ACLU Background Briefing: House Prepares to Consider Revised Terrorism Bill: Individual Rights, Personal Freedom Even More At Risk FOR IMMEDIATE RELEASE Friday, February 29, 1996 WASHINGTON -- Ignoring continuing bipartisan concerns about federal law enforcement, privacy and free speech, the full House of Representatives is scheduled to consider H.R. 2768, the "Effective Death Penalty and Antiterrorism Act of 1995," in the week of March 11 through the 15. Last June, the House Judiciary Committee approved a similar bill, "The Comprehensive Antiterrorism Act," despite bi-partisan opposition from four Republicans and eight Democrats. The Judiciary Committee bill, however, never moved to the floor. Now -- after months of discussion and negotiation about the scope of the terrorism bill and the extent to which it would broaden federal police powers at the expense of individual rights and personal freedom -- a "compromise" bill has emerged that would actually do even more damage to civil liberties than the original. The ACLU has been working in coalition with a diverse group of civil liberties and gun rights groups to defeat this bill and various other antiterrorism proposals that were introduced by members of Congress and the Clinton Administration in the aftermath of the Oklahoma City bombing tragedy last April. In addition to widely publicized concerns about the expansion of federal law enforcement powers, late last year the ACLU; the National Association of Criminal Defense Lawyers; Gun Owners of America; Citizen's Committee for the Right to Keep and Bear Arms. and the Second Amendment Foundation sent a letter to the Speaker and Minority Leader of the House specifically opposing provisions that would devastate habeas corpus. In Brief: The so-called counter-terrorism bill would ultimately have its greatest impact on American citizens who will suffer grave invasions of privacy in the name of national security. The bill marks a dramatic expansion in the powers of federal law enforcement. It contains no provision for law enforcement accountability, but includes provisions about habeas corpus that will virtually strip the federal courts of their ability to remedy law enforcement abuse that results in unconstitutional incarceration. The bill will have a chilling effect on domestic groups who are critical of U.S. foreign policies. Specifically, it will: -- Give the Executive the authority to blacklist certain groups by designating them as "terrorist." -- Prevent Americans from inviting dissenting voices from other nations to speak or to visit the United States. -- Allow the deportation of individuals without giving them the opportunity to know why they are being deported. -- Expand the FBI's powers to obtain personal phone and travel records without a criminal predicate. -- Invite more illegal law enforcement wiretaps. 1. Broad Terrorism Definition Risks Selective Prosecution The legislation defines "terrorism" as the commission of certain state and federal crimes -- such as kidnaping, killing, serious assault, and illegal property damage -- if such crimes: (i) involve conduct in both the United States and abroad; (ii) meet a jurisdictional base; and (iii) are certified by the Attorney General as "terrorism." The Attorney General can certify criminal acts as "terrorism" when the crime is calculated to retaliate against the government, or to influence government conduct by intimidation or coercion, and is a violation of one of a number of federal criminal statutes. Under this broad definition, virtually every serious crime that involves conduct both inside and outside the United States is a federal crime of "terrorism" if the Attorney General says it is. The "terrorism" label triggers severe penalties, including death, and the Attorney General's certification is not subject to review by a court. Despite efforts to narrow the definition of terrorism, this provision raises a substantial risk of selective, discriminatory prosecution based on political opinions. 2. More Wiretaps With Less Judicial Oversight Will Threaten Privacy Because it creates a "good faith" exception to the statutory exclusionary rule for wiretaps, the legislation would invite significantly more illegal law enforcement wiretaps, leading to a vast increase in the number of entirely innocent conversations intercepted by law enforcement officials every year. The bill would also reduce judicial oversight of wiretaps. Already, too many innocent conversations -- nearly two million in 1994 alone -- are intercepted by federal and local law enforcement wiretaps. In fact, every time a wiretap or other form of electronic surveillance is placed, nearly 1,800 innocent conversations are intercepted. The FBI already has authority to conduct wiretapping to prevent crimes associated with terrorism. It does not need an exception to the exclusionary rule which the U.S. Supreme Court has, since 1914, recognized as the only effective means of deterring unconstitutional searches. 3. Expansion of Counterintelligence Investigations Threatens Privacy The FBI would be given additional access in counterintelligence investigations to any individual's complete records, all without evidence establishing probable cause that such a person has been involved in criminal activity. The FBI could obtain information about airline flights people in the United States have taken, the cars they have rented, and the hotels in which they have stayed, merely by secretly showing a judge that it wanted the information for a foreign intelligence investigation. The FBI would only have to state that there is reason to believe that the person they are investigating is a "foreign power" or an agent of a foreign power engaged in "international terrorism" or "clandestine intelligence activities" that may involve a violation of federal criminal law. The FBI would also be given access, without any judicial intervention at all, to a person's name, address and local and long distance toll billing records, merely by writing a letter to a phone company certifying that the information is "relevant" to an international terrorism investigation. 4. The Executive Would Decide Which Foreign Organizations Americans Could Support The bill would give the Secretary of State the authority to make criminal the giving of "material support" for the legal, non-violent, even political or charitable activity of those foreign organizations that the Secretary of State designates as "terrorist." Because current law already prohibits the giving of material support for terrorist activities, the new law would prohibit material support for legal activities of organizations the Secretary of State disfavors for political reasons. Had this bill been law a few years ago, for example, it might have been illegal for human rights groups, relief organizations, and church-related groups to provide groups in Central America with educational materials and any goods (except medicine and religious materials) if the Secretary of State, for political reasons, declared the group a "terrorist" organization. In addition, the bill would reverse current law by allowing the FBI, during the course of investigations into suspected support for "terrorist activities," to also scrutinize support for actions protected by the First Amendment. 5. Secret Evidence Would Be Used In Deportation Proceedings The bill would permit the government to deport aliens based on secret evidence, thus violating the right to due process. Secret evidence, in the form of classified information, could be used to deport any alien, whether a permanent resident or a visitor, accused of terrorism. The bill would even effectively prohibit permanent resident aliens from choosing the lawyer who would review the secret evidence on their behalf because their choice would be limited to a handful of lawyers approved by the court. The power to choose one's own attorney is a fundamental due process right. 6. Foreign Dissidents Would Be Barred From the United States The bill would prevent Americans from inviting controversial foreigners who dissent from government policies to visit the United States to speak because it would bar members of designated "terrorist" organizations from entering the country. Thus, the bill would revive in principle the McCarthy-era McCarran-Walter Act that Congress repealed in 1990. Under that law, so-called dissidents such as the Canadian writer Farley Mowatt and Nobel Prize-winning author Gabriel Garcia Marquez were blocked from entering the country. Current law already bars from the United States aliens who have, or might, engage in terrorist activity. The bill is not aimed at these individuals. Instead, the bill would bar members of groups selected by the Executive for foreign policy reasons. Those groups most likely to be designated are the groups that dissent from U.S. foreign policy, or oppose the governing party of a U.S. ally. Even those members who oppose violence, and have risked their lives to oppose those who would commit violent acts, would be barred if regarded as members of an organization designated as undesirable by the Secretary of State. They would be barred even absent any evidence giving reason to believe that they had engaged, or would after entry engage, in any terrorist activity at all. 7. Federal Courts Would Virtually Lose The Power To Correct Unconstitutional Incarceration The bill would require federal courts to ignore unconstitutional state court convictions and sentences unless the state court decision, though wrong as a constitutional matter, was "unreasonably" wrong. The risk that innocent persons would be held in prison -- or even executed -- in violation of the Constitution would increase dramatically because the bill imposes unreasonably short time limits for filing a claim for habeas corpus relief, limits almost all petitioners to one round of federal review, and requires that the petitioner meet an extremely high "clear and convincing" burden of proof in order to secure relief. Thus, the bill would prevent the federal courts from insuring that convictions and sentences comport with the basic requirements of the Constitution. 8. Aliens Are Equated With Terrorists Much of this bill has nothing to do with terrorism and everything to do with scapegoating immigrants. Although aliens had nothing to do with the Oklahoma City bombing, this bill, touted as a response to the tragedy, would be used to strip aliens of their basic rights under the Constitution. The bill would: -- deny the right to due process to aliens in deportation proceedings alleged to have entered without inspection by INS; -- open to the probing eyes of law enforcement immigration files submitted on a confidential basis; -- bar from the United States aliens who arrive without adequate travel documents and could not prove, in the airport upon arrival, a "credible" fear of persecution in their homeland; -- render deportable long-time legal permanent residents convicted of minor crimes, even if they are the sole supporters of their family members -- including children -- who are U.S. citizens. The Oklahoma City bombing should not be used as an excuse to enact unduly restrictive immigration laws. Conclusion: The Effective Death Penalty and Antiterrorism Act of 1995 Is Unconstitutional Anti-terrorism legislation that is consistent with the Constitution can be written, but this bill does not meet that standard. Any such legislation would embrace the following principles: -- People, whether citizens or not, have the right to support legal activities of the organizations and groups of their choice. This is a fundamental part of the right to free association, protected by the First Amendment. -- People have the right to examine the evidence offered against them, whether in the context of criminal trial or in a deportation proceeding, regardless of the nature of the charges. -- An anti-terrorism statute should not be so broadly drawn as to give the government the power to selectively prosecute persons for conduct that the government decides serves an undesirable political end. -- Habeas corpus should not be eviscerated in the name of anti-terrorism. Federal courts must retain their power to review the legality of convictions and sentences to ensure that when the government seeks to take away someone's life or liberty, it acts within the law. Until Congress produces such legislation, the ACLU and other organizations from the right, left and center urge the House of Representatives not to move forward with a bill that will do nothing to make us safer, but will make us less free. Transmitted: 3/16/96 11:44 PM (n022996f) -- Stanton McCandlish
mech@eff.org

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