A Clash of Values: Classified in Information in Immigration Proceedings

The U.S. principle of separation of powers provides an established institutional mechanism for protecting both national security and due process rights. While courts are expert at deciding what procedures are required to protect an alien's interests, the executive is best positioned to protect national security. This Note will argue that allowing the judicial branch to balance national security interests against individual rights will lead to results skewed by current events: In times of crisis, national security concerns may supersede respect for aliens' rights, but in times of peace, national security may be treated too lightly. The better alternative is to return to the executive the difficult choice of how best to further national security, given the need to take action in an individual case as well as to protect ongoing investigations and critical sources of information. The executive branch should be constrained by a judicial review of due process rights that ensures that aliens subject to final immigration determinations are able to respond to allegations against them. Complete deference to the executive would allow this branch to ignore individual rights concerns, especially when the group targeted is unpopular or suspect. With the additional protection of judicial review, however, the powers of each may be properly allocated. This Note will first briefly review the due process rights of aliens and pivotal early Supreme Court cases that laid the groundwork for the continuing use of classified evidence in immigration proceedings, as well as the terrorism exception recognized in dicta by the Court in Zadvydas v. Davis. The Note will then consider two lower court rulings that are emblematic of pre- September 11 decisions, both holding that the use of classified information violates the due process rights of aliens: In these cases, the courts reached their holdings by balancing the government's national security interests against the aliens' due process rights. Next, the Note will discuss legislation passed in the mid-1990s that created new procedures for using classified evidence in deportation proceedings. Finally, the Note will compare the Classified Information Procedures Act ("CIPA") with the Alien Terrorist Removal Court ("ATRC"), two different mechanisms governing the use of classified information in immigration proceedings. The Note will conclude that CIPA is preferable because it eliminates the need for the judiciary to balance national security concerns against individual rights.