From: Bob Witanek <bwitanek@igc.apc.org> Posted owner-187-l@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.