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Date: Mon, 5 Jun 1995 17:09:35 -0400
From: Andy Oram <•••@••.•••>
To: •••@••.••• (Richard K. Moore)
I thought this wasn't quite on topic for cyber-rights, but might go
well in cyberjournal. See what you think. If you like it, I'll put
it in cyberjournal and direct readers to it.
Date: Sat, 3 Jun 1995 02:53:52 -0700
Sender: Tim Scanlon <•••@••.•••>
Subject: Constitution? what was that thing we used to have.
Some of this stuff is on target, other parts of it are not, take it
with a grain of salt and use it in terms of thinking of American
citizens rights.
I added a few comments, by way of explination. As well as some opinions
related to this in the midst of this document. I belive the issues here
deserve CAREFUL consideration. They are prefaced by a $ character. I
would ask that if my comments are edited out, that it be done with
extreme care, or in totality. (allthough I suspect that this might
be a real dis-service to the list.)
Tim Scanlon
CENTER FOR NATIONAL SECURITY STUDIES
Gelman Library, Suite 701
2130 H Street, NW
Washington, DC 20037
tel: (202) 994-7060
fax: (202) 994-7005
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:
1. authorize the Justice Department to pick and choose crimes to investigate
and prosecute based on political beliefs and associations;
2. repeal the ancient provision barring the U.S. military from civilian law
enforcement;
3. expand a pre-trial detention scheme that puts the burden of proof on the
accused;
4. loosen the carefully-crafted rules governing federal wiretaps, in
violation of the Fourth Amendment;
5. 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;
6. permit permanent detention by the Attorney General of aliens convicted of
no crimes, with no judicial review;
7. give the President unreviewable power to criminalize fund-raising for
lawful activities associated with unpopular causes;
8. 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
9. resurrect the discredited ideological visa denial provisions of the
McCarran Walter Act to bar foreign speakers.
Once again, the impatience of those charged with upholding the Constitution has
led them to seek authority to circumvent it.
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.
$
$ The above section refers I belive to the office of the federal judiciary
$ which deals with Intelligence & National Security. It's been called
$ the "classified court" becasue it is the one court in the US where
$ totaly classified cases can be tried. Cases tried in this court often
$ have classified information explored in them as part of evidentiary
$ procedure. In some cases the entire trial, or the existance of a
$ trial and conviction can be witheld. For example, Aldritch Ames was
$ tried in this court, as have been other traitors. (One reference I
$ have seen refered to it as the "traitors court".)
$ These provisions seek, it part to deal with a problem in intelligence
$ and terrorisim in the world today. With a new world order (NOT the
$ whacko conspiracy idea, that DOES NOT EXIST!!! This term refers ONLY
$ to the post-communist, pro-nationalist, and isolationist trends taking
$ place on the globe today!), there is a serious issue of agents from
$ outlaw states, commiting terrorist acts, and nationaly unafilliated
$ groups using intelligence means to commit destabilizing acts. Terrorists
$ do not have to have a country of affiliation, but they can, and can be
$ very skilled with techniques of violence and subversion. If critical
$ information to the security of the United States is subverted, compromised
$ or otherwise in danger of disclosure, the use of these courts for
$ defendants who are non-citizens, in order to protect that information,
$ makes a great deal of sense.
$ The intelligence court has a provision for review in it by a panel of
$ judges from a higher apellate court. I don't know the districts
$ involved, but I belive there are 6 judges who participate in
$ evedentiary oversight in cases tried before the court. Not an appeal,
$ but a review of the classified evidence that's going to be presented,
$ and the manner in which it's presented. I don't entirely recall all
$ of the details concerning that aspect of the court, but I do know that
$ the idea is to preclude bias in the cases. I do not belive it
$ precludes appeal or anything.
$
$ If anyone can, or cares to _factually_ correct any of what I've
$ said, please do. If you do, check your refrences, becasue it'll
$ damn sure inspire me to recheck mine, and I'll follow up on any
$ of it.
$ None of what I've said precludes consideration of these issues,
$ if anything I hope to point out that it is not an easy question
$ to deal with. Hopefully it will preclude kneejerk responses
$ however. I personaly do not belive that we should risk the sacrifice
$ of the rights of Americans for forign nationals who have acted in
$ a culpable manner that could harm us as citizens. I do however also
$ belive that there has to be some serious protections for non-citizens.
$ The techniques of dictatorship, where people are just marched out
$ to a wall, or a dump, or a desert, and are tortured or summarily
$ executed must be guarded against. In a free and democratic society,
$ we have an obligation to lead by example, but not at the expense of
$ our soverginty to illigal aliens comitting illigal acts. It is
$ an uncomfortable fact that citizens in whatever country they live,
$ enjoy protections that non-citizens do not. It's a natural part of
$ the existance of an area as a National Entity. The US is no
$ different, and should never be. IMHO.
$
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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Posted by -- Richard K. Moore -- •••@••.••• -- Wexford, Ireland.
Moderator: CYBERJOURNAL (@CPSR.ORG)
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You are encouraged to forward and cross-post messages and online
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