The Secret Evidence Repeal Act (H.R. 2121), introduced by Democratic Representative David Bonior (D-MI) and Republican Representative Tom Campbell (R-CA), with ultra-conservative Representative Bob Barr (R-GA) and ultra-liberal Democratic Representative Conyers as original co-sponsors, has picked up five new co-sponsors, bringing the total to 63. The new co-sponsors are Reps. Tom Davis (R-VA), William Delahunt (D-MA), Matthew Martinez (D-CA), Jim McDermott (D-WA), and Martin Meehan (D-MA). The bill would repeal that portion of the Anti-Terrorism and Effective Death Penalty Act of 1996 that allows the Immigration and Naturalization Service (INS) to arrest, detain, and deport non-citizens on the basis of secret evidence, whose source and substance is not revealed to the potential deportees or their counsel.
In another positive development, Rep. Lamar Smith (R-TX), chairman of the House Immigration subcommittee, agreed to hold a hearing on H.R. 2121 on Feb. 10. (Smith had no rating, in either the very good or very bad columns, in this magazine’s congressional report card published last month, and he conducted the hearing with no apparent bias.) As it developed, the hearing probably gave a major boost to the bill.
Campbell, Bonior, Conyers and others did a good job of pointing out the unconstitutionality and sheer unfairness of the process, and the FBI and INS witnesses did a poor job of presenting the case for retain-ing the use of secret evidence and seemed unable or unwilling to give straight answers to the often pointed questions from the committee members. Perhaps the best indication of how the hearing advanced the bill’s chances was an off-the-cuff comment from committee member Rep. Howard Berman (D-CA), not particularly known as a friend of Arab-Americans but with strong liberal credentials. He said, "The more I think about this [use of secret evidence], the more I dislike it, and I thank Mr. Campbell and Mr. Bonior for forcing me to think about it."
However, although the bill seems to be gaining support, there still does not appear to be much chance that it will be brought to a floor vote in the House, and almost no chance that it would pass if brought to a vote this year. Most members of Congress are not known for political courage, and do not appear ready to risk being painted "soft on terrorism" in an election year, even over matters of democratic and constitutional principles.
Meanwhile, in the Senate (where no similar bill has been introduced), Michigan’s two senators have taken a different ap-proach. As reported in the December issue of the Washington Report, Sen. Spencer Abraham (R-MI) and his staff have been working with Attorney General Janet Reno and her staff to come up with acceptable new regulations to control the use of secret evidence. They report progress, but there remain a number of sticking points.
Also, on Jan. 31, Sen. Carl Levin (D-MI) took to the floor of the Senate to decry the use of secret evidence in immigration pro-ceedings. He noted that Reno has promised to issue new regulations but has not done so, and he urged her to suspend the use of secret evidence until "a fair process is in place."
In fact, while nothing official has been issued, Reno may have quietly suspended the use of secret evidence, since apparently no new cases have been brought in the past several months. However, judging from the FBI and INS testimony on Feb. 10, it looks like there will be strong opposition from law enforcement agencies to new regula-tions that impose a total ban on the use of secret evidence. Perhaps what eventually will emerge will be some protection in the form of a judicial review process, not under the control of the Justice Department as is presently the case.
-from The Washington Report on Middle East Affairs
