II

104TH CONGRESS

1ST SESSION S. 270

To provide special procedures for the removal of alien terrorists.

IN THE SENATE OF THE UNITED STATES

JANUARY 24 (legislative day, JANUARY 10), 1995

Mr. SMITH (for himself, Mr. SIMPSON, Mr. D’AMATO, Mr. COCHRAN, Mr.

REID, and Mr. GREGG) introduced the following bill; which was read

twice and referred to the Committee on the Judiciary

A BILL

To provide special procedures for the removal of alien

terrorists.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Alien Terrorist Re5 moval Act of 1995’’.

6 SEC. 2. REMOVAL OF ALIEN TERRORISTS.

7 The Immigration and Nationality Act (8 U.S.C. 1101

8 et seq.) is amended by inserting the following new section:
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1 ‘‘REMOVAL OF ALIEN TERRORISTS

2 ‘‘SEC. 242C. (a) DEFINITIONS.—As used in this sec3 tion—

4 ‘‘(1) the term ‘alien terrorist’ means any alien

5 described in section 241(a)(4)(B);

6 ‘‘(2) the term ‘classified information’ has the

7 same meaning as defined in section 1(a) of the Clas8 sified Information Procedures Act (18 U.S.C. App.

9 IV);

10 ‘‘(3) the term ‘national security’ has the same

11 meaning as defined in section 1(b) of the Classified

12 Information Procedures Act (18 U.S.C. App. IV);

13 ‘‘(4) the term ‘special court’ means the court

14 described in subsection (c) of this section; and

15 ‘‘(5) the term ‘special removal hearing’ means

16 the hearing described in subsection (e) of this sec17 tion.

18 ‘‘(b) APPLICATION FOR USE OF PROCEDURES.—The

19 provisions of this section shall apply whenever the Attor20 ney General certifies under seal to the special court that—

21 ‘‘(1) the Attorney General or Deputy Attorney

22 General has approved of the proceeding under this

23 section;

24 ‘‘(2) an alien terrorist is physically present in

25 the United States; and
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1 ‘‘(3) removal of such alien terrorist by deporta2 tion proceedings described in sections 242, 242A, or

3 242B would pose a risk to the national security of

4 the United States because such proceedings would

5 disclose classified information.

6 ‘‘(c) SPECIAL COURT.—

7 ‘‘(1) The Chief Justice of the United States

8 shall publicly designate up to seven judges from up

9 to seven United States judicial districts to hear and

10 decide cases arising under this section, in a manner

11 consistent with the designation of judges described

12 in section 103(a) of the Foreign Intelligence Surveil13 lance Act (50 U.S.C. 1803(a)).

14 ‘‘(2) The Chief Justice may, in the Chief Jus15 tice’s discretion, designate the same judges under

16 this section as are designated pursuant to 50 U.S.C.

17 1803(a).

18 ‘‘(d) INVOCATION OF SPECIAL COURT PROCE19 DURE.—

20 ‘‘(1) When the Attorney General makes the ap21 plication described in subsection (b), a single judge

22 of the special court shall consider the application in

23 camera and ex parte.
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1 ‘‘(2) The judge shall invoke the procedures of

2 subsection (e), if the judge determines that there is

3 probable cause to believe that—

4 ‘‘(A) the alien who is the subject of the ap5 plication has been correctly identified;

6 ‘‘(B) a deportation proceeding described in

7 sections 242, 242A, or 242B would pose a risk

8 to the national security of the United States be9 cause such proceedings would disclose classified

10 information; and

11 ‘‘(C) the threat posed by the alien’s phys12 ical presence is immediate and involves the risk

13 of death or serious bodily harm.

14 ‘‘(e) SPECIAL REMOVAL HEARING.—

15 ‘‘(1) Except as provided in paragraph (4), the

16 special removal hearing authorized by a showing of

17 probable cause described in subsection (d)(2) shall

18 be open to the public.

19 ‘‘(2) The alien shall have a right to be present

20 at such hearing and to be represented by counsel.

21 Any alien financially unable to obtain counsel shall

22 be entitled to have counsel assigned to represent

23 such alien. Counsel may be appointed as described

24 in section 3006A of title 18, United States Code.
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1 ‘‘(3) The alien shall have a right to introduce

2 evidence on his own behalf, and except as provided

3 in paragraph (4), shall have a right to cross-examine

4 any witness or request that the judge issue a sub5 poena for the presence of a named witness.

6 ‘‘(4) The judge shall authorize the introduction

7 in camera and ex parte of any item of evidence for

8 which the judge determines that public disclosure

9 would pose a risk to the national security of the

10 United States because it would disclose classified in11 formation.

12 ‘‘(5) With respect to any evidence described in

13 paragraph (4), the judge shall cause to be delivered

14 to the alien either—

15 ‘‘(A)(i) the substitution for such evidence

16 of a statement admitting relevant facts that the

17 specific evidence would tend to prove, or (ii) the

18 substitution for such evidence of a summary of

19 the specific evidence; or

20 ‘‘(B) if disclosure of even the substituted

21 evidence described in subparagraph (A) would

22 create a substantial risk of death or serious

23 bodily harm to any person, a statement inform24 ing the alien that no such summary is possible.

25 ‘‘(6) If the judge determines—
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1 ‘‘(A) that the substituted evidence de2 scribed in paragraph (5)(A) will provide the

3 alien with substantially the same ability to

4 make his defense as would disclosure of the spe5 cific evidence, or

6 ‘‘(B) that disclosure of even the sub7 stituted evidence described in paragraph (5)(A)

8 would create a substantial risk of death or seri9 ous bodily harm to any person, then the deter10 mination of deportation (described in subsection

11 (f)) may be made pursuant to this section.

12 ‘‘(f) DETERMINATION OF DEPORTATION.—

13 ‘‘(1) If the determination in subsection

14 (e)(6)(A) has been made, the judge shall, consider15 ing the evidence on the record as a whole, require

16 that the alien be deported if the Attorney General

17 proves, by clear and convincing evidence, that the

18 alien is subject to deportation because he is an alien

19 as described in section 241(a)(4)(B).

20 ‘‘(2) If the determination in subsection

21 (e)(6)(B) has been made, the judge shall, consider22 ing the evidence received (in camera and otherwise),

23 require that the alien be deported if the Attorney

24 General proves, by clear, convincing, and unequivo25 cal evidence, that the alien is subject to deportation
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1 because he is an alien as described in section

2 241(a)(4)(B).

3 ‘‘(g) APPEALS.—

4 ‘‘(1) The alien may appeal a determination

5 under subsection (f) to the court of appeals for the

6 Federal Circuit, by filing a notice of appeal with

7 such court within twenty days of the determination

8 under such subsection.

9 ‘‘(2) The Attorney General may appeal a deter10 mination under subsection (d), (e), or (f) to the

11 court of appeals for the Federal Circuit, by filing a

12 notice of appeal with such court within twenty days

13 of the determination under any one of such sub14 sections.

15 ‘‘(3) When requested by the Attorney General,

16 the entire record of the proceeding under this sec17 tion shall be transmitted to the court of appeals

18 under seal. The court of appeals shall consider such

19 appeal in camera and ex parte.’’.

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