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Letter to Co-sponsors of H.R. 1266 |
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Written by Coalition
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Monday, 26 November 2001 |
November 27, 2001
Joint Letter to Co-sponsors of H.R. 1266
Urging Continued Support
November 27 2001
Dear Representative:
We, the undersigned organizations, representing a total of almost 800,000
members, are writing to thank you for your co-sponsorship of the Secret
Evidence Repeal Act, H.R. 1266, and to ask for your continued support. The
bill establishes a process for dealing with classified information in
deportation cases that protects both classified information and the rights
of the non-citizen.
As you know, at the end of the last Congress, the House Judiciary Committee
on a voice vote overwhelmingly approved the Secret Evidence Repeal Act,
H.R. 2121. As amended, the bill permitted the use of classified information
in immigration cases by means of procedures modeled after the Classified
Information Procedure Act. Under that process, the government may use
classified evidence in deportation proceedings, if it provides an
unclassified summary of the evidence that is approved by a federal judge
The amended bill was reintroduced as H.R. 1266 in this Congress, and has
garnered approximately 100 co-sponsors.
In these difficult days, it is important to look carefully at a range of
legal processes to see which best can address the fight against terrorism.
It is clearly essential that law enforcement track down all the heinous
criminals who are responsible for the horrible attacks of September 11,
2001 and the recent anthrax mailings. As it proceeds with enforcement, the
government should also respect the Constitution. As the Supreme Court has
repeatedly made clear, deportation proceedings must respect constitutional
rights, as the Fifth Amendment's guarantee of due process of law applies to
every "person" in the United States, not only United States citizens.
As Supreme Court Justice Felix Frankfurter wrote in Joint Anti-Fascist
Refugee Committee v. McGrath, "Secrecy is not congenial to truth
seeking...give a person in jeopardy of serious loss notice of the case
against him and the opportunity to meet it."
Experience has proven Justice Frankfurter right. Judges have determined
that the secret evidence used in recent cases is inherently unreliable. In
one case, In re Ahmed, the immigration judge said that most of the secret
evidence being used to deny asylum and bond amounted to double or even
triple hearsay, and may have originated with the foreign government accused
of persecuting the person seeking asylum. In Kiareldeen v. Reno, a federal
district court in New Jersey joined the Ninth Circuit and the United States
District Court for the District of Columbia in ruling that the use of
secret evidence violates due process rights. Every other federal court to
examine the issue has agreed.
The serious shortcomings in the government's use of secret evidence in the
past decade have also been the subject of two House hearings. The accused
and their lawyers cannot defend against information they cannot see.
Far from undermining security, the Secret Evidence Repeal Act is essential
to give the government a constitutional way of pursuing deportation
proceedings that involve classified information while respecting national
security. When the government seeks to use classified information in
immigration proceedings outside the narrow context of the Alien Terrorist
Removal Court, current law provides no process at the beginning of the case
for the government to obtain federal court approval of a summary of the
classified information. Without this court-approved summary, the
government's use of secret evidence would likely result in a court ruling
requiring release of an accused terrorist.
By contrast, under H.R.1266, the government could instead hold a hearing to
produce a summary of classified evidence that affords both safety for
secrets and due process for the non-citizen. This approach is consistent
with the views of President Bush, who said that he believes secret evidence
is "not the American way." Attorney General Ashcroft affirmed this position
in testimony before the House Judiciary Committee on June 6, 2001, when he
stated that "we have not to date during this administration used such
evidence." Likewise, Commissioner of Immigration and Naturalization Jim
Ziglar stated on October 30, 2001 that no present plans exist to use secret
evidence against any of the individuals detained in the investigation of
the attacks on September 11, 2001.
Recently, the Senate added its voice to those who recognize the importance
of allowing non-citizens to receive a summary of the classified information
used in deportation proceedings. On November 8, 2001, the Senate rejected
on a voice vote an amendment, which was opposed by the Department of
Justice, that would have expanded the use of secret evidence by deleting
the requirement that a non-citizen brought before the Alien Terrorist
Removal Court be given an unclassified summary of the classified
information used against him.
We urge that you stay the course. Maintain your co-sponsorship of the
Secret Evidence Repeal Act, H.R. 1266. Constitutional rights must be
defended especially in times of crisis. Legal proceedings must be fair both
to withstand challenge and to ensure accuracy. Thank you again for your
support.
Sincerely,
American Arab Anti-Discrimination Committee
American Civil Liberties Union
American Immigration Lawyers Association
American Muslim Council
Americans for Democratic Action
Arab American Institute
Asian American Legal Defense and Education Fund
Asian Law Alliance
California First Amendment Coalition
Center for Constitutional Rights
Center for Democracy and Technology
Chicago Committee to Defend the Bill of Rights
Common Sense for Drug Policy Legislative Group
Coordinating Council of Muslim Organizations
Council on American-Islamic Relations
First Amendment Foundation
Friends Committee on National Legislation
Immigration and Refugee Services of America
Islamic Institute
Japanese American Citizens League
Jewish Community Council of
Lawyers Committee for Human Rights
Metropolitan Detroit
Muslim Public Affairs Council
National Asian Pacific American Legal Consortium
National Association of Criminal Defense Lawyers
National Association of Korean Americans
National Black Police Association
National Committee Against Repressive Legislation
National Council of La Raza
National Immigration Project of the National
Privacyactivism.org
Lawyers Guild
Sikh Mediawatch and Resource Task Force
Solidarity USA
Tampa Bay Coalition for Justice and Peace
The Multiracial Activist and Abolitionist Examiner
Unitarian Universalist Association of Congregations
World Organization Against Torture USA
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