and 55 percent (about 12.4 million in 1996) of the business and travel visitors who enter the United States now take advantage of this program. Both the Czech Republic and Slovenia are now requesting entry into this program.

According to State, this program affords the government the ability to deny entry based on criminal or terrorist information without the lengthy and difficult procedures associated with a visa revocation, which requires a decision by the Secretary of State.

Whatever streamlining this program affords, however, one extremely detrimental result of this program is that it puts the entire burden for exclusion on the INS by permitting terrorists to skip an important element of the screening process consulate screening on foreign soil subject to a 30 day (as opposed to one minute_at ports of entry) limit with a guaranteed search in the CLASS database. In 1985, Yu Kikumura, a major figure in the Japanese Red Army terrorist organization, was arrested on the New Jersey Turnpike at a rest area by a suspicious state trooper. He was convicted for carrying explosives for an attack on the United Nations which was to coincide with an attack in Italy that killed an American. Kikumura entered the United States by exploiting the visa waiver system, and there is nothing stopping other terrorists from attempting to do the same. This result shifts the burden of identifying and denying visas, and thus excluding such terrorists, from State to the INS.

THE ANTITERRORISM ACT

The 1996 Antiterrorism Act was passed in the aftermath of the 1993 World Trade Center and 1995 Oklahoma City bombings. Its purpose was to significantly enhance American counterterrorism efforts both at home and abroad. The Act sought to increase the security role of the INS by significantly revamping immigration law to make it more difficult for terrorists to enter and stay in the United States. The Act also modified asylum and deportation procedures. (Subsequent modifications then occurred a few months later when the Illegal Immigration Reform and Immigrant Responsibility Act [IIRIRA] was signed into law.)

The Act also lengthened the long arm of U.S. law overseas by supplementing the types of crimes considered terrorist acts and extending U.S. law to acts occurring abroad. In addition, entire titles of the Act are devoted to reforming death penalty procedures and expanding current laws regarding mandatory victim restitution. Another title is devoted to assisting law enforcement with carrying out its augmented responsibilities under the Act. Much of this title is devoted to the FBI, which is given primary investigatory responsibility for all federal crimes of terrorism under the Act. Here, however, the focus is on two of the Act's most contested provisions: (1) the authorization given to State to designate foreign terrorist organizations and (2) the Alien Terrorist Removal Court. Both provisions were intended to be important tools for excluding and removing terrorists from the United States.

Technically, excluding terrorists means denying an alien a visa at an overseas consular office or denying admission at a U.S. port of entry or border. Therefore, exclusion works in tandem with identification, so that once a terrorist is identified, State or the INS can then effectively exclude the individual. To date, Tipoff (State's terrorist database) has helped the INS exclude or arrest 97 terrorists, although INS claims only three exclusions from FY 94 to FY 97.

Members of terrorist organizations inadmissible

Filling a gap in the law, Section 411 of the Antiterrorism law makes being a member or representative of a foreign terrorist organization designated pursuant to INA Section 21937 grounds for denying an alien admission to the United States (but not for deporting an alien). As a result, only designated organizations have their members or representatives excluded solely on the basis of their membership. Organizations not designated, like the IRA, are not subject to this provision. The only exception is an explicit INA provision stating that "an alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this Act, to be engaged in terrorist activity."

"38

Netherlands (89); New Zealand (91); Norway (91); San Marino (91); Slovenia (97); Spain (91); Sweden (89); Switzerland (89); and United Kingdom (88).

36 A discussion of exclusion is necessarily interwoven into the section of this report entitled "Identifying Terrorists," and its subsection on the role of the INS in identifying terrorists, and thus will not be repeated in this section.

37 INA § 212(a)(3)(B)i) (IV) and (V).

38 INA § 212(a)(3)(B)V).

As amended by the IIRIRA, the definition of "representative" of terrorist organization is limited to instances in which the alien knows or should have known that the organization is involved in a terrorist organization. As under previous law, this provision makes an alien deportable for engaging in terrorist activities. "Engaging" is defined as providing material support, intelligence or preparation and planning for a terrorist activity or soliciting funds or members for a terrorist organization.39 Expedited exclusion

The INS did not begin to implement the new expedited exclusion provisions available under the Antiterrorism Act and IIRIRA until April 1, 1997.40 Section 422 of the Antiterrorism Act authorizes the expedited exclusion of aliens who present fraudulent documents or lack valid documents, except for aliens expressing a credible fear of returning their countries. Section 423 compliments Section 422 by severely limiting judicial review of exclusion orders issued under the special expedited removal procedures authorized under Section 422. Collateral removal orders in actions to assess criminal penalties for illegal entry or reentry are precluded. These provisions are substantially continued under the IIRIRA. These laws together also change immigration law significantly by redefining aliens who enter without inspection as not admitted, and thus excludable, rather than admitted and subject to deportation proceedings.

As of July, 1997, the INS had gathered three months of data on expedited exclusion implementation, including information on implementation of the "fear of return" provision. Statistics were compiled from 25 of the largest ports of entry and INS eight asylum offices. New automated data systems were being designed to track individuals subject to expedited exclusion. The preliminary data indicates that 1,200 people per week were subject to expedited exclusion from April 1 through June 30. Of these cases, 80 percent were from ports of entry on the southwest border.41 The INS also reported the following statistics:

Of the reported cases arriving at the 25 largest land, sea and air ports involving aliens subject to expedited removal, approximately five percent were referred by INŠ inspectors for a “credible fear" hearing before an asylum officer.42

Of the cases involving 25 of the airport ports of entry, about 20 percent of the arriving passengers subject to expedited removal were referred to an asylum officer for a "credible fear" hearing.

Approximately 33 percent of those persons inadmissible under expedited removal have been permitted to withdraw their applications for admission. The INS may permit an arriving alien to withdraw an application for admission to avoid the penalties associated with a removal order. Withdrawal is appropriate, for example, if the arriving alien lacks proper documents innocently rather than through an effort to circumvent the immigration laws.

About 80 percent of the total number of cases referred and interviewed have met the "credible fear" standard. These aliens were provided the opportunity to have their asylum claims heard by an immigration judge.

The vast majority of aliens placed in expedited removal have been Mexican nationals. Of the cases referred for credible fear, the two largest nationalities were Chinese (17 percent) and Sri Lankan (15 percent). Nationals from 60 countries have been referred for a "credible fear" interview.43

In addition, the INS "took steps beyond what is required in the statute to ensure that aliens affected by expedited removal are treated fairly and that their rights are protected." 44 Some of these steps include: asking all those subject to expedited exclusion whether fear of return exists; permitting "credible fear" interviews to take place after 48 hours in a detention facility to permit the alien time to review "credible fear" process information, and obtain consultation and rest; requiring INS supervisors to review all decisions of secondary inspectors and asylum officers before they

39 Two Ninth Circuit decisions in American-Arab Anti-Discrimination Committee v. Reno (1995 and 1997) have circumscribed the reach of this provision. The decisions suggest that aliens have First Amendment rights of association. See section on "Removing Terrorists" for a more detailed discussion of these cases.

40 On August 1, 1997, Chairman Kyl sought information about the implementation of this provision. Questions read: "How are those provisions being implemented to expedite the exclusion of aliens who are excludable because of misrepresentation or lack of valid documents? How are they applied in this case? Are those who attempt to enter without proper documentation being excluded at the border? What has been done to educate those patrolling the border about the requirements of this law and IIRIRA?"

4INS Fact Sheet, "Update on Expedited Removals" 7/9/97.

42 All asylum officers undergo a three week basic training class. Those handling "credible fear" and expedited removal receive additional training.

43 INS Fact Sheet, "Update on Expedited Removals" 7/9/97. 44 Id.

take effect; and placing those who meet the "credible fear" criteria in removal proceedings before an immigration judge, in front of whom asylum and other forms of relief can be applied.

Expedited exclusion as applied to aliens who enter without inspection

Abu Mezer entered without inspection (EWIs) three times. But despite Section 414 of the Antiterrorism Act giving the INS authority to apply expedited exclusion provisions to EWIS, the INS has decided not to use this authority. Instead, expedited exclusion is only being implemented at ports of entry. Technically, the Antiterrorism Act provided that EWIS are removable through exclusion procedures, rather than deportation procedures. But when Section 422 of the Antiterrorism Act did not specifically address whether EWIs were subject to expedited removal, IIRIRA then extended expedited removal to EWIS who have not been here two years.

Removal pursuant to the Antiterrorism Act

The INS reports it has deported 155 persons for terrorist reasons from FY 94 to FY 97. So far, however, there have been no removals sought pursuant to one of the most important and controversial provisions in the Antiterrorism Act, the Alien Terrorism Removal Court, whose purpose was to enable Justice to seek removal of aliens where only classified evidence existed linking the alien to terrorist activity. The reasons for the delay appear to be a combination of lingering, and somewhat unhelpful, codified definitions of terrorist activity; a recent Ninth Circuit decision; codifed immigration law; and substantial prudence on the part of Justice officials. Section 401

Section 401 of the Antiterrorism Act establishes a special Alien Terrorist Removal Court (ATRC) to remove non-citizen terrorists who threaten the national security of the United States. The law enables the Attorney General to seek recourse to the court whenever removing an alien on terrorism grounds through the usual deportation 45 administrative process would jeopardize national security. An alien may be removed based on classified information ex parte and in camera. The Removal Court itself is made up of five District Court judges to serve five year terms, appointed by the Chief Justice of the Supreme Court.

The law provides the Attorney General with the power to initiate removal procedures by filing an application with the ATRC indicating probable cause that an identified alien is a terrorist and that recourse to normal removal procedures would pose a risk to national security. A judge of the special court considers the application ex parte and in camera. The hearing itself is public. Classified information supporting the application also may be introduced in chambers and out of the alien's presence. Appeals from interim or final decisions are available.

Section 401 of IIRIRA distinguishes between permanent resident aliens and other aliens by requiring that permanent resident aliens be appointed a special counsel to examine the classified information on the alien's behalf. This addition was born out of caution, since a deportation is a civil proceeding where the derived rights are statutory and do not require the more extensive procedural rights constitutionally required in criminal cases.46

45 The INS has determined that the ATRC only applies to cases of deportability, not inadmissibility. Traditionally, a distinction was made between an alien subject to deportability (deemed to have entered the U.S.) and an alien who was inadmissible (seeking entry). The INS concluded the narrow reach of ATRC jurisdiction after examining how "alien terrorist" is defined pursuant to INA §241(a)(4)(B), and its updated version, INA §247(a)(4)(B), neither of which mention a terrorist ground for inadmissibility, and only the earlier version of the law mentioning a ground for deportability. In addition, the conference report attached to the Antiterrorism Act which created the ATRC only refers to deportation cases. To facilitate addressing the circumscribed reach of the ATRC, the INS recently promulgated regulations (8 CFR § 235.8(e)) which extends the ATRC's jurisdiction to those illegals aliens who enter without inspection.

46 Testimony of Seth Waxman, submitted to the Senate Judiciary Committee while he was in the Deputy Attorney General's office, and during consideration of the proposed Omnibus Counterterrorism Act of 1995, regarding provisions relating to alien terrorist removal and fundraising for terrorist activities.

Implementation of section 401

The ATRC has judges 47 and rules 48 in place, but a year and a half since the passage of the Antiterrorism Act, the Attorney General has yet to make an application to it. Ironically, it is Justice that supported the creation of the ATRC for its significant, if admittedly limited, use. During consideration of this provision, now Solicitor General Seth Waxman argued convincingly for the need for the ATRC:

"The existing deportation procedures under the INA were not designed to address such cases [where only classified information supports deportation based on terrorist activity], forcing the government to abandon deportation efforts where critical classified evidence cannot be used due to the absence of protective procedures. I have personally received materials relating to some of these cases, and I can tell you the problem is both real and deadly serious. There are deportable aliens in this country known to be actively supporting terrorist organizations whom we have not sought to deport because we simply cannot publicly disclose FISA intelligence and confidential sources and methods. We have been compelled to allow the naturalization of a number of known terrorism supporters because we are unable to use classified information against them.” 49

The hope was that, with a definitional change of “engaging in terrorist activity" in the law, one significant use of the ATRC would be as a springboard for removing aliens who provide material support to foreign terrorist organizations through fundraising here in the United States. To turn this hope into reality, Justice proposed a change in the definition of terrorist activity under 18 U.S.C. § 212(a)(3),50 This definition bans "material support" to a terrorist organization, including fundraising. But the way the definition is written, the alien must know, or reasonably should know, that money raised is going toward a terrorist activity. Considering that large, well-organized terrorist organizations, like Hamas and Hizballah, have substantial community-based charitable social service functions, 51 it is exceedingly difficult to prove that an alien who raises funds for a terrorist organization has reason to know that particular monies are being funneled directly into specific overseas terrorist activity. The Senate passed the definitional change, the House did not, and the change dropped out at conference. The ATRC, then, was given a legal framework but was deprived of the means to make it a robust, working court.

Complicating using the ATRC as a forum to remove aliens who raise money for terrorist organizations are the two Ninth Circuit decisions in Arab-American AntiDiscrimination Committee v. Reno. 52 This first decision (1995) suggests that the due process procedures set out for the ATRC can be subject to both statutory and con

47 Chief Justice Rehnquist appointed the five judges to serve on the ATRC in 1996. The Chief Judge is the Honorable Earl H. Carroll of Phoenix, Arizona. The other four judges are the Honorable Michael A. Telesca of Rochester, New York; the Honorable David D. Dowd, Jr. of Akron, Ohio; the Honorable William C. O'Kelley of Atlanta, Georgia; and the Honorable Alfred M. Wolin of Newark, New Jersey.

48 On May 28, 1997, Chief Judge Earl Carroll ordered rules be adopted for the Alien Terrorist Removal Court (ATRC). These rules set out the site for the court (U.S. Courthouse, Washington, D.C.) and procedures for application to the court, motions, subpoenas, use of classified information, as well as the content of the required pre-hearing memorandum. On March 14, 1997, the U.S. Court of Appeals for the District of Columbia Circuit issued appellate rules for the ATRC. Appeals to the Circuit Court may be based on the denial of a removal application, a decision after a removal hearing, a release or a detention order, or interlocutory (if a dispute arises over a discovery order).

Security procedures have yet to be adopted. Promulgation of these rules is a joint effort between the Director of Central Intelligence, the Attorney General, and the Chief Judge of the ATRC. Justice states that the lack of security procedures is not a hindrance to a decision by the Attorney General to make an application.

49 Testimony of Seth Waxman, submitted to the Senate Judiciary Committee while he was in the Deputy Attorney General's office, and during consideration of the proposed Omnibus Counterterrorism Act of 1995, regarding provisions relating to alien terrorist removal and fundraising for terrorist activities.

50 18 U.S.C. §212(a)(3) provides that, if a consular officer or the Attorney General has a reasonable ground to believe that an alien is engaged in terrorist activity, that alien is inadmissible.

51 For more information on the activities of these and other Middle East terrorist organizations, see the CRS Report for Congress on "Terrorism: Middle Eastern Groups and State Sponsors, 1997" by Kenneth Katzman (July 10, 1997).

52 70 F.3d 1045 (9th Cir. 1995).

51-593 98-6

stitutional challenge.53 The second decisions (July 1997) 54 held that First Amendment associational activity such as recruiting members and raising humanitarian aid is protected activity. That means if an alien provides "material support" to an "international terrorist and communist organization” which also engages in lawful activity such as "education, daycare, health care, social security; and cultural activity such as publications and political organizing," 55 the "lawful" activity shields this individual from being deported on the grounds of materially supporting a terrorist organization. The Ninth Circuit thus upheld preliminary injunctions against the deportation of seven Palestinians and a Kenyan-born wife in this case, whom Justice had been trying to deport for 10 years.56

Newly codifed immigration law also seems to diminish the need for the ATRC. After the enactment of the Antiterrorism Act in April of 1996, IIRIRA became law, codifying procedures for the deportation of aliens based on classified information. 57 These procedures basically codified an array of existing case law,58 statutory law 59 and INS regulations.60 These procedures permit immigration judges to consider national security information offered by the government in opposition to an alien's admission to the U.S. or to an application by an alien for discretionary relief in proceedings on an alien's admissibility or deportability without the alien being entitled

53 Arab-American Anti-Discrimination Committee v. Reno held that there was no statutory authority for the INS to consider undisclosed classified information in deciding whether an illegal alien qualified for legalization under the IRCA. The court also said that the balancing test used in due process cases suggests that the use of undisclosed information in adjudications should be presumptively unconstitutional.

54 See Arab-American Anti-Discrimination Committee v. Reno, 1997 U.S. App. LEXIS 17533 (July). The suggestion of the holding in this case circumscribes numerous provisions of the Antiterrorism Act by suggesting that non-citizen aliens have First Amendment rights of association. Affected provisions, other than the ATRC, are: section 302, providing that it is unlawful to knowingly give, or attempt to give, material support or resources to a foreign terrorist organization; section 411, which makes a member or representative of a terrorist organization who solicits funds or members on behalf of a terrorist organization grounds for denying an alien admission to the U.S.; section 413, renders aliens who have engaged in terrorist activities ineligible for various types of relief from forced removal; section 421, specifically making an alien deportable on the basis of past terrorist activities ineligible for asylum; and section 726, which makes it a crime to launder the proceeds from various terrorist-related offenses, including financial support of terrorists, and makes such crimes predicate offenses to the money laundering statute.

On August 19, Justice filed a petition for a rehearing en banc in this case, in part on the basis that the First Amendment holding disregards substantial prior case law. According to Justice, hundreds of cases are affected by this decision.

56 Id. at 4.

56 The court also found that aliens' First Amendment rights also suffered in this case from disparate impact (others similarly situated were not prosecuted) and discriminatory motive (impermissible prosecutorial motive).

57 See IIRIRA § 304 (incorporated at INA §240).

58 Jay v. Boyd, 351 U.S. 345, 354 (1956). In Jay the Supreme Court held that the INS can use classified information to oppose an application for discretionary relief in a deportation case. The Second Circuit Court of Appeals has already decided that the denial of a withholding of deportation based wholly on confidential undisclosed information was not a violation of due process. U.S. ex rel. Dolonz v. Shaughnessy, 206 F.2d 392 (2nd Cir. 1953), cert. denied, 345 U.S. 928 (1953) The Second Circuit reasoned that "Congress intended the Attorney General to use whatever information he has. To preclude his use of confidential information unless he is willing to disclose it to the alien would defeat this purpose." Id. at 395.

An example of how the INS has been able to rely upon these procedures is when an immigration judge's denial of asylum and withholding of deportation of Sheik Omar Abdel-Rahman was upheld by the District Court on the ground that "there are reasonable grounds for regarding him as a danger to the security of the United States". Ali v. Reno, 829 F.Supp. at 1436. According to an INS brief, "the authority of the immigration judge and the Board to rely on undisclosed classified information under 8 CFR § 208.1(c) and 8 CFR §236.3(c)(4) was considered so incontestable by the District Court *** that the court expressly stated that this was not an issue before the court because "clearly they could [rely on classified information]. Id. at 1435. 59 INA §235(c) permits the INS to use expedited procedures to oppose the admission of terrorist for national security reasons.

60 8 CFR §235.8 are the INS wholly written proceedings created to put §235(c) (see previous footnote) to use. The typical (but rarely encountered) scenario might look something like this: an alien arrives at the airport and attempts to legally enter; the inspector receives an immediate computer database hit stating reasonable suspicion to believe the alien is a terrorist; the alien is immediately issued a Temporary Notice of Inadmissibility and given five days to respond; the Notice is immediately sent to the INS regional director, who reviews the petition and accompanying classified information, and issues an order of exclusion; the alien then has an immediate right of appeal to the Court of Appeals. These proceedings are seldom used, however, because the alien has the right to withdraw his application for admission and depart before the proceedings get underway.