TESTIMONY
OF
LARRY R. PARKINSON
GENERAL COUNSEL
FEDERAL BUREAU OF INVESTIGATION
BEFORE THE
THE HOUSE JUDICIARY COMMITTEE
CONCERNING
H.R. 2121, THE "SECRET EVIDENCE REPEAL ACT"
I am pleased to have the opportunity to discuss with you, on behalf of the Justice Department, H.R. 2121, and more specifically, the use of classified information in immigration proceedings. I cannot address specific cases because of ongoing litigation and the need to protect sensitive law enforcement information, but I will try to illustrate the value to the United States of preserving the ability to use classified information in ex parte, in camera immigration proceedings.
At the outset, I want to emphasize that the Justice Department understands and acknowledges the serious concerns about the ex parte, in camera use of classified information in immigration proceedings. We recognize that the use of such information can profoundly affect the people involved. We take these matters seriously, and we do not casually resort to the use of classified information. We have found, however, that in a small number of cases the use of such information is necessary to adequately protect the national security, and we believe that the laws currently in place, which allow for the use of such information in appropriate cases, strike the best balance between the various interests affected in these cases.
Moreover, I want to emphasize that the Justice Department, recognizing all of the serious concerns implicated by this issue, has instituted practices and procedures to ensure that classified evidence is used only when necessary to adequately serve the national interest. Before any final decision is made to use classified information in immigration proceedings, the information and the case are subjected to rigorous review at high levels of all affected Justice Department components to ensure that it is necessary and appropriate to use the information. When the decision is made to use classified information in court, the alien is given an unclassified summary of the classified information when one can be produced, to use in the preparation and presentation of his or her case. Moreover, the Department is currently in the process of an ongoing review of all pending cases involving the use of classified information, to ensure that the information was properly used. The Department, under the Deputy Attorney General's Office, is also working on guidelines and regulations to regularize and improve these processes. The Attorney General and the Deputy Attorney General are both personally involved in these efforts. The Department believes that all of these practices will help ensure that the letter and the spirit of current law will be honored, by requiring that classified information is used only when necessary in the interests of the United States.
Congress has considered this issue in the past and, for good reason, authorized the Immigration and Naturalization Service (INS) to use and consider classified information in ex parte, in camera proceedings. In fact, the 1996 Congress thoroughly debated the competing interests involved during a review of the Immigration and Nationality Act, and on a bi-partisan vote of wide margins, determined that the United States should not be put to the choice of either admitting or suffering the continued presence of a terrorist alien, or compromising the national security information regarding that alien. INS has testified in the past as to its authority, and I will leave it to INS to respond to questions regarding the details of the immigration laws and regulations under which it operates. What I am here to emphasize is the value to the United States of preserving the INS's ability to present appropriately classified evidence in ex parte, in camera proceedings. This typically occurs when, in the considered opinion of executive branch officials, it is necessary to introduce such information in opposition to an alien's admission to the United States, or in opposition to an alien's application for discretionary relief such as the granting of asylum, adjustment of status, granting of bond, or cancellation of removal.
It is important to note that under current procedures classified information is not used to prove deportability in conventional immigration proceedings. In general, when the INS presents classified evidence ex parte and in camera, it does so only to demonstrate the alien's inadmissibility into the United States, to demonstrate that the immigration court should deny bond to an alien, or to demonstrate that the alien is ineligible for some type of relief he or she is seeking. In other words, classified evidence is used in conventional immigration proceedings only against aliens who are either seeking admission to the United States or, having been determined to be removable from the United States, are applying for relief from that removal. When an alien who has been determined to be removable, for overstaying a visa or on other grounds, seeks relief from removal --asylum, withholding of removal, suspension, or adjustment of status --and other agencies have provided substantive, credible, and relevant classified information which indicates that the alien is ineligible for such relief or does not merit the exercise of discretion, the INS should bring such information to the attention of the immigration court in the interest of the national security.
There are times when the government has highly relevant classified information that should be considered in determining an alien's immigration status, but the information cannot be made public or disclosed to the alien without harming the national security by compromising intelligence-gathering operations and sources. In such cases the FBI, or whatever other agency has the information, shares it with the INS, and the information is subjected to a clearance process within the Justice Department by all concerned components, at a high level. Once consensus is reached that the alien poses a risk to the national security, or that the classified information is otherwise material to national security issues in the case, the INS presents the information to the immigration judge. The immigration judge then determines how much weight he or she will give to the information. It is important to note that while the ex parte, in camera use of classified information has garnered much media attention, it is in fact quite rare. Classified evidence is involved in only 11 pending cases out of a total of 300,000 cases pending overall.
The ability to use classified information in this manner is vitally important to the protection of our national security, because it allows us to proceed appropriately against the very small number of aliens who pose national security threats. Although the United States has always welcomed immigrants, it has also always been the policy of the United States to exclude those aliens who pose a threat to national security, such as terrorists and foreign intelligence operatives, and those who would impose undue burdens on society, such as convicted felons. In recent years we have found that direct and continuous liaison with INS, and the ability to use classified information in appropriate cases, are essential to the effort to protect the national security by making proper decisions about aliens with ties to terrorism or other activities that threaten our national security.
I firmly believe that the FBI must be able to share classified information with the INS, and the INS must be able to use the information in ex parte, in camera proceedings, when necessary in order to adequately protect the national security. That means the INS must be able to use the information in a manner which protects the confidentiality of the information, and the methods and sources used to obtain the information. Disclosing such information to the public, or to the alien, would put the sources and methods at risk, and we could no longer count on being able to use those sources and methods to learn important information about critical national security matters.
It should also be remembered that immigration proceedings are administrative and not criminal proceedings. As the Supreme Court has noted, the purpose of immigration proceedings is to "provide a streamlined determination of eligibility to remain in this country, nothing more." United States v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Thus, the full range of rights guaranteed a criminal defendant, including the Sixth Amendment's right to confrontation of witnesses, are not applicable in immigration proceedings. Recognizing the interests involved, and the rights and duties of all parties, courts, including the United States Supreme Court, have concluded that INS use of classified information in ex parte, in camera proceedings to deny discretionary relief from deportation or to deny release on bond is appropriate.
In short, if the INS could not use classified information in ex parte and in camera proceedings, and was instead required to share all evidence with the alien, the United States would be faced with two equally unacceptable scenarios in the small number of cases involving national security threats. Using a terrorism example, if we withhold the classified information in order to protect our important sources and methods, we let a dangerous alien obtain an immigration benefit which threatens national security, requires the release of the alien to move freely within the United States, and confers permanent status that may then aid the alien in obtaining United States citizenship. But if we reveal the classified information in an effort to obtain an appropriate ruling in the immigration court, we will jeopardize, and in most cases effectively eliminate, our ability to use those sources and methods in important national security investigations. Both scenarios pose unacceptable risks to the national security. We believe Congress properly considered all these factors, and struck the proper balance in favor of protecting the national security, when it came up with the current laws that allow for the ex parte, in camera use of classified information in appropriate cases. Again, the Department is taking appropriate steps to ensure the reliability of any classified evidence used in immigration proceedings.
I am providing two brief examples to illustrate how damaging it would be to national security to take away the ability to use classified information in immigration proceedings. The aliens in both of these examples are in the United States unlawfully.
CASE # 1:
We receive information from four separate foreign governments linking Subject #1 to terrorist groups and activities. Subsequent FBI investigation confirms Subject #1's dedication to a terrorist organization, and his commitment to violence. The FBI investigation indicates that Subject #1 participates in procuring weapons for terrorist violence, and has a desire to participate in violent activities himself. Additionally, the FBI investigation confirms that Subject #1 raises money to send to the terrorist organization, helps transmit communications for it, and engages in immigration fraud on behalf of members of the organization. Subject #1 wants to obtain lawful status so he can more easily leave and re-enter the country. He was the subject of an intelligence investigation for some time but has been referred to INS for evaluation of his right to be in the United States. Subject #1 was found to be excludable, but filed for asylum. We will want to use classified information to show that he should be denied asylum.
All of the foreign governments who provided information on Subject #1 did so on a classified basis only. The subsequent FBI investigation relied on classified means of acquiring information. Disclosure of either the foreign or FBI-acquired information would reveal the precise means and timing of the acquisition. In turn, that would disclose the scope of the investigation, the identities of other targets of the investigation, and the information that would have been provided to other nations to assist in prevention of terrorist acts. Disclosure of even the FBI-acquired information would reveal that specific individuals both abroad and in the United States were subjects of terrorism investigations by certain governments. That, in turn, would lead to the frustration of efforts by friendly foreign governments to prevent terrorist acts.
CASE #2:
Subject #2 applies for immigration relief. He comes to FBI attention as a result of reporting from a very singular and highly reliable source. Information from that source and further FBI investigation demonstrate that Subject #2 is in a leadership position of an organization that assumes responsibilities for gathering intelligence on behalf of a foreign power. Additionally, the FBI investigation shows that the foreign power directly contacts and tasks the individual and provides him with funds. Through the investigation, focusing on Subject #2's contacts, the FBI learns of intelligence activities being conducted by a number of individuals, as well as the methods of operation of both the organization and the individuals. Through a court-authorized electronic intercept targeting a person other than Subject #2, the FBI learns of significant activities by Subject #2 to circumvent United States laws for the benefit of the foreign power.
Disclosure of the classified information in this scenario would reveal the source of the information and, in all likelihood, would preclude further receipt of information from the source. It would reveal, as well, knowledge of the United States concerning the activities of the organization and the individuals supporting it. It would reveal our knowledge of a foreign power's efforts to circumvent United States law, and thereby alert the foreign power to the need to switch to new tactics. Disclosure of the electronic intercept would reveal the investigation and targeting of the other person. In short, the inability to use classified information in this case would do serious damage to the national security.
* * * * * * *
For all these reasons, the Justice Department is opposed to HR 2121.
Mr. Chairman, this concludes my statement, and I would be happy to answer the Committee's questions.
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