                section. Such reports shall include the 
                following information about each case brought 
                under this section:
                            (i) The alien's country of 
                        citizenship or, if the alien was 
                        stateless, the country in which the 
                        alien last habitually resided outside 
                        of the United States.
                            (ii) The alien's immigration 
                        status.
                            (iii) The immigration benefit for 
                        which the alien applied (if any).
                            (iv) Whether the Federal district 
                        court approved the summary of 
                        classified information and the 
                        deletions or admissions proffered by 
                        the Attorney General.
                            (v) Whether the alien was 
                        ultimately ordered removed under 
                        section 237(a)(4)(B) or was granted or 
                        denied admission or the benefit for 
                        which the alien applied.
    (d) Disclosure of Exculpatory Evidence.--In any immigration 
proceeding under this section, the Attorney General shall 
disclose to the alien information that it would be required to 
disclose to a defendant in an analogous criminal proceeding 
under CIPA.
    (e) Construction Concerning Declassification of 
Information.--Nothing in this section shall be construed as 
preventing an alien in an immigration proceeding from seeking 
access to classified information under section 552 of title 5, 
United States Code, or, in the case of information which is not 
disclosed based on section 552(b)(1) of such title, from 
initiating an action to seek to declassify some or all of the 
information involved.
    (f) Definitions.--For purposes of this section:
            (1) Immigration proceeding.--The term ``immigration 
        proceeding'' means any administrative proceeding under 
        this Act.
            (2) Presiding officer.--The term ``presiding 
        officer'' means, with respect to an immigration 
        proceeding, the administrative or judicial official who 
        is presiding over the immigration proceeding.

           *       *       *       *       *       *       *

              [TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

[SEC. 501. DEFINITIONS.

    [As used in this title--
            [(1) the term ``alien terrorist'' means any alien 
        described in section 241(a)(4)(B);
            [(2) the term ``classified information'' has the 
        same meaning as in section 1(a) of the Classified 
        Information Procedures Act (18 U.S.C. App.);
            [(3) the term ``national security'' has the same 
        meaning as in section 1(b) of the Classified 
        Information Procedures Act (18 U.S.C. App.);
            [(4) the term ``removal court'' means the court 
        described in section 502;
            [(5) the term ``removal hearing'' means the hearing 
        described in section 504;
            [(6) the term ``removal proceeding'' means a 
        proceeding under this title; and
            [(7) the term ``special attorney'' means an 
        attorney who is on the panel established under section 
        502(e).

[SEC. 502. ESTABLISHMENT OF REMOVAL COURT.

    [(a) Designation of Judges.--The Chief Justice of the 
United States shall publicly designate 5 district court judges 
from 5 of the United States judicial circuits who shall 
constitute a court that shall have jurisdiction to conduct all 
removal proceedings. The Chief Justice may, in the Chief 
Justice's discretion, designate the same judges under this 
section as are designated pursuant to section 103(a) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1803(a)).
    [(b) Terms.--Each judge designated under subsection (a) 
shall serve for a term of 5 years and shall be eligible for 
redesignation, except that of the members first designated--
            [(1) 1 member shall serve for a term of 1 year;
            [(2) 1 member shall serve for a term of 2 years;
            [(3) 1 member shall serve for a term of 3 years; 
        and
            [(4) 1 member shall serve for a term of 4 years.
    [(c) Chief Judge.--
            [(1) Designation.--The Chief Justice shall publicly 
        designate one of the judges of the removal court to be 
        the chief judge of the removal court.
            [(2) Responsibilities.--The chief judge shall--
                    [(A) promulgate rules to facilitate the 
                functioning of the removal court; and
                    [(B) assign the consideration of cases to 
                the various judges on the removal court.
    [(d) Expeditious and Confidential Nature of Proceedings.--
The provisions of section 103(c) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1803(c)) shall apply to 
removal proceedings in the same manner as they apply to 
proceedings under that Act.
    [(e) Establishment of Panel of Special Attorneys.--The 
removal court shall provide for the designation of a panel of 
attorneys each of whom--
            [(1) has a security clearance which affords the 
        attorney access to classified information, and
            [(2) has agreed to represent permanent resident 
        aliens with respect to classified information under 
        section 504(e)(3) in accordance with (and subject to 
        the penalties under) this title.

[SEC. 503. REMOVAL COURT PROCEDURE.

    [(a) Application.--
            [(1) In general.--In any case in which the Attorney 
        General has classified information that an alien is an 
        alien terrorist, the Attorney General may seek removal 
        of the alien under this title by filing an application 
        with the removal court that contains--
                    [(A) the identity of the attorney in the 
                Department of Justice making the application;
                    [(B) a certification by the Attorney 
                General or the Deputy Attorney General that the 
                application satisfies the criteria and 
                requirements of this section;
                    [(C) the identity of the alien for whom 
                authorization for the removal proceeding is 
                sought; and
                    [(D) a statement of the facts and 
                circumstances relied on by the Department of 
                Justice to establish probable cause that--
                            [(i) the alien is an alien 
                        terrorist;
                            [(ii) the alien is physically 
                        present in the United States; and
                            [(iii) with respect to such alien, 
                        removal under title II would pose a 
                        risk to the national security of the 
                        United States.
            [(2) Filing.--An application under this section 
        shall be submitted ex parte and in camera, and shall be 
        filed under seal with the removal court.
    [(b) Right To Dismiss.--The Attorney General may dismiss a 
removal action under this title at any stage of the proceeding.
    [(c) Consideration of Application.--
            [(1) Basis for decision.--In determining whether to 
        grant an application under this section, a single judge 
        of the removal court may consider, ex parte and in 
        camera, in addition to the information contained in the 
        application--
                    [(A) other information, including 
                classified information, presented under oath or 
                affirmation; and
                    [(B) testimony received in any hearing on 
                the application, of which a verbatim record 
                shall be kept.
            [(2) Approval of order.--The judge shall issue an 
        order granting the application, if the judge finds that 
        there is probable cause to believe that--
                    [(A) the alien who is the subject of the 
                application has been correctly identified and 
                is an alien terrorist present in the United 
                States; and
                    [(B) removal under title II would pose a 
                risk to the national security of the United 
                States.
            [(3) Denial of order.--If the judge denies the 
        order requested in the application, the judge shall 
        prepare a written statement of the reasons for the 
        denial, taking all necessary precautions not to 
        disclose any classified information contained in the 
        Government's application.
    [(d) Exclusive Provisions.--If an order is issued under 
this section granting an application, the rights of the alien 
regarding removal and expulsion shall be governed solely by 
this title, and except as they are specifically referenced in 
this title, no other provisions of this Act shall be 
applicable.

[SEC. 504. REMOVAL HEARING.

    [(a) In General.--
            [(1) Expeditious hearing.--In any case in which an 
        application for an order is approved under section 
        503(c)(2), a removal hearing shall be conducted under 
        this section as expeditiously as practicable for the 
        purpose of determining whether the alien to whom the 
        order pertains should be removed from the United States 
        on the grounds that the alien is an alien terrorist.
            [(2) Public hearing.--The removal hearing shall be 
        open to the public.
    [(b) Notice.--An alien who is the subject of a removal 
hearing under this title shall be given reasonable notice of--
            [(1) the nature of the charges against the alien, 
        including a general account of the basis for the 
        charges; and
            [(2) the time and place at which the hearing will 
        be held.
    [(c) Rights in Hearing.--
            [(1) Right of counsel.--The alien shall have a 
        right to be present at such hearing and to be 
        represented by counsel. Any alien financially unable to 
        obtain counsel shall be entitled to have counsel 
        assigned to represent the alien. Such counsel shall be 
        appointed by the judge pursuant to the plan for 
        furnishing representation for any person financially 
        unable to obtain adequate representation for the 
        district in which the hearing is conducted, as provided 
        for in section 3006A of title 18, United States Code. 
        All provisions of that section shall apply and, for 
        purposes of determining the maximum amount of 
        compensation, the matter shall be treated as if a 
        felony was charged.
            [(2) Introduction of evidence.--Subject to the 
        limitations in subsection (e), the alien shall have a 
        reasonable opportunity to introduce evidence on the 
        alien's own behalf.
            [(3) Examination of witnesses.--Subject to the 
        limitations in subsection (e), the alien shall have a 
        reasonable opportunity to examine the evidence against 
        the alien and to cross-examine any witness.
            [(4) Record.--A verbatim record of the proceedings 
        and of all testimony and evidence offered or produced 
        at such a hearing shall be kept.
            [(5) Removal decision based on evidence at 
        hearing.--The decision of the judge regarding removal 
        shall be based only on that evidence introduced at the 
        removal hearing.
    [(d) Subpoenas.--
            [(1) Request.--At any time prior to the conclusion 
        of the removal hearing, either the alien or the 
        Department of Justice may request the judge to issue a 
        subpoena for the presence of a named witness (which 
        subpoena may also command the person to whom it is 
        directed to produce books, papers, documents, or other 
        objects designated therein) upon a satisfactory showing 
        that the presence of the witness is necessary for the 
        determination of any material matter. Such a request 
        may be made ex parte except that the judge shall inform 
        the Department of Justice of any request for a subpoena 
        by the alien for a witness or material if compliance 
        with such a subpoena would reveal classified evidence 
        or the source of that evidence. The Department of 
        Justice shall be given a reasonable opportunity to 
        oppose the issuance of such a subpoena.
            [(2) Payment for attendance.--If an application for 
        a subpoena by the alien also makes a showing that the 
        alien is financially unable to pay for the attendance 
        of a witness so requested, the court may order the 
        costs incurred by the process and the fees of the 
        witness so subpoenaed to be paid from funds 
        appropriated for the enforcement of title II.
            [(3) Nationwide service.--A subpoena under this 
        subsection may be served anywhere in the United States.
            [(4) Witness fees.--A witness subpoenaed under this 
        subsection shall receive the same fees and expenses as 
        a witness subpoenaed in connection with a civil 
        proceeding in a court of the United States.
            [(5) No access to classified information.--Nothing 
        in this subsection is intended to allow an alien to 
        have access to classified information.
    [(e) Discovery.--
            [(1) In general.--For purposes of this title--
                    [(A) the Government is authorized to use in 
                a removal proceedings the fruits of electronic 
                surveillance and unconsented physical searches 
                authorized under the Foreign Intelligence 
                Surveillance Act of 1978 (50 U.S.C. 1801 et 
                seq.) without regard to subsections (c), (e), 
                (f), (g), and (h) of section 106 of that Act 
                and discovery of information derived pursuant 
                to such Act, or otherwise collected for 
                national security purposes, shall not be 
                authorized if disclosure would present a risk 
                to the national security of the United States;
                    [(B) an alien subject to removal under this 
                title shall not be entitled to suppress 
                evidence that the alien alleges was unlawfully 
                obtained; and
                    [(C) section 3504 of title 18, United 
                States Code, and section 1806(c) of title 50, 
                United States Code, shall not apply if the 
                Attorney General determines that public 
                disclosure would pose a risk to the national 
                security of the United States because it would 
                disclose classified information or otherwise 
                threaten the integrity of a pending 
                investigation.
            [(2) Protective orders.--Nothing in this title 
        shall prevent the United States from seeking protective 
        orders and from asserting privileges ordinarily 
        available to the United States to protect against the 
        disclosure of classified information, including the 
        invocation of the military and State secrets 
        privileges.
            [(3) Treatment of classified information.--
                    [(A) Use.--The judge shall examine, ex 
                parte and in camera, any evidence for which the 
                Attorney General determines that public 
                disclosure would pose a risk to the national 
                security of the United States or to the 
                security of any individual because it would 
                disclose classified information and neither the 
                alien nor the public shall be informed of such 
                evidence or its sources other than through 
                reference to the summary provided pursuant to 
                this paragraph. Notwithstanding the previous 
                sentence, the Department of Justice may, in its 
                discretion and, in the case of classified 
                information, after coordination with the 
                originating agency, elect to introduce such 
                evidence in open session.
                    [(B) Submission.--With respect to such 
                information, the Government shall submit to the 
                removal court an unclassified summary of the 
                specific evidence that does not pose that risk.
                    [(C) Approval.--Not later than 15 days 
                after submission, the judge shall approve the 
                summary if the judge finds that it is 
                sufficient to enable the alien to prepare a 
                defense. The Government shall deliver to the 
                alien a copy of the unclassified summary 
                approved under this subparagraph.
                    [(D) Disapproval.--
                            [(i) In general.--If an 
                        unclassified summary is not approved by 
                        the removal court under subparagraph 
                        (C), the Government shall be afforded 
                        15 days to correct the deficiencies 
                        identified by the court and submit a 
                        revised unclassified summary.
                            [(ii) Revised summary.--If the 
                        revised unclassified summary is not 
                        approved by the court within 15 days of 
                        its submission pursuant to subparagraph 
                        (C), the removal hearing shall be 
                        terminated unless the judge makes the 
                        findings under clause (iii).
                            [(iii) Findings.--The findings 
                        described in this clause are, with 
                        respect to an alien, that--
                                    [(I) the continued presence 
                                of the alien in the United 
                                States would likely cause 
                                serious and irreparable harm to 
                                the national security or death 
                                or serious bodily injury to any 
                                person, and
                                    [(II) the provision of the 
                                summary would likely cause 
                                serious and irreparable harm to 
                                the national security or death 
                                or serious bodily injury to any 
                                person.
                    [(E) Continuation of hearing without 
                summary.--If a judge makes the findings 
                described in subparagraph (D)(iii)--
                            [(i) if the alien involved is an 
                        alien lawfully admitted for permanent 
                        residence, the procedures described in 
                        subparagraph (F) shall apply; and
                            [(ii) in all cases the special 
                        removal hearing shall continue, the 
                        Department of Justice shall cause to be 
                        delivered to the alien a statement that 
                        no summary is possible, and the 
                        classified information submitted in 
                        camera and ex parte may be used 
                        pursuant to this paragraph.
                    [(F) Special procedures for access and 
                challenges to classified information by special 
                attorneys in case of lawful permanent aliens.--
                            [(i) In general.--The procedures 
                        described in this subparagraph are that 
                        the judge (under rules of the removal 
                        court) shall designate a special 
                        attorney to assist the alien--
                                    [(I) by reviewing in camera 
                                the classified information on 
                                behalf of the alien, and
                                    [(II) by challenging 
                                through an in camera proceeding 
                                the veracity of the evidence 
                                contained in the classified 
                                information.
                            [(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, 
                                United States Code, imprisoned 
                                for not less than 10 years nor 
                                more than 25 years, or both.
    [(f) Arguments.--Following the receipt of evidence, the 
Government and the alien shall be given fair opportunity to 
present argument as to whether the evidence is sufficient to 
justify the removal of the alien. The Government shall open the 
argument. The alien shall be permitted to reply. The Government 
shall then be permitted to reply in rebuttal. The judge may 
allow any part of the argument that refers to evidence received 
in camera and ex parte to be heard in camera and ex parte.
    [(g) Burden of Proof.--In the hearing, it is the 
Government's burden to prove, by the preponderance of the 
evidence, that the alien is subject to removal because the 
alien is an alien terrorist.
    [(h) Rules of Evidence.--The Federal Rules of Evidence 
shall not apply in a removal hearing.
    [(i) Determination of Deportation.--If the judge, after 
considering the evidence on the record as a whole, finds that 
the Government has met its burden, the judge shall order the 
alien removed and detained pending removal from the United 
States. If the alien was released pending the removal hearing, 
the judge shall order the Attorney General to take the alien 
into custody.
    [(j) Written Order.--At the time of issuing a decision as 
to whether the alien shall be removed, the judge shall prepare 
a written order containing a statement of facts found and 
conclusions of law. Any portion of the order that would reveal 
the substance or source of information received in camera and 
ex parte pursuant to subsection (e) shall not be made available 
to the alien or the public.
    [(k) No Right to Ancillary Relief.--At no time shall the 
judge consider or provide for relief from removal based on--
            [(1) asylum under section 208;
            [(2) by withholding of removal under section 
        241(b)(3);
            [(3) cancellation of removal under section 240A; 
        \1\
            [(4) voluntary departure under section 244(e);
            [(5) adjustment of status under section 245; or
            [(6) registry under section 249.

[SEC. 505. APPEALS.

    [(a) Appeal of Denial of Application for Removal 
Proceedings.--
            [(1) In general.--The Attorney General may seek a 
        review of the denial of an order sought in an 
        application filed pursuant to section 503. The appeal 
        shall be filed in the United States Court of Appeals 
        for the District of Columbia Circuit by notice of 
        appeal filed not later than 20 days after the date of 
        such denial.
            [(2) Record on appeal.--The entire record of the 
        proceeding shall be transmitted to the Court of Appeals 
        under seal, and the Court of Appeals shall hear the 
        matter ex parte.
            [(3) Standard of review.--The Court of Appeals 
        shall--
                    [(A) review questions of law de novo; and
                    [(B) set aside a finding of fact only if 
                such finding was clearly erroneous.
    [(b) Appeal of Determination Regarding Summary of 
Classified Information.--
            [(1) In general.--The United States may take an 
        interlocutory appeal to the United States Court of 
        Appeals for the District of Columbia Circuit of--
                    [(A) any determination by the judge 
                pursuant to section 504(e)(3); or
                    [(B) the refusal of the court to make the 
                findings permitted by section 504(e)(3).
            [(2) Record.--In any interlocutory appeal taken 
        pursuant to this subsection, the entire record, 
        including any proposed order of the judge, any 
        classified information and the summary of evidence, 
        shall be transmitted to the Court of Appeals. The 
        classified information shall be transmitted under seal. 
        A verbatim record of such appeal shall be kept under 
        seal in the event of any other judicial review.
    [(c) Appeal of Decision in Hearing.--
            [(1) In general.--Subject to paragraph (2), the 
        decision of the judge after a removal hearing may be 
        appealed by either the alien or the Attorney General to 
        the United States Court of Appeals for the District of 
        Columbia Circuit by notice of appeal filed not later 
        than 20 days after the date on which the order is 
        issued. The order shall not be enforced during the 
        pendency of an appeal under this subsection.
            [(2) Automatic appeals in cases of permanent 
        resident aliens in which no summary provided.--
                    [(A) In general.--Unless the alien waives 
                the right to a review under this paragraph, in 
                any case involving an alien lawfully admitted 
                for permanent residence who is denied a written 
                summary of classified information under section 
                504(e)(3) and with respect to which the 
                procedures described in section 504(e)(3)(F) 
                apply, any order issued by the judge shall be 
                reviewed by the Court of Appeals for the 
                District of Columbia Circuit.
                    [(B) Use of special attorney.--With respect 
                to any issue relating to classified information 
                that arises in such review, the alien shall be 
                represented only by the special attorney 
                designated under section 504(e)(3)(F)(i) on 
                behalf of the alien.
            [(3) Transmittal of record.--In an appeal or review 
        to the Court of Appeals pursuant to this subsection--
                    [(A) the entire record shall be transmitted 
                to the Court of Appeals; and
                    [(B) information received in camera and ex 
                parte, and any portion of the order that would 
                reveal the substance or source of such 
                information, shall be transmitted under seal.
            [(4) Expedited appellate proceeding.--In an appeal 
        or review to the Court of Appeals under this 
        subsection--
                    [(A) the appeal or review shall be heard as 
                expeditiously as practicable and the court may 
                dispense with full briefing and hear the matter 
                solely on the record of the judge of the 
                removal court and on such briefs or motions as 
                the court may require to be filed by the 
                parties;
                    [(B) the Court of Appeals shall issue an 
                opinion not later than 60 days after the date 
                of the issuance of the final order of the 
                district court;
                    [(C) the court shall review all questions 
                of law de novo; and
                    [(D) a finding of fact shall be accorded 
                deference by the reviewing court and shall not 
                be set aside unless such finding was clearly 
                erroneous, except that in the case of a review 
                under paragraph (2) in which an alien lawfully 
                admitted for permanent residence was denied a 
                written summary of classified information under 
                section 504(c)(3), the Court of Appeals shall 
                review questions of fact de novo.
    [(d) Certiorari.--Following a decision by the Court of 
Appeals pursuant to subsection (c), the alien or the Attorney 
General may petition the Supreme Court for a writ of 
certiorari. In any such case, any information transmitted to 
the Court of Appeals under seal shall, if such information is 
also submitted to the Supreme Court, be transmitted under seal. 
Any order of removal shall not be stayed pending disposition of 
a writ of certiorari, except as provided by the Court of 
Appeals or a Justice of the Supreme Court.
    [(e) Appeal of Detention Order.--
            [(1) In general.--Sections 3145 through 3148 of 
        title 18, United States Code, pertaining to review and 
        appeal of a release or detention order, penalties for 
        failure to appear, penalties for an offense committed 
        while on release, and sanctions for violation of a 
        release condition shall apply to an alien to whom 
        section 507(b)(1) applies. In applying the previous 
        sentence--
                    [(A) for purposes of section 3145 of such 
                title an appeal shall be taken to the United 
                States Court of Appeals for the District of 
                Columbia Circuit; and
                    [(B) for purposes of section 3146 of such 
                title the alien shall be considered released in 
                connection with a charge of an offense 
                punishable by life imprisonment.
            [(2) No review of continued detention.--The 
        determinations and actions of the Attorney General 
        pursuant to section 507(b)(2)(C) shall not be subject 
        to judicial review, including application for a writ of 
        habeas corpus, except for a claim by the alien that 
        continued detention violates the alien's rights under 
        the Constitution. Jurisdiction over any such challenge 
        shall lie exclusively in the United States Court of 
        Appeals for the District of Columbia Circuit.

[SEC. 506. CUSTODY AND RELEASE PENDING REMOVAL HEARING.

    [(a) Upon Filing Application.--
            [(1) In general.--Subject to paragraphs (2) and 
        (3), the Attorney General may--
                    [(A) take into custody any alien with 
                respect to whom an application under section 
                503 has been filed; and
                    [(B) retain such an alien in custody in 
                accordance with the procedures authorized by 
                this title.
            [(2) Special rules for permanent resident aliens.--
                    [(A) Release hearing.--An alien lawfully 
                admitted for permanent residence shall be 
                entitled to a release hearing before the judge 
                assigned to hear the removal hearing. Such an 
                alien shall be detained pending the removal 
                hearing, unless the alien demonstrates to the 
                court that the alien--
                            [(i) is a person lawfully admitted 
                        for permanent residence in the United 
                        States;
                            [(ii) if released upon such terms 
                        and conditions as the court may 
                        prescribe (including the posting of any 
                        monetary amount), is not likely to 
                        flee; and
                            [(iii) will not endanger national 
                        security, or the safety of any person 
                        or the community, if released.
                    [(B) Information considered.--The judge may 
                consider classified information submitted in 
                camera and ex parte in making a determination 
                whether to release an alien pending the removal 
                hearing.
            [(3) Release if order denied and no review 
        sought.--
                    [(A) In general.--Subject to subparagraph 
                (B), if a judge of the removal court denies the 
                order sought in an application filed pursuant 
                to section 503, and the Attorney General does 
                not seek review of such denial, the alien shall 
                be released from custody.
                    [(B) Application of regular procedures.--
                Subparagraph (A) shall not prevent the arrest 
                and detention of the alien pursuant to title 
                II.
    [(b) Conditional Release if Order Denied and Review 
Sought.--
            [(1) In general.--If a judge of the removal court 
        denies the order sought in an application filed 
        pursuant to section 503 and the Attorney General seeks 
        review of such denial, the judge shall release the 
        alien from custody subject to the least restrictive 
        condition, or combination of conditions, of release 
        described in section 3142(b) and clauses (i) through 
        (xiv) of section 3142(c)(1)(B) of title 18, United 
        States Code, that--
                    [(A) will reasonably assure the appearance 
                of the alien at any future proceeding pursuant 
                to this title; and
                    [(B) will not endanger the safety of any 
                other person or the community.
            [(2) No release for certain aliens.--If the judge 
        finds no such condition or combination of conditions, 
        as described in paragraph (1), the alien shall remain 
        in custody until the completion of any appeal 
        authorized by this title.

SEC. 507. CUSTODY AND RELEASE AFTER REMOVAL HEARING.

    [(a) Release.--
            [(1) In general.--Subject to paragraph (2), if the 
        judge decides that an alien should not be removed, the 
        alien shall be released from custody.
            [(2) Custody pending appeal.--If the Attorney 
        General takes an appeal from such decision, the alien 
        shall remain in custody, subject to the provisions of 
        section 3142 of title 18, United States Code.
    [(b) Custody and Removal.--
            [(1) Custody.--If the judge decides that an alien 
        shall be removed, the alien shall be detained pending 
        the outcome of any appeal. After the conclusion of any 
        judicial review thereof which affirms the removal 
        order, the Attorney General shall retain the alien in 
        custody and remove the alien to a country specified 
        under paragraph (2).
            [(2) Removal.--
                    [(A) In general.--The removal of an alien 
                shall be to any country which the alien shall 
                designate if such designation does not, in the 
                judgment of the Attorney General, in 
                consultation with the Secretary of State, 
                impair the obligation of the United States 
                under any treaty (including a treaty pertaining 
                to extradition) or otherwise adversely affect 
                the foreign policy of the United States.
                    [(B) Alternate countries.--If the alien 
                refuses to designate a country to which the 
                alien wishes to be removed or if the Attorney 
                General, in consultation with the Secretary of 
                State, determines that removal of the alien to 
                the country so designated would impair a treaty 
                obligation or adversely affect United States 
                foreign policy, the Attorney General shall 
                cause the alien to be removed to any country 
                willing to receive such alien.
                    [(C) Continued detention.--If no country is 
                willing to receive such an alien, the Attorney 
                General may, notwithstanding any other 
                provision of law, retain the alien in custody. 
                The Attorney General, in coordination with the 
                Secretary of State, shall make periodic efforts 
                to reach agreement with other countries to 
                accept such an alien and at least every 6 
                months shall provide to the attorney 
                representing the alien at the removal hearing a 
                written report on the Attorney General's 
                efforts. Any alien in custody pursuant to this 
                subparagraph shall be released from custody 
                solely at the discretion of the Attorney 
                General and subject to such conditions as the 
                Attorney General shall deem appropriate.
                    [(D) Fingerprinting.--Before an alien is 
                removed from the United States pursuant to this 
                subsection, or pursuant to an order of removal 
                because such alien is inadmissible under 
                section 212(a)(3)(B), the alien shall be 
                photographed and fingerprinted, and shall be 
                advised of the provisions of section 276(b).
    [(c) Continued Detention Pending Trial.--
            [(1) Delay in removal.--The Attorney General may 
        hold in abeyance the removal of an alien who has been 
        ordered removed, pursuant to this title, to allow the 
        trial of such alien on any Federal or State criminal 
        charge and the service of any sentence of confinement 
        resulting from such a trial.
            [(2) Maintenance of custody.--Pending the 
        commencement of any service of a sentence of 
        confinement by an alien described in paragraph (1), 
        such an alien shall remain in the custody of the 
        Attorney General, unless the Attorney General 
        determines that temporary release of the alien to the 
        custody of State authorities for confinement in a State 
        facility is appropriate and would not endanger national 
        security or public safety.
            [(3) Subsequent removal.--Following the completion 
        of a sentence of confinement by an alien described in 
        paragraph (1), or following the completion of State 
        criminal proceedings which do not result in a sentence 
        of confinement of an alien released to the custody of 
        State authorities pursuant to paragraph (2), such an 
        alien shall be returned to the custody of the Attorney 
        General who shall proceed to the removal of the alien 
        under this title.
    [(d) Application of Certain Provisions Relating to Escape 
of Prisoners.--For purposes of sections 751 and 752 of title 
18, United States Code, an alien in the custody of the Attorney 
General pursuant to this title shall be subject to the 
penalties provided by those sections in relation to a person 
committed to the custody of the Attorney General by virtue of 
an arrest on a charge of a felony.
    [(e) Rights of Aliens in Custody.--
            [(1) Family and attorney visits.--An alien in the 
        custody of the Attorney General pursuant to this title 
        shall be given reasonable opportunity, as determined by 
        the Attorney General, to communicate with and receive 
        visits from members of the alien's family, and to 
        contact, retain, and communicate with an attorney.
            [(2) Diplomatic contact.--An alien in the custody 
        of the Attorney General pursuant to this title shall 
        have the right to contact an appropriate diplomatic or 
        consular official of the alien's country of citizenship 
        or nationality or of any country providing 
        representation services therefore. The Attorney General 
        shall notify the appropriate embassy, mission, or 
        consular office of the alien's detention.]
                            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\, the reported bill still raises a number of 
national-security-related concerns regarding its scope and 
application.
---------------------------------------------------------------------------
    \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\ 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.
---------------------------------------------------------------------------
    \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.
                            Additional Views

    We join with our colleagues in the dissenting views 
expressed above. However, it is our further belief that 
legislation creating a time limitation on the period in which 
an alien may be detained on the basis of classified evidence 
would create an appropriate balance between the need to protect 
the national security and the due process rights that should be 
afforded to aliens in immigration proceedings. While we have 
concerns with the scope of H.R. 2121, we agree with the authors 
of the bill that a time limitation is necessary.

                                   Mary Bono.
                                   Bob Goodlatte.

                                  
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