Speech #1040069802

Mr. President. the bill before the Senate contains a procedure to permit the use of secret evidence in deportation proceedings for suspected terrorists. Many Members have reservations about this procedure. and I believe the sponsors have made a genuine attempt to strike a balance between our concerns about terrorism and the fundamental requirements of due process. However. another section of the bill. section 303. contains no such balance. It permits the use of secret evidence in any deportation case. without any due process safeguards at all. The amendment I am offering would extend the same minimal due process safeguards to these proceedings that are available in terrorist cases. in the rare situations in which classified evidence must be protected. The terrorist deportation procedure in section 301 acknowledges the sensitive issues surrounding the use of classified evidence. It requires a special designation by the Chief Justice of five Federal judges to keep the evidence secure and ensure due process. However. section 303 allows secret evidence to be used in normal deportation cases before any of scores of lowlevel immigration judges in the Justice Department. with no protection for either the classified evidence or the immigrant. While this provision exempts permanent residents from its broad reach. there are others who reside in the United States under legal immigration status who also deserve such protection. including the new spouses of American citizens. If we are to take the extraordinary step of permitting the use of secret evidence in general deportation proceedings. I believe the evidence and the immigrant should be afforded at least the same protections that we give to terrorists. This can be done without unduly burdening the courts. The number of cases which rise to the level of requiring secret evidence to justify deportation is extremely small. The kinds of cases which could be subject to this procedure would have substantial equities. The use of secret evidence should not be taken lightly. Under this procedure. the immigrant spouses of American citizens could be deported with secret evidence. By law. these spouses are "conditional residents." not permanent residents. during their first 2 years of marriage. The same sort of equities apply to refugees. A Vietnamese refugee who fought on our side in Vietnam. who experienced years of reeducation in Communist concentration camps. and who has now lived here for many years. but does not have permanent residence. would be subject to secret deportation with illegally obtained evidence. His only offense could be that he rescued a fellow soldier from Vietnam by allowing him to pose as a relative. There are also 14.000 Chinese students in this country. many of whom were activists in the democracy movement in China. They qualify for permanent residence. but they have not yet received their green cards. They could be subjected to this procedure. There are 85.000 individuals whom the Immigration Service has allowed to remain in the United States because of special circumstances surrounding their cases. They may have American citizen children with disabilities requiring special attention that cannot be offered in their parents home country. These families have not been given permanent residence. but the courts have declared them "permanent residents under color of law." Some may argue that these are unlikely victims of this procedure. But there is nothing in this language that prevents immigrants and refugees with substantial ties to this country from being deported using secret evidence. Under this procedure. they may never know why they were deported. A. long line of judicial decisions requires the protection of immigrants under the fifth amendment from due process violations in the deportation process. The fifth amendment states that no person shall be "deprived of life. liberty or property. without due process of law." The Supreme Court has consistently ruled that this protection means what it says. it extends to all persons within the United States. not Just citizens. As the Supreme Court stated in the Japanese Immigrant case in 1903. This court has never held. nor must we be understood as holding. that administrative officers. when executing the provisions of a statute involving the liberty of persons. may disregard the fundamental principles that inhere in "due process of law" as understood at the time of the adoption of the Constitution. In 1915. in Whitfield versus Hanges. the Court outlined the requirements of a fair deportation hearing. including the right to be notified of charges. to crossexamine witnesses. and to see the evidence and have a fair opportunity to rebut it. To underscore the gravity of deportation. the Supreme Court in 1921. in Ng Fung Ho versus White. observed that not only does deportation deprive a person of liberty. but "[it] may result also in loss of both property and life. or of all that makes life worth living." Again in 1948. in Tan versus Phelan. the Court characterized deportation as "a drastic measure" and "the equivalent of banishment or exile." In 1976. Mathews versus Diaz. the Court noted. "There are literally millions of aliens within the jurisdiction of the United States. The fifth amendment. as well as the 14th amendment. protects every one of these persons from deprivations of life. liberty. or property without due process of law." In Landon versus Plasencia in 1982. the Court stated that the interest of an immigrant facing expulsion from the United States "is. without question. a weighty one. She stands to lose the right to stay and live and work in this land of freedom. Further. she may lose the right to rejoin her immediate family. a right that ranks high among the interests of the individual." We are all concerned about addressing terrorism and expediting legitimate deportation cases. The bill before us contains a procedure in section 301 which permits our courts to handle classified evidence to decide the deportability of aliens suspected of terrorism. At a minimum. other deportees should be given the same protections as terrorists when it comes to using secret evidence against them. For this reason. my amendment says that the use of evidence in other deportation settings must follow what is being proposed for suspected terrorists. This means the evidence must be handled by designated Federal judges. And before the deportation proceeding is allowed to continue on the basis of the secret evidence. the judges must weigh the threat which the presence of the person poses against the likely consequences of revealing the classified information. I urge my colleagues to support this amendment.