Anti-Terrorism, Anti-Liberty

On October 26, 2001, President Bush signed it into law the PATRIOT Act, a sweeping measure designed to strengthen the government's ability to fight terrorism and keep Americans safe. Unfortunately, it is also a sweeping measure to strengthen the government's ability ignore basic Constitutional restrictions in an effort to monitor citizens and pursue criminal cases, all in the name of "national security."

Latest Articles 4 Abortion & Sexuality 4 Charity vs. Government 4 Gay Courage? 4 Questioning Patriotism 4 Secret Papers 4 Veiled Courage Related Resources 4 Church & State 4 Supreme Court 4 Religious Freedom 4 Religious Right 4 Flag Desecration 4 Abortion Site FAQs 4 Atheism 4 Theism 4 Islam 4 Bible 4 Evolution 4 Logic & Skepticism

Many people are worried about the some of the dangerous provisions included in the PATRIOT Act, but they should understand that nothing there is all that new. Much of what appears there, and worse, was first introduced in the 1995 Omnibus Counterterrorism Act, passed in 1996 and given the name Antiterrorism and Effective Death Penalty Act.

A wide variety of basic civil liberties were dealt serious blows by this law. What is amazing is not that President Clinton ever signed it, but instead that it ended up being less dangerous than the one he originally proposed. At the time, for example, he wanted the government to have broad authority to engage in roving wire taps. Such oversights, however, are being remedied with the current PATRIOT Act, which re-establishes many of the things Clinton did not get in the final bill.

Habeus Corpus

Both the new anti-terrorism legislation passed in October and the earlier legislation signed by President Clinton share another fundamental, but not unexpected flaw: not all provisions are directed against actual matters involving terrorism. I suppose that it is too much to hope that when the government passes anti-terrorism legislation, it not use this as an excuse to generally expand its powers for policing and punishing citizens.

As for Clinton's legislation, the unrelated provisions essentially gutted the long-standing rights people have of Habeus Corpus. This may be an unfamiliar Latin phrase to most people, but it is a vital part of our legal tradition which can be traced all of the way back to the Magna Carta.

The very first Habeus Corpus Act was passed by British Parliament back in 1679, and Edmund Burke called this principle of common law the "sole securit[y] either for liberty or justice." The first American law establishing habeus corpus was passed in 1789, making it one of the first legislative measures of our nation.

So what is this "Great Writ"? Essentially, it is the last resort for a person who has been unjustly detained or convicted by the government. Such procedures require government agents to bring a prisoner before an impartial court for the purpose of reviewing the legality of the conviction, sentence or evidence.

Currently, habeus corpus is very important when it comes to death penalty cases. In the past, people sentenced to death in the state courts have had the automatic right to appeal their conviction and/or sentence in federal courts under habeus corpus, thus forcing the state to demonstrate to an impartial federal court that the trial, conviction and sentencing were carried out fairly. From 1972 until 1994, federal courts overturned almost 40% of all death sentences reviewed because of constitutional errors or newly discovered evidence.

But because of Clinton's anti-terrorism law, that right has been severely restricted in ways which have absolutely nothing to do with terrorism. For example, there is now a one-year deadline for filing such a claim (only six months for many death penalty cases), which makes it difficult for attorneys to prepare, and almost impossible for replacement attorneys to step in.

Whether that deadline is missed or made but then later denied, that will the only chance that the prisoner has. Before, there was no such limit, and it was not unusual for a death sentence to be struck down only after several writs were filed.

Basic standards have also changed dramatically. For example, no habeus corpus relief will be granted even if it can be shown that the state court made errors in applying federal law! Instead, the prisoner must demonstrate that the errors made were "unreasonable," a difficult and ambiguous hurdle. Nevertheless, it is disconcerting to think that it is okay for "reasonable" errors to lead to someone's death.

In addition, federal courts reviewing a habeus corpus claim must accept at face value any factual finding made by the state courts - if the plaintiff disagrees with them, he has the burden of proof to demonstrate them as wrong. Thus, federal courts cannot exercise their traditional, independent review and must instead defer to the opinions of elected state-court judges, lacking life tenure and heavily subject to political pressures.

Secret Courts

One of the disturbing provisions of the counterterrorism law was for the establishment of a new secret court: The Alien Terrorist Removal Court. This body is empowered to use secret evidence, supplied by the government with little or no concern as to how it was obtained, as part of proceedings to deport U.S. residents or visitors who are suspected of being members of terrorist groups.

Now, it seems reasonable to deport anyone who is a member of an organization which engages in political violence, especially if that violence is against Americans - how could anyone be opposed to such actions? But look more closely at what is actually being permitted...

For one thing, the court is allowed to base its decisions on secret evidence. Neither the accused nor the accused's lawyers will be allowed to review or challenge the evidence in question. At most, they will get a summary of the evidence - hardly enough to allow for an effective defense. And how will anyone be able to ensure that the evidence was obtained legally? What if this "evidence" is unverified rumors?

The INS already has the power to use secret evidence in deportation proceedings of aliens. However, they have received heavy criticism for that practice, and in many of the cases where the evidence was later declassified, it turned out to be little more than rumor and the hunches or even biases of federal agents.

For another thing, the court is empowered to authorize the deportation of suspected members of terrorist groups. It is bad enough when people can be deported based on secret evidence of questionable validity, but this provision lowers the standards such that the evidence does not even have to prove that they are members of terrorist groups - only that they may be members.

Finally, the court is empowered to authorize the deportation of people without any evidence that they personally have engaged in illegal acts or that they have advocated the commission of illegal acts. Just because a person is a member of a designated "terrorist" group does not mean that they themselves are terrorists.

Why? The first thing to keep in mind is that the designation of a group as "terrorist" is not necessarily done with complete objectivity The African National Congress was considered a terrorist organization, but was it wrong for them to be fighting to force the South African government to recognize the equal rights of blacks? Should members have been barred from entry to the United States, where they could plead their case to the American people?

The second thing to keep in mind is that "terrorist" groups aren't always paramilitary organizations engaged in the single-minded pursuit of destruction and anarchy. Very often, they are broad organizations with a variety of social and political wings. In fact, the law explicitly provides for the fact that the "terrorist" designation can be made without any regard for the lawful or humanitarian activities of the group in question.

It does not take much creativity to imagine someone belonging to the A.N.C. or even the I.R.A. who works for the same goals as the larger organization, but who either does not approve of violence or who simply has no connection to it. Such a person would, however, be deported from our country not because of any views or actions they have taken (which was already the law), but because of the actions taken by others associated with them.

The deportation of non-citizens for such reasons takes us back to the guilt-by-association standards once common during the McCarthy era and enshrined in laws like the McCarran-Walter Act. Also, it is not clear that a person has to represent an organization which is actively engaged in terrorist activities in order to be deported, because part of the standard is that the group in question is deemed by the President as "detrimental to the interests of the United States."

In addition to such people being deported, they can also be denied entry to the United States in the first place. Similar provisions in the McCarran-Walter Act were continually used as a political tool by succeeding administrations in an effort to silence or keep out critics of U.S. foreign policy.

Unfortunately, the existence of a secret court like this is not without precedent. Another secret court was established back in 1978, the Foreign Intelligence Surveillance Court. It was empowered to approve of surveillance and then later searches of Americans for the purpose of counter-intelligence.

But more and more that same court is being used to circumvent basic constitutional liberties enshrined in the First, Fourth, Fifth and Sixth Amendments in criminal cases. Defendants are charged with crimes without ever being allowed to see or challenge the evidence brought against them. Such an expansion of scope and power should not be unexpected with this court, either.

It is fortunate that this court has never been used so far, but it may be brought in as a tool in the current anti-terrorism efforts. A 1999 bill (H.R. 2121) would have eliminated the INS's power to use secret evidence and would have disbanded this secret court, but it failed to get enough support in Congress.

Many people feel that there is a great need for such courts, and support not only the two mentioned above but also President Bush's recent directive authorizing the use of secret military courts to handle terrorism cases. But Representative Tom Campbell, a former law professor, has offered an effective rebuttal:

Street crime is pervasive in America, domestic terrorism rare. Would you give me secret evidence powers to wipe out street crime?

Speech and Assembly

The rights of all Americans to speech and assembly were also curtailed by this bill. For one thing, it was made a crime for Americans to provide "material support" to any group which the Secretary of State deems to be "terrorist." Well, what's wrong with prohibiting people from funding terrorist activities? Once again, we need to take a closer look at what is actually going on...

In the first place, there is little or no oversight to the ability of the administration in declaring a group to be "terrorist." There is no way for people to challenge such a designation in the courts, and Congress cannot overrule the administration's decision. It would be naive to assume that such power would never be used in a partisan, political manner.

A second problem lies with the fact that "material support" is not limited to actual terrorist activities. It was already a federal crime to support the violent activities of any group, so this law did not actually add anything new on that issue. But now, "material support" can refer to any financial or material support given to any aspect or work of an organization labeled as "terrorist."

That means that, under this bill, anyone who donates money to an I.R.A orphanage would become a federal felon, subject to ten years in prison and up to $50,000 in fines per offense (i.e., per donation). If this law had existed in the 1980s, would it not have been used to harass or prosecute people who donated money to church relief groups in El Salvador and Nicaragua? What about people who paid a couple of dollars to hear a representative of the A.N.C speak?

President Clinton was actually asked about this, and he admitted that it could have been used to jail people who provided even minor financial support for some of the peaceful activities of the A.N.C. (once designated as a terrorist organization). It has also been admitted that some of the groups which will be designated as "terrorist" will also be engaged legally in social, political and humanitarian efforts. However, Clinton insisted that the American people had to "trust" that the President would not abuse this new power and that it would not be employed as a political tool.

We can make this problem even more obvious with a contemporary example, the PLO. The United States government has provided the PLO with funds for the purpose of advancing the peace process and has in fact encouraged others to do the same. But the PLO has subgroups, including the Democratic Front for the Liberation of Palestine and the Popular Front for the Liberation of Palestine. Both have been charged with engaging in terrorism.

Clinton's law, however, specifically states that any organization which has a significant "subgroup which engages in terrorism activity," regardless of any of its other legitimate activities, can be designated as "terrorist." That means that if you donate money to the PLO for the purposes of furthering the peace process, you will be doing something which your government has done and which it has encouraged others to do, but you can readily be treated like a federal felon.

This is obviously unconstitutional, and the Supreme Court ruled in 1972 in the case Healy v. James:

...'guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights. The government has the burden of establishing a knowing affiliation with an organization pursuing unlawful aims and goals, and a specific intent to further those illegal aims.

Another problem can be found in the nature of these investigations. After all, how will the government find out if you are providing any "material support" to terrorist organizations? Surely people won't volunteer this information on their own, will they?

In order for the government to catch such people, law enforcement agencies are permitted to begin investigations of Americans based upon the political views they publicly express - something that had been previously prohibited by a 1994 law. Thus, if someone makes public statements in support of a group or in support of a group's goals, and that group has been designated as "terrorist," then government agents can begin an investigation into his life, activities, and financial habits..

Very likely, federal agents will be able to get permission to engage in surveillance and warrantless searches of such people via the Foreign Intelligence Surveillance Court. Evidence they collect in this manner will remain secret, such that neither the accused nor the accused's lawyers will be able to review or challenge it. In this way, American citizens can become federal felons without ever knowing why they were accused or what evidence was used to convict them..

And we simply have to trust that the government will only use these powers against the "real" bad guy, but never against legitimate groups with legitimate goals because they are opposed to American foreign policy. Do you trust the government enough to be willing to run the risk of going to prison for ten years without ever really knowing how or why?

Rather, we should imagine these powers being in the hands of our worst political nightmares, whoever that might be. As President Lyndon Johnson put it:

You do not examine legislation in light of the benefits it will convey if properly administered, but in light of the wrongs it would do and the harms it would cause if improperly administered.