Congressional Shell Game:
Provisions Stripped from Terrorism Bill
Appear One Week Later in Immigration Legislation
FOR IMMEDIATE RELEASE
Monday, March 18, 1996
WASHINGTON -- The House of Representatives is about to vote on the
most wide-ranging, and the most repressive, immigration proposals in
thirty years -- proposals which, if adopted, will have disastrous
consequences for civil liberties. In the extensive media coverage of the
immigration bills currently being debated by Congress, a number of
proposals have more or less escaped notice. Several of them were
actually stripped from the House terrorism bill just last week, only to
resurface in the immigration legislation. These proposals would infringe
in the rights not just of immigrants, but of American citizens as well.
This backgrounder describes these proposals in some detail and
analyzes the impact each would have on civil liberties. While the
sponsors of immigration bills in both the House and the Senate have
recently yielded to pressure from the business community by modifying
provisions limiting the number of skilled foreign workers companies can
hire and provisions requiring employers to verify a worker's legal
status, proposals implicating the rights of privacy, due process and
freedom of association remain. The House is scheduled to vote during the
week of March 18th. The Senate bill is still before the Judiciary
Committee; no floor action is yet scheduled.
I. Unconstitutional Provisions Stripped from Terrorism Bill Resurface in
Immigration Bills
On March 12th, in a dramatic vote on the terrorism bill that split
both parties, the House voted in favor of an amendment offered by
Representative Bob Barr (R-GA) that stripped out two patently
unconstitutional provisions: deportation based on secret evidence, and
exclusion of aliens from the U.S. based solely on their association with
organizations deemed "terrorist" by the government. Now both
provisions appear in virtually identical form in the immigration bill.
If passed, the work done to preserve civil liberties on the House floor
last week will be undone on the House floor this week.
Secret Evidence
The current immigration bill would allow the Immigration and
Naturalization Service (INS) to deport aliens accused of terrorism on the
basis of secret evidence. This violates our most fundamental notions of
due process, and for that reason, whenever the government has sought to
use secret evidence, it has been rebuffed by the courts. Most recently,
a federal appeals court ruled that secret evidence could not be used as
the basis for denying a mandatory immigration benefit to an illegal alien
(American-Arab Anti-Discrimination Committee v. Reno, 1995). The courts
would almost certainly be hostile to the use of secret evidence in the
context of a deportation proceeding.
Moreover, the provision is unnecessary. Under current law, an alien
can already be barred from the U.S. if there is a reasonable ground to
believe he or she will commit an act of terrorism after entry. The
government has not identified a single instance in which the lack of
authority to use secret evidence prevented it from barring an alien from
entry, or from deporting one who later committed a crime associated with
terrorism.
Association As a Grounds for Exclusion
Another provision, reminiscent of the McCarthy-era McCarran-Walter
Act repealed by Congress only six years ago, empowers the Secretary of
State to designate as "terrorist" any foreign organization that engages
in, or that has in the past engaged in, terrorist activity. Any member
of such organization could then by barred from entering the U.S. This
"guilt by association" violates First Amendment principles. Under its
malleable standard for example, all current members of the African
National Congress of South Africa, once deemed "terrorist" by the U.S.
government, could be excluded from this country.
Historically, the McCarran-Walter Act was used to exclude people who
disagreed with U.S. government policies. The list of excludables was
long and included many notables, like Canadian naturalist Farley Mowat.
At one time, even Pierre Elliot Trudeau, the former Prime Minister of
Canada, was on the excludable list.
People should be excluded from the United States based on their
illegal activities, not based on their political associations. To
provide otherwise is to impose a form of guilt by association.
II.Wiretapping
Wiretapping provisions held up the terrorism bill in the House for
seven months. Yet, Section 201 of the House immigration bill would
dramatically expand the government's authority to conduct wiretaps and
other forms of electronic surveillance by expanding the list of crimes
for which a wiretap could be sought.
Because electronic surveillance is a particularly intrusive
investigatory technique, it is stringently restricted by current law and
is subject to the search and seizure requirements of the Fourth
Amendment. In order to conduct electronic surveillance (wiretaps, bugs,
and interception of pager transmissions, cellular phone conversations and
e-mail), the FBI, or any other law enforcement agency, must obtain a
court order based upon probable cause -- but only in connection with
investigations of certain specified offenses. Section 201 would very
significantly expand the list of federal offenses supporting an
electronic surveillance order to include a range of immigration-related
offenses, all of them nonviolent:
-- Production of false identification documents
-- Issuing a false passport
-- Making a false statement to obtain a passport
-- Altering, counterfeiting or forging a passport
-- Knowingly using another person's passport
-- Making or using a false visa, border crossing card or other document
authorizing entry or work in the U.S.
-- Knowingly bringing an undocumented person into the U.S., or harboring
or attempting to conceal such a person
-- Knowingly helping an alien excludable as an aggravated felon to enter
the U.S. illegally
-- Importing an alien for an immoral purpose.
Significantly, investigations of these crimes target Americans as
much as aliens. Under this provision, for example, the government could
eavesdrop on a conversation involving an American soldier who, upon
returning to the U.S. from peacekeeping duties, helps a Bosnian
acquaintance, whose entire family was killed during "ethnic cleansing,"
come to the U.S. without authorization (knowing that she might well be
eligible for political refugee status here).
The main problem with wiretapping, however, is its indiscriminate
interception and surveillance of huge numbers of innocent conversations.
According to the 1994 Wiretap Report of the Administrative Office of the
United States Courts, approximately 1,942,000 innocent conversations were
intercepted by law enforcement that year. Between 1984-1994,
approximately 11 million innocent conversations were intercepted. During
that same period, the proportion of incriminating conversations dropped
from 25% to only 17%. These figures do not justify the massive invasion
of privacy that wiretaps and other forms of electronic surveillance
represent.
If wiretapping is a notoriously inefficient and intrusive way to
catch lawbreakers, it is also phenomenally expensive. The average cost
of a single federal wiretap in 1994 was $66,783 (Wiretap Report). Given
its expense, its intrusiveness, and its inefficiency, wiretapping should
be used sparingly to investigate only the most serious crimes. The
American public agrees: according to a recent U.S. Department of Justice
Bureau of Justice Statistics survey, 75% of those surveyed said they
disapproved of wiretapping.
Section 201 of the House bill will result in a huge expansion of the
government's authority to eavesdrop on American citizens and will do
little to stem the tide of illegal immigration.
Conclusion
These provisions of the immigration bills have not been widely
reported or discussed in the media and so have not been subjected to
serious scrutiny or debate by the American public. With a Congressional
vote imminent, the ACLU urges the media to make up for lost time.
Transmitted: 3/19/96 11:04 AM (n031896a)
--
Stanton McCandlish
mech@eff.org
Electronic Frontier Foundation
Online Activist