gopher://gopher.nyc.pipeline.com:6601/00/legislative/congress/terror.mem ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * LEGISLATIVE ANALYSIS * LEGISLATIVE ANALYSIS * MEMORANDUM To: Interested Persons From: Gregory T. Nojeim, Legislative Counsel, ACLU Re: Preliminary Analysis of Omnibus Counterterrorism Act of 1995 Date: March 1, 1995 This is a preliminary analysis of the Omnibus Counterterrorism Act of 1995, introduced on February 10, 1995 in the House as H.R. 896 by Representatives Schumer and Dicks, and in the Senate as S. 390 by Senators Biden, Specter, Cole, D'Amato and Kerrey. The bill is sweeping, and would severely infringe on constitutional rights held dear. It originated with the Clinton Administration and is apparently the result of an inter-agency effort involving the Departments of State (Office of Counterterrorism), Justice (Attorney General, FBI, Executive Office for National Security) and Treasury (Office of Foreign Assets Control). The bill is lengthy and complex. This analysis is preliminary only, and does not express all of the civil liberties concerns of the ACLU about this legislation. Removal of Aliens Without Due Process Section 201 of the bill would establish a new court that could deport aliens as "terrorists" without allowing them an opportunity to see the evidence against them. Under the proposed procedures, the new court could receive classified information about the alien out of the presence of the alien and his attorney. It would commence a special removal hearing. During the proceedings, the accused alien who is not a permanent resident would be held in custody, and an alien who is a permanent resident would bear the burden of proving that he or she should be released. The government would summarize any classified information to be used against the alien, and the summary would be provided to the alien upon a finding by the court that the summary informs the alien of the nature of the evidence that he is deportable, and is sufficient to permit the alien to prepare a defense. However, if the court found either that the presence of the alien in the U.S., or the provision of the summary, would cause serious and irreparable harm to the national security, the alien could be deported based on the secret evidence. The section is similar to legislation Congress declined to adopt in each of its two previous sessions. It is unconstitutional. The government has never before used secret information to deport an alien living in the United States. The most fundamental requisite of due process is that any evidence the government relies upon must be disclosed so that it can be responded to and defended against. The Supreme Court and the lower courts have consistently held that aliens who have entered the United States gain the full protections of the due process clause, and therefore cannot be deported on the basis of information not disclosed to them. The government can use classified information only to exclude aliens who have not yet entered the United States or to deny an alien a discretionary immigration benefit. This section does not track the Classified Information Procedures Act (CIPA). CIPA establishes a procedure by which a defendant in a criminal case may seek to use classified information in his defense. If the government objects to the use of classified information, it can submit to the court a summary of the classified information which must provide the defendant with the same ability to make a defense as would disclosure of the classified information. Under CIPA, if no fair summary protecting the classified information can be provided, the summary is rejected, the information cannot be used, and the court sanctions the government for refusing to consent to public disclosure, by dismissing the entire indictment or counts of the indictment, by entering findings against the government, or by striking the testimony of witnesses. The proposed legislation would turn CIPA on its ear: under the proposal, the government would seek to use classified information to deport an alien, and if a fair summary of the classified information would disclose classified information, no summary would be required, the classified information would be used as evidence to deport the alien, and the government would suffer no sanctions. This is a clear violation of due process. Exclusion and Deportation of Aliens for First Amendment Activity Section 202 of the proposed legislation would make two substantial changes to immigration law. First, it would render excludable or deportable from the U.S. any alien who is a spokesperson for, or official of, any "terrorist organization" found by the president to be "detrimental to the interests of the United States." This proposed section of the legislation is a throwback to the days of the discredited and unconstitutional McCarran-Walter Act. It is extreme and dangerous. It would allow the president virtually unfettered authority to deport or bar from the United States aliens undesirable merely for political reasons. Second, it would render an alien excludable and deportable if the alien provides material support, even in-kind donations, to any organization that the alien reasonably should know has ever engaged in any "terrorism activity." No presidential proclamation would be required. Aliens would have no notice of which groups they could not support. Even if the overwhelming majority of the activity conducted by the organization was legal, non-violent, charitable activity, such as running hospitals and orphanages, and even if the alien contributed only to that activity, by for example, giving a blanket to a hospital, the alien would be deportable if any subgroup of the organization had ever engaged in terrorism activity, and the alien reasonably should have known. In addition to certain violent acts, "terrorism activity" is broadly defined to include soliciting funds or members for a "terrorist organization." The alien would be deportable even if the alien had no connection to the terrorism activity, had no intent to further that activity, and intended only to support charitable activity of the organization. The alien would be guilty merely by association. This section of the proposed legislation threatens to make literally thousands of aliens deportable from the United States. It would violate the rights of aliens to fund the legal, non- violent, charitable activity of organizations found to have ever engaged in any "terrorism activity" at all. Under this provision, an alien who financed a trip by Yasser Arafat to go to the White House to sign a peace treaty with Israel would be deportable for supporting the peace process. Criminalizing Support for Charitable Activity of Designated Groups Likewise, the proposed legislation would attack citizens who support the non-violent, legal activity of unpopular groups labelled as "terrorist organizations." Section 301 would give the president unprecedented authority to designate any foreign organization found by the president to engage in "terrorism activity" that threatens the national security, foreign policy, or economy of the United States. "Terrorism activity," defined as above, would include not only violent activity, but also such acts as soliciting funds or members for the charitable or educational work of an organization if the organization or any subgroup of the organization has engaged in any "terrorism activity" at any time. Once labelled, the assets of the organization would be frozen, and anybody in the U.S. who without a license sent money to a designated organization, even to support non-violent, charitable activity of the organization, would be subject to a fine of up to $50,000 and up to five years in prison. The president would have unfettered authority to name any group at all because the proposed legislation provides that the president's determination that a group is a terrorist organization could not be challenged in court. This is extreme, dangerous, and prone to abuse. Though entirely ludicrous, the president could designate the Republican Party a "terrorist organization" and thereby bar fundraising for its activities. The GOP could not appeal the designation, even to show that it is not a "foreign" organization, because the president's designation would be conclusive. It would then be a crime to contribute to the GOP without a license. The legislation would even bar the contributor from arguing in court that the GOP is not a terrorist organization. More likely, the president would designate unpopular groups abroad and prohibit even in-kind contributions to the lawful, charitable activity of unpopular groups. It would be virtually impossible to obtain a license to contribute to the legitimate activity of a designated group because the group would have to open its books to inspection by the Treasury Department. This section of the statute smacks of McCarthyism at its worst. It gives the president virtually unfettered power to label groups as "terrorist organizations" and prohibit people from supporting even their lawful, non-violent activities. The courts have consistently held that raising and contributing money, and recruiting members, are activities protected by the First Amendment. Only support intended to further the unlawful activities of a group can be prohibited. To cast a vastly wider net, as the proposed legislation would, is to operate on nothing more than guilt by association. Caught up in the net would be thousands of Americans who send aid to their countrymen in many of the troubled parts of the world. FBI Investigation Without Evidence of Criminal Conduct Section 601 of the proposed legislation would allow the FBI to commence and maintain criminal investigations of providing "material support" for terrorist acts without any facts at all that reasonable indicate that the target of the investigation knowingly and intentionally has or will engage in the violation of a federal criminal law. This requirement was included in the 1994 Crime Bill to prevent FBI "fishing expeditions" into activities protected by the First Amendment. The FBI has a history of such unfounded investigation, including its investigation of the Committee in Solidarity with the People of El Salvador (CISPES). Section 601 would repeal this protection retroactively, to September 13, 1994. "Terrorism" Prosecution of State Law Violations and of Conspiracies Section 101 of the proposed legislation would allow federal prosecution of acts that violate state laws killing, kidnapping, or assault, and the vast category of damage to buildings or personal property, if: (i) a jurisdictional base could be met; and (ii) the Attorney General certifies that any activity preparatory to the act crossed national boundaries, and that the act "appears to have been intended to coerce, intimidate, or retaliate against a government or a civilian population, including any segment thereof." Section 102 would create a new federal crime for conspiring in the United States to (a) murder, kidnap, or maim outside of the U.S.; or (b) damage property abroad that either belongs to a government with which the U.S. is "at peace," or is a railroad, canal, bridge, airport, airfield other public structure or "religious, educational, or cultural property" abroad. In either case, a predicate act to effect an object of the conspiracy would have to occur in the U.S. This section, like the section above, is overbroad and fraught with the risk that it would be enforced only against politically unpopular individuals and groups, and raises due process concerns about what conduct constitutes a violation. ACLU is considering the civil rights impact of these provisions. In addition, proposed section 101 would establish alienage of a suspect as a new basis for federal jurisdiction over a crime. This raises concerns about equal protection. Similarly, the establishment of a presumption that a person accused of a crime under the proposed legislation is not eligible for release under bond raises the most serious Eighth Amendment concerns, and the proposed extension of federal wiretap authority dramatically erodes Fourth Amendment and privacy rights. Abrogating Confidentiality Provisions of Amnesty and SAW Programs The Special Agricultural Workers (SAW) program and the general amnesty established in the late 1980's provide that information submitted by an alien in connection with the programs would be used only for the programs. Without these confidentiality provisions, out-of-status aliens would not have come forward to submit SAW and amnesty applications out of fear the information they submitted would be used to deport them. Section 203 of the proposed legislation would allow the government to apply to a court for permission to use fingerprints, photographs, personal letters, and other documents submitted in amnesty and SAW applications. The information would be used in certain criminal prosecutions (including prosecution of aggravated felonies) of activity occurring after the application was filed. This portion of the proposed legislation is troubling from both the privacy and policy perspectives. Those who submitted the documents relying on a statutory assurance that they would be used only for an immigration benefit have a privacy interest in the documents. >From a policy perspective, breach of the confidentiality provisions could render the INS unable to execute programs such as the amnesty program in the future. Conclusion The Omnibus Counterterrorism Act of 1995 would seriously erode constitutional rights and thus warrants vigorous opposition. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://ftp.pipeline.com /aclu mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"