[Congressional Record (Bound Edition), Volume 146 (2000), Part 1]
[Senate]
[Page 202]
[From the U.S. Government Publishing Office, www.gpo.gov]



                       SECRET EVIDENCE SUSPENSION

  Mr. LEVIN. Mr. President, our Nation's commitment to due process has 
been placed in doubt by the use of secret evidence in immigration 
proceedings.
  Until recently, the Department of Justice's use of secret evidence 
was not well known to the general public. Secret evidence was known 
only to some immigrants who have been held for months, sometimes years, 
without any opportunity to confront their accusers or examine the 
evidence against them.
  As the Washington Post of October 19, 1997, put it, the process is 
authorized by:

       [A] little-known provision of immigration law in effect 
     since the 1950s allows secret evidence to be introduced in 
     certain immigration proceedings. The classified information, 
     usually from the FBI, is shared with judges, but withheld 
     from the accused and their lawyers.

  The use of secret evidence in immigration proceedings threatens to 
violate basic principles of fundamental fairness. The only three 
Federal courts to review its use in the last decade have all found it 
unconstitutional. Yet the Immigration and Naturalization Service, the 
INS, continues to use it and to do so virtually without any limiting 
regulations. Under current law, the INS takes the position that it can 
present evidence in camera and ex parte whenever it is classified 
evidence relevant to an immigrant's application for admission, an 
application for an immigration benefit, a custody determination, or a 
removal proceeding.
  The Attorney General herself has expressed concern over the use of 
secret evidence--and for good reason.
  In October 1999, a district court declared the INS' use of secret 
evidence to detain aliens unconstitutional. Five days later, the INS 
dropped its efforts to deport a man it had held for over a year and a 
half on the basis of secret evidence.
  In November 1999, the Board of Immigration Appeals ruled that an 
Egyptian man detained on secret evidence for 3 and-a-half years should 
be released, and the Attorney General declined to intervene to continue 
his detention.
  Earlier in 1999, the Board of Immigration Appeals, the BIA, granted 
permanent resident status to a Palestinian against whom the INS had 
used secret evidence and alleged national security concerns. In all of 
these cases the government claimed that national security was at risk, 
yet in none of them were the individuals even charged with committing 
any criminal acts.
  The Attorney General has promised to promulgate regulations to govern 
the INS's use of secret evidence, but has not yet done so. In May of 
1999, the Attorney General came to my state of Michigan to meet with 
Arab-American leaders and members of the Michigan Congressional 
delegation to discuss concerns about the use of secret evidence. At 
that meeting, she said she would implement a new policy, one in which 
the Department would implement a higher level of review, and take extra 
precautions before using secret evidence. She said she would have those 
regulations relative to the use of secret evidence within a reasonable 
time.
  In December, the Attorney General visited Michigan again. She had 
still not promulgated the promised regulations. She told us that she 
was dedicated to resolving this issue, and she was actively reviewing 
draft regulations, but that she was uncomfortable issuing those 
regulations in the form they had been presented to her by her staff.
  Mr. President, the Attorney General may eventually offer the promised 
regulations. But at the current time, she is not capable of putting a 
process in writing that is satisfactory even to her. It has been almost 
nine months now since the Attorney General agreed to look in to this 
matter, and promulgate regulations that will govern the use of this 
process. Under these circumstances, when the Attorney General cannot 
even satisfy herself that a fair process is in place, the use of this 
secret process should be suspended until she can, and I urge the 
Attorney General to do exactly that: suspend the use of secret evidence 
in immigration proceedings immediately until she can promulgate 
regulations relative to its use.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. What section are we in now, Mr. President?
  The PRESIDING OFFICER. The Chair advises the Senate is in morning 
business until 2 p.m.

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