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‘‘(3) The term ‘national security’ has the mean-
ing given such term in section 1(b) of the Classified
Information Procedures Act (18 U.S.C. App.).
‘‘(4) The term ‘special attorney’ means an at-
torney who is on the panel established under section
502(e).
‘‘(5) The term ‘special removal court’ means
the court established under section 502(a).
‘‘(6) The term ‘special removal hearing’ means
a hearing under section 505.
‘‘(7) The term ‘special removal proceeding’
means a proceeding under this title.
‘‘ESTABLISHMENT OF SPECIAL REMOVAL COURT; PANEL
OF ATTORNEYS TO ASSIST WITH CLASSIFIED INFOR-
MATION
‘‘SEC. 502. (a) IN GENERAL.—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 which shall have jurisdiction to
conduct all special removal proceedings.
‘‘(b) TERMS.—Each judge designated under sub-
section (a) shall serve for a term of 5 years and shall be
eligible for redesignation, except that the four associate
judges first so designated shall be designated for terms
of one, two, three, and four years so that the term of one
judge shall expire each year.
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‘‘(c) CHIEF JUDGE.—The Chief Justice shall publicly
designate one of the judges of the special removal court
to be the chief judge of the court. The chief judge shall
promulgate rules to facilitate the functioning of the court
and shall be responsible for assigning the consideration
of cases to the various judges.
‘‘(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 proceedings under this title in the
same manner as they apply to proceedings under such Act.
‘‘(e) ESTABLISHMENT OF PANEL OF SPECIAL AT-
TORNEYS.—The special 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 resi-
dent aliens with respect to classified information
under section 506 in accordance with (and subject to
the penalties under) this title.
‘‘APPLICATION FOR INITIATION OF SPECIAL REMOVAL
PROCEEDING
‘‘SEC. 503. (a) IN GENERAL.—Whenever the Attor-
ney General has classified information that an alien is an
alien terrorist, the Attorney General, in the Attorney Gen-
eral’s discretion, may seek removal of the alien under this
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title through the filing of a written application described
in subsection (b) with the special removal court seeking
an order authorizing a special removal proceeding under
this title. The application shall be submitted in camera
and ex parte and shall be filed under seal with the court.
‘‘(b) CONTENTS OF APPLICATION.—Each application
for a special removal proceeding shall include all of the
following:
‘‘(1) The identity of the Department of Justice
attorney making the application.
‘‘(2) The approval of the Attorney General or
the Deputy Attorney General for the filing of the ap-
plication based upon a finding by that individual
that the application satisfies the criteria and re-
quirements of this title.
‘‘(3) The identity of the alien for whom author-
ization for the special removal proceedings is sought.
‘‘(4)
A
statement
of
the
facts
and
cir-
cumstances relied on by the Department of Justice
to establish that—
‘‘(A) the alien is an alien terrorist and is
physically present in the United States, and
‘‘(B) with respect to such alien, adherence
to the provisions of title II regarding the re-
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moval of aliens would pose a risk to the na-
tional security of the United States.
‘‘(5) An oath or affirmation respecting each of
the facts and statements described in the previous
paragraphs.
‘‘(c) RIGHT TO DISMISS.—The Department of Jus-
tice retains the right to dismiss a removal action under
this title at any stage of the proceeding.
‘‘CONSIDERATION OF APPLICATION
‘‘SEC. 504. (a) IN GENERAL.—In the case of an ap-
plication under section 503 to the special removal court,
a single judge of the court shall be assigned to consider
the application. The judge, in accordance with the rules
of the court, shall consider the application and may con-
sider other information, including classified information,
presented under oath or affirmation. The judge shall con-
sider the application (and any hearing thereof) in camera
and ex parte. A verbatim record shall be maintained of
any such hearing.
‘‘(b) APPROVAL OF ORDER.—The judge shall enter
ex parte the order requested in the application if the judge
finds, on the basis of such application and such other in-
formation (if any), that there is probable cause to believe
that—
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‘‘(1) the alien who is the subject of the applica-
tion has been correctly identified and is an alien ter-
rorist, and
‘‘(2) adherence to the provisions of title II re-
garding the removal of the identified alien would
pose a risk to the national security of the United
States.
‘‘(c) DENIAL OF ORDER.—If the judge denies the
order requested in the application, the judge shall prepare
a written statement of the judge’s reasons for the denial.
‘‘(d) EXCLUSIVE PROVISIONS.—Whenever an order is
issued under this section with respect to an alien—
‘‘(1) the alien’s rights regarding removal and
expulsion shall be governed solely by the provisions
of this title, and
‘‘(2) except as they are specifically referenced,
no other provisions of this Act shall be applicable.
‘‘SPECIAL REMOVAL HEARINGS
‘‘SEC. 505. (a) IN GENERAL.—In any case in which
the application for the order is approved under section
504, a special removal hearing shall be conducted under
this section 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. Consistent with section 506, the alien shall be
given reasonable notice of the nature of the charges
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against the alien and a general account of the basis for
the charges. The alien shall be given notice, reasonable
under all the circumstances, of the time and place at which
the hearing will be held. The hearing shall be held as expe-
ditiously as possible.
‘‘(b) USE OF SAME JUDGE.—The special removal
hearing shall be held before the same judge who granted
the order pursuant to section 504 unless that judge is
deemed unavailable due to illness or disability by the chief
judge of the special removal court, or has died, in which
case the chief judge shall assign another judge to conduct
the special removal hearing. A decision by the chief judge
pursuant to the preceding sentence shall not be subject
to review by either the alien or the Department of Justice.
‘‘(c) RIGHTS IN HEARING.—
‘‘(1) PUBLIC
HEARING.—The special removal
hearing shall be open to the public.
‘‘(2) RIGHT OF COUNSEL.—The alien shall have
a right to be present at such hearing and to be rep-
resented by counsel. Any alien financially unable to
obtain counsel shall be entitled to have counsel as-
signed to represent the alien. Such counsel shall be
appointed by the judge pursuant to the plan for fur-
nishing representation for any person financially un-
able to obtain adequate representation for the dis-
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trict 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 fel-
ony was charged.
‘‘(3) INTRODUCTION OF EVIDENCE.—The alien
shall have a right to introduce evidence on the
alien’s own behalf.
‘‘(4) EXAMINATION OF WITNESSES.—Except as
provided in section 506, the alien shall have a rea-
sonable opportunity to examine the evidence against
the alien and to cross-examine any witness.
‘‘(5) RECORD.—A verbatim record of the pro-
ceedings and of all testimony and evidence offered or
produced at such a hearing shall be kept.
‘‘(6) DECISION BASED ON EVIDENCE AT HEAR-
ING.—The decision of the judge in the hearing shall
be based only on the evidence introduced at the
hearing, including evidence introduced under sub-
section (e).
‘‘(7) NO RIGHT TO ANCILLARY RELIEF.—In the
hearing, the judge is not authorized to consider or
provide for relief from removal based on any of the
following:
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‘‘(A) Asylum under section 208.
‘‘(B) Withholding of deportation under sec-
tion 243(h).
‘‘(C) Suspension of deportation under sec-
tion 244(a).
‘‘(D) Voluntary departure under section
244(e).
‘‘(E) Adjustment of status under section
245.
‘‘(F) Registry under section 249.
‘‘(d) SUBPOENAS.—
‘‘(1) REQUEST.—At any time prior to the con-
clusion of the special 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 pres-
ence of the witness is necessary for the determina-
tion 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 evidence or the
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source of evidence which has been introduced, or
which the Department of Justice has received per-
mission to introduce, in camera and ex parte pursu-
ant to subsection (e) and section 506, and the De-
partment of Justice shall be given a reasonable op-
portunity to oppose the issuance of such a subpoena.
‘‘(2) PAYMENT FOR ATTENDANCE.—If an appli-
cation 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
INFORMA-
TION.—Nothing in this subsection is intended to
allow an alien to have access to classified informa-
tion.
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‘‘(e)
INTRODUCTION
OF
CLASSIFIED
INFORMA-
TION.—
‘‘(1) IN
GENERAL.—When classified informa-
tion
has
been
summarized
pursuant
to
section
506(b) or where a finding has been made under sec-
tion 506(b)(5) that no summary is possible, classi-
fied information shall be introduced (either in writ-
ing or through testimony) in camera and ex parte
and neither the alien nor the public shall be in-
formed of such evidence or its sources other than
through reference to the summary provided pursuant
to such section. Notwithstanding the previous sen-
tence, the Department of Justice may, in its discre-
tion and, in the case of classified information, after
coordination with the originating agency, elect to in-
troduce such evidence in open session.
‘‘(2) TREATMENT
OF
ELECTRONIC
SURVEIL-
LANCE INFORMATION.—
‘‘(A)
USE
OF
ELECTRONIC
SURVEIL-
LANCE.—The Government is authorized to use
in a special removal proceedings the fruits of
electronic surveillance and unconsented physical
searches authorized under the Foreign Intel-
ligence Surveillance Act of 1978 (50 U.S.C.
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Title III, Subtitle B
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1801 et seq.) without regard to subsections (c),
(e), (f), (g), and (h) of section 106 of that Act.
‘‘(B) NO DISCOVERY OF ELECTRONIC SUR-
VEILLANCE INFORMATION.—An alien subject to
removal under this title shall have no right of
discovery of information derived from electronic
surveillance authorized under the Foreign Intel-
ligence Surveillance Act of 1978 or otherwise
for national security purposes. Nor shall such
alien have the right to seek suppression of evi-
dence.
‘‘(C) CERTAIN PROCEDURES NOT APPLICA-
BLE.—The provisions and requirements of sec-
tion 3504 of title 18, United States Code, shall
not apply to procedures under this title.
‘‘(3) RIGHTS OF UNITED STATES.—Nothing in
this section shall prevent the United States from
seeking protective orders and from asserting privi-
leges ordinarily available to the United States to
protect against the disclosure of classified informa-
tion, including the invocation of the military and
state secrets privileges.
‘‘(f) INCLUSION OF CERTAIN EVIDENCE.—The Fed-
eral Rules of Evidence shall not apply to hearings under
this section. Evidence introduced at the special removal
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Title III, Subtitle B
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hearing, either in open session or in camera and ex parte,
may, in the discretion of the Department of Justice, in-
clude all or part of the information presented under sec-
tion 504 used to obtain the order for the hearing under
this section.
‘‘(g) ARGUMENTS.—Following the receipt of evi-
dence, the attorneys for the Department of Justice and
for the alien shall be given fair opportunity to present ar-
gument as to whether the evidence is sufficient to justify
the removal of the alien. The attorney for the Department
of Justice shall open the argument. The attorney for the
alien shall be permitted to reply. The attorney for the De-
partment of Justice 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.
‘‘(h) BURDEN OF PROOF.—In the hearing the De-
partment of Justice has the burden of showing by clear
and convincing evidence that the alien is subject to re-
moval because the alien is an alien terrorist. If the judge
finds that the Department of Justice has met this burden,
the judge shall order the alien removed and detained pend-
ing removal from the United States. If the alien was re-
leased pending the special removal hearing, the judge shall
order the Attorney General to take the alien into custody.
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‘‘(i) WRITTEN ORDER.—At the time of rendering 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 infor-
mation received in camera and ex parte pursuant to sub-
section (e) shall not be made available to the alien or the
public.
‘‘CONSIDERATION OF CLASSIFIED INFORMATION
‘‘SEC. 506. (a) CONSIDERATION IN CAMERA AND EX
PARTE.—In any case in which the application for the
order authorizing the special procedures of this title is ap-
proved, the judge who granted the order shall consider
each item of classified information the Department of Jus-
tice proposes to introduce in camera and ex parte at the
special removal hearing and shall order the introduction
of such information pursuant to section 505(e) if the judge
determines the information to be relevant.
‘‘(b) PREPARATION
AND PROVISION
OF WRITTEN
SUMMARY.—
‘‘(1) PREPARATION.—The Department of Jus-
tice shall prepare a written summary of such classi-
fied information which does not pose a risk to na-
tional security.
‘‘(2) CONDITIONS
FOR
APPROVAL
BY
JUDGE
AND PROVISION TO ALIEN.—The judge shall approve