Coalition Letter re: H.R. 1266, the “Secret Evidence Repeal Act”

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. . . . No better instrument has been devised for arriving at the truth than to 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,