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April 26, 1995

Clinton Terrorism Legislation Threatens Constitutional Rights

On February 10, 1995, a counterterrorism bill drafted by the Clinton Administration was introduced in the Senate as S. 390 and in the House of Representatives as H.R. 896.

The Clinton bill is a mixture of: provisions eroding constitutional and statutory due process protections, selective federalization -- on political grounds -- of state crimes (minus state due process rules), discredited ideas from the Reagan and Bush Administrations, and the extension of some of the worst elements of crime bills of the recent past.

The legislation would:

authorize the Justice Department to pick and choose crimes to investigate and prosecute based on political beliefs and associations; repeal the ancient provision barring the U.S. military from civilian law enforcement; expand a pre-trial detention scheme that puts the burden of proof on the accused; loosen the carefully-crafted rules governing federal wiretaps, in violation of the Fourth Amendment; establish special courts that would use secret evidence to order the deportation of persons convicted of no crimes, in violation of basic principles of due process; permit permanent detention by the Attorney General of aliens convicted of no crimes, with no judicial review; give the President unreviewable power to criminalize fund-raising for lawful activities associated with unpopular causes; renege on the Administration's approval in the last Congress of a provision to insure that the FBI would not investigate based on First Amendment activities; and resurrect the discredited ideological visa denial provisions of the McCarran Walter Act to bar foreign speakers.

The U.S. has not been a fertile breeding ground for terrorism. Part of the reason lies in the values at the core of our unique system of governance -- diversity, religious and ethnic tolerance, acceptance of change, openness to new ideas, constitutional limits on government discretion, reliance on legal proceedings open to public scrutiny. These values make it hard to nurture in the U.S. the ethnic or religious hatred that fuels much terrorism. Unfortunately, these values would be undermined by this legislation.

1. Use of Secret Evidence to Deport Aliens Not Charged with Criminal Activity

Title II is a slightly modified version of a proposal first made during the Bush Administration, which Congress twice refused to enact. The changes made by the Clinton Administration do not cure the essence of the proposal: it would create a special court to hear secret evidence against aliens whom the government wishes to deport.

It is important to recognize at the outset that the provision applies only to aliens who are not charged with any crime. If any person found in this country was suspected of committing a crime, especially a terrorist crime, that person would be arrested and put on trial here or extradited to a country where he could stand trial. This provision is designed to allow the government to deport persons who are deemed undesirable because of their political associations and beliefs.

For the government to take adverse action against an individual based on secret evidence is the antithesis of American jurisprudence and a fundamental due process violation.

Aside from the Star Chamber concept that is at the core of this provision, it has many other extraordinary features, among them the following:

Use of Illegally Obtained Evidence. The provision states: "Nor shall such alien have the right to seek suppression of evidence." Repealing the exclusionary rule eviscerates the Fourth Amendment protection against unreasonable search and seizure.

Exemption from FISA Standards. The Foreign Intelligence Surveillance Act has a meticulously crafted set of procedures intended to balance the rights of individuals against the national security. Those procedures include a requirement that the government give the defendant notice when it intends to use information from a FISA wiretap and allow the defendant to move to suppress the evidence if it was obtained illegally. The bill would make such provisions, which have worked fine in the most serious espionage cases, inapplicable in alien deportation cases.

Permanent detention. If no country is willing to receive an alien ordered deported under the new provisions, the bill states that "the Attorney General may, notwithstanding any other provision of law, retain the alien in custody. ... Any alien in custody pursuant to this subsection shall be released from custody solely at the discretion of the Attorney General."

Appeals only in D.C.. In what appears to be either forum- shopping or an effort to impose additional costs on aliens fighting deportation, the bill would allow appeals from deportation proceedings only to the United States Court of Appeals for the District of Columbia Circuit, forcing attorneys from all over the country to come to Washington.

Guilt by Association. The legislation subtly but critically rewrites the definition of engaging in terrorist activity in the Immigration and Nationality Act, which serves as the basis for the exclusion of aliens seeking entry and the deportation of aliens already in this country.

The current law defines "to engage in terrorist activity" to cover someone who "affords material support to any individual, organization, or government in conducting a terrorist activity." The revised definition would read: "affords material support to an individual, organization, or government which the actor knows or reasonably should know has committed or plans to commit terrorist activity." The change would remove the current law's requirement that there be a nexus between the material support and the terrorist activity, thereby allowing exclusion and deportation of any alien who had supported the peaceful, legal activities of a group that engaged, or had subgroups that engaged, in illegal acts. The "has committed" language would even seem to sweep in those who support groups that once committed but have now foresworn terrorism.

Guilt by Association, Part II. The bill would resurrect the discredited ideological tests of the McCarran Walter Act for denying foreign visitors visas to come to speak in the U.S. While the Immigration Act of 1990 authorized the denial of visas to persons who had engaged in terrorist activities, this bill would deny visas to all representatives or spokespersons for groups labeled terrorist, even if the representative or spokesperson had never engaged in any illegal activity. This test would have allowed the exclusion of representatives of the African National Congress or the IRA or many other political groups, even if they were seeking to enter the U.S. to talk about prospects for peace.

Continued Exclusion of PLO Representatives. Even after Yassar Arafat has been received at the White House, where he signed a peace accord with Israel, he and every other alien who is a representative of the PLO is "considered, for purposes of this Act, to be engaged in a terrorism activity."

Son of Star Chamber. Section 202(d) of the bill seems to authorize a mini-Star Chamber proceeding, allowing the use of classified information in any deportation case, even those where the complex provisions of the alien terrorist removal section are not invoked.

2. Terrorist Fund-Raising Is Whatever the President Decides It Is and Nobody Can Question His Decision

Title III of the bill creates a new federal crime of "terrorist fund-raising." The provision would allow the President to define the crime by designating certain groups as terrorist organizations. The President can also designate individual persons who are raising funds for, or acting for or on behalf of, any organization he designates. From then on, it is a crime for "any person subject to the jurisdiction of the United States anywhere, to directly or indirectly, raise, receive or collect on behalf of, or furnish, give, transmit, transfer or provide funds to or for an organization or person" so designated, unless a license has been granted by the Secretary of the Treasury.

In an attempt to avoid judicial review of designations that are either arbitrary or politically motivated, the legislation states that the President's designation of a group or individual would be final. "Any finding made in any designation pursuant to [this section] shall be conclusive. No question concerning the validity of the issuance of such designation may be raised by the defendant in a criminal prosecution as a defense or as an objection to any trial or hearing." Introducing a further opportunity for biased or inconsistent decisions, the legislation allows the President to take an organization or person off the list whenever he decides that "the national security, foreign relations, or economic interests of the United States so warrant," even though the organization is still involved in terrorist activity.

The new crime adopts by reference the definition of terrorist activity in the Immigration and Nationality Act. That definition states that a terrorist organization means any organization engaged, or which has a significant subgroup which engages, in terrorism activity, regardless of any legitimate activities conducted by the organization or its subgroups.

The fundraising provisions are unconstitutional because they violate the fundamental principle of our constitutional law that "a blanket prohibition of association with a group having both legal and illegal aims," without a showing of specific intent to further the unlawful aims of the group, is an unconstitutional infringement on "the cherished freedom of association protected by the First Amendment." Elfbrandt v. Russell, 384 U.S. 11 (1966). As the Supreme Court emphasized in Noto v. United States, 364 U.S. 290, 299-300 (1961), "There is a danger that one in sympathy with the legitimate aims of . . . an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share."

3. A New Federal Crime of Terrorism to Be Applied Selectively Based on the Political Motivation of the Offender

Section 101 of the bill creates a new federal crime of international terrorism in the United States. Terrorist activity should be a crime. It already is a crime. Section 101 does not criminalize anything that is not already a crime. The new offense is defined as any killing, kidnapping, maiming, assault resulting in serious bodily injury, or assault with a deadly weapon, and any damage to any real or personal property "in violation of the laws of any State or the United States," so long as one of 9 jurisdictional bases is met.

Since the new offense does not cover anything that is not already a crime, the main purpose of the proposal seems to be to avoid certain constitutional and statutory protections that would otherwise apply. Investigations of, and prosecutions for, the new crime would be subject to the following special rules:

Suspension of posse comitatus. The new subsection (f) provides a wholesale exemption from one of the oldest protections in American law, the separation between military and police functions. At a time when there is growing public concern about the militarization of law enforcement, subsection (f) provides that "Assistance may be requested from any Federal ... agency, including the Army, Navy and Air Force, any statute, rule or regulation to the contrary notwithstanding."

Avoiding state due process protections. The federal rules of criminal procedure are in certain respects outdated compared to state court rules. For example, many states have rejected the concept of trial by surprise, adopting instead rules that require the prosecution to disclose its evidence to the defense in advance of trial, and vice versa. This facilitates plea bargaining and ensures that both sides are better prepared so the trial, if there is one, runs more smoothly. By contrast, under federal law, a defense lawyer is entitled to see prior statements made to police by a witness against his client only after the witness testifies at trial. There is increasing discussion of modernizing this federal rule.

In contrast to this trend, the draft adopts a tactic that state and federal prosecutors have jointly pursued to circumvent state procedural rules. Subsection (g) provides that in any prosecution under the section, "only the elements of state law, and not any provisions pertaining to criminal procedure, are adopted." This allows state prosecutors, dissatisfied with the rules of their own state, to take certain cases to federal prosecutors in order to obtain the benefit of rules that make it harder to mount an effective defense.

Chipping away at the Fifth and Sixth Amendments. In derogation of the Fifth Amendment's presumption of innocence and the Sixth Amendment right to bail, Subsection 101(d) of this bill provides that anyone accused of committing a crime thereunder is presumed to be ineligible for bail and may be detained pretrial. The accused bears the burden of rebutting the presumption. (This is a significant expansion of a provision that first appeared in 1984, when Congress adopted 18 USC 3142(e), shifting to the defendant in certain drug cases the burden of proving pretrial that he is eligible for the constitutional right to bail.)

Loosening the rules on wiretaps. Subsection (e) would exempt terrorism cases from the carefully crafted and balanced standards developed in 1986 for so-called "roving taps." When Congress adopted the Electronic Communications Privacy Act of 1986, it struck a careful balance between privacy and law enforcement. Because of the Fourth Amendment's specificity requirement, federal law has always required applicants for wiretap orders to specify the location to be tapped. Some criminals were attempting to evade surveillance by using pay phones, the location of which could not always be anticipated for inclusion in the wiretap application. Therefore, Congress in 1986 created a limited exception to the specificity requirement where the target of an investigation has been taking steps to thwart interception by changing facilities. This bill would dispense with that standard, allowing roving taps to be used anytime a person is suspected of being involved in a terrorist crime, regardless of the law's requirement that there be a basis for the roving tap authority.

Mandatory jail sentence. The new subsection 2332b(d) would provide that no person convicted of a violation under the new crime could be placed on probation. While it is reasonable that persons who commit violent crimes would be incarcerated, the new section is not limited to violent offenses. Someone who intentionally scratches the car of a foreign diplomat would go to jail if charged and convicted under this provision. This gives prosecutors, who decide whether to charge under this section or another section, a tremendous club to hold over the heads of minor offenders.

Threats Under the proposed statute, threatening to do anything violent is a crime itself. There are numerous federal threat statutes already on the books (bomb threats, threats against the President), but there is no general threat statute. Under this bill, threatening to hit a tourist would be a federal crime, which could be investigated and prosecuted without adherence to constitutional and statutory protections.

First Amendment dangers. It is unlikely, of course, that ordinary crimes against tourists would be prosecuted under this section. The question of how cases will be selected for investigation and prosecution under such a broad statute brings us to the nub of the threat it poses. Proposed new section 2332b(e) provides that no indictment could be brought unless the Justice Department certifies that the offense appeared to have been intended to intimidate or retaliate against a government or population. So the cases will be chosen based on the offender's political motives, known or suspected.

Selecting offenders for prosecution based on their politics is fraught with danger to the First Amendment, especially where ordinary constitutional and statutory guarantees are circumvented. The problem is further exacerbated here, where motive is not an element of the crime to be proved at trial but an unreviewable prosecutorial determination.

Worse than the prosecutorial concerns are the investigative implications of the legislation. Encompassing as it does attempts, threats and conspiracies, and read in conjunction with the extraterritorial provisions in sections 102 and 103 and the fund-raising provisions in Title III, this legislation is a general charter for the FBI to investigate political groups and causes at will.

Indeed, the Administration is quite explicit about its intention to investigate based on First Amendment activities. In section 601 of the bill, it seeks to repeal a seemingly modest provision (the "Edwards amendment") agreed to by the Administration only 6 months ago and enacted in last year's crime bill that prohibited investigations of "material support" based on activities protected by the First Amendment. The Administration now claims that this provision imposes "an unprecedented and impractical burden on law enforcement concerning the initiation and continuation of criminal investigations" and asks for its repeal. The amendment in fact was intended to merely codify the criminal standard in the Smith guidelines.

Equal protection violation. One of the jurisdictional bases set forth in the new provision is that any alleged offender is an alien. While the federal government has broader discretion than the states in making distinctions between citizens and aliens, providing different crimes for aliens and citizens would surely seem to violate the Constitution.

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