From: Bob Witanek <bwitanek(a)igc.apc.org>
Posted owner-187-l(a)CMSA.BERKELEY.EDU Wed Mar 13 07:43:50 1996
Subject: Immigration in Counter-Terrorism Bill
ANALYSIS OF IMMIGRATION AND FUND-RAISING
PROVISIONS IN OMNIBUS
COUNTERTERRORISM ACT OF 1995
by David Cole,
Professor, Georgetown University Law Center
I. INTRODUCTION AND SUMMARY
The "Omnibus Counterterrorism Act of 1995," drafted by the
Clinton Administration, was introduced on February 10, 1995 by Senators
Biden and Specter, among others, in the Senate, and by Congressman
Schumer in the House. The bill is wide-ranging, dealing with
everything from the making of plastic explosives, to bomb threats and
trading in nuclear materials. But it also prohibits a wide range of
First Amendment protected activities, resurrects "guilt by association"
as a guiding principle of criminal and immigration law, and creates an
unprecedented "alien terrorist removal procedure" that would deny
immigrants the most basic of due process protections -- the right to
confront the evidence the government seeks to use against one. This
memorandum briefly addresses those provisions of the bill that raise
the gravest civil liberties concerns.
In brief, the Administration's bill would reintroduce to
federal law the very principle of guilt by association that defined the
McCarthy era, and which has been repudiated since then. It triggers
criminal penalties and even deportation not on individual culpability,
but simply on a showing that those with whom one associates have
engaged in illegal acts. It allows the government to impose up to ten
years' imprisonment on citizens, and deportation on non-citizens, where
an individual has done nothing more than support the lawful activities
of an organization that the government has labelled "terrorist," even
if it is undisputed that that organization engages in a wide range of
lawful activities and that the individual supported only such lawful
activities. This is guilt by association in its purest form.
The bill goes beyond McCarthyism in authorizing trials based on
secret evidence for immigrants accused of supporting a "terrorist
organization." Under this provision, the government not only could
deport immigrants for supporting solely lawful activities of
organizations that have also engaged in unlawful acts, but could do so
on the basis of evidence that the immigrant and his lawyers would never
see. This provision authorizes secret proceedings, one-sided, ex parte
appeals, and expressly permits the INS to use information obtained
illegally.
When the government has previously sought to rely on
undisclosed evidence against non-citizens living here, the courts have
barred it from doing so on due process grounds. The courts have held
that secret evidence defeats the adversarial process, and deprives the
individual against whom it is used a meaningful opportunity to defend
himself. When the INS last sought to use secret evidence to expel a
permanent resident alien, the D.C. Circuit likened the position of the
alien to that of "Joseph K. in The Trial," finding that "[i]t is
difficult to image how even someone innocent of all wrongdoing could
meet such a burden [of rebutting undisclosed evidence that he is a
terrorist]." Rafeedie v. INS, 880 F.2d 506, 516 (D.C. Cir. 1989).
This bill's secret evidence procedure has the same fundamental
flaw -- it allows the government to rely on information that the alien
cannot see. Due process cannot be squared with the affirmative use of
secret evidence.
II. IMMIGRATION LAW CHANGES
Title II of the Omnibus Counter-Terrorism Act would change
immigration law in two respects. First, it amends the substantive
provisions authorizing deportation and exclusion of non-citizens for
"engaging in terrorist activities," broadly expanding the definition to
include support of solely lawful activities. Second, it allows the
government to deport aliens accused under this broad substantive
provision on the basis of secret, undisclosed evidence. This memo will
address each provision in turn.
A. Section 202: Changes to the Immigration and Nationality
Act to Facilitate Removal of Alien Terrorists
This section changes current immigration law to broaden
substantially the government's power to deport aliens based on charges
that they have supported a terrorist organization.
1. Current Law
Under current law, aliens are excludable and deportable if they
either engage in a terrorist activity themselves, of if they provide
material support to an individual, organization, or government "in
conducting a terrorist act at any time." Terrorist activity under
current law is defined extremely broadly, to include any use of a
firearm or explosive with the intent to endanger person or property.
However, the current law does require the government to prove that the
individual it seeks to deport or exclude has actually engaged in such
activity, or has provided material support for the conducting of such
activity.
2. Expansion of "Terrorism" Deportation Provisions to Include
Support of Lawful Activity
The proposed bill would eliminate any requirement that the
alien actually have any connection to terrorist activity per se, and
would substitute guilt by association. Under the new law, the
government need only prove that the alien has afforded "material
support to any individual, organization, or government which the actor
knows or reasonably should know has committed or plans to commit
terrorism activity." Section 202 (a)(B)(iii). Under this provision, an
individual who pays taxes to a government that has engaged in the use
of an explosive or firearm with intent to endanger person or property
would be deportable as a terrorist. Similarly, an individual who
raised funds solely for the lawful medical services provided by any
organization that has also engaged in terrorism would be deportable as
a terrorist.
The new law explicitly provides that a "terrorist organization"
is defined without reference to lawful activities of the group. It
defines "terrorist organization" as "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." Section 202(a)(B)(iv). Under this definition, any
alien who provided money for the peace process to Yasir Arafat's
Palestine Liberation Organization would be deportable, notwithstanding
that the peace process is lawful, and that the United States government
itself has provided the PLO with funds for that purpose, and asked
others to do the same. The PLO's subgroups include the Democratic
Front for the Liberation of Palestine and the Popular Front for the
Liberation of Palestine, both of whom the government charges are
engaged in terrorism.[fn0] Thus, aliens would be deportable for doing
what the U.S. government itself is currently doing, and asking others
to do.
3. Deportation of Terrorist Group "Representatives"
The new law also permits the President, together with the
Secretary of State and Attorney General, to deport any alien they
choose simply by identifying him or her as a "representative" of a
"terrorist organization," in an unreviewable determination. Section
202(a)(B)(i) makes deportable "representatives" of "any terrorist
organization designated by proclamation by the President after he has
found such organization to be detrimental to the interests of the
United States." Such a designation would likely be unreviewable, since
it provides no standards, and courts are unlikely to second-guess the
President on what is "detrimental to the interests of the United
States."
The provision further authorizes either the Secretary of State
or Attorney General to designate any alien a representative of a
terrorist organization, and specifies that such determination "shall be
controlling and shall not be subject to review by any court." Thus,
this statute effectively allows the President, together with the
Secretary of State or Attorney General, to deport any alien in the
United States through two unreviewable designations. To afford
government officials such unreviewable power to single individuals out
for deportation is contrary to basic principles of due process.
4. Analysis
The "terrorism" provisions of the Immigration and Nationality
Act were added in 1990, when Congress finally repealed the
McCarran-Walter Act. The 1990 Act was designed to repudiate the
principle of guilt by association that characterized the
McCarran-Walter Act. This bill would reintroduce, in the name of
counter-terrrorism, the same principles of guilt by association. It
would render aliens deportable for associational activity fully
protected by the First Amendment, and for supporting wholly lawful and
humanitarian activities.
These provisions are unconstitutional on their face. The
Supreme Court has long held that the First Amendment forbids punishment
for association alone. The right of association means that all persons
in the United States have a right to support, join, recruit for, and
raise money for organizations that engage in both lawful and unlawful
activity. Raising and contributing money is a core aspect of
associational and expressive First Amendment rights.[fn1] Recruiting
members for a group is also protected.[fn2] And the Supreme Court has long
held that in order for the government to punish an individual's
associational activities on behalf of a group, it must prove that the
individual specifically intended to further the unlawful ends of the
group . [fn3] Yet under this bill, aliens are deportable solely for
supporting lawful activities of groups that also engage in unlawful
activity.
The Administration is aware that organizations denominated
"terrorist" often engage in lawful activity. Indeed, just last year,
the Administration testified against a bill that would have made
membership in Hamas a ground for exclusion as a "terrorist" on such
grounds. It argued that because Hamas engages in "widespread social
welfare programs" as well as terrorism, one could not presume that a
Hamas member was a "terrorist" without indulging in guilt by
association.[fn4] Yet the Administration's bill would do just that for
countless groups.
These provisions also raise substantial concerns about
selective enforcement. They are written so broadly that any alien who
has supported any organization that has engaged in an act of property
destruction is deportable. There are literally thousands of such
groups worldwide, and millions of such aliens here in the United
States. Yet the government will almost certainly enforce this
provision selectively against those individuals who support groups the
government does not support. Thus, non-citizens who raise money for
Israel, which has certainly engaged in unlawful property damage
directed at civilians (see, for example, its collective punishment
policies pursuant to which it bulldozed homes and villages), would
technically be deportable under this provision, but it is of course
unlikely that they will be targeted. History has shown that one man's
terrorist is another man's counterrevolutionary. A bill as broadly
written as this invites selective enforcement against unpopular groups.
B. Section 201: Alien Terrorist Removal Procedures
This provision would authorize the INS to deport aliens accused
of engaging in "terrorist activities," as that term is broadly defined
above, on the basis of secret evidence never disclosed to the alien or
his or her lawyer.
1. Current Law
Deportation proceedings throughout our history have been
conducted on the basis of evidence disclosed to the alien, to afford
him an opportunity to defend himself. The Supreme Court and lower
courts have held that due process -- which protects all aliens living
in the United States, whether here lawfully or unlawfully [fn5] -- does not
permit the use of secret evidence.[fn6] Accordingly, the INS has never used
undisclosed evidence to deport any alien from the United States.
2. Secret Evidence Procedure
The bill sets up a special court, comprised of 5 district court
judges designated by Chief Justice Rehnquist, to hear deportation cases
against aliens charged under the "terrorism" provisions discussed
above. Section 502.
To trigger the "secret evidence" procedure, the government need
only establish that the alien is subject to deportation under the
"terrorism" provisions, and that adherence to regular deportation
provisions would "pose a risk to the national security of the United
States." Section 502(a). Any time the government has classified
information that it does not want to reveal, it will be able to claim
that an ordinary deportation hearing would pose such a risk, because an
ordinary deportation hearing would require the disclosure of classified
information. If the court finds that the government has not made such a
showing, the government has a right to an immediate appeal, which shall
be "ex parte," meaning the alien and his lawyers have no right to
participate. Section 502(d)(1). The alien has no appeal.
The procedure requires the government to provide the alien with
summaries of its classified information, but if the government shows
either that the alien's continued presence or the provision of the
summary "would likely cause serious and irreparable harm to the
national security or death or serious bodily injury to any person."
Section 502(e)(2). If the government makes that showing, it may
proceed by undisclosed evidence, without any summary. It is likely
that the government will often be able to make such claims, because all
it needs to do is state that an informant is involved, that a summary
would disclose his or her identity, and that the informant's safety
would be endangered.
Where ex parte evidence is used, the alien and his lawyers have
no opportunity to see it, and the immigration judge may hear argument
based on the evidence outside the presence of the alien and his
lawyers. Section 502(j), (l). If the judge declines to accept such
secret evidence, the Justice Department may take a one-sided appeal to
the Court of Appeals, which will consider the government's appeal
without the participation of the alien or his lawyers.[fn7]
In such a special removal proceeding, the alien is barred from
seeking to suppress any evidence, even if it was illegally obtained,
and has no right to discover information derived from electronic
surveillance, which the government may use even if obtained in
violation of the law restricting electronic surveillance. Section
501(b). Ordinarily, any person in any proceeding can move to suppress
such evidence on the ground that it was unlawfully obtained. 18 U.S.C.
€3504. That statute is specifically made inapplicable to these
deportation proceedings. Section 501(b).[fn8]
The bill provides for immediate detention without bail of all
aliens subject to this procedure. Aliens here on student visas,
tourist visas, or special labor visas would be denied any hearing
regarding their detention. Lawful permanent resident aliens would get
a hearing, but the government would be able to use classified
information, and instead of the government having to prove that there
are grounds for detention, the alien would have to prove that there is
no basis for detention. Section 502(b).[fn9]
3. Analysis
It is a cardinal rule of due process that evidence used against
one party must be disclosed to that party. This rule applies in
criminal and civil proceedings. The government is thus seeking to
exercise an unprecedented power in authorizing reliance on secret
evidence.
Under the law, the government need only show that the presence
of the alien or revealing the information presents a risk of serious
harm to national security or any person. If such a showing were
sufficient to justify using secret evidence in criminal trials,
virtually every criminal case involving an informant would be heard on
the basis of secret evidence. Yet it is well-established that in no
criminal trial -- even involving the most heinous of crimes, the most
top secret information, and the most dangerous of threats -- may the
government use undisclosed evidence. If it wants to use an informant's
testimony, it must reveal his or her identity. If it wants to rely on
classified information, it must reveal it in court. Yet under this
law, the government would be permitted to use secret evidence against
an alien who did no more than provide humanitarian aid, as long as part
of its evidence against the alien is based on classified information.
Moreover, the law allows the government to use undisclosed
evidence without a summary not only where revealing the information
would pose a risk, but also where revealing the information would pose
* no * risk, but the alien's presence poses a risk. Section
502(e)(2)(A)., Thus, the law allows the government to use secret
evidence against aliens it claims are dangerous even where there would
be no danger posed by disclosing the evidence. This provision simply
authorizes the government to use secret evidence where the only reason
for doing so is to deny the alien a fair opportunity to defend himself.
As noted above, courts have consistently declared
unconstitutional INS attempts to use secret evidence against aliens,
even where the government claims that national security is at stake.
This procedure is equally unconstitutional.
Moreover, the government has made no showing that such a
procedure is necessary. The nation has survived for more than 200
years without secret trials.
III. RESTRICTIONS ON FUND-RAISING BY ALL U.S. PERSONS
Title III of the bill imposes unprecedented restrictions on
humanitarian fundraising for any organization designated by the
President as a terrorist group. This provision reaches the activities
of U.S. citizens as well as non-citizens, and directly infringes on
First Amendment protected activity.
A. Current Law
It is already illegal to provide money for the terrorist acts
of any group or person. Congress passed a bill prohibiting such
activity in the 1994 crime bill. 18 U.S.C. €2339A. What this bill
adds is a prohibition on fundraising that would otherwise be legal,
namely fundraising for the lawful activities of an organization that
has engaged in terrorism.
B. Designation of Terrorist Groups
Under Section 2339B(c), the President may designate any
foreign organization as a terrorist organization if he finds that the
organization engages in terrorism activity as defined in the
immigration provisions and that the organization's terrorism activities
"threaten the national security, foreign policy, or economy of the
United States." As noted above, the immigration provision definition
of "engage in terrorism activity" is extremely broad, and includes not
only any unlawful property damage, but also any fundraising for the
lawful activities of another organization that has engaged in property
damage. Thus, this definition places virtually no constraints on the
groups the President could designate.
In addition, the bill makes the President's designation
"conclusive," and provides that "[n]o question concerning the validity
of the issuance of such designation may be raised by a defendant in a
criminal prosecution." Section 2339B(c)(6). Thus, even in the
ludicrous instance of the President designating the Girl Scouts as a
terrorist organization, a person charged with raising funds for the
group could not challenge the designation.
C. Fundraising for Lawful Activities Criminalized
The bill criminalizes any fundraising or monetary support of any
designated group. In theory, it provides an if the individual obtains a
prior license from the Secretary of the Treasury. To obtain a license,
however, the individual must prove that the funds will be used
exclusively for lawful purposes, and will not be used to offset a
transfer of other funds to be used in terrorist activity. Section
2339B(e)(3). In addition, the individual must make available to the
Secretary's inspection his books and records, and the books and
records of the recipient organization. Section 2339B(e)(4).
Under this law, it would have been a crime to give money to the
ANC during Nelson Mandela's speaking tours here, unless the individual
made his or her books and the books of the ANC available to the
Secretary of the Treasury for inspection.10 (Of course, under the
preceding immigration provisions, Nelson Mandela and any alien who
contributed to his cause would be deportable, even if they could prove
that the money went solely for lawful causes).
This bill authorizes up to 10 years' imprisonment for any
violation. It also subjects anyone who gets a license and thereafter
fails to make available to the Secretary their books or the books of
the recipient organizations liable to a $50,000 fine, or twice the
amount of money that would have been documented, whichever is larger.
Section 2339B(i).
The law also allows the government to bar discovery of
classified information by defendants in civil proceedings for
injunctions under this Act, and to use summaries of classified
information or redacted documents affirmatively against defendants.
Section 2339B(l).
D. Analysis
This bill raises several constitutional concerns. First, it
criminalizes constitutionally protected fundraising for lawful
activities. The loophole it creates to allow such fundraising is
illusory, given the requirement that the foreign organization must open
its books to the Secretary of the Treasury.
Second, even if the licensing option were not illusory, it
imposes an unconstitutional prior restraint, because it requires approval
before the First Amendment activity can be engaged in. The First
Amendment prohibition on prior restraints means that the government is
restricted to punishing speech or associational activity after the fact,
and cannot require prior licensing..
Third, the licensing requirement reverses the burden of proof
constitutionally required by the First Amendment. The First Amendment
bars the government from prohibiting fundraising for an organization
unless the government can prove that the money is specifically intended
for unlawful activities. Under this bill, guilt is presumed, and the
individual seeking a license must prove that the money is intended for,
and will be used only for, lawful activities.
Fourth, the bill gives the President judicially unreviewable
authority to designate prohibited organizations, and that determination
is conclusive in court. Moreover, the definition of terrorist
organization, taken from the immigration provisions discussed above, is
so broad as to invite selective enforcement.
Fifth, the provisions permitting the government to use
summaries of classified information against defendants and barring
defendants from discovering classified information that would be
helpful to their case raise significant due process concerns, for
reasons discussed above in Section II.B., addressing the alien
terrorist removal provisions.
------------------------------------------------------------------------
Footnotes
0 Executive Order (January 24, 1995).
1 See Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295-96
(1981) (monetary contributions to a group are a form of "collective
expression" fully protected by the right of association); Federal
Election Comm. v. National Conservative Political Action Comm., 470
U.S. 480, 495 (1985) (same); Roberts v. United States Jaycees, 468 U.S.
609, 626-27 (1984) (First Amendment protects Jaycees' "fundraising");
Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.
620, 632-33 (1980) (First Amendment protects charitable solicitation of
funds).
2 Staub v. City of Baxley, 355 U.S. 313 (1958) (striking down
restriction on solicitation of members for unions and other
organizations as violation of First Amendment); City of Watseka v.
Illinois Public Action Council, 796 F.2d 1547, 1558-59 (7th Cir. 1986)
(upholding award of damages for First Amendment violation based in part
on organization's "inability to recruit new members").
3 In Healy v. James, 408 U.S. 169, 186 (1972), the Supreme Court held
that:
'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.
(citations omitted, emphasis added). Under this principle, the Court
has struck down statutes barring Communist Party members from public
and private employment, Keyishian v. Board of Regents, 385 U.S. 589,
606-07 (1967); Elfbrandt v. Russell, 384 U.S. 11, 17 (1966); United
States v. Robel, 389 U.S. 258; ballot access, Communist Party of
Indiana v. Whitcomb, 414 U.S. 441, 448-49 (1974); the right to travel
abroad, Aptheker v. Secretary of State, 378 U.S. 500 (1964); and the
practice of law. Baird v. State Bar of Arizona, 401 U.S. 1 (1971);
Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).
4 Written Testimony of Mary A. Ryan, Assistant Sec. for Consular
Affairs, Dept. of State, Before the Subcomm. on International Law,
Immigration and Refugees of the House Judiciary Comm., Feb. 23, 1994,
at 7. See also Written Testimony of Chris Sale, INS, same hearing, at
9.
5 As the Supreme Court stated in Mathews v. Diaz, 426 U.S. 67, 77
(1976):
There are literally millions of alines within the
jurisdiction of the United States. The Fifth Amendment, as
well as the Fourteenth Amendment, protects every one of
these persons from deprivations of life, liberty, or
property without due process of law. Even one whose
presence in this country is unlawful, involuntary, or
transitory is entitled to that constitutional protection.
6 Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (holding that INS
could not subject returning permanent resident alien to "summary
exclusion" procedure in which INS would rely on secret evidence);
Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992) (holding
unconstitutional the INS's attempt to expel a permanent resident alien
on the basis of undisclosed classified information); American-Arab
Anti-Discrimination Comm. v. Reno, No. CV 87-2107-SVW(Kx), Slip op.
(C.D. Cal. Jan. 25, 1995) (enjoining INS, on due process grounds, from
relying on undisclosed information to deny aliens legalization to
permanent resident status), appeal pending (9th Cir.).
7 The bill may also change the standard of proof. In deportation
hearings, it has long been established that the government must prove
its case by "clear, unequivocal, and convincing evidence." Woodby v.
INS, 385 U.S. 276 (1966). Under this bill, however, the government
would need to prove its case only by "clear and convincing evidence."
Section 502(m). It's not entirely clear that the government considers
this a change in the standard, however, for it states in its
section-by-section analysis that the same burden of proof would apply
as in other deportation proceedings. The analysis does not explain the
statutory omission of the requirement that the evidence by
"unequivocal."
8 In fact, that statute is made inapplicable to all deportation
proceedings under the "terrorism" provisions, whether or not they
involve the use of undisclosed information. Section 202(d).
9 The bill would also make any alien subjected to such a proceeding
ineligible for any discretionary relief otherwise available to
deportable aliens. Section 501(c). Thus, under this bill, a permanent
resident alien who provided medical supplies to a hospital run by an
organization that had also engaged in an act of property destruction
could be deported on the basis of secret evidence, and would have no
opportunity even to apply for discretionary relief.
10 The ANC was routinely listed as a "terrorist group" in official
government documents prior to its becoming part of the South African
government.
