[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
  IMMIGRATION REMOVAL PROCEDURES IMPLEMENTED IN THE AFTERMATH OF THE 
                       SEPTEMBER 11, 2001 ATTACKS

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 30, 2005

                               __________

                           Serial No. 109-54

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                 Luke Bellocchi, Full Committee Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 30, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Chairman, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member Committee on the 
  Judiciary......................................................     2
The Honorable Howard Berman, a Representative in Congress from 
  the State of California........................................     3
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     5
The Honorable Martin T. Meehan, a Representative in Congress from 
  the State of Massachusetts.....................................     7
The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California............................................     7
The Honorable William D. Delahunt, a Representative in Congress 
  from the State of Massachusetts................................     8
The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California...................................     8

                               WITNESSES

Ms. Lily Swenson, Deputy Associate Attorney General, U.S. 
  Department of Justice
  Oral Testimony.................................................    11
  Prepared Statement.............................................    13
Mr. Joseph Greene, Director of Training and Development, U.S. 
  Immigration and Customs Enforcement, U.S. Department of 
  Homeland Security
  Oral Testimony.................................................    26
  Prepared Statement.............................................    27
Mr. Paul Rosenzweig, Senior Legal Research Fellow, Center for 
  Legal and Judicial Studies, The Heritage Foundation
  Oral Testimony.................................................    30
  Prepared Statement.............................................    32
Mr. William West, retired Supervisory Special Agent, U.S. 
  Department of Justice, Immigration and Naturalization Service, 
  U.S. Department of Homeland Security, Immigration and Customs 
  Enforcement
  Oral Testimony.................................................    41
  Prepared Statement.............................................    42

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    69


  IMMIGRATION REMOVAL PROCEDURES IMPLEMENTED IN THE AFTERMATH OF THE 
                       SEPTEMBER 11, 2001 ATTACKS

                              ----------                              


                        THURSDAY, JUNE 30, 2005

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Hostettler (Chair of the Subcommittee) presiding.
    Mr. Hostettler. The Subcommittee will come to order.
    Today, the Subcommittee on Immigration, Border Security, 
and Claims will review a series of procedural changes that were 
implemented after the September 11th attacks to address 
security concerns.
    On September 11, 2001, terrorists hijacked and crashed four 
airplanes killing more than 2,900 people including all 246 
people aboard the four airplanes.
    The FBI immediately thereafter initiated a massive 
investigation called ``PENTTBOM'' into this coordinated 
terrorist attack. This investigation focused on identifying the 
terrorists who hijacked the airplanes and anyone who aided 
their efforts, as well as on preventing follow-up attacks. In 
the wake of those attacks, and in advance of the invasion of 
Iraq, the Justice Department and INS implemented procedures 
that they deemed necessary to protect the American people from 
alien terrorists. Some of those procedures have been criticized 
because of their effects on the aliens involved.
    One procedure that has been so criticized is the closure of 
removal proceedings under the so-called ``Creppy memo.'' While 
investigating the September 11th attacks, the Government became 
aware of numerous aliens who were present in this country in 
violation of immigration laws. A few of those aliens, as well 
as some aliens already in Government custody, were identified 
as ``special interest'' cases on the basis of law enforcement 
or intelligence information that ``they might have connections 
with, or possess information pertaining to, terrorist 
activity.'' In a memo issued 10 days after the attacks, Chief 
Immigration Judge Michael Creppy issued guidance on the 
handling of special interest cases instructing immigration 
judges to close to the public hearings in such cases. That 
guidance, which was last followed in December 2002, has been 
superseded by a regulation that allows Immigration Judges to 
issue protective orders for specific information on a case-by-
case basis.
    Some have been critical of the procedure used for charging 
aliens with immigration violations. Nine days after the 
September 11th attacks, the INS amended its regulations to 
extend the time period in which an arrested alien must be 
notified of the charges against him from 24 to 48 hours or a 
longer period where there is, ``an emergency or other 
extraordinary circumstance.'' Critics have argued that this 
rule can result in an alien being detained indefinitely without 
charge. I note that since it was issued, the Department of 
Homeland Security has delineated what constitutes an emergency 
or other extraordinary circumstance.
    Other immigration procedures that have been the subjects of 
criticism are the detention policies for certain asylum 
seekers. In the Matter of D-J, the Attorney General held that a 
Haitian who arrived by sea could be detained while his asylum 
case was pending. The goal of this policy was to deter other 
Haitians from undertaking, en masse, dangerous sea journeys to 
the United States. Under Operation Liberty Shield, announced by 
DHS in March 2003, asylum applicants from nations with a 
significant al Qaeda presence were detained until their claims 
could be adjudicated. DHS has reported that five aliens were 
detained under this program, four of them for less than 2 days, 
the fifth, subject to mandatory detention for a sexual assault 
conviction, for 5 months.
    Alien advocates have criticized an INS regulation 
implemented in October of 2001, that allows for the staying of 
Immigration Judge release decisions pending, INS and now ICE, 
appeal of those decisions. Critics have complained that this 
provision undermines the authority of the Immigration Court and 
denies aliens due process. The Administration contends that 
this procedure is necessary to ensure that dangerous aliens 
remain in custody until the Board of Immigration Appeals can 
review the case. The Administration argues that, in essence, 
this procedure maintains the status quo pending appeal just 
like a Federal Court's stay of removal.
    We will consider each of these procedures at today's 
hearing. It should be noted that none of the procedures relied 
on any of the provisions of the PATRIOT Act.
    At this time, I now turn to the Ranking Member of the Full 
Committee, the gentleman from Michigan, for purposes of an 
opening statement.
    Mr. Conyers. Thank you, Mr. Chairman.
    I appreciate that these hearings are being brought today to 
consider the measures that I have joined Mr. Berman and Mr. 
Delahunt in H.R. 1502. I think it is very important and 
appropriate that we do this.
    Now, we began, of course, by recognizing that there is a 
great confusion about what is in the PATRIOT Act and what is 
outside of the PATRIOT Act, and that is because many of the 
activities were unilateral on the part of the executive branch 
or the Attorney General. And therefore, it was not clear to 
many people--and they weren't all citizens--many in the 
Congress. It just wasn't clear. And so although we want 
everyone to become more informed, the PATRIOT Act as a term has 
become a code for any post-September 11 policy that diminishes 
transparency or permits Government intrusion without adequate 
oversight.
    So for us to consider the suggestions made here in 1502 to 
strike an appropriate balance between security needs and civil 
liberties is absolutely appropriate. Due process protections 
and civil liberties for noncitizens in the United States 
clearly enhance the effectiveness of our Nation's enforcement 
activity. I have been deeply involved in these proceedings 
since one of my constituents, a respected religious leader, was 
deported after being detained 18 months based on accusations of 
ties to a charitable organization that was suspected of being 
linked to terrorism. Rabih Haddad was deported during the 
night. Neither his attorney, or his family were notified about 
it. And at his immigration hearing, neither his family nor his 
Congressman could gain access to the proceedings that were 
taking place at that time. So I am very happy that we are here 
today to discuss the provisions in 1502. Thank you, Mr. 
Chairman.
    Mr. Hostettler. Chair now recognizes the gentleman from 
California for 5 minutes for purposes of an opening statement.
    Mr. Berman. Thank you very much, Mr. Chairman.
    And I do want to thank you for scheduling this hearing 
because I think it is an important one. You have put four 
policies on the table for discussion today, each of which was 
unilaterally adopted by the Administration in the aftermath of 
the terrorist attacks on September 11, 2001. Though we have 
heard from the Inspector General of the Department of Justice 
about his report on the results of one of these policies, we 
have not otherwise exercised oversight on these issues, and so 
I particularly appreciate the opportunity to do so today.
    In the days and weeks after the September 11, 2001 
terrorist attacks, the Department of Justice and the FBI were 
facing unprecedented challenges. Judging their actions in 
hindsight, we must consider that they were acting in a time of 
crisis, the magnitude of which our Nation had not experienced 
in decades. I think we should judge carefully and then focus 
our efforts on ensuring that the mistakes in judgment that 
occurred during that period are not repeated. Oversight is our 
duty, but once we have done the oversight, we should fix 
problems where we have identified that.
    In that vein, Mr. Chairman, I have introduced a bill with 
Mr. Delahunt called the Civil Liberties Restoration Act. I 
appreciate you allowing his participation in this hearing. The 
first four sections of the Civil Liberties Restoration Act 
directly address the four policies that are the topic of our 
hearing today. The remaining eight sections of the bill cover 
issues from special registration and exercise of prosecutorial 
discretion, to data mining and production of business records. 
It is the place of Congress to make certain that our Government 
is given both adequate resources and the authority to protect 
the well-being of the American people, and clear legal 
standards and oversight that will protect their civil 
liberties. Where there is a balance to be had that does not 
diminish the ability to protect the country and at the same 
time conforms to our principles of open Government, then that 
balance should be struck.
    The issues we address today in this hearing, I think for 
those purposes, the balance can be found in the Civil Liberties 
Restoration Act.
    And the issue of closed immigration hearings, we will 
examine today. To take one example on those four issues, the 
result of the so-called Creppy memo that relayed the order of 
the Attorney General that all removal hearings for, ``special 
interest,'' detainees be closed to the public, the press and 
the family; considering the timing of the memo, just 10 days 
after the country had been attacked, I understand the concern 
that led to the policy. If the goal was to protect information 
sensitive to our national security, who could disagree with the 
goal of that policy? The disagreement is not with the goal of 
the policy; it is with the way it was executed. In my mind, 
this is not a question of whether or not portions of hearings 
that involve sensitive national security information ought to 
be closed. The question is who ought to have the authority to 
close them, and whether that authority is exercised across the 
board or on a case-by-case basis. There is a balance to be 
struck here.
    The same sort of across-the-board treatment is also the 
reason I take issue with the Administration's decision to deny 
whole classes of people individual bond hearings. The desire 
for balance, Mr. Chairman, was the starting point from which 
each provision of the Civil Liberties Restoration Act grew. 
These aren't partisan issues. I believe Mr. Rosenzweig will 
tell you that it is not everyday he is invited to testify by a 
Democrat. We appreciate him being here today. He is not alone 
in his judgment of our proposals. Two recent reports by the 
bipartisan Constitution Project came to the following 
conclusions relevant to our hearing today. There should be no 
blanket closure of deportation hearings. The Government should 
release the names of everyone it detains except under 
compelling circumstances as determined by a court. All persons 
in the United States are entitled to pretrial or prehearing 
release unless the Government demonstrates to the appropriate 
tribunal that the individual is likely to flee or poses a 
danger to the community.
    These conclusions are entirely consistent with our 
proposals, and they were endorsed by David Keene of the 
American Conservative Union and Paul Weyrich of the Free 
Congress Research and Education Foundation. In previous 
oversight hearings, I have asked both Attorney General Gonzales 
and Deputy Attorney General Comey to address the issues of 
blanket closure of immigration hearings and delayed notice of 
charges. The Attorney General responded by saying that, without 
question, mistakes were made. And those are in quotes. Deputy 
Attorney General Comey said he never understood the need for 
the former, that is the blanket closure of immigration 
hearings, and called the latter a screw up. In some cases, they 
noted the policies were no longer in practice. Others, they 
willingly admitted were mistakes in judgment. Whether or not 
the policies are currently operative, the Committee has 
jurisdiction and should exercise oversight to be certain that 
the mistakes acknowledged will not be repeated. The way to 
ensure that, Mr. Chairman, is for Congress to speak on the 
issue.
    Finally, Mr. Chairman, the Chair of the Full Committee 
recently expressed frustration and concern that the American 
public has become confused about what policies are part of the 
PATRIOT Act and which are not. The Chairman is right, the name 
PATRIOT Act has become code for all of the Administration's 
immigration and law enforcement activities after September 11, 
2001. I agree the public should be better informed and every 
effort should be made not to create further confusion. Even 
though most of the issues we will examine today are not part of 
the PATRIOT Act, they have a place in oversight of anti-terror 
powers. The fact that they were implemented without input from 
Congress furthers this case, and I appreciate the opportunity 
to examine them in this hearing. Thank you, Mr. Chairman.
    Mr. Hostettler. The Chair recognizes the gentlelady from 
Texas, Ranking Member of the Subcommittee for 5 minutes, for 
purposes of an opening statement.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    This is the Judiciary Committee that I know and love 
because this is an important hearing, and I congratulate the 
Chairman and the Chairman of the Full Committee and the Ranking 
Member of the Full Committee and Mr. Berman and Mr. Delahunt. 
Their legislation, I am an original cosponsor of, and I 
congratulate them for moving forward on these issues. I saw the 
need for this, as well, as we began to look at comprehensive 
immigration reform and, in particular, the Save America 
Comprehensive Immigration bill, which we have authored, I have 
authored, deals with the need for an individual case-by-case 
bond determination in immigration cases. And it prohibits 
blanket denials of bond. These are some of the issues we are 
now facing along with some of the provisions in the PATRIOT 
Act. I have said many times that immigration does not equate to 
terrorism, but I understand it was difficult to maintain that 
distinction during the aftermath of the September 11 attacks.
    The purpose of this hearing is to take a calm look at some 
of the immigration removal procedures and detention policies 
that were implemented during that period. On September 21, 
2001, Michael Creppy, the Chief Immigration Judge for the 
Executive Office for Immigration Review issued a memorandum to 
all immigration judges advising them that the Attorney General 
had implemented additional security procedures for certain 
cases. In these cases, the immigration judges were required to 
close the hearings to the public and to avoid the disclosure of 
any information about the cases to anyone outside the 
Immigration Court. Secret hearings are inconsistent with our 
most basic principles of fairness. Immigration removal 
proceedings determine whether individuals who spend months in 
detention will be separated from their families and then be 
removed from a country in which they may have lived for many, 
many years. Hearings should not be conducted behind closed 
doors unless there is a compelling reason for such secrecy.
    Many of us, including our former colleague, Dave Bonior 
worked extensively on the question of secret evidence; that 
secret evidence blinded, I believe, both prosecutor and, of 
course, defense. It took away from our system the purity of 
which we all are very proud of, and I think the basic premises 
of the Constitution, which in essence, indicates that there is 
minimally due process. Due process is not denial of justice. 
Due process is not denial of security. Due process is not 
reckless.
    This practice is addressed by Congressman Berman's Civil 
Liberties Restoration Act of 2005, H.R. 1502, which I have 
joined, as I indicated, with Congressman Delahunt. Section 101 
of the Civil Liberties Restoration Act will prohibit blanket 
closures of immigration hearings. It would permit closure only 
when the Government can demonstrate a compelling privacy or 
national security interest. Before September 11, 2001, the 
former Immigration and Naturalization Service was required to 
decide whether it was going to initiate deportation proceedings 
within 24 hours of arresting an alien. On September 20, 2001, 
this was changed to 48 hours or an additional reasonable period 
of time, on emergency or extraordinary circumstances. Section 
102 of the Civil Liberties Restoration Act would require DHS to 
initiate proceedings within 48 hours of an alien's arrest or 
detention. It would also require that any alien held for more 
than 48 hours be brought before an immigration judge within 72 
hours of arrest or detention. This would not apply to aliens 
who are certified by the Attorney General to have engaged in 
espionage or a terrorist offense.
    Might I just add an anecdotal story that came to our 
attention recently out of Virginia. The facts are not exactly 
the same, but a Pakistani doctor, a physician, who happened to 
take a course in nuclear medicine was simply held by members of 
law enforcement, simply held. No information was given. No 
understanding of why he was held, ultimately released, and 
never did the law enforcement agencies indicate why or indicate 
that he had been vindicated. These are just slight of hands 
that I think we, our country, is above and not beneath.
    Although the Supreme Court has upheld mandatory detention 
when Congress has expressly required such detention for a 
discrete class of noncitizens, it has not authorized the 
executive branch to make sweeping, group-wide detention 
decisions. Since September 11, 2001, the Department of Justice 
and the Department of Homeland Security have mandated the 
detention of certain classes of noncitizens without any 
possibility for release until the conclusion of proceedings 
against them. Section 202 would require DHS to provide all 
alien detainees with an individualized assessment as to whether 
the detainee poses a flight risk or a threat to public safety, 
except detainees in categories specifically designated by 
Congress as posing a special threat.
    On October 31, 2001, the Justice Department issued a rule 
that enables the Government to nullify a judge's order to 
release an individual on bond after finding that he is neither 
a flight risk nor a danger to the community. The rule permits 
the Department to automatically stay an immigration judge's 
decision to release an alien if the Government originally 
denied bond or set it at $10,000 or more. No standards govern 
the granting of a stay in these cases, and it is simply at the 
discretion of the Government.
    We are without the Constitution in our hands if we remove 
the right of the judiciary to review or to overturn decisions. 
Section 203 permits the Board of Immigration Appeals to stay 
the immigration judge's decision to release the alien for a 
limited time period and only when the Government is likely to 
prevail in appealing that decision and there is a risk of 
irreparable harm in the absence of a stay. I hope that we can 
work together.
    As I started out, this is a Judiciary Committee that passed 
a bipartisan PATRIOT Act after 9/11. And I believe we have the 
opportunity in this legislation to recapture both that spirit 
and of course that challenge and responsibility on behalf of 
the American people. Mr. Chairman, I thank you and I hope and 
look forward that we will be able to do so.
    Mr. Hostettler. I thank the gentlelady. The Chair now 
recognizes Mr. Meehan, the gentleman from Massachusetts, for 5 
minutes for purposes of an opening statement.
    Mr. Meehan. I just want to thank the Chairman and the 
Ranking Member for providing us an opportunity for a hearing. I 
have been working with the Iranian-American Bar Association to 
catalogue and report the instances of what they have determined 
have been appalling treatment at many of these centers.
    In 2004, the Iranian-American Bar Association conducted a 
study on the implementation of the NSEERS program. And I have 
to say, the results were staggering. At call-in registration 
centers, detainees encountered unsanitary facilities and 
incurred questioning that was both humiliating and unnecessary, 
and many were forced to stay for days without sufficient food 
or bedding. My line of questioning is going to be on the NSEERS 
program and the status of that program. More than 13,000 
individuals who voluntarily complied with the registration 
program were placed in immigration removal proceedings for 
immigration violations not related to terrorism.
    And last year, I asked Secretary Tom Ridge to produce a 
list of names and nationalities and a total number of NSEERS 
registrants with pending permanent residency applications that 
had been denied. In December of 2003, the Department of 
Homeland Security suspended the requirement that all 
individuals previously registered with the NSEERS reregister 
after 30 days and one year in the United States, but the NSEERS 
was not canceled and the call-in registration program 
continued. This is a great opportunity for Members of this 
Committee to look at this and other issues. And I thank the 
Chairman and Ranking Member for calling this hearing. And I 
yield back the balance of my time.
    Mr. Hostettler. I thank the gentleman.
    At this time, the Chair recognizes the gentlelady from 
California, Ms. Lofgren for purposes of an opening statement.
    Ms. Lofgren. Thank you, Mr. Chairman.
    I will not use my entire 5 minutes. I would like to express 
my gratitude for this hearing. I think that this is an 
important subject, and I think it is important to note that, 
while the Nation is focused on terrorism relative to this 
subject, in fact, what has occurred, at least from what I have 
seen in the constituent cases coming from my office, it is 
everybody; it has nothing to do with terrorism. It is wives and 
mothers of American citizens from countries of suspicion if you 
even want to use that. It is a very broad approach that has 
completely changed the nature and tenor of the way we deal with 
families, the families of United States citizens. And I think 
that is very much worthy of our review. I do have a question 
that I hope the Government witnesses will address, and that is 
the provision in the PATRIOT Act that requires that an alien 
either be brought before a magistrate or released in 7 days and 
why the Government feels that that provision can be ignored. I 
am interested in that, and I yield to Mr. Delahunt.
    Mr. Hostettler. Does the gentlelady yield back her time?
    Ms. Lofgren. I yield.
    Mr. Hostettler. At this time, without objection, the 
gentleman from Massachusetts, Mr. Delahunt will be permitted to 
participate in today's Subcommittee. And without objection, the 
gentleman is recognized for 5 minutes for purposes of an 
opening statement.
    Mr. Delahunt. Thank you, Mr. Chairman and I appreciate the 
accommodation. First, let me associate myself with the remarks 
of my cosponsor, Mr. Berman. I genuinely appreciate the 
opportunity to participate. And I want to thank you and through 
you the Chair of the Full Committee. I think this is a very 
important hearing. I just wanted to make one observation. I 
think in your opening statement, Mr. Chairman, you used the 
phrase an ``advocate for aliens.'' I don't want that impression 
to be that Mr. Berman and myself are advocating for aliens. 
What we are doing is advocating for long-held and profound 
American values, such as transparency and fairness.
    And also, I think we consider ourselves as advocating for 
the appropriate role of the United States Congress in our 
Democratic system where consultation and oversight are keys to 
the functioning of that democracy. And I think that is what we 
are here advocating for. I am concerned, too, in the sense of 
the perception that is being created worldwide, given some of 
the anecdotes we have already heard relative to the issues, 
relative to these issues about specific cases.
    I just want to note that this past April, a GAO report 
stated, and I am quoting from this report, recent polling data 
show that anti-Americanism is spreading and deepening around 
the world. Such anti-American sentiments can increase foreign 
public support for terrorism directed against Americans, impact 
the cost and effectiveness of military operations, weaken the 
United States' ability to align with other nations in pursuit 
of common policy objectives, and dampen foreign public's 
enthusiasm for U.S. business services and products. While I 
would suggest that we ignore this to our peril, in fact, a 
recent poll that was released last week indicated that those 
people who we consider our closest ally in the war on terror, 
the British people, have a better opinion of China than they do 
of the United States.
    Again, the kind of anecdotes we have heard in opening 
statements here today I would suggest feed into that 
perception, and we have to deal with it. And I think the 
legislation that we have put forth goes in the direction of 
addressing the concerns and that perception. And with that, I 
yield back.
    Mr. Hostettler. I thank the gentleman.
    The Chair now recognizes the gentleman from California for 
purposes of an opening statement.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    And I want to thank you for having this hearing. When we 
had Mr. Comey here a couple of weeks ago, I think Mr. Comey put 
in proper perspective many of the issues we are dealing with 
here today, and that is immediately after 9/11, there was an 
effort, a good faith effort made by the Congress and members of 
the Administration, particularly by the Justice Department, to 
respond to the threat that was out there. This was a new threat 
with challenging issues that we had not faced before. Decisions 
were made at that time to respond in the best good faith way 
that we possibly could both here in the Congress and by the 
Administration, and particularly at the Department of Justice. 
As Mr. Comey suggested, some of the processes and procedures 
that were used at that time are no longer being used, both 
because they are no longer necessary or upon reflection, we 
realized that we could do a better job.
    There was never, based on anything I could find, a 
suggestion that there was an intent not to protect the civil 
liberties of the people of this Nation. And I think we all 
agree with the idea that the terrorists will succeed if, on the 
one hand, they destroy us physically or if, on the other hand, 
they cause us to change who and what we are and cause us in any 
real way to tear up the Constitution. In my review of the facts 
at this point, I have not been able to see a case being made 
for that on the part of the Department of Justice, the 
Administration, or the Members of Congress or Congress 
collectively.
    At the same time, it is incumbent upon us as the oversight 
committee to ensure that that does not happen, and for us to 
look at what we did immediately thereafter and see after, upon 
reflection, we would proceed differently in the future, take 
lessons out of that and never forget that we are still involved 
in a war on terror. We are involved in a war with people who 
told us in 1998 that it was the obligation of everyone who was 
loyal to their cause to kill every American man, woman and 
child anywhere in the world, combatant and noncombatant, 
civilian and noncivilian. That is a threat we have never had 
before. It is an ongoing threat. And while I join Members on 
both sides of the aisle in working diligently to ensure that we 
not make mistakes that result in our inattention to the 
protection of civil liberties, we also understand that this is 
a balance that we are striking precisely because we are 
involved in a war. If there were no 9/11, the actions that we 
are looking at with respect to the Administration would not be 
at question, because those actions would have been taken.
    And so I appreciate the comments of my colleagues on both 
sides of the aisle, but I hope that we would recognize that 
what was done was in response to a perceived and real threat, 
number one. Number two, that there have been evolutions in the 
policies since that time. Number three, that it does none of us 
any good if we succumb to the temptation of hyping mistakes 
that were made and we not be overly broad in our observations, 
criticism or in fact, commendations. This is an ongoing process 
and something that requires our best and highest work, and I 
hope that we can work in that manner. I, for one, will say that 
I have found, thus far, the Justice Department to be 
forthcoming with answers to questions that I have raised and 
with respect, for instance, to certain parts of the PATRIOT 
Act; while they don't always agree with my approach on things, 
have been open to suggestions of some tweaking of that act. And 
so I look forward to hearing from the witnesses. I look forward 
to hearing my colleagues and look forward to working, very 
importantly, on behalf of the American people to deal with this 
delicate issue of the balance between the threat that is out 
there and our preservation of our civil liberties as contained 
in our statutes and the Constitution. And I thank the Chairman 
for the time.
    Mr. Hostettler. At this time, I will introduce members on 
our panel of witnesses.
    Lily Swenson currently serves as Deputy Associate Attorney 
General at the U.S. Department of Justice where she oversees 
immigration litigation and other issues. Prior to joining DOJ, 
Ms. Swenson was a partner in the Washington office of Mayer, 
Brown, Rowe & Maw. Her practice focused primarily on class 
action and appellate litigation. Ms. Swenson clerked for the 
Honorable Michael Kanne of the United States Court of Appeals 
for the Seventh Circuit. She graduated from the University of 
Wisconsin, Madison, and earned her J.D. From the University of 
Minnesota School of Law.
    Joseph Greene is the Director of the Office of Training and 
Development at Immigration and Customs Enforcement, or ICE. He 
has served in the Office of Investigations at ICE since its 
inception in March 2003. He was named the Deputy Assistant 
director for the Smuggling and Public Safety Unit and then 
served as Deputy Assistant Director for the Mission Support 
Division. Mr. Greene began his INS career as an immigration 
inspector at JFK airport in New York. He has a Master's Degree 
in Philosophy from Fordham University in New York.
    Paul Rosenzweig is senior legal research fellow at the 
Center for Legal and Judicial Studies at the Heritage 
Foundation, and an adjunct professor of law at George Mason 
University School of Law. He also serves on the Department of 
Homeland Security's Data Privacy and Integrity Advisory 
Committee. He has been a trial attorney in the Environmental 
Crimes Section of the Department of Justice, investigative 
counsel to the House Committee on Transportation and 
Infrastructure, and senior litigation counsel in the Office of 
the Independent Counsel. Mr. Rosenzweig earned his BA from 
Haverford College, an M.S. In Chemical Oceanography, from the 
Scripps Institution of Oceanography and is a graduate of the 
University of Chicago Law School.
    Bill West retired as a supervisory special agent with ICE 
in May of 2003. In 1978, William West began service as a 
special agent with the investigations division of the U.S. 
Immigration and Naturalization Service. During his years at 
INS, he conducted a full range of immigration-related criminal 
investigations including fraud, smuggling, alien prostitution 
and criminal alien deportation cases. After joining the Miami 
District Office of the INS in 1991, Mr. West became chief of 
the Investigations Division's National Security Section. He has 
also served as regional task force coordinator for INS 
Organized Crime Drug Enforcement Task Force programs, authored 
articles, and taught law enforcement courses. In addition, he 
has received the INS Commissioner's Award, as well as an award 
from the Justice Department's Criminal Division.
    Witnesses, if you would please stand in accordance with the 
requirements of the Committee and raise your right hand to take 
the oath.
    [Witnesses sworn.]
    Mr. Hostettler. Let the record reflect that the witnesses 
answered in the affirmative.
    And Ms. Swenson, you may begin your testimony.

 TESTIMONY OF LILY SWENSON, DEPUTY ASSOCIATE ATTORNEY GENERAL, 
                   U.S. DEPARTMENT OF JUSTICE

    Ms. Swenson. Mr. Chairman and Members of the Subcommittee, 
thank you for the opportunity to testify at this important 
hearing. On behalf of the Department of Justice, I want to 
assure the Subcommittee that we take very seriously all of the 
issues you have raised. In this post-9/11 world, we must 
continue to protect our Nation's security while not losing 
sight of our immigrant heritage or forsaking the rights of the 
individual.
    The issues you have raised touch upon these sometimes 
competing interests and the Department remains committed to 
striking the appropriate balance. I would like to discuss the 
closure of immigration hearings to the public. In the days 
following September 11, the Attorney General, through a 
memorandum from Chief Immigration Judge Michael Creppy, 
instructed immigration judges to close administrative hearings 
in what turned out to be approximately 600 cases involving 
aliens who might be connected with or have information about 
terrorist activity in the United States.
    The Creppy memorandum was applied for approximately 15 
months and discontinued in December of 2002. Looking back at 
the Department's decision to limit public access to these cases 
following 9/11, we should be reminded of three things: First, 
the hearings closed under the Creppy memorandum were not 
secret. Although the executive branch could not disclose 
information in those cases to the public, nothing prevented the 
aliens or their counsel from doing so to friends, to family or, 
for that matter, to the press. As it turned out, they 
overwhelmingly didn't. We can only presume that they chose not 
to for their own privacy or safety interests.
    Second, closure affected only public access to special 
interest cases. It did not affect an alien's due process 
protections. Aliens were given a full and fair opportunity to 
litigate their claims and to be represented by counsel. In 
fact, about 75 percent of the 600-odd aliens in special 
interest cases had their own lawyers.
    Third, as I said earlier, the Department has not closed any 
immigration proceeding pursuant to the Creppy memorandum for 
over 2.5 years. Looking to the future, although the Department 
has not done so since the Creppy memorandum, it is imperative 
that it retain the ability to close a category of special 
interest cases to the public if circumstances warrant. Should 
we ever again face an attack of the type we did on September 
11th, the Department may not be able to guard national security 
interests if it must adjudicate a large number of individual 
closure requests. Moreover, absent uniform closure instructions 
like in the Creppy memorandum, immigration judges may decide to 
disclose information in the individual cases before them which 
terrorist groups can then piece together into a bigger picture 
that can be used to thwart the Government's efforts. During a 
time of national emergency, which is the only time the 
Department has resorted to closing immigration hearings, such 
scenarios would pose unacceptably high risks to national 
security.
    Next, let me address automatic stays. The automatic stay 
regulation was originally promulgated because, as the Attorney 
General determined, a bond decision by an immigration judge 
that allows for immediate release is effectively final if, as 
the appeal would necessarily assert, the alien turns out to be 
a serious flight risk or a danger to the community. These 
concerns are not merely theoretical. In the last 5 years, more 
than 62,000 or 45 percent of aliens who were released from 
custody during the pendency of their removal proceedings failed 
to appear for the removal hearings. The emergency stay motion 
procedures that existed prior to the automatic stay regulation 
created a significant window of time wherein the alien may be 
released while a bond appeal was being submitted to and 
considered by the Board of Immigration Appeals in Falls Church, 
Virginia. The automatic stay regulation addresses the anomaly 
created by the old rules by preserving the status quo pending 
appeal, but only in a certain class of relatively serious cases 
and only for a reasonable duration. As such, although sparingly 
used, only a few hundred times out of over 100,000 appealable 
cases over 4 years, the automatic stay is an important public 
safeguard against the unwarranted release of aliens that 
otherwise would be determined by the Board to be a serious 
flight risk or a danger to the community.
    Finally, let me address briefly individualized bond 
determinations. When a removable alien is apprehended, an 
immigration officer decides whether he should be released on 
bond. If the alien wishes to contest the officer's decision, he 
can obtain an individual hearing before an immigration judge. 
Although aliens have no right to bond at all and, by extension, 
they have no right to individualized bond hearings, the 
Attorney General has nonetheless to afford to most aliens 
individualized hearings before an immigration judge. A decision 
issued by the Attorney General in 2003 called the Matter of D-J 
directed immigration judges to consider in addition to 
dangerousness and flight risk, factors relating to national 
security and immigration policy in making individual bond 
determinations. The rule established in the Matter of D-J is 
sound as a matter of policy and of law, and it should not be 
legislatively undone.
    Mr. Chairman, thank you for the opportunity to testify 
before the Subcommittee. I look forward to answering any 
questions you may have.
    [The prepared statement of Ms. Swenson follows:]

                 Prepared Statement of Lily Fu Swenson




    Mr. Hostettler. Thank you, Ms. Swenson.
    Mr. Greene.

     TESTIMONY OF JOSEPH GREENE, DIRECTOR OF TRAINING AND 
  DEVELOPMENT, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

    Mr. Greene. Thank you, Chairman Hostettler and 
distinguished Members of the Subcommittee, and I thank you for 
this opportunity to discuss certain immigration enforcement 
procedures implemented after the September 11 attacks.
    As you know, after those attacks, our Government enacted a 
number of immigration enforcement policies in an effort to 
provide greater security to our Nation and our public. These 
efforts included investigating those responsible for the attack 
and trying to deter and disrupt the ability of others to carry 
out further attacks upon the people of this country. The 
Department of Homeland Security supports the current regulatory 
system that governs the closure of immigration hearings. In 
particular, DHS believes regulations granting immigration 
judges the authority to issue protective orders and to accept 
documents under seal strike an appropriate balance in 
individual cases. These regulations ensure that sensitive law 
enforcement information can be protected while allowing alien 
respondents and immigration judges to review Government 
evidence.
    Before 9/11, immigration officers had to determine whether 
to maintain custody or release an alien or whether to issue a 
notice to appear within 24 hours. On September 17, 2001, INS 
issued an interim rule amending that, providing immigration 
officers more time to make determinations regarding the 
processing and custody of aliens arrested on immigration 
charges. Under this interim rule, immigration officers now have 
48 hours to make the determination whether to detain or release 
the alien and to determine whether to issue a notice of 
appearance charging an alien with grounds for removability. The 
rule also provides that under extraordinary circumstances, the 
immigration officer may have reasonable time beyond the 48-hour 
period to make a determination regarding custody.
    DHS has implemented procedures to ensure aliens in 
detention receive prompt notice of the charges against them. On 
March 30, 2004, the then Under Secretary of Border 
Transportation and Security Asa Hutchinson issued guidance to 
DHS immigration enforcement officers on the requirements of 
those regulations. This memorandum also provided guidance 
regarding exceptions to the 48-hour rule, including what events 
constitute an emergency or other extraordinary circumstances 
that might justify a delay in charging an alien beyond the 48-
hour period. In addition, ICE detention policies and guidelines 
provide further assurance that aliens arrested on immigration 
charges receive all of the protections under law to which they 
are entitled.
    In July, 2003, ICE issued a detention standard requiring 
immigration officials in the field to monitor detention 
conditions and address any detainee concerns that might arise. 
The U.S. Government has a policy in place requiring the 
detention of virtually all seagoing migrants found in or 
arriving in the United States. This policy was adopted to deter 
aliens from illegally attempting to reach the United States by 
sea. Such attempts are often dangerous both to the aliens and 
to U.S. Law enforcement officials and divert limited 
enforcement resources from counterterrorism and homeland 
security responsibilities. The basis for this policy was 
affirmed in the decision in the Matter of D-J on April 17, 
2003, in which the Attorney General vacated the Board of 
Immigration Appeals' decision granting release on bond to a 
Haitian alien who attempted to enter the United States on a 
vessel carrying 216 undocumented aliens. In his decision, the 
Attorney General instructed the BIA and immigration judges that 
it was appropriate to consider national security interests in 
bond proceedings involving undocumented aliens present in the 
United States who are arrested and detained pending a decision 
on their removal. The underlying concern for releasing seagoing 
migrants, such as in the Matter of D-J, is that the release 
could encourage a surge of illegal mass migration by sea. 
Discouraging such unlawful and dangerous migration is 
consistent with sound immigration policy and the national 
security interests of this country.
    In 2001, the Department of Justice issued an interim 
regulation providing that in cases where the district director 
had determined that the alien should not be released or had a 
bond set of $10,000 or more, any order of the immigration judge 
ordering the release shall be stayed upon ICE's filing of the 
form with the executive office of immigration review. The 
interests served by allowing ICE to obtain an automatic stay in 
these cases is considerable. A custody decision that allows for 
immediate release is effectively final if the alien turns out 
to be a serious flight risk or a danger in the community. This 
automatic stay provides a safeguard to the public, briefly 
preserving the status quo while ICE seeks expedited appellate 
review of the immigration judge's custody decision.
    In conclusion, procedural changes implemented in the wake 
of the 9/11 attacks were reasonable measures intended to 
provide greater security to our Nation and the public. DHS has 
reviewed these policies in consultation with appropriate 
entities, such as the Inspector General, the DHS Office of 
Civil Rights and Civil Liberties, and nongovernment 
organizations. The policies and procedures provide the 
appropriate balance between ensuring our Nation's security and 
providing individual rights.
    Mr. Chairman and Members of the Subcommittee, thank you for 
the opportunity to testify today, and I look forward to your 
questions.
    [The prepared statement of Mr. Greene follows:]

                 Prepared Statement of Joseph R. Greene

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to speak with you today about certain immigration 
enforcement procedures implemented in the aftermath of the September 
11th attacks.
    After the devastating terrorist attacks upon the United States in 
September 11, 2001 that killed 3,000 people, the Government enacted a 
number of immigration enforcement policies in an effort to provide 
greater security to our nation and the public. Those efforts included 
investigating those responsible for the horrific events of 9/11, and 
trying to deter and disrupt the ability of others to carry out any 
additional attacks upon the people of this country. The immigration 
policies adopted after the September 11th attacks were directed towards 
these goals, which I am happy to discuss with you today.

                      IMMIGRATION HEARING CLOSURES

    DHS supports the current regulatory scheme that governs the closure 
of immigration hearings. In particular, the Department of Homeland 
Security believes that the regulations issued by the Department of 
Justice on May 21, 2002, granting immigration judges the authority to 
issue protective orders and to accept documents under seal, strike an 
appropriate balance in individual cases, ensuring that sensitive law 
enforcement information can be protected while allowing alien 
respondents and immigration judges to review the evidence relied upon 
by the Government. Modeled after the Federal Rules of Civil Procedure, 
this tool allows DHS to introduce sensitive law enforcement information 
into immigration hearings. The procedures allow the alien to fully and 
fairly litigate the facts presented through this process. This is a 
valuable tool that DHS fully supports.

                              48-HOUR RULE

    Before September 11, 2001, regulations required that an immigration 
officer make a determination regarding whether to maintain custody or 
release an alien and whether a notice to appear would be issued within 
24 hours of the alien's arrest. That regulation did not set forth 
specific time requirements for serving the alien or the immigration 
court with a notice to appear.
    On September 17, 2001, the INS issued an interim rule amending 
287.3(d) to provide immigration officers more time to make 
determinations regarding the processing and custody of aliens arrested 
on administrative immigration charges. Under that interim rule, 
immigration officers now have 48 hours to make a determination whether 
to detain or release an alien and to determine whether to issue a 
notice to appear charging the alien with removability. The interim rule 
also provides a narrow exception to the 48-hour requirement. The rule 
provides that under exigent circumstances, an immigration officer may 
have an additional reasonable time beyond the 48-hour time period to 
make a determination regarding custody and whether to issue a notice to 
appear.
    DHS has implemented procedures to ensure aliens in detention 
receive prompt notice of the charges against them. On March 30, 2004, 
Under Secretary of Border and Transportation Security (BTS), Asa 
Hutchinson, issued guidance to all DHS immigration enforcement officers 
on the requirements of the regulations. In cases that present no 
emergency or other extraordinary circumstances the following procedure 
will be followed:

        1.  All custody determinations and charging decisions must be 
        made in 48 hours of an alien's arrest.

        2.  The initial custody determination, and the date and time of 
        that determination, will be documented on a Notice of Custody 
        Determination (Form I-286).

        3.  The officer will also note on the custody determination 
        form the charge or charges of removal reasonably believed to be 
        applicable to the alien. The officer will also cite to the 
        provisions of the Immigration and Nationality Act under which 
        the charges are based.

        4.  A completed custody determination form will be served on 
        the alien within 48 hours of his or her arrest, and the time 
        and date of service is to be noted on the form as well. If for 
        any reason the form is not served within 48 hours, the officer 
        is required to annotate the form with the reasons that 
        prevented service of the custody determination within the 48 
        hours after the alien's arrest.

        5.  A copy of the complete custody determination must be placed 
        in the alien's permanent alien registration file.

    The March 30, 2004 memo provides guidance on 8 C.F.R. 
Sec. 87.3(d)'s exception to the 48-hour rule when emergency or 
extraordinary circumstances are presented. The memo also provides 
guidance on what events constitute an emergency or other extraordinary 
circumstance under 8 C.F.R. 287.3(d) that might justify a delay in 
charging an alien beyond the 48 hour period.
    Any determination of the existence of emergency or extraordinary 
circumstances must be made by a Special Agent in Charge (SAC), a Border 
Patrol Chief, a Field Officer Director for Detention and Removal, or an 
equivalent position. The official who makes that decision is required 
to document that decision and forward a copy of that decision to 
Headquarters.
    ICE detention policies and guidelines provide further substantial 
additional protections to ensure that aliens arrested on administrative 
immigration charges receive all the protections under the law to which 
they are entitled. All immigration detainees are provided with lists of 
local legal services providers, and are given appropriate telephone 
access with which to consult with and retain legal representation. DHS 
also has issued guidance to ensure that we adhere to our obligations 
under the Vienna Convention on Consular Relations with respect to the 
rights of detainees to contact their consular officials or 
representatives. Additionally, ICE issued a detention standard in July 
2003 that requires that DHS immigration officials in the field visit 
persons who are detained in DHS facilities to monitor detention 
conditions and address any detainee concerns that may arise.

                        OPERATION LIBERTY SHIELD

    On March 17, 2003, coinciding with the U.S. deployment of our 
ground troops in the Iraqi combat zone, the U.S. Government launched 
Operation Liberty Shield to increase security and readiness in the 
United States. This nationwide operational plan was designed to protect 
U.S. citizens, infrastructure, and deter those who plan further 
terrorist attacks. Liberty Shield integrated selected national 
protective measures with the involvement of a wide range of Federal, 
State, local and private assets. The primary objectives of Operation 
Liberty shield included: (1) increased security at borders; (2) 
stronger transportation protection; (3) ongoing measures to disrupt 
threats against our nation; (4) greater protection for critical 
infrastructure and key assets; and (5) increased public health 
preparedness.
    Additionally, these increased security measures at our borders 
resulted in a shift in detention policy. During this brief one-month 
period, asylum applicants arriving at ports of entry from nations where 
al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known 
to operate, were subject to detention during the processing of their 
asylum claims. On April 17, 2003, Operation Liberty Shield concluded. 
At that time, all persons detained under this temporary rule, a limited 
number, had their cases reviewed on an individual, case-by-case basis.

                             MATTER OF D-J-

    As explained in a Federal Register Notice issued on November 11, 
2002, the U.S. Government has a policy in place requiring the detention 
of virtually all seagoing migrants found in or arriving in the United 
States. This policy was adopted to deter aliens from illegally 
attempting to reach the U.S. by sea. Such attempts are often dangerous 
for the aliens and U.S. law enforcement and divert limited law 
enforcement resources from counter-terrorism and homeland security 
responsibilities.
    The basis for that policy was affirmed by a decision on April 17, 
2003, in which the Attorney General vacated the Board of Immigration 
Appeals' (BIA's) decision granting release on bond to a Haitian alien 
who attempted to enter the United States on a vessel carrying 216 
undocumented aliens. In the resulting decision, Matter of D-J-, 23 I&N 
Dec. 572 (AG. 2003), the Attorney General instructed the BIA and 
Immigration Judges that it was appropriate to consider these national 
security interests in bond proceedings involving undocumented aliens 
present in the United States who are arrested and detained pending a 
decision on their removal.
    The decision stated that section 236(a) of the Immigration and 
Nationality Act (INA) and the accompanying regulations do not confer a 
right to an alien to be released on bond, and that the INA does not 
limit the discretionary factors that may be considered by the Attorney 
General (or the Secretary of Homeland Security) in determining whether 
to detain an alien during the pendency of removal proceedings. Based on 
this conclusion, the Attorney General decided it was within his 
discretion not to release this ``undocumented seagoing migrant'' due to 
national security concerns and immigration policy interests.
    An underlying concern with releasing seagoing migrants such as in 
Matter of D-J- is that the release could encourage a surge of illegal 
mass migration by sea or at land borders. The effect would be a strain 
on the Department's border security resources.
    Attempts to reach the U.S. shores by seagoing migrants also imperil 
the lives of aliens, as many border crossings are attempted in unsafe 
conditions or are undertaken via smuggling rings, leaving aliens, 
particularly women and children, vulnerable to victimization. 
Discouraging such unlawful and dangerous migration is consistent with 
sound immigration policy and the national security interests of our 
country.

                         STAY OF RELEASE ORDERS

    In 2001, the Department of Justice issued an interim regulation 
that modified 8 C.F.R. 3.19(i)(2). The current automatic stay 
regulations provide that in cases where the district director has 
determined that the alien should not be released, or has set bond of 
$10,000 or more, any order of the immigration judge ordering release 
shall be stayed upon the INS's (now ICE's) filing of a Form EOIR-43 
with the immigration court within one business day of the issuance of 
the immigration judge's order, and the immigration judge's order shall 
remain in abeyance pending decision of the appeal by the Board. The 
stay lapses if ICE fails to file a notice of appeal with the Board 
within ten business days of the issuance of the order of the 
immigration judge. In addition, if the Board orders the alien's 
release, the Board's order shall be automatically stayed for five 
business days, and if the case is certified to the Attorney General, 
the Board's order shall continue to be stayed pending the decision of 
the Attorney General.
    The interests served by allowing ICE to obtain an automatic stay 
are considerable. A custody decision that allows for immediate release 
is effectively final if, as the ICE appeal would necessarily assert, 
the alien turns out to be a serious flight risk or a danger to the 
community. Historically, 30 percent of aliens released or paroled have 
failed to appear for subsequent immigration court hearings. 
Historically, this number becomes much greater, approximately 85%, once 
an alien is ordered removed. In such cases, the appeal provides little 
benefit to the agencies exerting efforts to effect removal, and less 
still to the community receiving the dangerous or absconding alien. The 
automatic stay provides a safeguard to the public, briefly preserving 
the status quo while ICE seeks expedited appellate review of the 
immigration judge's custody decision. The BIA retains full authority to 
accept or reject ICE's contentions on appeal.
    Additionally, the ICE Office of the Principal Legal Advisor had 
created internal safeguards to ensure that automatic stays are filed in 
appropriate cases.

                               CONCLUSION

    The procedural changes implemented in the wake of the 9/11 attacks 
that I have discussed today were reasonable measures intended to 
provide greater security to our nation and the public. DHS has reviewed 
these policies working with the appropriate entities such as the 
Inspector General, the DHS Office for Civil Rights and Civil Liberties, 
and consulting with Non-Governmental Organizations, and has developed 
policies and procedures to ensure that they provide the appropriate 
balance between ensuring our nation's security and protecting 
individual rights.
    Thank you for the opportunity to testify today on this issue and I 
look forward to answering any questions you may have.

    Mr. Hostettler. Thank you, Mr. Greene.
    Mr. Rosenzweig.

  TESTIMONY OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW, 
 CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION

    Mr. Rosenzweig. Mr. Chairman and Representative Jackson 
Lee, thank you very much for inviting me to testify.
    As Congressman Berman noted, it isn't very often that a 
member of the Heritage Foundation is invited to come at the 
behest of a Democratic Member of this body, and I thought I 
would take the time to explain why.
    And in doing so, I would like to associate myself with a 
large portion of the remarks you made, Mr. Lungren.
    I don't think it is to come here and criticize past 
practices that were taken in the heat of the post-9/11 era, but 
to see if we can learn from them and identify now in a term of 
relative calm rather than crisis what the optimal set of rules 
will be for the next situation. And I believe we can learn 
something from that history.
    I start by believing that, pretty much, the rules that we 
are discussing are not matters of constitutional requirement. 
Immigration law is within the plenary disposition of this body, 
and you can set the procedures that you want to. The question 
then is, what are the right procedures, and why do we care? For 
some, we care, because of the immigrants and the heartfelt 
problems that are affecting them that drive them to come to our 
shores. For others, it is the American values of transparency 
and due process that we hold dear and wish to see within our 
Government. For me, actually, it is a different thing all 
together. It is because I want to empower the Government to do 
as much as is humanly possible to combat both illegal 
immigration and terrorism. And I think the more transparency 
there is, the more comfortable we can be giving the enhanced 
authority to the immigration and customs enforcement officials 
to do their job. But that transparency, that oversight, that 
kind of notice and process is at the core of how we ensure that 
the powers that we give are not abused, are not misused.
    I yield to nobody in my admiration for members of the 
Department of Justice and Immigration. I am willing to 
stipulate from the get-go that mistakes that are made are made 
through legitimate concern for American security. But they are 
fallible human beings just as we all are. And so the right 
process is to put in place ideas about how we can monitor what 
is being done and correct them when there are errors. The 
proposals that are before you, it seems to me, address those in 
a fair and reasonable way.
    Section 101 of the CLRA calls for a presumption of 
openness. Doesn't call for mandatory openness of all 
immigration proceedings, rather it calls for them to be open 
but subject to closure upon demonstration of national security, 
a risk to the asylum seeker--you could maybe think of some 
others to add--compelling governmental interests, like the 
safety of individuals or risk of flight or destruction of 
evidence. But it seems to me that the presumption of openness 
is the right place to start. And the only argument I have heard 
against that is that there is an administrative burden to being 
obliged to make a closure argument on a case-by-case basis. And 
I am willing to agree that that is an administrative burden 
that will at times prove difficult. And if we begin with the 
presumption of openness, there may even be some errors at the 
end. But at the core, we have to start from the idea that in 
order for Congress and the public to conduct their oversight of 
immigration proceedings, we should begin with the idea that 
there should be no universal or blanket closure that applies to 
a class of cases and work backwards from there.
    The same can be said, I think, of, for example, section 202 
of the CLRA proposal which is the one that goes to whether or 
not there should be individualized bond determinations. Again, 
I am perfectly willing to agree that there may be 
nonindividualized concerns that will impact each individual's 
determinations, concerns such as those that Mr. Greene advanced 
about governmental resources and the desire to deter, but that 
shouldn't blind us to the need or the desire, I should say, to 
give each individual immigrant his own time in court, his own 
opportunity to be heard. Now his individual considerations may 
in the end be deemed pale next to some of these national 
security concerns, and if that is the decision of the 
immigration judge, so be it. But to adopt a rule that allows 
for a blanket set of determinations based on group 
characteristics, it seems to me contrary to our general 
adherence to ideas of individuated justice.
    I see my time has expired. And I would be happy to answer 
questions. With that, I thank you.
    [The prepared statement of Mr. Rosenzweig follows:]

                 Prepared Statement of Paul Rosenzweig




    Mr. Hostettler. I think the gentleman's time has expired. 
And he will have questions asked of him.
    But the Chair recognizes Mr. West for 5 minutes.

 TESTIMONY OF WILLIAM WEST, RETIRED SUPERVISORY SPECIAL AGENT, 
  U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION 
SERVICE, U.S. DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND 
                      CUSTOMS ENFORCEMENT

    Mr. West. Thank you. I would like to thank the Chairman and 
the Members and staff for the opportunity to present testimony 
today.
    As we know, the issue of immigration law enforcement and 
how it relates to counterterrorism matters has been a topic of 
intense studies since the 9/11 attacks. Indeed, the 9/11 
commission issued a separate staff report on the topic and 
clearly found that, before 9/11, the U.S. Government was 
significantly ill prepared from the perspective of utilizing 
its immigration law enforcement resources and counterterrorism 
matters.
    Fortunately, there have been some improvements since 9/11 
with the creation of DHS, but more needs to be done. Several 
topics of discussion for this hearing relate to immigration 
removal proceedings, and I have discussed them at length in my 
written statement submitted for the record. Given the time 
considerations, I will touch on them briefly here and gladly 
answer any questions from the panel.
    Number one, on hearing closure, this issue relating to 
Government trial attorneys requesting that removal hearings 
against aliens be closed to the public, this practice is not 
new to the post-9/11 era but was employed more often since then 
because the number of cases involving sensitive information 
being heard in immigration courts has increased substantially.
    It should be noted, such proceedings are still adversarial 
in nature, and the alien respondents are still entitled to 
their full due process rights under the law in those closed 
hearings, including having legal representation.
    Mr. West. Secondly, the 48-hour rule. This relates to the 
time period allowed when an alien is initially detained and 
when the alien is served notice of formal immigration removal 
charges.
    Before 9/11, the INS operated under a general 24-hour rule. 
After 9/11, the complexities of conducting additional 
intelligence agency background checks added to what is already 
the convoluted and time-consuming process of determining an 
alien's status and physically processing a detained alien. The 
48-hour time period is not unreasonable under the circumstances 
once those circumstances are fully understood.
    The blanket detention policy under Operation Liberty 
Shield, applies to asylum seekers entering the U.S. from known 
terrorist-producing countries. Given the historic widespread 
fraud and abuse in the U.S. political asylum system, combined 
with what is even today a relatively easy capability of 
deceiving that system, especially by people who come from the 
very countries where those terrorist organizations flourish and 
it is therefore often very difficult to verify those asylum 
claims from those claimants, the detention policy for those 
countries is sound.
    That said, the policy is still not really a blanket policy, 
and the DHS and the State Department are fully allowed, on a 
case-by-case basis, to authorize the release of those claimants 
when they are deemed releasable.
    Finally, the ICE trial attorney authority to stay 
immigration judge release orders. This authority existed well 
before 9/11, dating back to 1998, and was employed in certain 
high-profile criminal alien cases and very limited national 
security deportation cases before 9/11. After the 9/11 attacks, 
when the number of removal cases involving sensitive 
information and evidence not releasable in immigration court 
increased significantly, the use of that process also 
increased.
    Such action still requires trial attorneys to obtain 
headquarters general counsel level approval beforehand so there 
is senior level review of the case before that authority is 
actually invoked, and there is also appellate review conducted 
at the Board of Immigration Appeals.
    In summary, all these issues should remind us that removal 
or deportation proceedings are not criminal judicial 
proceedings but administrative proceedings conducted within the 
realm of the Executive Branch of the U.S. Government, as 
sanctioned by Congress and the Federal courts. They are 
different, and different for a reason.
    An alien respondent found guilty of a deportation 
violation, unlike a criminal defendant, is not punished by 
being sent to prison but is, instead, simply required to go 
home, much as a homeowner tells an unwelcome guest who has 
violated the privilege to stay in his house to leave. We should 
not forget the distinct differences or the reasons for those 
differences between those two systems.
    Thank you, and I will be glad to answer any questions.
    Mr. Hostettler. Thank you, Mr. West.
    [The prepared statement of Mr. West follows:]

                 Prepared Statement of William D. West

    I wish to thank the Chairman, the panel members and the staff of 
the Subcommittee for the invitation to appear today and the opportunity 
to offer this testimony. As the Nation has moved onward from the 
terrorist attacks of September 11, 2001, the significant nexus between 
our national security and issues related to the enforcement of our 
immigration and nationality laws has become increasingly apparent.
    The National Commission on Terrorist Attacks Upon the United 
States, the 9/11 Commission, devoted considerable research to the topic 
of immigration issues connected to the 9/11 attacks. In fact, there was 
a separate staff report titled 9/11 and Terrorist Travel detailing the 
background and history of those immigration issues. As that report 
clearly indicated, the US Government was ill prepared for dealing with 
national security threats from an immigration enforcement perspective 
before the 9/11 attacks.
    A handful of us who were in the immigration law enforcement 
profession during that period and who also happened to be among the 
very few involved in counter-terrorism efforts knew very well how ill 
prepared we really were. Even fewer of us, including me, tried to sound 
the alarm years before; but those efforts always fell on deaf ears. 
Those in senior management positions of the Immigration and 
Naturalization Service (INS) and the Department of Justice (DOJ) at the 
time who could have implemented meaningful changes in that area simply 
had no understanding of the issues or genuinely believed immigration 
law enforcement had no significant role to play in counter-terrorism 
and other national security matters, notwithstanding the fact that 
specific immigration and nationality laws dealt directly with such 
issues and foreign nationals (aliens), who violated a variety of other 
immigration laws, were often the primary suspects in such cases.
    Even the first attack against the World Trade Center in 1993 and 
the related plot to destroy New York tunnels, a Federal building and 
other landmarks, all of which involved conspirators who were aliens 
that also violated US immigration and nationality law, failed to awaken 
the senior levels of the US Government to the realization that 
immigration law enforcement should have been an integral part of the 
country's counter-terrorism efforts. Those efforts only evolved very 
slowly and at the local field office level, with a slight and 
begrudging Headquarters level acknowledgement by the late 1990s. It 
really was much too little much too late by 9/11.
    The situation did change after the 9/11 attacks, at least from the 
immediate perspective of the INS making manpower available to the FBI 
and other agencies to assist in counter-terrorism investigations in the 
months following the attacks. Ironically, the INS found itself being 
limited in being able to assign Special Agents to work such matters 
because many of its Special Agents did not have the requisite security 
clearances. Unbelievably, INS often did not require some of its Special 
Agents to have any security clearance.
    With the creation of the Department of Homeland Security (DHS), and 
the abolition of the INS and the formation of the Bureau of Immigration 
and Customs Enforcement (ICE) as the interior immigration enforcement/
investigative arm of DHS, the assignment of ICE agents to work counter-
terrorism cases became part of the new homeland security mandate within 
DHS. Those efforts were, and are, limited by the other investigative 
missions of ICE (and there are many) and the number of Special Agents 
within the agency (approximately 5500).
    Within ICE, only about 2000 Special Agents were ``legacy'' INS 
Special Agents who had the full background and training in immigration 
and nationality law and experience conducting investigations therein. 
While ICE has supposedly conducted cross-training for all its agents 
(legacy Customs and INS), that cross-training appears to have consisted 
of at most two weeks of in-service training, often conducted in field 
offices, and sometimes it amounted to less. The rest of the cross-
training was essentially on the job.
    After the 9/11 attacks, the Government implemented several changes 
within certain immigration benefit and removal proceedings. Those 
changes are the primary topic of this hearing and I would like to 
discuss each below. Please note that I offer this testimony from the 
perspective of twenty-nine years of Federal law enforcement experience, 
twenty-five of which directly investigating and enforcing US 
Immigration and Nationality laws as a Special Agent and Supervisory 
Special Agent with the Investigations Division of the INS and 
ultimately, before my retirement the end of April 2003, with ICE under 
DHS. From the early 1990s, I became involved in counter-terrorism and 
other national security cases, and eventually became the Chief of a 
unique and specific National Security Section within the INS 
Investigations Division in south Florida devoted to such cases. I have 
direct, real world experience investigating foreign nationals who were 
involved in terrorism, espionage, human rights persecution and modern-
day war crimes and other national security threats to the United 
States, targeting those suspects for immigration and nationality law 
violations within a multi-agency task force arena. This is not 
academic, think-tank theoretical experience but in-the-field, on-the-
street working experience over many years and I hope that provides the 
panel with a special perspective on these matters.
    Hearing Closure: This process allows the Government to close 
removal (deportation) hearings before an Immigration Judge (the 
Immigration Court) to the public upon a motion that having the hearing 
remain open/public would potentially jeopardize national security or 
other ongoing sensitive investigative issues.
    Shortly after the 9/11 attacks, FBI and INS agents nationwide were 
flooded with leads related to that investigation, as well as off-shoot 
investigations involving other potential terror threats. As those leads 
were processed, and it was fully understood that no potential lead or 
suspect that might in any way be linked to the attacks or another such 
threat could be overlooked, the vast majority of the subjects of those 
leads were identified as aliens and many of those aliens were 
determined to be in violation of some provision of the Immigration and 
Nationality Act.
    Those early case leads, wherein the subjects were quickly 
determined to be illegal aliens, resulted in the alien subjects being 
arrested and detained on entirely legitimate immigration law 
violations. Those were violations, however, that under normal 
circumstances might have resulted in the alien being released on their 
own recognizance or on a small bond. In the weeks and months following 
9/11, in following up leads related to the 9/11 investigation, those 
were anything but ``normal'' circumstances.
    The Government was faced with the dilemma of aggressively 
investigating these leads, identifying potential suspects during the 
process of investigating those leads, and then having a viable legal 
charge against those suspects that allowed for their arrest and 
detention. How to process the follow up legal proceedings without 
jeopardizing the larger and potentially more important counter-
terrorism lead information while still maintaining legal control and 
custody over the suspect became the issue. Hearing closure was the 
answer.
    It should be noted that closing the hearing still allowed the 
detained alien his/her adversarial due process rights in Immigration 
Court. The alien was still allowed legal representation. The hearing 
itself was simply not open to the public. The use of Immigration Court 
protective orders was implemented to facilitate the non-release of 
hearing information outside the courtroom in such cases.
    As the Government has expanded its counter-terrorism investigative 
efforts beyond the 9/11 attacks over the past several years, with the 
augmentation of assigned ICE agents and Title-8 authorization to FBI 
agents (the FBI received immigration enforcement authority just before 
the creation of DHS in 2003), cases with the same scenario continued to 
present themselves.
    The concept is essentially a blend of ``quasi-FISA'' with 
Immigration Court proceedings, ruling in favor of not publicly 
releasing sensitive information about a case generally in order to 
protect an ongoing investigation. The need to continue to have this 
flexibility is evident by the fact that such cases continue to be 
developed within the multi-agency counter-terrorism task force 
approach. It should be reiterated, the adversarial nature and legal 
representation status for the alien respondent is not changed in these 
closed proceedings; it is only that such proceedings are closed to the 
public.
    48 Hour Notification Rule: Before the 9/11 attacks, there existed a 
semi-formal but generally adhered-to ``24 hour'' rule wherein an alien 
detained in deportation matters was served with a charging document . . 
. the old Order to Show Cause which was later replaced by the Notice to 
Appear which is currently in use. Little understood by the general 
public, nor even by the law enforcement community outside those within 
what was INS and now ICE, is the fact that physically processing an 
alien arrested on removal charges, even something as ``simple'' as 
overstaying a nonimmigrant visitor status, can quite literally be more 
time consuming and paper-complex than the processing for many felony 
criminal arrests.
    How can that be? The issue of actually determining if an alien is 
in violation of the Immigration and Nationality Act is often not clear, 
easy nor fast. It is a legal requirement for all aliens within the 
United States to carry with them at all times evidence of their alien 
registration, assuming they have such evidence, and if they do not it 
is technically a misdemeanor criminal offense under 8 USC 1304(e). 
Needless to say, violation of this provision of law is rampant, and 
prosecution for this is extremely rare. However, once an alien is 
determined to be an alien by an ICE agent, the alien's status must then 
be determined and it is incumbent on the alien to prove he/she is 
lawfully within the United States (8 USC 1361).
    If the alien does not possess any registration documents, as 
required by Federal law, at the time of the encounter, the alien may be 
detained until their status is determined. Even if the alien presents a 
document purporting to be evidence of alien registration, with a few 
short questions being improperly answered about how the status was 
obtained, and if the document appears altered, (there is an abundance 
of fraudulent immigration documents ``out there'') it is entirely 
likely the investigating agents will pursue further inquiry.
    That further inquiry means conducting additional in-depth 
questioning, either in the field or in the immigration office and 
conducting further record checks, either via radio or cell phone from 
the field or in the office. Those record checks are conducted on 
immigration computer systems that are notoriously inaccurate, lacking 
updated information and contain many subsystems that do not interface 
with each other, thereby requiring multiple redundant checks. 
Frequently, a physical review and analysis of a hard copy paper case 
file, or the scanned equivalent, is necessary for a final status 
determination, a case file that often is located in another field 
office or stored in a central records repository. And all this is just 
the preliminary workup to determine if an alien may or may not be prima 
facie lawfully or unlawfully in the US.
    That preliminary status process alone can often take hours, even 
though determining a person is an alien usually is done in a matter of 
moments. Surely, there are times when an unlawful alien who has 
surreptitiously crossed the border and has no alien registration 
documents immediately admits to all that when encountered and is 
quickly taken into custody. Even in those cases, the full battery of 
record checks through the convoluted computer systems must still be 
conducted, to include the standard criminal record checks via the NCIC 
system.
    Once an alien is determined to be in violation of the law and 
subject to a removal charge, there is a formal processing procedure 
that must take place before a Notice to Appear, the charging document 
is issued. In fact, there are usually somewhere on the order of a dozen 
different forms that must be completed and executed in even the 
simplest removal cases. The more complex the case, the more forms there 
are to complete. The process of actually determining a violation and 
then processing a charging file routinely can take many hours, 
sometimes the better part of a work day, depending on the complexity of 
the case, for one alien.
    Then there is the matter of when and where the alien may have been 
initially arrested and detained. If it is late in the day, and the NTA 
processing might not be expected to be completed until the following 
day, the alien might be temporarily detained at an immigration 
detention center or local jail overnight, to be retrieved the next day 
for completion of processing. This often occurs because an official who 
is lawfully authorized to actually review and sign a Notice to Appear 
may not be available until the next day.
    These were all standard reasons why, pre-9/11, the ``24 hour'' rule 
was in effect and generally worked. After 9/11, things very quickly 
changed when INS agents, working closely with the FBI, began arresting 
and detaining aliens identified in suspected terrorism related 
inquiries. In addition to the usual standard convoluted obstacles INS 
(and later ICE) agents faced in these matters, the very real potential 
issues of national security were thrown into the mix.
    Very quickly, very many of the aliens encountered in these law 
enforcement endeavors also had to be queried through a battery of 
national security databases. Those efforts took an additional period of 
time, and the gravity of the potential results was even more important. 
That is what led to the creation of the ``48 hour'' rule. It was simply 
a recognition that in certain enforcement situations, field 
investigative personnel needed additional time to not only fully 
determine who they were dealing with but, under an institutional 
structure that, even with the transition to DHS where some improvements 
have been made, arresting, detaining and processing an alien in removal 
proceedings can still be a time-consuming and labor-intensive affair.
    To remove or shorten this rule without also creating a 
significantly improved and streamlined infrastructure system under 
which field immigration law enforcement personnel can work would be 
asking those law enforcement officers, in those limited circumstances 
where the rule is required, to do a nearly impossible task.
    Blanket detention under Operation Liberty Shield: In March 2003, 
the White House announced Operation Liberty Shield, which essentially 
was a series of security and law enforcement enhancements by the 
Federal Government in its ongoing international counter-terrorism 
efforts. Among those enhancements was a change in detention policies 
relative to asylum seekers from certain specified countries, namely, 
countries ``where al-Qaeda, al-Qaeda sympathizers, and other terrorist 
groups are known to have operated.'' The policy required those asylum 
seekers to be detained for the duration of their processing period, so 
the Government could ``determine the validity of their claim.'' The 
announcement specifically cited that DHS and the State Department would 
coordinate exceptions to the detention policy.
    This ``blanket'' detention policy for asylum seekers has come under 
criticism from a number of sources. The general premise for such 
criticism is that asylum seekers are the very people least deserving of 
detention, they are people fleeing repressive regimes and conditions 
and are seeking freedom and detaining them while their asylum cases are 
heard is draconian.
    On the surface, such criticism might seem to have certain merit. 
However, such criticism simply appeals to surface emotions and ignores 
the historic reality of widespread abuse of the liberal political 
asylum system within the United States. Interestingly, that widespread 
abuse really began with what could also be described as the beginning 
of America's conflict with radical Islam, the seizure of the US Embassy 
in Tehran in 1979 by radical Iranian ``students'' supported by the 
Iranian government and the taking of American hostages who were held in 
captivity in Tehran for more than a year.
    One of the domestic responses by the Carter Administration to that 
event was a so-called ``crackdown'' on illegal Iranian students and 
other nonimmigrants in the United States. Within INS, that operation 
was dubbed the ``067 Project.'' To no one's surprise, INS found it had 
no idea how many Iranian students were in the US. Over about a year, 
INS agents were tasked with identifying, locating and determining the 
immigration status of as many Iranian students and other nonimmigrants 
as possible. The project identified somewhere on the order of over 
30,000 such Iranian students and other nonimmigrants, a very large 
number of whom were determined to have violated their immigration 
status in some way or another. Those violators were arrested and 
charged.
    Of those Iranian students who were placed under deportation 
proceedings under the 067 Project, most were intelligent, savvy young 
men of some means. Many also turned out to be angry young radical 
Islamic fanatics, although Federal law enforcement wasn't quite sure 
what that meant at the time. What did happen, however, is most were 
released on bond and hired immigration attorneys. Most wanted to remain 
in the United States. A few began filing for political asylum and that 
opened the asylum floodgates . . . the few became very many and the 
system became overwhelmed.
    From the 067 Project, of the thousands of illegal Iranians who were 
placed under deportation proceedings, only a handful were actually 
deported and a very large number were granted political asylum. How 
many of those asylum requests were legitimate is anyone's guess, since 
the process and system was, as I noted, basically overwhelmed by the 
numbers at the time and the ability to investigate the claims of such 
Iranians was virtually impossible, so they were essentially taken at 
face value. This set the sad asylum system ``standard'' for years to 
come, until the system saw some degree of reform in the 1990s. Fraud 
and abuse within the system have been rampant for years, and were the 
impetus for the eventual reforms that were put into place but which 
have only somewhat improved matters.
    Even with some modicum of reform, the asylum process continues to 
be abused. While State Department country condition reports, 
Intelligence Community assessments and NGO reports provide Asylum 
Officers and Immigration Judges a better perspective on potential case 
backgrounds in the generic sense, very often, specific issues 
surrounding individual cases come down to the credibility of the alien 
claimants themselves. This means an Asylum Officer or an Immigration 
Judge must decide if the alien claimant is telling the truth or lying. 
It often really is that simple, and that easy for a claimant to lie and 
beat the system. They only need a believable story that cannot 
otherwise be readily disproven, and sound credible to the official to 
whom they are telling the story.
    Within that context, within the larger framework of the ongoing war 
on terror, wherein alien asylum claimants from known terror producing 
countries appear and the training doctrine of al-Qaeda and other 
terrorist organizations teach their operatives to seek asylum in the 
West and, especially in those cases where the issue truly boils down to 
the credibility alone of the claimant, combined with a system that has 
a history of widespread fraud and abuse on the part of claimants, 
maintaining the detention policy under Operation Liberty Shield makes 
perfect sense.
    Finally, it should be pointed out the policy fully allows for 
exceptions to the detention policy. DHS and the State Department are 
allowed, on a case-by-case basis, to consider and release asylum 
claimants when such release is deemed appropriate. For this reason, the 
policy really is not a ``blanket'' detention policy after all, but 
simply one of reasoned posture in favor of security.
    Trial Attorney authority to stay Immigration Judge release orders: 
In certain removal cases, wherein an Immigration Judge orders the 
release of an alien respondent and the Government Trial Attorney (now 
DHS/ICE Counsel) disagrees with the condition of release, the 
Government Trial Attorney can invoke a legal stay of the Immigration 
Judge release order while the Government appeals the order to the Board 
of Immigration Appeals. Since 9/11, the invocation of this process has 
increased, primarily in detention cases involving aliens suspected of 
linkage to terrorism or other national security threat matters.
    It should be noted this authority by Government Trial Attorneys is 
not something new under the USA Patriot Act or some new policy 
implemented after the 9/11 attacks. The authority existed well before 
9/11, since the 1990s, and has been utilized selectively in serious 
criminal alien and a handful of national security deportation cases. 
The process has not come into serious public scrutiny, however, since 
after the 9/11 attacks when it's usage became more widespread in 
removal proceedings. This is simply a matter of more such cases related 
to potential security threat issues being presented in the Immigration 
Courts.
    An ICE Trial Attorney must seek and receive ICE Headquarters 
General Counsel Office approval before invoking the stay authority; 
therefore, there is a senior level legal review of the case issues 
before the authority is implemented in any given case. Further, the 
invocation is generally employed when the Government possesses 
additional background information against the alien respondent which it 
prefers not to release in the Immigration Court proceedings, but 
believes the evidence already presented would suffice upon appeal to 
the BIA and the alien's release would be detrimental to the security of 
the community or pose a notable flight risk.
    An important issue to be remembered in this is that while the 
Immigration Judges and even the Board of Immigration Appeals are quasi-
independent semi-judicial entities, they are, in fact, officials of the 
United States Department of Justice who ultimately report to the 
Attorney General. As such, they are ultimately Executive Branch 
officials of the Federal Government. When an ICE Trial Attorney invokes 
the stay rule, he/she is essentially telling another Federal Executive 
Branch official that an administrative directive issued by that 
official must be temporarily placed on hold while other Executive 
Branch officials review the decision and issue another administrative 
ruling. It should be remembered that Immigration Court proceedings, 
removal (deportation) proceedings, are not criminal judicial 
proceedings . . . they are administrative proceedings held within the 
realm of the Executive Branch of the Federal Government.
    Which leads me to my summation. When it comes to immigration law 
enforcement, at least the part that deals with removal (deportation) 
matters, it appears that far too many people equate such matters with 
criminal judicial proceedings. This may be due to a genuine lack of 
understanding on the part of many; but is probably a deliberate 
misrepresentation of reality on the part of at least some, who do so 
for other agendas.
    While there are parallels: aliens can be arrested and detained, 
they are charged, they go to court, they can be represented by lawyers, 
they can be released on bond in certain circumstances, they are 
entitled to appeals (actually, more appeals than criminal suspects have 
in the Federal court system); the process and the underlying premise 
behind it all are notably different.
    The process is all administrative. The rules of evidence are 
different. While there are similarities, the rules of evidence favor 
the Government, the prosecution, and the Federal Courts up to the 
Supreme Court have more often than not upheld that posture for many 
years. And, why is that? Because the entire premise of removal/
deportation is different from the criminal justice system.
    If an offender is charged with a crime (and, there are actually 
many immigration crimes, but we are not discussing those here), the 
prosecution has the burden to prove the defendant's guilt beyond a 
reasonable doubt and if it does, the violator might go to jail . . . 
may well lose his/her liberty; they are punished. In the immigration 
removal system, the administrative process, the burden, once the 
Government proves a person is an alien, falls to the alien to prove 
they are legally within the US and entitled to be here (8 USC 1361). In 
reality, the Government almost always has evidence the alien also 
violated the immigration law, so the real litigation usually ends up 
over issues related to potential relief from deportation (like 
political asylum). And it is those issues that usually go to appeal . . 
. and take such long periods of time for appeal, and why even seemingly 
simple deportation cases can take literally years before they are 
finalized. That is probably something the immigration defense bar does 
not want to have widely known.
    But, the end result in such proceedings, if the alien respondent 
(not defendant) is found guilty in a deportation case, is not going to 
prison, but simply they are required to go home . . . to return from 
where they came. This is not considered a punishment, it is merely 
considered a revocation of the privilege of being allowed to enter or 
remain in the United States. And that really is what has been lost in 
much of this.
    Foreign nationals, aliens, do not have any right to enter and 
remain in the United States, though I suspect many would argue they do. 
Unless Congress changes the law and grants such rights, aliens still 
only have a legal privilege to enter and remain here. That really is 
what immigration law enforcement, on the deportation side at least, 
really is all about. It is very much like a homeowner having the 
absolute right to deny entry into his home of someone outside asking to 
come in. And, the homeowner need not have any reason nor give any 
explanation why he chooses to deny entry to the stranger. And if the 
homeowner chooses to allow a guest to enter, the homeowner has the 
absolute right to tell the guest to leave at anytime for any reason.
    That may be a simple analogy, but the US Government represents the 
homeowner for the United States of America. While we may wish to 
continue allowing certain invited guests into our home, we know there 
are some dangerous intruders out there who mean to do us great harm. 
Employing reasonable law enforcement techniques to keep those dangerous 
intruders out, and to identify and remove those already here, even if 
some of those techniques might seem somewhat at odds with our 
traditional criminal justice procedures because it must be remembered 
they are not part of that system, is a smart common sense approach to 
helping keep our Nation safe.

    Mr. Hostettler. At this time, the panel will now turn to 
questions.
    Ms. Swenson, first to you. What difficulties would an 
immigration judge face in holding an open hearing to determine 
whether to close a hearing to the public?
    Ms. Swenson. There are a number of difficulties that an 
immigration judge could face, especially in the context of a 
case involving very sensitive secrets, for example, you know, a 
child abuse case or a national security case. Sometimes the 
identity of the alien himself is something that is a secret 
that is sensitive in itself, and it would be difficult in a 
situation where there is not a protective order or a closure 
order in place to be able to keep that kind of information 
secret while a protective order or, you know, a closure order 
were being adjudicated. So the difficulty could possibly be 
that, in order to adjudicate the closure itself, that sensitive 
information could be disclosed. There are procedures to prevent 
that, but that is a risk.
    Mr. Hostettler. Thank you.
    Let me ask you some questions about the so-called Creppy 
memo that authorized the closure of removal cases. You have 
already mentioned in your testimony that individuals were not 
precluded from speaking to counsel or their family members or, 
ultimately, the media. But did aliens subject to the memo have 
an opportunity to introduce evidence and call witnesses in 
support of their applications for relief from removal?
    Ms. Swenson. There has been quite a bit of confusion 
surrounding this issue. As I mentioned in my opening statement, 
the Creppy memorandum didn't touch in any way the due process 
procedures that are available to an alien. Aliens in these 
special interest cases and these cases closed under the Creppy 
memorandum were given full and fair opportunity to litigate 
their claims, to present evidence, to present witnesses, to 
cross-examine the Government's witnesses and to be represented 
by counsel.
    As I mentioned earlier, indeed an unusually high percentage 
of the illegal aliens who were in these special interest cases 
were actually represented by counsel.
    Mr. Hostettler. Thank you.
    Mr. Greene, why would it take more than 48 hours to file 
immigration charges against an alien? And why would it take 
more than 48 hours to bring an alien before an immigration 
judge?
    Mr. Greene. There are issues having to do with logistics. 
First of all, it may be an arrest made on a Friday afternoon or 
turned over from a local law enforcement agency on a Friday 
afternoon, and there would be then a period of roughly 72 hours 
before you could get the case before the immigration judge. 
There may also be substantive issues associated with--
especially in the circumstances that we were dealing with after 
the 9/11 attacks--knowing with certainty the identity and the 
intent of the people that we had in front of us.
    So the flexibility--generally, it isn't a problem for us to 
be able to do 48 hours and to serve the charging documents. But 
in certain circumstances it may be necessary for us to extend 
the process of inquiry, particularly with respect to identity 
and verifying claims that are made about how the alien came 
into the United States or attempted to enter the United States 
before we issue the actual charging document.
    Mr. Hostettler. Thank you.
    Mr. West, in discussing the so-called 48 hour rule, once 
again in your testimony you note that it can take time for ICE 
to determine what the appropriate ground of removal should be. 
In what context would an ICE agent arrest an alien without 
knowing on what ground the alien was removable?
    Mr. West. Mr. Chairman, there are often times when an ICE 
agent, formerly an INS agent, an ICE agent would encounter an 
alien and determine that that alien was not here lawfully 
simply by asking questions about how they entered the United 
States, what kind of documents they may have, and that alien 
may not present--as they are required by law to carry evidence 
of alien registration, once alienage is determined, that can be 
as simple as asking, are you a national or citizen of the 
United States? They say, no, I am from such and such country; I 
am a citizen of such and such country. Once they determine 
that, the burden of proof shifts, actually, now for the foreign 
national, the alien, to show that they are lawfully here in the 
United States.
    So once that ICE agent has established that this person is 
a foreign national, is an alien, they know that--the agent then 
knows that they have a person that must establish what their 
status is. And the way it really works in the real world is the 
agent will conduct record checks, either over the radio, on a 
cell phone. If that person has no documents that are presented 
or if the documents look bogus, if the record checks determine 
no lawful status at the time, then the grounds for actually 
detaining the alien, a prima facia case of probable cause that 
this alien is unlawfully in the United States has been met.
    The ICE agent will, in all likelihood, detain that alien, 
probably bring him back to his office to conduct further 
inquiries, further record checks to actually determine what 
specific charges under the Immigration and Nationality Act 
should be applied. He knows he has got an unlawful alien. He or 
she does not know specifically what charge might apply. That 
requires further inquiry, and that can take some time, that can 
take hours sometimes, running additional record checks, running 
down paper documents, that sort of thing.
    Mr. Hostettler. Thank you.
    The Chair now recognizes the Ranking Member for 5 minutes 
for purposes of questions.
    Ms. Jackson Lee. Thank you, Mr. Chairman. I am going to 
yield first to the Ranking Member of the Full Committee, and I 
will go after Mr. Conyers for his questions at this time.
    Mr. Conyers. If that----
    Mr. Hostettler. The Chair recognizes the gentleman from 
Michigan for 5 minutes.
    Mr. Conyers. Thank you.
    Let me raise a question, first of all, to Mr. Rosenzweig.
    Is it your general view that the four issues that are 
raised in the measure that is before us are ones that could be 
attached to the larger bill that we are working on in the 
Committee without any serious detriment to our national 
security concerns?
    Mr. Rosenzweig. Yes. Most of the objections that I have 
heard sound more in the nature of administrative, and those are 
certainly things that need to be considered, but providing that 
each--as each of these provisions does, that there are carve-
outs, for instances, in which legitimate national security 
concerns are presented, that seems to me to answer most of that 
problem.
    Mr. Conyers. I also take it, sir, that you believe that 
this balance between protecting constitutional and civil 
liberties concerns is very important as we proceed in this 
attack on terrorism. Because unless we have something 
different, unless we are identified differently from our 
adversaries, we end up losing or compromising our position in 
another way.
    Mr. Rosenzweig. It would be hard to disagree with that 
sentiment.
    Mr. Conyers. Well, let me ask everybody at the table, then, 
since it is perfect--well, it may not be perfectly obvious. 
Does everybody agree with that, all of our witnesses? Ms. 
Swenson?
    Ms. Swenson. Congressman, I would like to just make sure I 
understand----
    Mr. Conyers. That is all right. I will repeat it.
    Ms. Swenson. Thank you.
    Mr. Conyers. Is it your concern that we protect 
constitutional rights and liberties under our existing 
framework as we proceed in the war on terrorism or we become 
indistinguishable from our opponents?
    Ms. Swenson. Most certainly, Congressman.
    Mr. Conyers. Okay. Mr. Greene.
    Mr. Greene. Yes, Congressman. I think the Department has 
gone on record that it is a both/and situation, that we can 
have both homeland security and protection of our 
constitutional rights as we continue in this struggle to 
protect the homeland. So not only do I agree, but I agree 
emphatically.
    Mr. Conyers. Well, the current Attorney General said that, 
but his predecessor did not come to those conclusions, I am 
sorry to say, and that was the problem that takes us back to 
the beginning.
    Mr. Greene. Yes. Speaking from the Department of Homeland 
Security, sir, I think Secretary Ridge has made clear that he 
wants to have both homeland security and civil rights and civil 
liberties, which is why we have created such a division within 
the Department and actively pursued this----
    Mr. Conyers. Well, I was thinking of the Department of 
Justice, and I won't hold you to explain that. But I just 
wanted to make sure that we understand that we have essentially 
different views on this subject from my interpretation from the 
Attorney General that was there for 9/11 and the present 
Attorney General.
    How do you stand on this concern, Mr. West?
    Mr. West. Congressman, I was a Federal law enforcement 
officer for 29 years, and I believe that I fully understand 
what constitutional rights mean. Because every day that I 
worked I had to deal with constitutional protection issues. Now 
that I am a private citizen, I certainly expect my Government 
to protect my constitutional rights, but I also want my 
Government to protect my security, and I hope that that balance 
is struck. And I want that to happen for all of us.
    Mr. Conyers. Let me ask you about this matter of D-J--oh, 
my time is up?
    Mr. Hostettler. Five minutes. But the gentleman will be 
given an additional minute to ask a question.
    Mr. Conyers. Thank you.
    I just wanted to find out--I suppose I should direct this 
to the representative from the Department of Justice. In the 
matter of D-J, we are talking about detaining mass exodus, 18-
year-old, and yet we have two different policies dealing with 
the Cubans and with Haitians, and I am wondering if those can 
be squared.
    Maybe I should ask this to Mr. Greene, more particularly. 
So here we have Cubans, Haitians, the D-J Issue, in which we, 
apparently, for some are willing to send them a message that we 
are turning them back so that they won't bother to come. Can 
you comment on that briefly?
    Mr. Greene. Yes, sir, I will try, recognizing that it is a 
very complex issue.
    The legislative structure that governs the history of Cuban 
immigration to this country since the revolution is very, very 
different from that of other countries in the Caribbean. There 
were specific legislative provisions provided to Cuban 
immigrants that go back to the 1960's that affect their 
availability and their right to come and remain in the United 
States. It was in an attempt to discourage all forms of mass 
immigration migration in the Caribbean that the former INS 
created the wet-foot, dry-foot policy. So if you made it to the 
United States, then the provisions from those statutes that 
came out of the Cold War period would apply, but while you were 
caught on the high seas the attempt was to create a deterrence.
    I mean, I will leave it to my colleague from the Justice 
Department to describe sort of the policy implications of the 
decisions today itself, but speaking from my knowledge of what 
operated in the former INS, it was really a different set of 
Cold War legislation that affected the one nationality as 
opposed to the other.
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Hostettler. I thank the gentleman.
    The Chair now recognizes the gentleman from California for 
5 minutes.
    Mr. Lungren. Thank you very much, Mr. Chairman, for the 
time.
    Mr. Rosenzweig, as I understand your testimony, you have 
suggested that the subject matter that we are discussing here 
today is not really a question of whether there are 
constitutional violations. That is, the current law procedures 
that we are talking about are not unconstitutional, but rather 
your concern that perhaps some additional protective procedures 
would further the interests of civil liberties.
    Mr. Rosenzweig. That is correct, Your Honor--I am used to 
appearing in appellate court--that is correct, Congressman. 
With the exception of the blanket closure rule, which was held 
unconstitutional by one circuit court in the Sixth Circuit 
Court of Appeals, none of the policies that we are addressing 
today is, in my judgment, unconstitutional. And I would note 
that that policy was held constitutional by the Third Circuit.
    So what I really think we are discussing here today are 
questions of legislative grace, that is, what it is that this 
body, in consultation with the Executive, deems the optimal 
policy to reflect our values and our best cost/benefit analysis 
of what to put in place.
    Mr. Lungren. Thank you.
    Ms. Swenson, with respect to closed immigration hearings, 
you suggested that there were approximately 600 cases that 
followed the Creppy memo, that that is not the policy of the 
Department now, has not been for two-and-a-half years, but you 
believe it imperative that the Executive Branch retain 
sufficient flexibility to close an entire class of immigration 
proceedings if circumstances warrant.
    How and in what way would that--the long-term policy of the 
Administration--be hampered if we were to adopt the legislation 
of Mr. Berman and Mr. Delahunt, specifically section 101, which 
would have as a general proposition that the removal 
proceedings be held pursuant--or that they would be open to the 
public, except when an immigration judge would, on a case-by-
case basis, make these specific determinations? And then, also, 
the requirement that a compelling governmental interest be 
shown?
    Ms. Swenson. The debate, as I understand it, between on the 
one hand the current state of affairs and what would be 
presented under the bill is the difference between whether the 
Attorney General be shackled from being able to effectuate a 
closure of a category of cases instead of turning closure 
decisions exclusively to the province of individual immigration 
judges in a time of national emergency.
    At this time, and at every time in history, our research 
reveals, other than after 9/11, there is a case-by-case 
determination. It is not on a strict scrutiny basis by 
individual immigration judges as to whether or not to close 
immigration hearings in almost every type of case but for, you 
know, special cases involving child abuse, which is the only 
other type of blanket closure that is available right now.
    Mr. Lungren. But my question is--the legislation here would 
not permit you to have a blanket policy as you had in the 
Creppy memo, and so my question is, in what way would this 
shackle the Justice Department from doing what we want it to 
do, that is, to protect us from the threat of terrorism?
    Ms. Swenson. Even the Creppy memorandum wasn't actually a 
blanket closure because each individual special interest case 
had to be individually determined to be--to warrant special 
interest treatment. So even the Creppy memorandum had an 
individualized case-by-case basis.
    Mr. Lungren. Well, I guess my question would be this: Is it 
more than just the administrative burden, as suggested by Mr. 
Rosenzweig, that you are looking at? Is there a concern that 
there would be failure on the ability of the Department to make 
its case? Number one.
    Or, number two, is it because of the inconsistent rulings 
of individual immigration judges that you fear would result in 
an inability for us, as a Government, to protect us from some 
terrorist threat?
    Ms. Swenson. All three of those concerns, Congressman, are 
implicated by the bill.
    First, it would be an administrative burden, that is true. 
But, more importantly, in a situation where there is a national 
emergency, it is not clear that the Government would be able to 
prove on a case-by-case basis and a strict scrutiny basis the 
closure of each individual case. And if it is not able to do 
that, whether it be as a result of the number of individual 
closure requests or because immigration judges would decide 
each case inconsistently, that could be the type of thing that 
would cause individual bits of information to be disclosed to 
terrorist groups, who could then fit that information to a 
larger mosaic that would thwart Government efforts.
    Mr. Lungren. Mr. Chairman, I have more questions, but I 
hope we can have another round.
    Mr. Hostettler. I don't know if we will have another round. 
If the gentleman would like to ask unanimous consent for an 
additional minute.
    Mr. Lungren. I would like to ask unanimous consent for an 
additional minute.
    Mr. Hostettler. The gentleman is recognized.
    Mr. Lungren. What I am trying to determine is this: Is it 
because of the uncertainty that necessarily occurs in cases 
such as this? That is, if we are under an imminent threat of 
terror that, as we are responding to an unknown threat out 
there, that we believe that we need this for the Attorney 
General?
    Because in normal circumstances we would have the luxury, 
if you will, of having more knowledge of what it is we are 
looking for, not only generally but specifically with the 
individual, and that that sort of unique set of circumstances 
is at the basis of what you and the Justice Department think 
you need. I am trying to figure out why you say--every time I 
ask you the question about the Creppy memo, you tell me, well, 
under most circumstances in the history of the country we 
haven't done this. I understand that. That is why we are asking 
why you should retain this flexibility, as opposed to the 
Berman-Delahunt construction, which would say, no, even in 
those situations we think the Government ought to have the 
burden.
    Ms. Swenson. Well, if ever we were to face another attack, 
God forbid, there could be--well, the easiest way to look at 
this is to actually take the actual events of 9/11, because 
that actually happened, and look at what happened there.
    The number of closure cases that came in the immediate 
aftermath of the terrorist attacks made it necessary for the 
Attorney General to be able to say, look, for this class of 
cases we need to have closure, we need to have uniformity in 
decision, and we need to be able to close the cases without 
having to do an individual case-by-case determination that 
would take a great amount of time.
    Mr. Lungren. Thank you, Mr. Chairman.
    Mr. Hostettler. I thank the gentleman.
    The Chair now recognizes the Ranking Member of the 
Subcommittee for 5 minutes for purposes of question.
    Ms. Jackson Lee. I thank the gentleman very much; and as I 
have said, this is a, I think, an important effort at remedy, 
on a remedy that I think is necessary.
    Professor Rosenzweig, let me say to you that--and I like 
utilizing the term ``professor'', and I also am glad to see you 
again. Only because my time was short that I did not get a 
chance to probe you during the questioning dealing with privacy 
issues. Maybe we will have another opportunity.
    But I do believe we have common ground because we are 
offended, mutually, not because of what we did after 9/11--
there was general unanimity on that issue--but because I think 
we can do better in balancing both concerns as we move forward.
    I do want to say to Ms. Swenson--I just want to acknowledge 
a statement. I am just going to make this statement, that you 
indicated in your statement that the closed hearings are not 
really closed in an ordinary sense because aliens and their 
counsel are free to release information about their proceedings 
to their family members, friends, witnesses and the press. So 
to me that is inconsistent with any argument by Justice and 
others for the closing of the hearings, which are allegedly to 
protect confidential information. I make that as a broad 
statement.
    I would ask you, in your statement that you made mention of 
the automatic stay provision for bond appeals has only been 
used a few hundred times since they were enacted in 2001, and I 
would like to know how long those aliens were incarcerated 
while their appeals were being--pending before the Board of 
Immigration Appeals, and what the danger would be for having 
those individuals having bond hearings to allow them to be 
released to their families.
    I am asking that, but I want to get Professor Rosenzweig, 
if you would, one, to expound on the theory that you offered. 
At the same time, I want you to finish the two points that you 
wanted to make. But I would like you to expound on something 
that I think was extremely salient, and that is that the 
overall argument of our good friends here at the table 
alongside of you, at least those from the Government, is that 
it poses an administrative burden if we begin to do case-by-
case analyses.
    To me, we need to move swiftly to fix it. Because I 
slightly disagree with you. You are absolutely right that 
constitutional rights do not fall upon an immigrant coming to 
the shores, but if you are here, there are some constitutional 
protections that you have.
    So my idea is that we need to immediately rush to fix these 
problems because we should not be standing on administrative 
principles if we can find a balance.
    I yield to the professor.
    Mr. Rosenzweig. If I said that there were no constitutional 
rights for immigrants at all, that would certainly be wrong. 
They certainly possess some rights, and the courts have so 
held, in coming to the United States. So I would agree with 
you.
    I guess I would take the opportunity to speak to the other 
two provisions----
    Ms. Jackson Lee. And the other administrative.
    Mr. Rosenzweig. And the administrative.
    With respect to 201, the notice of charges idea, again, it 
strikes me that what we are talking about here is something 
that has--it serves an important transparency function. You 
can't answer charges you don't know about, and it is only when 
you are notified of them that you begin to have the opportunity 
to develop an answer.
    We have set up a system in which each immigrant is entitled 
to such a notice at some point in time, and it doesn't strike 
me as unreasonable to set that time as at the same time that 
the INS--or ICE now--determines what those charges should be.
    Again, most of what I heard Mr. Greene say, and Mr. West, 
sounded like very real administrative concerns about the 
difficulty of collecting the information and making it--but 
those same concerns actually, to my mind, apply in any system 
we administer, the criminal justice system as well, and yet we 
try and find the way to do that. I mean, if it is really a 
resource problem, then the answer is probably more resources, 
which I am sure would make ICE very happy to hear me say that, 
rather than using the lack of resources as a justification for 
a legal regime.
    With respect to the automatic stay provision, which is 203, 
again, I hear the concern that, you know, if the release order 
is not stayed there is a possibility that the immigrant may 
abscond, and that is a legitimate and real concern. But, again, 
it seems to me the analogy to the criminal sphere is the 
appropriate one. We don't have a system or a set of rules that 
allows for the automatic detention of criminal defendants who 
have been convicted. We have a presumption against their 
release, to be sure, and that seems to me to make a great deal 
of sense for a convicted criminal defendant, but it is only a 
presumption that the individual is entitled to rebut, and it is 
subject to an individuated determination, in the first 
instance, in front of the district judge, and in the second 
instance, if there is an adverse determination for either party 
on appeal.
    It does not strike me as unreasonable, since we have 
created a system of immigration judges and Bureaus of 
Immigration Appeals, to repose with those neutral third parties 
the ability to make the determination on stay, and to provide 
for appeal of an adverse determination by the Department if it 
loses and if it can demonstrate a reason to think that the 
immigration judge was wrong. And those are all very reasonable 
things.
    It is the kind of unilateral exercise of automatic 
authority by a trial attorney that strikes me as getting the 
checks and balances idea out of kilter a bit, since then the 
authority reposes not with the judges of the immigration court 
and the Bureau of Immigration Appeals, but with the trial 
attorney himself. And, again, I assume that the decisions they 
will make are not for bad motivation, but they remain human.
    Ms. Jackson Lee. If I may, Mr. Chairman, just have him 
finish his administrative question quickly, and Ms. Swenson on 
her--if they will do it quickly--Ms. Swenson on her 
incarceration question that I asked you.
    Mr. Hostettler. Without objection, the gentlelady will be 
given an additional minute.
    Ms. Jackson Lee. I thank the Chairman. Let the professor--
--
    Mr. Rosenzweig. I think I have captured most of what I 
wanted to say about administration along the way, which is, 
essentially, it is a real problem, but it shouldn't be the 
decider on a set of legal rules. It should be--the decider on a 
set of legal rules should be the values that we think are the 
optimal resolution, and we should then provide the right 
resources to meet our ideals, not let our ideals be driven by 
our resources.
    Ms. Jackson Lee. Thank you very much.
    Ms. Swenson, you heard my earlier question about those 
incarcerated, the automatic stay provision. How long were they 
incarcerated? Do you have any----
    Ms. Swenson. Just so I understand the Congresswoman's 
question, if you don't mind repeating it.
    Ms. Jackson Lee. I would be happy to.
    In your statement, you mention the automatic stay provision 
for bond appeals has only been used a few hundred times since 
October, 2001; and I would like to know how long were those 
aliens incarcerated while their appeals were pending before the 
Board of Immigration Appeals? If you have some sense of how 
long, on the average, they were held.
    Ms. Swenson. I just want to make a small clarification. I 
think it is very easy, in the context of immigration bond 
hearings, to think of bond as criminal bond, and you even use 
the word incarceration in connection with it. I think it is a 
very easy thing to sort of confuse, and I know the 
Congresswoman understands this. But, unlike in a criminal bond 
context, an alien that is held on bond for the most part can be 
released immediately if he or she returns to the country from 
where he or she is from. So it is not an involuntary 
incarceration type scenario. I mean, it is not a full answer, 
but it is, indeed, not like the criminal context.
    Ms. Jackson Lee. But it is if you are in fear of returning 
to the country from which you have come and if you have been 
here and your family is here and there is no place for you to 
go. So do you know how long they have been held?
    Ms. Swenson. I don't want to give you the wrong 
information. The amount of time is, obviously, as a rule, 
dictates only as long as it takes for the Board of Immigration 
Appeals to consider the appeal.
    Ms. Jackson Lee. So it might be a long time.
    Ms. Swenson. I can get back to you on specific figures if 
you would be interested.
    Ms. Jackson Lee. I would, Ms. Swenson.
    Thank you very much, Mr. Chairman. I yield back.
    Mr. Hostettler. The Chair now recognizes the gentleman from 
California for 5 minutes. Yes.
    Mr. Berman. Thank you very much, Mr. Chairman.
    The great thing about a hearing like this is issues come up 
you don't expect, and you have to sort of deal with them.
    The Chairman raised, right at the beginning of his 
questioning, an obvious thing that I hadn't spent a lot of time 
thinking about: How do you make the case that the hearing 
should be closed when you don't have blanket closures? Do you 
have to tell the immigration judge or do you have to reveal the 
national security issues, the privacy issues, the compelling 
Government interests for closure in an open hearing?
    Well, that would be crazy. But it turns out--I checked it 
out, and it is done. There is a prehearing hearing, and the 
prehearing hearing is closed. And that was before the Creppy 
memo. Because there was always the power to ask for a hearing 
to be closed based on these issues. So the Chairman's very 
legitimate question, existing rules provide for a closed 
prehearing on whether the hearing should be closed or open, and 
that is how it is predicted.
    Now, Ms. Swenson, a lot of what you say is different than 
what we read in the Inspector General's report. And what is so 
funny is I met with the Deputy Attorney General and I asked him 
about blanket closures, and he said, I think that was a 
mistake, we never should have done that. And I asked the 
Attorney General about it at a hearing, and he said, well, 
mistakes were made. In other words, your vigorous defense of 
your right to have these blanket closures is not consistent 
with what I have heard from both the Attorney General and the 
Deputy Attorney General.
    But I want to get into what the Inspector General told us. 
You sort of said the proceedings that were required to be 
closed to family members and the public and the press weren't 
really secret because all detainees were free to publicize them 
as they liked.
    Here is what the IG says: The decision to house these 
special interest detainees in the most restrictive confinement 
conditions possible severely limited a detainee's ability to 
obtain and communicate with legal counsel. Detainees 
interviewed by the Inspector General, the Justice Department 
Inspector General, said that each time the unit counselor made 
rounds through the facility he asked the detainees, are you 
okay? The detainees said that initially they did not realize 
that this question was shorthand for, do you want a weekly 
telephone call?
    A unit counselor confirmed to the Inspector General that 
when he made rounds to the facility to provide legal calls he 
asked the September 11th detainees ``are you okay'' to 
determine whether they wanted to make legal calls. Detainees 
who were interviewed reported that an affirmative response to 
the question of whether they were okay resulted in them not 
receiving a legal telephone call that week. A number of other 
sources suggest there were communications blackouts imposed on 
the detainees.
    The picture you paint in the hindsight, detainees could 
have coordinated a publicity campaign if they wanted to but 
probably didn't because they were embarrassed, maybe, I think, 
overreaches in terms of what really was going on.
    But I also--you are the first person I know who has said 
that 75 percent of the special interest detainees, this group 
of 600 that you referred to, retained private counsel. Since 
the names are a secret and the transcripts haven't been made 
public, you're the first source of information. If there is a 
way in a closed basis you can provide the information that 75 
percent were, in fact, represented by counsel, I would be 
curious to know about it.
    And then the final thing that I would like you to--or the 
third thing I would like you to comment on is your claim that 
we shouldn't be concerned about the detainees' due process 
rights just because the hearings were closed to the public, 
press and family members. That is what--the public's first 
amendment right to attend trials in which people's liberty is 
at stake does serve to protect due process rights of 
individuals. That is what the Sixth Circuit says in the Detroit 
Free Press case.
    Having heard Mr. Rosenzweig's testimony regarding the 
benefits of openness and how to treat the presumption and not 
using legal rules as the basis for lack of resources, and 
understanding that there's always potentials that judges have 
different interpretations of facts, but deciding whether 
something is a special interest case is a decision made by FBI 
agents in different parts of the country. They could have 
different views of who should be in that special interest 
category--we don't have an automatic formula that looks and 
makes an automatic decision that says, in the special interest 
category, not closed, open. I mean, it is part of our system. 
But I am just curious as to your response to Mr. Rosenzweig's 
testimony, and do you really think a compelling Government 
interest standard is too high for the Government to meet?
    Ms. Swenson. I guess there are--you have raised a number of 
issues there. I will just start with just taking apart one 
piece of what you mentioned and that is whether the Department 
or the Government would prefer to have hearings, whether they 
would be judicial proceedings or immigration proceedings like 
this open to the public; and the answer there is most 
certainly. Indeed, the vast majority of immigration hearings 
are open to the public. There are----
    Mr. Berman. I didn't know I asked that question.
    Ms. Swenson. Forgive me, Congressman. Maybe you want to 
direct me to one particular point that you want me to address 
first.
    Mr. Hostettler. Without objection, the gentleman will be 
given an additional minute.
    Mr. Berman. Thank you very much.
    Some of my points were, I guess you could say, rhetorical. 
But----
    Ms. Swenson. I am starting to learn how it works here.
    Mr. Berman. And I certainly wasn't asking you to comment 
why you would say one thing when I got a different reaction 
from the Attorney General. That is unfair to ask you. I am 
mostly concerned about why you think a compelling Government 
interest standard is too high for the Government to meet in the 
context of presumption of openness but an ability to get it 
closed where there is a compelling Government interest in doing 
so.
    Ms. Swenson. The current standard now is actually quite 
high. It is the Government, in order to close or to obtain a 
protective order over sensitive information, needs to be able 
to demonstrate a substantial likelihood of harm as a result of 
this closure----
    Mr. Berman. That is for your individual closures, right?
    Ms. Swenson. That is for the individual closures. That is 
correct.
    Mr. Berman. I am for going back to that, right.
    Ms. Swenson. And that is actually what the current state of 
affairs is now.
    Mr. Berman. Except when you have a blanket closure policy.
    Ms. Swenson. Right. Aside from the Creppy memorandum, that 
is the normal state of affairs.
    In a state of emergency, which is really the only situation 
that we think is an appropriate time for, you know, for a 
directive like the Creppy memorandum, it would be very 
difficult not only to meet a strict scrutiny standard on a 
case-by-case basis, but the amount of time it would take to be 
able to make that kind of a showing in individual cases and the 
possibility that immigration judges would, especially in that 
kind of a heightened standard, come up with inconsistent 
decisions on whether or not to close individual special 
interest cases would be unacceptably, you know, threatening to 
the national security. We would be unable to keep those----
    Mr. Berman. What about FBI agents having to decide whether 
something is a special interest case and the possibility that 
the FBI agents in the West look at it differently than the ones 
in the East or the Midwest or the South? You always have 
individual decisions about classification. Individuals can come 
to different conclusions about the same set of facts. How do 
you deal with that?
    Mr. Hostettler. The gentleman's time has expired.
    The Chair now apologizes to the gentleman from Texas for 
not recognizing him in proper order, and he is recognized for 5 
minutes.
    Mr. Gohmert. Well, sometimes people say they don't 
recognize me in a crowd, so it is not unusual.
    First of all, I want to address something that, Ms. 
Swenson, you had said. You had indicated if ever we were to 
face another event, God forbid. I think God has not forbidden, 
because I think we face another event every day, which makes 
your job all the more serious.
    I heard a fellow that believes God is sovereign say one 
time, just because God is sovereign doesn't mean you lean on 
your shovel and pray for a hole. I think our Creator would 
certainly know our abilities, and we are expected to use them. 
So the trouble becomes in balancing self-protection versus, you 
know, the rights that we should have ourselves.
    So I want to ask each of you, and start with Mr. 
Rosenzweig--we have talked before. I admire so much of your 
writings. But I want to ask each of you to answer this 
question: Do you believe there is a U.S. Constitutional right 
to remain in this country in violation of U.S. Immigration laws 
that are constitutional?
    Mr. Rosenzweig. No.
    Mr. Gohmert. Mr. Greene?
    Mr. Greene. No.
    Mr. Gohmert. Ms. Swenson.
    Ms. Swenson. I don't want to be flippant and just say no, 
but no.
    Mr. Gohmert. Okay. You and Nancy Reagan can just say no.
    Mr. West?
    Mr. West. No, sir.
    Mr. Gohmert. All right. Thank you.
    Now, Ms. Swenson, you had mentioned that aliens have the 
right to voluntarily return to their country of origin, which 
would end the proceedings at any time; is that correct?
    Ms. Swenson. That is right, Congressman.
    Mr. Gohmert. Well, how does one actually go about 
communicating the desire to get out of jail free and go home? 
How is that communicated? How is that actually accomplished?
    Ms. Swenson. This is probably more a question for Mr. 
Greene.
    Mr. Gohmert. Mr. Greene, if you can help.
    Mr. Greene. Thank you, sir.
    Through the lawyer or direct contact from the respondent in 
a hearing, the respondent, him or herself, can make an 
indication of a willingness to return; and at that point----
    Mr. Gohmert. To whom?
    Mr. Greene. To the Government's counsel or to the 
immigration judge or, frankly, to any number of Government 
officials who have legal authority to maintain custody over 
that alien.
    Mr. Gohmert. So they drop by every day and say, hey, are 
you ready to go home voluntarily, or----
    Mr. Greene. The alien is generally the moving party. So it 
isn't like we go to them every day and say, have you had 
enough? Are you ready? It is more like they would come to us 
and say, this is what we would like to do.
    Mr. Gohmert. They come to you even though they are locked 
up.
    Mr. Greene. They come to us in the metaphorical sense. Our 
people----
    Mr. Gohmert. Metaphorically it is very difficult for them 
to come to you to if they are behind bars.
    Mr. Greene. Physically it is, but our people are there on 
site or are making visits or are in contact with our officials.
    Mr. Gohmert. Because I have heard of people who have been 
in for weeks, would like to go home voluntarily, and can't ever 
find anybody to communicate that to so they can.
    Mr. Greene. I don't know how--that doesn't--that isn't 
consistent with the sorts of things that I'm hearing from our 
detention people.
    Mr. Gohmert. Well, I would appreciate if you would check on 
that, how that can actually be accomplished.
    The next question is a follow-up to that. If somebody does 
want to voluntarily go, they are able to communicate that, the 
U.S. Department of Justice says, great, take off, how do we 
make sure they actually exit the country?
    Mr. Greene. Oh, we still escort them.
    But let me step back for a minute and just say that while 
the regulations authorize us to be able to accept a request of 
that nature, terminate the proceedings and allow that person to 
return home, it doesn't always happen that way. And the reason 
that we don't is that if I'm a person from a foreign country 
under arrest for a state charge of violence, for example, 
against an individual and in INS custody or in ICE custody or 
in Department of Homeland Security custody, the Government may 
not choose to allow that person to flee the consequences of the 
state criminal proceeding that is going on.
    That is an example of where we might want to----
    Mr. Gohmert. And as a judge, I can tell you anecdotal 
situations where, for example, one individual had a bunch of 
DWIs. INS never did anything until he came to my court as a 
felon. He has hurt people. He couldn't stop getting drunk--and 
I would ask for an additional minute if I could.
    Mr. Hostettler. Without objection, the gentleman has an 
additional minute.
    Mr. Gohmert. I sent him to prison so he's not a continuing 
threat to society, and within a couple months apparently he was 
out, because he came back to my court after he had another DWI 
and hit somebody. And I said, how are you back? And he said, 
well, they came and got me out of prison right after I got 
there, took me to the border, and that is how I got back here.
    So outside of--if INS is not going to get him out of the 
country, at least send him to treatment so if he's going to be 
here he's not gonna kill somebody. They let him stay 3 or 4 
months, I think, before they deported him; and I don't know 
whose county he ended up in.
    So my question is, how do we make sure that if they are--
whether they leave voluntarily or leave involuntarily, how long 
do you stay there to make them wait to come back in? Do you 
stay 15 minutes to make sure they don't come back in? Do you 
make them wait a whole hour before they turn around and come 
back in? How often do they beat you back to the county, as this 
guy did? What do we do to make sure they're not coming back?
    Mr. Greene. Our people will--especially on the southern 
border, our people will escort the person to the border and 
turn them over to the Mexican authorities, and they return.
    The Border Patrol will tell you that they have people on 
the border 24/7 precisely for the purpose of making that easy 
return to the United States much more difficult, if not 
impossible, but that is a whole set of other----
    Mr. Gohmert. You'd go on record as saying ``if not 
impossible''?
    You are aware there are a few people that come in every 
day, so apparently it is not impossible.
    Mr. Greene. I didn't say that it wasn't impossible. I said 
that the Border Patrol are there.
    So your characterization that they beat us--we wait there 
for 10 minutes before he comes back or an hour before he comes 
back, the Border Patrol are there all the time. They are at the 
border 24/7 precisely for the purpose of managing that border, 
and that was my point.
    Mr. Gohmert. All right. My time has expired. Thank you.
    Mr. Hostettler. I thank the gentleman.
    The Chair now recognizes the gentleman from Massachusetts, 
Mr. Meehan, for 5 minutes.
    Mr. Meehan. Thank you, Mr. Chairman.
    My question is for Mr. Greene. In December, 2003, the 
Department of Homeland Security suspended a requirement that 
all individuals previously registered with the National 
Security Entry-Exit Registration System, known as the NSEERS, 
that they register within 30 days and 1 year in the United 
States. But NSEERS' call-in program--that was suspended. The 
call-in program continued, and I am wondering what the current 
status of the NSEERS program is.
    As I mentioned in my opening statement, I had read and 
worked with the Iranian-American Bar Association relative to 
their study, and I am wondering whether anything has been done 
to address some of the issues that were uncovered in this 
study, specifically deplorable conditions that the NSEERS' 
registrants endured at the centers.
    One item of concern that arose from the NSEERS' process was 
a status of men who did not come forward at the registration. 
Common sense would tell me that if somebody didn't show up, 
they're probably of more interest than those who did show up, 
and these people have been sent underground while--and it seems 
to me unlikely to cooperate with immigration officials. So 
what, if anything, has been done to investigate known 
immigrants that didn't show up for the NSEERS' program?
    Mr. Greene. Congressman, I don't have that information 
available with me now, so I am unable to sort of address the 
current state of the NSEERS' program beyond what you have 
already characterized. I will be happy to get specific 
information on that program to you as quickly as we can. As 
soon as I get back to the office I will get that process 
started. 
    I know that there are--what I do know is that there are a 
number of cases that have--that flowed out of that program that 
are still under way, but how we can characterize beyond that? I 
will need to verify my information before I can do so. I am not 
aware of the status of the report that you have described, but 
I will look into that as soon as I return.
    Mr. Meehan. Does the characterization of the NSEERS' 
program sound consistent with what you know?
    Mr. Greene. It does. That is right. All we are working on 
is the call-in system that I am aware of, but that is dated 
information. And I say that with the caveat that, without going 
back and talking to the folks who are involved in that program, 
I would be reluctant to say that----
    Mr. Meehan. But, as you may know, the legislation that--Mr. 
Berman and Mr. Delahunt and others' legislation would terminate 
NSEERS and provide relief to those adversely affected. Has 
there been an effort to create or analyze a list of names, 
nationalities and a total number of registrants, do you know, 
that were detained under this program, including any impending 
applications that you know of?
    Mr. Greene. I think that data was looked at in connection 
with the decisions that affected the way the NSEERS' program 
was being deployed and utilized, so that some of the decisions 
that resulted in the termination of certain features of that 
program were based upon an analysis of some of that data. 
Again, I would need to go back----
    Mr. Meehan. If you could get back to me on that, that would 
be great.
    Mr. Meehan. Would you support legislation to codify an 
existing homeland security memo related to the prosecutorial 
discretion to allow factors such as family ties to contribute 
favorably toward immigration proceedings?
    Mr. Greene. I think the exercise of discretion and, 
frankly, the importance of family ties is crucial as the future 
of our immigration policy. And I base that certainly on my 
roughly 29 years of experience with the INS, 10 of which were 
as the District Director in the Denver District.
    I have always been concerned from a policy point of view of 
a legislative code going to the question of discretion. It 
seems to me that in working with the Committee we may find 
measures short of actual legislation that will create a 
spectrum of factors to be considered in the exercise of 
discretion; and, frankly, we would be happy to continue to 
discuss that with you.
    Mr. Meehan. Thank you. And I will get you those questions 
in writing before the end of the hearing.
    Thank you, Mr. Chairman.
    Mr. Hostettler. I thank the gentleman.
    The Chair now recognizes the gentlelady from California for 
5 minutes.
    Ms. Lofgren. I thank you, Mr. Chairman. I think this is an 
important hearing to sort through the legal issues.
    I want to specifically hone in on section 202 of the bill 
that we are talking about and mention again--maybe I will just 
talk about two cases that personally come to my attention just 
because they are in California, to put a human face on the 
discussion.
    The first case is a gentleman who entered the United States 
legally in the `70's. He is a legal, permanent resident of the 
United States. He is married to a United States citizen, has 
three United States citizen children and is a successful 
businessman, employs hundreds of American citizens in his 
business in California.
    Ms. Lofgren. In the seventies, he was caught up in an 
unfortunate matter where he pled guilty to a crime and nothing 
ever came of that. He went out on a business trip. When he 
attempted to reenter, the criminal conviction came up and he 
was put into exclusion. He was told that he would remain in 
jail forever unless he waived his right to appeal. And 
ultimately, I think he made big a big mistake, but in order to 
get out, agreed not to pursue his appeal.
    The second case is a Jewish woman from Russia who came into 
the United States on very shaky documents, personally, as a 
young girl. She straightened out. She married an American 
citizen. She had a U.S. citizen child. She was teaching violin 
at the Jewish community center in my county. She wanted to 
become a citizen and she got caught up in the entry. She was 
held in jail and told that she would only be allowed out if she 
agreed not to appeal her situation. And she had, at least 
arguably, one appeal that might have been successful. I wrote 
to our former colleague, Mr. Hutchinson, last year, asking 
him--this appears to be extortion, both individuals--in fact, 
the lady from Russia has been deported and has been separated 
from her husband and child, and her parents are also U.S. 
citizens.
    The other businessman is still here. They're not flight 
risks. So the only issue was the Government extorting a waiver 
of their rights in order to get out of jail. It strikes me that 
that is not a good policy for the United States.
    And when I wrote to Mr. Hutchinson, he answered on April 15 
of last year: We appreciate your concerns regarding due process 
rights in relation to the release of detained aliens. We are, 
however, unable to provide any policy materials for your 
review, because the DHS does not have a policy regarding 
releasing detained aliens in exchange for a waiver of rights.
    It strikes me, therefore, that section 202 is an important 
element to putting some kind of order, due process and law into 
this situation. And I am wondering, this is Mr. Greene's 
bailiwick, and I would appreciate a comment from Mr. Rosenzweig 
whether you think section 202 of the proposed act would 
regularize the two cases that I have described here today.
    Mr. Greene. Congresswoman, it is always a pleasure to deal 
with your questions. I think it is true, that, again as both a 
matter of law and as a matter of good public policy and good 
governance, an individualized bond determination is a critical 
feature of that structure. I also think that there are certain 
public interests that need to be balanced against the 
individual bond determination, and particularly the kind of 
experience that those of us who come from the former INS had in 
Miami in 1980 as one of those examples. And it seems to me that 
knowing what we do know about the drain of resources that is 
involved in dealing with a mass migration emergency, especially 
now at a time when those resources are also committed to 
dealing with potential terrorist threats in the homeland, 
speaks to some prudence with respect to applying an 
individualized bond determination in every case or in every 
circumstance.
    I don't--I am not comfortable with the situation you have 
described either. And if I can interpret the former Under 
Secretary's memo, it could be that the sense was we don't have 
a quid pro quo policy because that would be a bad policy, it 
would seem to me.
    Ms. Lofgren. I would be happy to provide the letter to you.
    Mr. Greene. And I would happy for you to do that because 
i'd like to look into those cases if you don't mind.
    Ms. Lofgren. I ask unanimous consent for an additional 
minute.
    Mr. Hostettler. Without objection.
    Ms. Lofgren. What he said, the decision is discretionary 
and we are balancing the risk of flight and public endangerment 
against the benefit of release. He did not address the issue of 
extortion of the waiver of rights in order to gain release, 
which I think is not very American.
    Mr. Greene. Without knowing the facts----
    Ms. Lofgren. As a matter of policy.
    Mr. Greene. As a matter of policy, what comes as close to 
what we are describing here is the circumstance we spoke about 
earlier.
    Ms. Lofgren. If I may, these are just two cases. I have 
seen actually at least a dozen of these cases just pop through 
my office, and none of them have anything to do with terrorism, 
and most of them are people who have very strong ties to United 
States citizens, spouses and children.
    Mr. Rosenzweig. I am going to offer a pseudoacademic 
response, which is I think what you are saying is probably 
endemic to all of our systems. Waivers of rights of appeal are 
often part of plea bargains in the criminal justice system. And 
a large fraction of that is because we can't--we don't have the 
resources to deal with the throughput.
    So I concur with you that in many ways it is a very 
unfortunate circumstance. It sounds quite unAmerican. And I 
would think that a systematic reexamination of that and 
provision for individualized bond determinations may be, except 
in extraordinary circumstances, like mass migrations from 
Haiti. I don't know how you couch that exception to the statute 
either, precisely. Tries to capture both ends. But unless we 
are going to massively expand the resources available in the 
immigration and adjudication system and parallel in the 
criminal justice system, which we are not going to do, you are 
going to see that no matter what. And it is an unfortunate 
thing, but I don't know that we can bemoan it. But I don't know 
we can necessarily fix it except in individual cases.
    Mr. Hostettler. The Chair now recognizes the gentleman from 
Massachusetts for 5 minutes for questions.
    Mr. Delahunt. You know, Mr. Rosenzweig, you used the word 
``resources'' again, and everything that I have heard here 
today tells me that--and with all due respect to both Mr. 
Greene and Ms. Swenson, there really are no sound policy 
reasons that I think that have been articulated that would 
contradict what the bill would propose to do. But, you know, in 
the end, democracy isn't cheap. I mean, that's the bottom line.
    And I'm reflecting back on our own history during World War 
II, the internment of the Japanese. And I'm not suggesting that 
they're the same, but there are some parallels in the larger 
sense. And earlier, I quoted from the GAO about how we are 
perceived throughout the world, and, with all due respect, Mr. 
Greene, I receive a huge number of complaints from people 
coming to this country who say they are never coming back 
because they feel mistreated when they come to our borders. And 
I know you are the director of training. I mean, we have got to 
change, if you will. And I understand that we justifiably have 
a concern about our national security in the aftermath of our 
national tragedy, but there are real consequences that are long 
term in nature that affect our national security. And that GAO 
report enumerates them extremely well.
    But when I think that the people in a survey that 
apparently reflect the sentiment of the British people say they 
prefer China over the United States and we both have democratic 
traditions, we better wake up. We are not trying to do anything 
to diminish our national security here. But I think we've got 
to put this in a larger context. I mean, what is America really 
about if not about individualized justice and transparent 
government? When you think of the concept of America, that to 
me is the essence of what we are in terms of a body politic.
    And, Ms. Swenson, you talk about, you know--we are talking 
about 24 hours, 48 hours, I don't care if it's 72 hours or a 
week. We did a week in the PATRIOT Act, and concerns about, you 
know, during the course a motion, you know--I'm using terms 
from the criminal law to close a hearing--I don't think--I 
can't speak for Mr. Berman, but I would presume that that 
motion to close a hearing would be conducted in camera. I mean, 
there just doesn't seem to be any policy issues.
    I think in response to Mr. Berman's raising the potential 
inconsistency among individual FBI agents, in terms of who is a 
potential bad guy and who is not, is a very real one. I 
understand we don't operate in a perfect world. But I just fail 
to see, you know, why there would be any objection, obviously, 
with some tweaking, to the bill that is under consideration 
here today.
    I think it was Mr. Rosenzweig who put it out there, and he 
said this is about recalibrating checks and balances. And you 
know, we have got to really remember our own history here and 
what we're about and what we stand for as a Nation. And I'd 
invite any comment from any of the panelists.
    Mr. Greene. I would only say this, Congressman, that both 
as a citizen, as a employee of the executive branch and as a 
32-year public servant with the Government, that I am equally 
concerned--and I know my department is equally concerned--about 
the perceptions that we create by the policies that we 
implement to make our country safe. And our willingness to work 
with the Committee, with everybody here to find the right 
calibration, is unstinted in that regard.
    Mr. Rosenzweig. I guess I would just add I think you have 
it exactly right. The genius of the framers of the Constitution 
was the context of both giving, as Hamilton said, energy to the 
executive to address our national needs while constraining that 
energy with the checks and balances. Those checks and balances 
are sometimes legislative--oversight of legislation. They are 
sometimes judicial oversight, but they are captured in the idea 
that we should be skeptical of any set of rules that operates 
in a broad brush without individuated consideration, and we 
should be skeptical of rules that tend toward the presumption 
against that oversight.
    That is not to say that there aren't perfectly legitimate 
reasons in many, many instances, in which the end result of the 
policy ought to be exactly the same as either under the Creppy 
memo or under the process proposed. But how you get there, I 
think, matters.
    Ms. Swenson. Clearly my turn since, you are looking at me, 
Congressman.
    Mr. Delahunt. It is not necessary. I just, you know, 
articulated my feelings. I want you to know that they are 
heartfelt. I understand that the problems that you encounter on 
a regular basis are considerable. If the Chair would indulge me 
for an additional minute.
    Mr. Hostettler. Without objection, the gentleman is 
recognized for an additional minute.
    Mr. Delahunt. I have a question here, and I'll direct it to 
Ms. Swenson and Mr. Greene. You lay out in your testimony the 
dual authorities of the Department of Homeland Security and the 
Attorney General under 236 (a). That is a small a. I'm curious 
about 236, large A, that was added by section 412 of the 
PATRIOT Act. We have been informed that this power has never 
been used.
    Can you tell us who now has the power of certification 
granted in section 412? And has it ever been exercised? If it 
hasn't, is it still necessary? You know, the Members of this 
Committee worked hard in negotiating that language and we 
unanimously agreed--because I participated in those 
discussions--that the power to hold somebody for 6 months at a 
time essentially on the word of the Attorney General was an 
extraordinary power. It was something we were willing to do in 
an emergency, but we knew it had to be monitored closely. So 
whoever has the authority to--over 236 A--one of you owes us 
six out of the last seven reports required by that provision of 
the PATRIOT Act, and I'm sure they will be forthcoming shortly 
after the conclusion of this hearing, Ms. Swenson. I yield to 
my friend from California.
    Mr. Hostettler. The time for the gentleman has expired. And 
by unanimous consent, he has been given an additional minute, 
and that will be used by the witnesses to respond to the 
question at this time.
    Ms. Swenson. Well, I won't use too much of that minute, but 
I'm not prepared to talk about the PATRIOT Act today, but I 
would be happy to take any questions back to the Department and 
get you an answer.
    Mr. Greene. Thank you. My bench tells me that is not 
entirely resolved and we will get back to you.
    Mr. Berman. The only other issue I want to bring up in all 
my second round--and I don't need any of that--is just on this 
one issue. This was an interesting case where the Justice 
Department came to us with this need to be able to detain 
longer. And then in extraordinary circumstances, based on the 
certification, to hold--this is about removal versus indictment 
and how long you have to decide and to hold.
    We give in the PATRIOT Act this authority 7 days to make 
that decision and extend the time to appear before an 
immigration judge. And then the authority, I guess, is totally 
unused, and on its own; you promulgate a regulation or exercise 
some preexisting authority to do it without any of the 
safeguards or balances. I think this is one of the four issues 
that is directly connected to the PATRIOT Act where the 
Congress here--it is appropriate for us to set the ground 
rules. And that is all I wanted to say.
    Mr. Hostettler. The gentleman's time has expired. The Chair 
wishes to thank members of the panel for your contribution to 
this deliberation as well as the record. At this time, I would 
like to yield shortly to the gentlelady from Texas if she 
wishes to make a comment.
    Ms. Jackson Lee. I want to again thank the Chairman of the 
Full Committee and yourself and the Ranking Member of the Full 
Committee and Mr. Berman and Mr. Delahunt for I think focusing 
on a very important issue.
    I leave the witnesses with this sort of backdrop. Yesterday 
we experienced another wonderful exercise of running without 
your shoes on at a fast pace, and those of us who are ladies 
with high heels, faster than you could have imagined we could 
have run. It was a second incident of a private airplane 
entering nearby our secured airspace. And on the second time 
around, as a Member of the Homeland Security Committee, my 
first response is to ban all private airplanes nationally. And 
then I narrowed my thought processes and then said anywhere 
within 1,000 miles of Washington, D.C.
    I use that to say, even though we will probably have to 
address that, Mr. Chairman, is probably overbroad. And I would 
only hope that out of this hearing, with the humor I have just 
offered you, my good friends from Justice and ICE would 
recognize that what we are saying to you is that we are in 
sympathy. We are your colleagues on this issue on the war on 
terror, but we find there are aspects of what is being utilized 
that are overbroad, and that we can find the balance that 
Professor Rosenzweig has indicated and this legislative 
initiative has indicated. And I hope the Chairman and myself 
will be able to work through these issues and find some common 
ground.
    We welcome the Justice Department and ICE. And I want to 
thank Mr. West for his service of 29 years. We welcome you in 
participating in this process.
    And with that, Mr. Chairman, I yield back.
    Mr. Hostettler. Thank the gentlelady and wish to amen her 
in the ban of 1,000 miles of any private aircraft. Once again, 
I thank the members of the panel.
    All Members are advised that they will have 5 legislative 
days to make additions to the record. Without objection, this 
Subcommittee is adjourned.
    [Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress from the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims

    I have said many times that immigration does not equate with 
terrorism, but I understand that it was difficult to maintain that 
distinction during the aftermath of the September 11th attacks. The 
purpose of this hearing is to take a calmer look at some of the 
immigration removal procedures and detention policies that were 
implemented during that period.
    On September 21, 2001, Michael J. Creppy, the Chief Immigration 
Judge for the Executive Office for Immigration Review (EOIR), issued a 
memorandum to all Immigration Judges advising them that the Attorney 
General had implemented additional security procedures for certain 
cases. In these cases, the Immigration Judges were required to close 
the hearings to the public and to avoid the disclosure of any 
information about the cases to anyone outside the Immigration Court.
    Secret hearings are inconsistent with our most basic principles of 
fairness. Immigration removal proceedings determine whether individuals 
will spend months in detention, be separated from their families, and 
then be removed from a country in which they may have lived for years. 
Hearings should not be conducted behind closed doors unless there is a 
compelling reason for such secrecy.
    This practice is addressed by Congressman Berman's Civil Liberties 
Restoration Act of 2005, H.R. 1502, which I have cosponsored with 
Congressman Delahunt. Section 101 of the Civil Liberties Restoration 
Act would prohibit blanket closures of immigration hearings. It would 
permit closure only when the government can demonstrate a compelling 
privacy or national security interest.
    Before September 11, 2001, the former Immigration and 
Naturalization Service (INS) was required to decide whether it was 
going to initiate deportation proceedings within 24 hours of arresting 
an alien. On September 20, 2001, this was changed to 48 hours or an 
additional reasonable period of time in emergency or other 
extraordinary circumstances.
    Section 102 of the Civil Liberties Restoration Act would require 
DHS to initiate proceedings within 48 hours of an alien's arrest or 
detention. It also would require that any alien held for more than 48 
hours be brought before an immigration judge within 72 hours of the 
arrest or detention. This would not apply to aliens who are certified 
by the Attorney General to have engaged in espionage or a terrorist 
offense.
    Although the Supreme Court has upheld mandatory detention when 
Congress has expressly required such detention for a discrete class of 
non-citizens, it has not authorized the executive branch to make 
sweeping group-wide detention decisions. Nevertheless, since September 
11, 2001, the Department of Justice (DOJ) and the Department of 
Homeland Security (DHS) have mandated the detention of certain classes 
of non-citizens without any possibility for release until the 
conclusion of proceedings against them.
    Section 202 would require DHS to provide all alien detainees with 
an individualized assessment as to whether the detainee poses a flight 
risk or a threat to public safety, except detainees in categories 
specifically designated by Congress as posing a special threat.
    On October 31, 2001, the Justice Department issued a rule that 
enables the government to nullify a judge's order to release an 
individual on bond after finding that he is neither a flight risk nor a 
danger to the community. The rule permits the Department to 
automatically stay an Immigration Judge's decision to release an alien 
if the government originally denied bond or set it at $10,000 or more. 
No standards govern the granting of a stay in these cases; it is simply 
at the discretion of the government.
    Section 203 permits the Board of Immigration Appeals to stay the 
immigration judge's decision to release the alien for a limited time 
period and only when the government is likely to prevail in appealing 
that decision and there is a risk of irreparable harm in the absence of 
a stay.
    I hope that we can work together to resolve these issues. Thank 
you.

                                 
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