The Senate is about to consider a terrible proposal that would allow the government to hold secret trials leading to the deportation of certain noncitizens. It will come up as part of an assorted crime package moving to the floor this week. On the agenda are two crime bills, one supported by Sen. Joseph Biden and the Democrats, the other the administration's proposal sponsored by Sen. Strom Thurmond. Because the major features of both bills--the death penalty, habeas corpus revisions and changes in the exclusionary rule--have been considered in both houses recently, the Senate Judiciary Committee held only three perfunctory hearings this year--one on habeas, another on rural crime and a third to hear Attorney General Dick Thornburgh.
Incredibly, no hearings were held on the deportation proposal, which is new this year. Moreover, because the committee didn't even vote on these bills but simply sent both to the floor with recommendation, there is not even a committee report that evaluates this section of the president's bill.
The proposal is directed against aliens the government believes are engaged in `terrorist activity.' It applies to all noncitizens, even those who have entered legally, lived here for decades and have children and other close relatives who are citizens. The bill uses a definition of `terrorist activity' that is broad and includes raising money for or urging others to join `terrorist organizations,' though it does not define the latter term. That is a political decision left to the government, and presumably it could include groups such as Kurdish nationalists, Afghan rebels, Sikh separatists and the IRA. Spokesmen for the PLO are singled out in the statute as engaging in terrorist activity.
The administration bill would allow the Justice Department to go to a secret court and get an order for a special proceeding to deport such people. Targeted individuals would have no notice of this hearing and no opportunity to attend or be represented. They could be arrested and detained as soon as this petition was filed. At the special proceeding that followed, the government could present secret evidence--outside the presence of the alien and his lawyer--and could even withhold a summary of that evidence from the accused. Theoretically, appeals would be allowed, but again, the evidence used at the trial could be kept under seal and the appeal argued in secret.
Does this sound like a proceeding in an American court? It is a nightmare that could allow the worst kind of injustice. Though not a criminal trial, a deportation hearing involves severe penalties and must afford due process. There is not much that is good in either of the crime bills coming up for consideration--gun control is the exception--but this blueprint for a kangaroo court stands out. It's hard to see how anyone with any respect for the American idea of justice could support it.
President George Bush,
The White House, Washington, DC.
Dear President Bush: Your Administration rightfully protested the travesty of justice in Kuwait's political trials because the accused were not allowed to see, and therefore rebut, the evidence against them. We are perplexed, therefore, by the provision in your proposed crime bill that would create an unprecedented `secret trial' procedure for deporting foreign nationals in the United States--including long term residents--accused of `terrorism.' As in Kuwait, secret evidence would be used and the accused would not even have to be told the specific charges against him.
We believe that this provision is unconstitutional, unnecessary, and unwise. It is unconstitutional because it contravenes the first principle of due process: those accused must have a public trial, and a fair opportunity to confront the government's evidence and an opportunity to refute it. Since the turn of the century, the Supreme Court has mandated that before the government deports any foreign national, it must provide due process of law.
This proposal is quite different from the procedures authorized under the Foreign Intelligence Surveillance Act. That Act provides for ex parte, in camera proceedings to authorize issuance of warrants for certain kinds of electronic surveillance. It nowhere authorizes the use of secret evidence to impose severe sanctions on individuals, as this measure would do.
Your proposal is also unnecessary. As experts in this field, we believe that the government already has ample authority to ensure that dangerous immigrants do not remain free and at large. For example, existing immigration law authorizes the Administration to deny visas to foreign nationals believed to pose a threat to our security and to exclude them at the border. Secret evidence may already be used in this context, but only because aliens outside our borders are held to have no constitutional rights.
New provisions, which took effect on June 1, 1991, specifically authorize the exclusion and deportation of foreign nationals believed to be engaging in terrorism. In addition, the government may deport immigrants who are convicted of a single crime of moral turpitude within five years after entry and sentenced to one year or longer; two such crimes at any time after entry; any aggravated felony; or crimes related to espionage, treason, or sedition. Moreover, if an immigrant truly is engaged in terrorist activities, surely criminal charges and a request of no bond would result. If convicted, the immigrant could be detained without bond until deported.
Finally, this proposal is profoundly unwise. Our nation has survived more than two hundred years without secret trials. Your Administration has been in the forefront of promoting a new world order, premised upon adherence to international law. Should we now, in the name of fighting terrorism, depart drastically from the very principles that we are so vigorously urging other nations to adopt?
We urge you to withdraw this Draconian provision from the pending legislation in which it is contained. The nation cannot credibly advance the fundamental principles of democracy abroad while at the same time eroding them at home.
Prof. Alex Aleinikoff, University of Michigan Law School; Prof. Deborah Anker, Harvard Law School; Sam Bernsen INS General Counsel (1974-77); Prof. Carolyn P. Blum, University of California at Berkley, Boalt Hall School of Law; David Carliner, Carliner & Remes; David Crossland, INS General Counsel (1977-81); Charles Gordon, INS General Counsel (1966-74); Prof. Ira Kurzban, University of Miami School of Law; Prof. David Martin, University of Virginia School of Law; Prof. Hiroshi Motomura University of Colorado School of Law; Prof. Gerald L. Neuman, Columbia Law School; Maurice A. Roberts, Editor, Interpreter Releases, Former Chairman, Board of Immigration Appeals; Paul Schmidt, INS Acting General Counsel (1979-81 and 1986-87), INS Deputy General Counsel (1978-87); Prof. Peter Schuck, Yale Law School.