Center for National Security Studies
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Terrorism Law Is Major Setback for Civil Liberties
In a major blow to the Bill of Rights, Congress has passed and President
Clinton on April 24 signed the anti-terrorism bill, Pub. L.104-132. The
new law, which took effect upon signing -
- Guts habeas corpus, the "Great Writ" by which federal courts
have granted relief from violations of the Bill of Rights in state court
criminal proceedings. Perhaps the single worst part of the bill, this has
nothing to do with terrorism, since it involves the standards for federal
review of state court rulings, and terrorism cases are almost always tried
in federal, not state courts. Rather, it is the culmination of a decades-long
effort to end meaningful federal constitutional review of the procedures
by which death sentences are imposed in the states. The essence of the
changes is a provision requiring federal courts to overlook many instances
where state courts failed to adhere strictly to the U.S. Constitution, even
in cases going to the basic fairness of the trial or the guilt of the accused.
The Supreme Court has already taken up a case that presents questions as
to the effect of the habeas changes. Oral argument was June 3 and a decision
may come before July.
- Makes it a crime for U.S. citizens to provide any material support to
the lawful political or humanitarian activities of any foreign group designated
by the Secretary of State as "terrorist." It was already a federal
crime to support the violent activities of terrorists. Banks in the U.S.,
facing fines of $50,000, must freeze the assets of any domestic organization
or U.S. citizen believed to be an agent of a designated group. The provision
does not specify how the banks identify the domestic "agents"
of terrorist groups, nor does it provide any mechanism for a domestic organization
to get its funds unfrozen.
- Denies visas to foreigners visiting the U.S. based on mere membership
in groups designated as terrorist by the Secretary of State. Denying visas
based on membership and not on terrorist activity represents a return to
the discredited ideological exclusions standard of the McCarran-Walter Act.
- Creates a special court that will use secret evidence to deport U.S.
residents or visitors suspected of being members of terrorist groups. The
classified evidence will be presented to the judge but the alien will be
provided only a summary of the evidence.
- Severely curtails the ability to claim political asylum, by requiring
an undocumented alien entering the U.S. to be immediately sent back to the
country he is fleeing unless he can prove, at the border inspection point,
a credible fear of political persecution. Refugees would not have time
to obtain legal representation, and the on-the-spot determination of the
INS officer would not be reviewable in court. Recently, while considering
an otherwise terrible immigration bill, the Senate voted to repeal this
provision; the fate of the repeal is now in the hands of the immigration
conferees, as the House-passed bill has no comparable repeal provision.
- Deprives aliens of due process rights if they entered the U.S. without
inspection. Again, this provision has nothing to do with terrorism. It
is an effort to strip aliens facing deportation of the due process they
have long been granted.
- Opens the door once again to politically focused investigations like
the flawed CISPES probe, by repealing the Edwards amendment, a provision
enacted less than two years ago, which barred the FBI, when investigating
the crime of material support for terrorism, from opening investigations
based solely on activities protected under the First Amendment.
For more information on the provisions summarized above, see
the memo posted below, which CNSS prepared in 1995 when the bill was
first introduced.
A few objectionable provisions sought by the President having to do with
wiretaps were dropped but these would have been incremental in their effect
compared to the radical changes that were adopted.
Designation of Terrorist Groups --
An Inherently Political Decision with Wide-Reaching Consequences
Under the new law, the Secretary of State is authorized to designate
certain foreign entities as "terrorist organizations". Three
sets of consequences flow from the Secretary of Stateís decsion to
designate a foreign entity as a terrorist organization: (1) it is a crime
for anybody in this country to contribute money or other material support
to the activities, including the legal social, political and humanitarian
activities of the group; (2) all members of the group are ineligible for
visas, even if they have never been involved in illegal activities: and
(3) the government can use secret evidence to deport alleged members of
such groups.
The new law allows the decision of the Secretary of State to designate a
group as terrorist to be based on classified evidence, and if challenged
in court, the Secretary of State's decision can be defended on the basis
of secret evidence.
The government admits that some of the groups it will designate are broad-based
organizations engaged in both lawful social, political and humanitarian
activities as well as violent activities. The law already provided that
individuals who have engaged, or are likely to engage, in terrorist activities
are to be excluded and deported from the U.S.
McCarran-Walter Ideological Exclusions Reemerge;
First Amendment Rights of Americans at Stake
The First Amendment grants Americans the right to receive information
and ideas, especially ideas the government finds objectionable. This First
Amendment right includes the receipt of information from abroad. One highly
effective way of transmitting information remains the personal encounter,
through speeches, conferences and meetings. The immigration law sets the
standards both for excluding aliens from permanent admission and making
them ineligible for visas for temporary visits. Rendering a category of
aliens "excludable" on ideological grounds means that they cannot
come here even temporarily to speak or engage in other activities implicating
the First Amendment rights of U.S. citizens.
Less than six years ago, Congress repealed the ideological exclusion provisions
of the McCarran-Walter Act, which had barred foreigners from obtaining visas
to visit the U.S. based on their political activities and associations.
Since adoption of the Immigration Act of 1990, foreigners can be denied
visas based on their own acts, not based on beliefs, advocacy or associations
that would be protected under the First Amendment if engaged in by a person
within the U.S. Foreigners seeking to visit the U.S. to speak or lecture
can be barred if there is reason to believe that they had engaged or would
engage in the U.S. in criminal conduct. This reform, a major victory for
CNSS and the Free Trade in Ideas coalition, is now being reversed. The
terrorism bill amends the Immigration Act to exclude any alien who is a
member of a group designated by the Secretary of State as terrorist, even
if the individual had only participated in the group's political or humanitarian
activities.
Conclusion
Provisions of the omnibus terrorism law will almost certainly be subject
to judicial challenge on constitutional grounds. For now, the law represents
the worst setback for civil liberties in many years.
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Posted on June 20, 1996 || For more information, contact [email protected].