178
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:
179
‘‘(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
180
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.
181
‘‘(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.
182
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
183
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.
185
the summary so long as the judge finds that the
summary is sufficient—
‘‘(A) to inform the alien of the general na-
ture of the evidence that the alien is an alien
terrorist, and
‘‘(B) to permit the alien to prepare a de-
fense against deportation.
The Department of Justice shall cause to be deliv-
ered to the alien a copy of the summary.
‘‘(3) OPPORTUNITY
FOR
CORRECTION
AND
RESUBMITTAL.—If the judge does not approve the
summary, the judge shall provide the Department a
reasonable opportunity to correct the deficiencies
identified by the court and to submit a revised sum-
mary.
‘‘(4) CONDITIONS FOR TERMINATION OF PRO-
CEEDINGS IF SUMMARY NOT APPROVED.—
‘‘(A) IN GENERAL.—If, subsequent to the
opportunity described in paragraph (3), the
judge does not approve the summary, the judge
shall terminate the special removal hearing un-
less the judge makes the findings described in
subparagraph (B).
186
‘‘(B) FINDINGS.—The findings described
in this subparagraph 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 required
summary would likely cause serious and ir-
reparable harm to the national security or
death or serious bodily injury to any per-
son.
‘‘(5) CONTINUATION
OF
HEARING
WITHOUT
SUMMARY.—If a judge makes the findings described
in paragraph (4)(B)—
‘‘(A) if the alien involved is an alien law-
fully admitted for permanent residence, the pro-
cedures described in subsection (c) shall apply;
and
‘‘(B) in all cases the special removal hear-
ing shall continue, the Department of Justice
shall cause to be delivered to the alien a state-
ment that no summary is possible, and the clas-
187
sified information submitted in camera and ex
parte may be used pursuant to section 505(e).
‘‘(c) SPECIAL PROCEDURES FOR ACCESS AND CHAL-
LENGES TO CLASSIFIED INFORMATION BY SPECIAL AT-
TORNEYS IN CASE OF LAWFUL PERMANENT ALIENS.—
‘‘(1) IN GENERAL.—The procedures described
in this subsection are that the judge (under rules of
the special removal court) shall designate a special
attorney to assist the alien—
‘‘(A) by reviewing in camera the classified
information on behalf of the alien, and
‘‘(B) by challenging through an in camera
proceeding the veracity of the evidence con-
tained in the classified information.
‘‘(2) RESTRICTIONS ON DISCLOSURE.—A spe-
cial attorney receiving classified information under
paragraph (1)—
‘‘(A) shall not disclose the information to
the alien or to any other attorney representing
the alien, and
‘‘(B) who discloses such information in vio-
lation of subparagraph (A) shall be subject to
a fine under title 18, United States Code, im-
prisoned for not less than 10 years nor more
than 25 years, or both.
188
‘‘APPEALS
‘‘SEC. 507. (a) APPEALS OF DENIALS OF APPLICA-
TIONS FOR ORDERS.—The Department of Justice may
seek a review of the denial of an order sought in an appli-
cation by the United States Court of Appeals for the Dis-
trict of Columbia Circuit by notice of appeal which must
be filed within 20 days after the date of such denial. In
such a case 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. In such
a case the Court of Appeals shall review questions of law
de novo, but a prior finding on any question of fact shall
not be set aside unless such finding was clearly erroneous.
‘‘(b) APPEALS OF DETERMINATIONS ABOUT SUM-
MARIES
OF CLASSIFIED INFORMATION.—Either party
may take an interlocutory appeal to the United States
Court of Appeals for the District of Columbia Circuit of—
‘‘(1) any determination by the judge pursuant
to section 506(a)—
‘‘(A) concerning whether an item of evi-
dence may be introduced in camera and ex
parte, or
‘‘(B) concerning the contents of any sum-
mary of evidence to be introduced in camera
189
and ex parte prepared pursuant to section
506(b); or
‘‘(2) the refusal of the court to make the find-
ings permitted by section 506(b)(4)(B).
In any interlocutory appeal taken pursuant to this sub-
section, the entire record, including any proposed order
of the judge or summary of evidence, shall be transmitted
to the Court of Appeals under seal and the matter shall
be heard ex parte.
‘‘(c) APPEALS OF DECISION IN HEARING.—
‘‘(1) IN GENERAL.—Subject to paragraph (2),
the decision of the judge after a special removal
hearing may be appealed by either the alien or the
Department of Justice to the United States Court of
Appeals for the District of Columbia Circuit by no-
tice of appeal.
‘‘(2) AUTOMATIC APPEALS IN CASES OF PERMA-
NENT
RESIDENT
ALIENS
IN
WHICH
NO
SUMMARY
PROVIDED.—
‘‘(A) IN
GENERAL.—Unless the alien
waives the right to a review under this para-
graph, in any case involving an alien lawfully
admitted for permanent residence who is denied
a written summary of classified information
under section 506(b)(4) and with respect to
190
which the procedures described in section
506(c) 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 infor-
mation that arises in such review, the alien
shall be represented only by the special attorney
designated under section 506(c)(1) on behalf of
the alien.
‘‘(d) GENERAL
PROVISIONS
RELATING
TO
AP-
PEALS.—
‘‘(1) NOTICE.—A notice of appeal pursuant to
subsection (b) or (c) (other than under subsection
(c)(2)) must be filed within 20 days after the date
of the order with respect to which the appeal is
sought, during which time the order shall not be exe-
cuted.
‘‘(2) TRANSMITTAL OF RECORD.—In an appeal
or review to the Court of Appeals pursuant to sub-
section (b) or (c)—
‘‘(A) the entire record shall be transmitted
to the Court of Appeals, and
‘‘(B) information received pursuant to sec-
tion 505(e), and any portion of the judge’s