Testimony of Congressman Tom Campbell
Full Committee on the Judiciary
Hearing on H.R.2121, the Secret Evidence Repeal Act
Tuesday, May 23, 2000
Room 2141 Rayburn House Office Building
Thank you, Chairman Henry Hyde, for allowing me to testify at this important hearing today. I would also like to thank Ranking Member John Conyers (an original co-sponsor of this bill), Immigration and Claims Subcommittee Chairman Lamar Smith and Immigration and Claims Ranking Member Sheila Jackson-Lee, another co-sponsor of H.R.2121, as well as the other Members of the Committee for being present at this important hearing. Today I am pleased to testify in favor of "The Secret Evidence Repeal Act of 1999," a bill to repeal the use of ‘secret evidence’ in Immigration and Naturalization Service deportation hearings. This bill already has 14 co-sponsors on the Judiciary Committee.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996, the INS is allowed to arrest, detain and deport non-citizens on the basis of ‘secret evidence’ – evidence whose source and substance is not revealed to those who are targeted or their counsel.
The right to confront your accuser, hear the evidence against you and secure a speedy trial are fundamental tenets of the American justice system. This violates our deepest faith in the right to due process, and violates our democracy’s most sacred document, the United States Constitution.
I am very concerned about the arrest, imprisonment and even forced deportation of individuals here in the United States based on evidence that the individual is not afforded an opportunity to review or challenge. The use of such ‘secret evidence’ directly contradicts our sense of due process and fairness. Secret evidence submitted in the form of classified information often consists of nothing more than rumor and innuendo. It is often unverified and unverifiable. It has not, and cannot be, tested reliability in cross-examination during a trial
The Bonior-Campbell bill would correct this injustice by ensuring that no one is removed, or otherwise deprived of liberty based on evidence kept secret from them.
People should know the crimes with which they are being charged and should be given a chance to challenge their accusers in court. I am proud to join my colleague, Congressman David Bonior, in proposing legislation to end this practice.
According to the Immigration and Naturalization Service, about 25 secret evidence cases are pending currently, and approximately 50 secret evidence cases were filed from 1992 - Feb. 1998. In one secret evidence case, Nasser Ahmed, a 38-year old Egyptian was denied bond, asylum and withholding based on secret evidence. The immigration judge who heard the evidence said that he had "no doubt" that Mr. Ahmed would be tortured if returned to Egypt. If the decision in his case had been based only on the evidence in the public record -- evidence that Mr. Ahmed had the chance to challenge -- Mr. Ahmed would have won his case immediately. Instead, he was held in solitary confinement for approximately three years and was only recently released upon the order of an immigration judge, who ruled that the secret evidence the Government offered it was inadmissable as double or triple hearsay.
Perhaps the most egregious case is that of Dr. Mazen Al-Najjar of Tampa, Florida. Dr. Al-Najjar, a Palestinian-American, has been detained over 1,000 days based on secret evidence. This 19-year resident of the U.S. was first detained almost three years ago! I’m glad to see that Mr. Al-Najjar’s sister, Mrs. Nahla Al-Arian, will be testifying today and I look forward to her testimony. Late last month, I had the opportunity to visit Dr. Al-Najjar at his prison in Florida.
Virtually all of the "secret evidence" cases have been directed at Muslims and people of Arab descent. This has created a perception in those communities that the Government is targeting them with the most repressive tools available to it. This law is clearly discriminatory and unconstitutional, and we need to take a strong stand against it.
The Secret Evidence Repeal Act would not require the government to release dangerous terrorists. It merely requires the Government to choose whether to reveal the evidence against a non-citizen whose liberty is in jeopardy, or keep that information fully secret and outside of immigration proceedings and determinations. It is common for prosecutors to make similar choices in criminal cases where a person's liberty is likewise at stake. These requirements were applied in prosecutions of truly dangerous terrorists, such as those who bombed the World Trade Center and the federal building in Oklahoma City, and those cases have been successfully prosecuted.
I teach anti-trust and international trade law. But occasionally I get to teach a seminar on constitutional issues.
The Fifth amendment states: "No person," -- it does not say "no citizen" -- "no person shall be deprived of life, liberty, or property without due process of law." It doesn’t say in a criminal case. The Fifth Amendment doesn’t exclusively deal with criminal cases.
The Sixth Amendment does. The Sixth Amendment says that when you get to jury trial, you have the right of counsel. But the Fifth Amendment is broader.
Here’s the hypothetical. You know the argument. We’re going to be better at preventing terrorism because we put people whom we suspect in jail and don’t let them know the evidence because we don’t want to reveal the sources. Why not give them truth serum? Why not give them truth serum, as long as they are in jail? I bet you could get some really good evidence on terrorism that way.
If, like me, your stomach revolts at that thought, it must be because something in this Constitution prevents it. It must be because the Fifth Amendment applies. It is not an Eighth Amendment issue, it is not a punishment. It must be because it would deprive that person of liberty without due process of law.
If the INS and Justice position is right, then you ought to be able to do the truth serum too. But once you grant that there is something that stops that, and look at the whole Constitution, the only thing you are going to find is the Fifth Amendment. Then you have got to deal with the question of whether you can keep that person is a due process violation.
Lastly, I also know the other answer. The other answer is well...you know...this isn’t a criminal case, this is just access into our country. No one has the right to be admitted into the country, so this is a deportation proceeding, and you don’t have any rights regarding a deportation proceeding.
Wrong. Twenty-five people are in jail. I can quarrel with people in good faith as to whether the Fifth Amendment would apply to a deportation proceeding simpliciter, just the deportation proceeding. But once you put somebody in jail, how do you say that is anything but a deprivation of liberty? And you put somebody in jail because pending resolution of the deportation proceeding, they are denied bond on the basis of evidence they can’t see. This is a deprivation of liberty.
And here is my whole point. If you agree that the Constitution applies, then the laws on the books are unconstitutional. They are unconstitutional. And that is what the Ninth Circuit held, that is what the D.C. Circuit held, that is what the District Court of New Jersey has held. And the argument that it will help us combat terrorism cannot avail against a constitutional argument.
I think I could cure the drug problem of America if you allowed me to search without warrants. Just put me in charge, Mr. Chairman. I will search without a warrant, and I will get good evidence, and there won’t be a drug problem in America.
And similarly, let me give truth serum to these people, because the Constitution doesn’t apply. This way, I will certainly find out about terrorism.
The truth is that if we are willing to sacrifice our freedom to get security, we will deserve neither. And the truth is that you and I and every other Member of this Committee took one oath -- it was not to be smart, it was not be popular. It was to defend and uphold the Constitution of the United States.
In sum, the fight against terrorism need not involve compromise of our most cherished constitutional rights. Mr. Chairman, thank you again for allowing me to testify before you today.