christic@labrea.Stanford.EDU (06/14/91)
/* Written 3:58 pm Jun 13, 1991 by peacenet in cdp:pn.alerts */
/* ---------- "US to Deport "Alien Terrorists"?CCR" ---------- */
Subject: US to Deport "Alien Terrorists"?CCR
>From ccr Thu Jun 13 13:13 PDT 1991
DATE: May 20, 1991
FR: AMERICAN CIVIL LIBERTIES UNION (ACLU)
202-675-2319
CENTER FOR CONSTITUTIONAL RIGHTS (CCR)
212-614-6422
RE: ADMINISTRATION PROPOSALS FOR SECRET DEPORTATION OF
"ALIEN TERRORISTS"
The Bush Administration has submitted a proposal to Congress
for using secret evidence and secret proceedings to deport foreign
nationals in the United States whom the government asserts have
engaged in "terrorism." The proposal is part of the
Administration's comprehensive crime package that is itself a
thinly disguised assault on civil liberties. An identical version
of the proposal is included in the "Terrorism Death Penalty Act of
1991" introduced by Senator Strom Thurmond (S.265), presently
pending in the Senate Judiciary Committee.
The Administration proposal would establish a special court
that would conduct secret trials to deport persons in this country
who have not been convicted of, or even charged with, any crime.
Under this authority the I.N.S. could deport any foreign national
-- whom the government asserts is a terrorist, which in the
Administration's view includes political supporters of any
organization that it deems to be terrorist.
The charge of terrorism may be based on secret evidence,
which may consist of nothing more than allegations from the
government of the alien's native country in an effort to secure
his deportation back to the country from which he may have fled.
The alien would never know what the charges were, where they
originated, or what they were based upon.
The Administration proposal constitutes a drastic departure
from our fundamental norms of fairness and offends the two most
basic principles of our system of justice: that government charges
against an individual must be public, and that a person has the
right to be informed of the charges and evidence against him and
an opportunity to answer them.
This nation has survived for two hundred years without
utilizing secret trials. The ostensible need for this
extraordinary authority is to protect sensitive information that
might have to be released in deportation proceedings. Yet, the
government has successfully prosecuted many espionage and
terrorism cases where sensitive national security information was
involved, without using secret evidence. There is no need for
this wholesale deprivation of individual rights.
Moreover, the premise on which the Administration proposal is
based is not supported by the facts. The Administration asserts
that "significant infrastructures and cells" have been created in
the United States to further international terrorism, and sets out
"findings" regarding terrorist acts committed by aliens in the
United States and abroad. Of the sixteen incidents listed in this
section, however, only four occurred in the United States, and
only one (in 1982) appears to have been actually carried out.
Even the FBI acknowledges that terrorist incidents are not in fact
on the rise, but have been in decline over the last decade.
The purpose of the bill seems to be not to fight terrorism,
but to give the Administration broad authority to deport political
activists on the basis of secret information from their
governments which would never have to be revealed to them. If
this were law, Salvadorans or Koreans in this country could be
deported solely on the basis of secret information from their
governments which would never have to be revealed to them.
Similarly, Chinese students in the U.S. whom the Beijing
government wants to prosecute for participating in the Democracy
Movement could be deported without the students or the public ever
being told the basis for their deportation.
These proposed procedures raise special cause for concern
because of the breadth of the substantive charges that trigger
them. The statutory definition of terrorism arguably includes
First Amendment-protected activities, such as raising money or
recruiting members for an organization engaged in legitimate
political activities, when an element of the group also engages in
violent activities. Labelling an organization "terrorist" is an
inherently political decision; in official U.S. government policy,
the Nicaraguan Contras and the Afghanistan rebels were "freedom
fighters," while the Palestinians, the Irish, and the Salvadoran
rebels are "terrorists." As one court has noted, "one man's
terrorism may be another's holy war."
Such provisions always pose the risk that the government will
punish people for their political speech and associations, and
will do so selectively. That was the history of the recently
repealed McCarran- Walter Act. That danger is multiplied a
hundredfold when the government can try its cases in secret, and
never submit its evidence to the light of public scrutiny.
This memorandum will first discuss the secret deportation
provisions of the Administration's proposal. It will then address
related provisions that would create new crimes and grant the
Executive new investigatory authority that would erode the
constitutional rights of citizens and noncitizens alike under the
guise of fighting terrorism.
Secret Proceedings
Section 502 of President Bush's crime bill is the procedural
heart of the Terrorist Alien Removal provisions. It would create
a procedure unprecedented in the annals of American jurisprudence.
Section 502 would render secret every critical step in a foreign
national's deportation: it authorizes secret applications for
secret hearings, secret presentation of evidence, secret argument
by the government before the judge, secret decision making, and
secret appeals. At each of these steps, the accused, his
attorney, and the public would be kept in the dark.
Such secret procedures patently violate the first principle
of due process: that before the government can harm any person,
the individual should have a fair opportunity to confront the
government's evidence and attempt to refute it. As Justice
Frankfurter wrote forty years ago:
Secrecy is not congenial to truth-seeking and
self-righteousness gives too slender an assurance of
rightness. No better instrument has been devised for
arriving at truth than to give a person in jeopardy of
serious loss notice of the case against him and opportunity
to meet it. Nor has a better way been found for generating
the feeling, so important to a popular government, that
justice has been done.
Since long before the turn of the century, the Supreme Court
has held that, because deportation is the most serious penalty an
alien can face, an alien in this country is entitled to
constitutionally fair procedures before the government may expel
him. Thus, under current law, the government bears the burden of
demonstrating, on the record in open court, by "clear and
convincing evidence," that the alien is deportable. The hearing
is open to the public, and the government may not rely on secret
evidence. The alien has a right to counsel, and is entitled to
confront and cross- examine all of the government's witnesses. If
found deportable, the alien has a right to appeal first to the
Board of Immigration Appeals, then to a United States Court of
Appeals, and finally by petition for certiorari to the United
States Supreme Court.
Section 502 applies to all foreign citizens living in this
country, regardless of their status. It applies whether they are
here lawfully or unlawfully; whether they are long-time permanent
residents, students, or visitors; whether they live here with ten
family members or none; and even if all their relatives are U.S.
citizens.
The secret proceeding can be initiated at the discretion of
the Attorney General, whenever he charges an alien with having
"engaged in terrorist activities," as those activities are defined
in the Immigration Act of 1990. The new Immigration Act contains
an extremely broad definition of engaging in terrorism, which
includes fund-raising and soliciting members for a "terrorist
organization," a term which is not defined in the statute. The
legislative history defines a terrorist organization as one whose
leadership or membership has committed violence at any time, and
adds that "[a] group may be considered a terrorist organization
even if it has not conducted terrorist operations in the past
several years, but there is reason to believe it still has the
capability and inclination to conduct such operations."
Given this broad and ambiguous definition, there is a danger
that a person could be labelled a terrorist by the U.S. government
and deported for raising money or supporting, for example, the
African National Congress, the Kurdish rebels, the Salvadoran
rebels, or virtually any other foreign resistance movement, even
if the money or support went exclusively to the group's lawful
activities.
Everything that matters in a Section 502 proceeding would be
conducted in camera, and ex parte, meaning in secret, without
notice to the accused, and with only the government's attorneys
and the judge present.
1. The procedure begins with the government's request
to a special court to conduct a secret hearing. This request is
itself secret. The government applies, in camera and ex parte, to
one of five judges specifically appointed to hear these cases by
the Chief Justice of the U.S. Supreme Court. The government need
only show that an important investigative technique or
confidential source of information might be revealed, and it can
do away with due process.
Upon the mere filing of the application, the government can
arrest and detain the person, without any showing that the person
is dangerous or might flee. This is the only "notice" the alien
will receive that such an application has been filed.
The judge must decide whether there is probable cause to
believe that the accused has engaged in terrorist activities,
without any input whatsoever from the accused or his counsel. If
the judge concludes that there is probable cause, and that it
would be harmful to reveal the evidence, she must authorize a
secret trial, or "special removal hearing."
If the judge rules against the government's application, she
must write a decision, and the government is entitled to an
expedited, secret, ex parte appeal. If the judge rules for the
government, no decision is written, and the accused is not
entitled to appeal.
2. Secret Hearing with Secret Evidence
Once the judge authorizes a "special removal
hearing," she must review the secret evidence and determine what,
if anything, can be disclosed about the evidence. The accused will
either be given a written summary of "the general nature of the
evidence," or a statement that no such summary can be provided --
the accused can even be denied the right to know the specific
charges against him. If the government believes that the judge is
disclosing too much information, it can take a secret appeal
immediately. If the accused believes that he is not getting
enough information, there is no right to appeal.
The same judge then conducts a "special removal hearing."
The hearing is open to the public in form, but the evidence on
which the charge is based is never revealed to the public, the
accused, or his attorney. Moreover, the government can present
argument about the secret evidence to the judge in camera, out of
sight of the opposing lawyer and the public. Absurdly, the
alien's attorney is then given the opportunity "to present
argument as to whether the evidence [which she has not seen] is
sufficient to justify removal of the alien." Section 502(1).
Furthermore, the proposed law would allow the government to
use illegally obtained evidence. Section
501(b) denies the alien any "right of discovery of information
derived from electronic surveillance authorized under the Foreign
Intelligence Surveillance Act or otherwise." It then allows the
government to ignore provisions of FISA that require the court to
suppress evidence derived from unlawfully authorized or conducted
surveillance.
Ironically, the proposal requires the government to use the
same "clear and convincing evidence" standard currently required
in deportation proceedings. On its face this standard implies
that the government must make its case against a presumption of
innocence and subject to the scrutiny of the person being
deported. But for this standard to be meaningful there must be a
full adversarial proceeding; it requires weighing, comparing,
testing, and judging the worth of the evidence and the credibility
of the witnesses when considered in connection with all the facts
and circumstances. It is rendered meaningless when the accused
has no practical opportunity to cross-examine witnesses, or to
rebut the charges and the specific evidence being used against
him.
3.
If the judge finds that the accused has engaged in
"terrorist activity," she must order him deported; the judge has
no authority to decide that removal would be unfair or is
otherwise unwarranted. The judge must write an opinion, but again
any part of the decision that rests on the secret evidence will
itself be secret. At this point, for the first time, both the
accused and the government have a right to appeal. Again,
however, the appeal will be conducted in secret to the extent that
the decision relies on secret evidence.
Under the proposed law, appeals of these cases would go to
the U.S. Court of Appeals for the Federal Circuit instead of to
the various Circuit Courts that hear appeals of other deportation
orders. The Federal Circuit handles such matters as patents,
copyrights, trademarks, taxes, contract disputes, tariffs, and
cases arising before the Claims Court and the U.S. International
Trade Commission. This court rarely, if ever, handles issues
affecting individual liberties under the Bill of Rights, such as
illegal searches and seizures, First Amendment political
activities, and the right of adversarial due process, all of which
come up in these kinds of proceedings. The Administration's
proposal to provide appeals from these extraordinary deportation
proceedings to a patent and trademark court must be viewed with
great skepticism.
Finally, Section 504 allows the Executive to refuse to deport
the alien to her country of choice if the Attorney General and
Secretary of State determine that to do so would "adversely affect
the foreign policy of the United States." In such a case, the
person could be sent to "any country willing to receive such
alien." This would permit the government to use these secret
deportation proceedings to send a person to a country to which he
cannot legally be extradited.
Thus, a person could be deported to a country where his life
would be endangered. This risk is heightened by the fact that
once the Justice Department files an application for removal under
this new provision, all other rights under the Immigration and
Nationality Act, such as discretionary relief, withholding of
deportation, and the right to apply for political asylum, would be
denied to him. Section 501 (b). If no country is willing to
receive the person, he could be detained indefinitely. Section
504 (a)(4).
The above procedures are fundamentally unfair in every
respect. They fail to provide notice to the alien that an
application has been filed. They allow detention of the alien
throughout the proceedings without any showing that he is
dangerous or likely to flee. They give the government the right
to appeal adverse decisions by the judge regarding the
presentation of secret evidence, but deny the alien any right to
appeal such determinations.
At trial, the government has a one-sided opportunity to
present evidence and argument to the judge, in secret. On appeal,
it can do the same. Together, these procedures deny the alien any
meaningful opportunity to defend himself; without knowing what the
evidence is, it will be impossible to show that it is false.
For this reason, the government is generally forbidden from
relying on secret information when taking action that harms a
person. can be convicted of a crime, even a misdemeanor, on the
basis of secret, undisclosed evidence. Even where the government
seeks simply to terminate welfare benefits, it must reveal all the
adverse evidence and permit the affected person to confront and
cross-examine witnesses. As the Supreme Court stated in refusing
to allow the government to use secret information to revoke an
employee's security clearance:
Certain principles have remained relatively immutable in our
jurisprudence. One of these is that where governmental
action seriously injures an individual, and the
reasonableness of the action depends on fact findings, the
evidence used to prove the Government's case must be
disclosed to the individual so that he has an opportunity to
show that it is untrue.
These principles apply equally to citizens and to
foreign nationals in the United States. In 1953, the Supreme
Court ruled that a regulation authorizing secret proceedings to
exclude aliens could not be applied to an alien who lived in this
country, precisely because to apply the regulation would raise
serious due process problems.
In 1989, the U.S. Court of Appeals for the D.C. Circuit
preliminarily enjoined the use of a similar procedure against a
permanent resident alien, again because of the due process
problems that such use would raise. Judge Douglas Ginsburg
likened the position of an alien seeking to rebut undisclosed
evidence to the dilemma faced by Joseph K. in Franz Kafka's The
Trial, and concluded that "[i]t is difficult to imagine how even
someone innocent of all wrongdoing could meet such a burden."
The possibility that secret information can be misused is
demonstrated by the case of Ellen Knauff, a war bride. In the
late 1940's, the INS sought to use undisclosed information to
exclude her. The Supreme Court denied her challenge to this
procedure, holding that as an alien seeking initial entry, she was
entitled only to whatever process Congress chose to provide.
After substantial public and congressional outcry, the INS granted
her a public hearing. There it was revealed that the
"confidential information" against her was nothing more than rumor
and hearsay, apparently sparked by a jilted former lover of her
husband. After spending almost three years detained on Ellis
Island as a supposed "national security risk," Ms. Knauff was
finally admitted into the United States to join her husband.
II. The following related provisions in the
Administration's proposed bill are also objectionable on
constitutional and policy grounds:
The Administration's proposal also includes a
subtitle that would create new federal offenses in the name of
fighting terrorism. Section 735 adds a number of offenses to the
Racketeer Influenced and Corrupt Organizations Act ("RICO"). RICO
prohibits engaging in a pattern of racketeering activity through
an enterprise involved in interstate commerce, and provides for
forfeiture of the assets of the enterprise.
This proposed section would make a dramatic change to RICO
law. The definition of "pattern of racketeering activity" would
be amended to eliminate the present requirement of pecuniary
motive. Thus, a person could be prosecuted under RICO if his
motives were purely political or ideological. In U.S. v. Ivic,
700 F.2d 51 (2d Cir. 1983), the Second Circuit construed RICO to
require an economic motive, and the Department of Justice has long
sought to explicitly overrule the holding in that case.
This is another example of measures ostensibly designed to
fight terrorism that in fact have a much broader reach. RICO was
originally enacted to combat organized crime. This change would
broaden the applicability of RICO to many areas that do not
involve major criminal activity. For example, protestors who
trespass and damage property could be found to violate RICO, and
thus be subject to its harsh penalties.
Section 736 provides for forfeiture of property used to
facilitate "terrorist and violent acts". Under this provision,
the property that is subject to forfeiture is extremely broad, and
the crimes that trigger forfeiture include some acts that cannot
be labelled "terrorist and violent acts". "Facilitation" is meant
to convey the meaning that property with a sufficient nexus to the
proscribed activity is forfeited. According to a former head of
the Department of Justice's Asset Forfeiture Office, the
facilitation standard is vague and thus seriously flawed.
Additionally, the definition of a "terrorist and violent act"
is overly broad and inappropriate, as illustrated by the following
example. Under 18 USC 1361, anyone causing damage of over $100 to
U.S. Government property is guilty of malicious mischief; this
would be one of the "terrorist and violent acts" in the proposed
statute. Thus, an ACT-UP protestor who damages some property in
the course of a protest against HHS policy would have to forfeit
the car he drove to the protest. If the person is a foreign
national, he could be charged with "terrorism" and deported.
B.
Section 742 would amend the Alien Enemy Act to
include all foreign nationals in the United States within its
authority. The Act currently provides for the apprehension,
detention and removal of all citizens of a country with which the
U.S. is at war, upon a Presidential proclamation. The new
proposal would extend the law to cover, in a declared war, "any
and all other aliens within the United States, or any
subcategories or subclasses of such aliens, by nationality or
otherwise," if the President determines that they may engage in
"actual, attempted, or threatened predatory incursions...whether
or not acting in concert with the hostile nation."
While the courts have upheld the constitutionality of the
extraordinary and drastic procedures in the Alien Enemy Act, they
have done so on the narrow grounds that the person is a national
of the country against which the United States is in a "declared
war." This proposal would give the Executive unprecedented power
over a much broader group of persons in the absence of any such
justification, and without any predicate authorization from
Congress.
2. Counterintelligence Access to Telephone and Credit
Records
Sections 743 and 744 would grant the FBI authority to obtain
subscriber information on persons with nonpublished telephone
numbers, as well as credit records, simply by certifying in
writing to the telephone company or credit bureau that such
information is relevant to an authorized foreign
counterintelligence investigation. The proposals would seriously
erode current privacy protections by giving the FBI authority to
obtain these records without a subpoena or court order and without
notice to the individuals that their records have been obtained by
the Bureau.
3. Enhanced Wiretap Authority
Section 745 of the Administration's proposal would
expand the use of the domestic wiretap statute to include, as
predicate offenses for purposes of electronic surveillance,
violations of the International Emergency Powers Act, the Export
Administration Act, and the Trading with the Enemy Act, among
others. These statutes have been used by the Executive to
criminalize certain activities that are protected under the First
Amendment to the Constitution, such as exchanges of scientific and
other information and the importation of paintings to the
U.S.
Moreover, in recent years, the Executive branch has sought
legislation to impose civil penalties for violations of these
laws, apparently in recognition of the fact that many of the
activities they prohibit are not appropriate subjects of criminal
prosecutions. The government should not be given the authority to
conduct wiretaps in connection with such alleged infractions.
Wiretaps are one of the most intrusive investigative techniques
available, and should not be extended to other activities.