CBP statistics reveal that Border Patrol agents apprehended 169 aliens on the terrorist watchlist in FY 2023 (which ended on September 30), and an additional 12 in the month of October alone. So, what did it do with them? Did it detain them, expel them, or simply release them into the United States? The latter option is not as unlikely as you may suspect, in large part due to a memo that then-DHS Secretary Tom Ridge issued in October 2004, captioned “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”.
“Secret Evidence”
Though it is hard to remember given the trauma of September 11th, in the year leading up to those attacks, there was a public (and bipartisan) hue and cry over the use of so-called “secret evidence”, i.e. information classified at the “secret” or “top secret” level, against alien respondents in immigration proceedings.
Consider the following, from the U.S. Commission on Civil Rights:
The use of classified, or secret, evidence in certain immigration proceedings was first authorized in 1955. Essentially, the use of secret evidence allows the Immigration and Naturalization Service of the U.S. Department of Justice to use as evidence during deportation proceedings information that is not shared with the individual facing deportation. The lack of a defendant's access to the secret evidence makes it nearly impossible for him or her to make a defense against serious deportation charges and makes it possible for an individual with extensive family and community ties in the United States to be deported on the testimony of unnamed informants whose charges are taken as fact and cannot be challenged.
In 1996, following the World Trade Center and Oklahoma City bombings, Congress passed the Antiterrorism and Effective Death Penalty Act. Though the earlier 1955 provisions continue to be used as federal authorization for the use of secret evidence, one of the byproducts of the passage of the Antiterrorism and Effective Death Penalty Act of 1996 has been the increased use of secret evidence in proceedings against immigrants.
While court rulings have held that residents in the United States are entitled to the same constitutionally guaranteed protections afforded to citizens, secret evidence is being introduced in trials across the country. The controversial provision has been used in approximately two dozen cases in which the Immigration and Naturalization Service (INS) asserted national security concerns as the basis for depriving immigrants of the right to examine and confront adverse witnesses and evidence. All of the cases are against Arab or Muslim immigrants.
Both the Immigration and Nationality Act (INA) and federal regulations—both then and now—authorize ICE attorneys in immigration courts to submit classified information to an immigration judge for the court’s review and consideration ex parte—without the alien respondent or the respondent’s attorney reviewing it—and in camera—that is, not in open court.
The regulations in particular direct DHS to attempt to provide the alien with “an unclassified summary of the information for release to the” alien, but do not mandate such release.
In the interests of disclosure, I should note that as an INS trial attorney and associate general counsel, I submitted (or authorized the submission of) classified evidence ex parte and in camera to immigration judges. Few knew what to do with it, and most tried to minimize their consideration of it to the degree possible.
Despite that statutory and regulatory authorization, in its June 2000 final report, the National Commission on Terrorism (the “Bremer commission”, not to be confused with the later “9/11 Commission”) concluded that “resort to use of secret evidence without disclosure even to cleared counsel should be discontinued”. And that was a commission intended to stem the terrorist threat.
In that same timeframe, a bipartisan group of congressmen introduced the Secret Evidence Repeal Act of 2000 (SERA), which would have significantly limited the use of classified evidence in removal proceedings. The House Judiciary Committee’s Subcommittee on Immigration and Claims held hearings on the bill, but it died without further action.
Then-candidate George W. Bush also vowed on the 2000 presidential campaign trail that he would end the practice of using classified evidence ex parte and in camera in immigration proceedings, but as the Tampa Bay Times reported:
Nearly a year after Muslim- and Arab-Americans endorsed George W. Bush for president, they say they have tired of waiting for him to keep what they thought was a promise to end the government's use of secret evidence to jail members of their community.
Note that this article was published on September 1, 2001.
In any event, the events of September 11th pushed the call for ending classified evidence in removal proceedings to the back burner, though I am unaware of any efforts to introduce so-called secret evidence in any of the cases that were brought in response to those attacks.
“Guidelines for the Use of Classified Information in Immigration Proceedings”
Which brings me to the October 4, 2004 memo from then-DHS Secretary Tom Ridge to, among others, the heads of CBP, USCIS, ICE, and the Coast Guard, captioned “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”.
In it, the secretary explained: “While the Act and regulations allow for the use of classified information, the Secretary of the Department has determined, in his discretion, that the Department will use classified information only as a last resort.”
“Last resort” is not the sort of language one expects to see in a secretarial memo, but interestingly, Ridge defined it therein:
“Last resort” means that classified information will be introduced in an immigration proceeding only where other options have been examined and weighed, no alternative option exists that will ensure success on the merits, and the case presents a compelling need for use of such information. In cases where the Department is considering the use of classified information, the alien must be investigated for any violation of law, including but not limited to the civil and criminal provisions of the INA. In many instances, the alien may have committed visa fraud, passport fraud, misrepresentation, perjury, identity fraud, and other civil and criminal offenses, which, if pursued, might eliminate the need to rely on classified evidence. Similarly, unclassified derogatory facts that are relevant to the immigration case but are not actionable in a criminal proceeding may exist and maybe sufficient to achieve the Department's purpose without the Department resorting to using classified evidence; consequently such unclassified information should also be thoroughly investigated and explored for use in immigration proceedings.
Those guidelines mandate a complex and convoluted review process before classified evidence can be used against a removable alien, including sign-off by the secretary himself (and by the Attorney General where the evidence was obtained through FISA), though it does include a narrow exception allowing for the use of an “abbreviated procedure” in “exigent circumstances”.
It should be noted that even when I was utilizing classified evidence ex parte and in camera in removal proceedings, both as an INS trial attorney and in the agency’s National Security Law Division (which I also headed up for a time on an acting basis), the use of such evidence was subject to high-level review at DOJ. But it was nothing like this.
To the best of my knowledge, neither ICE, nor CBP, nor USCIS has subsequently used classified evidence against any alien since the Ridge memo was published, and honestly, that was likely why the memo was published to begin with: it’s death by a thousand bureaucratic papercuts.
Perhaps the restrictions in the Ridge memo could be complied with if: (1) the administration were willing to detain aliens whose cases contained derogatory classified information pending that review process; and (2) the number of such aliens was sufficiently limited.
As noted at the outset, however, the number of illegal entrants apprehended by Border Patrol who are on the terrorist watchlist has ballooned under the Biden administration, going from 11 total in the four fiscal years between FY 2017 and FY 2020 to 15 in FY 2021, 98 in FY 2022, and 169 in FY 2023.
It’s likely if not probable that the U.S. government has derogatory classified evidence against each of those aliens, but assessing that many cases under these guidelines would next to impossible. And, as I have made clear countless times in the past, the Biden administration is reluctant to detain most illegal migrants, despite statutory mandates for it to do so.
That includes aliens flagged on the terrorist watchlist, at least one due to error and at least one other by choice. And those are just the cases that we know about.
The Ridge memo appears to still be in effect. Given the surge in migrants entering the United States illegally on the terrorist watchlist, and warnings by the FBI director that recent Hamas attacks in Israel could inspire terrorist actors in the United States, it’s incumbent on Congress to get to the bottom of what’s happening—and to assess whether those guidelines are impeding national security.
As the DHS Homeland Threat Assessment 2024 explains: “Terrorists and criminal actors may exploit the elevated [border] flow and increasingly complex security environment to enter the United States.” If DHS itself—hamstrung by the Ridge memo and White House immigration policies—won’t prevent that from happening, Congress must step in to secure the homeland itself.