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"I wasn't going to like you if you tried to have me whacked." — Sandy Ferrante to Traficant in response to a question of whether she liked him or not. Ferrante, who lived at Traficant's family horse farm for 17 years, said the FBI played for her an audiotape in which a man discusses a plot to kill her at the congressman's direction. Traficant was never charged.

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Testimony of Gregory T. Nojeim, Legislative Counsel
American Civil Liberties Union, Washington National Office
Before United States Senate Committee on the Judiciary
Subcommittee on Terrorism, Technology And Government Information

May 4, 1995

Mr. Chairman and Members of the Committee:

I appreciate the opportunity to testify before you today on behalf of the American Civil Liberties Union (ACLU). The ACLU is a nationwide, non- partisan organization of more than 275,000 members devoted to protecting the principles of freedom set forth in the Bill of Rights. This hearing was called to explore potential legislative responses to terrorism. I will focus my remarks on the Alien Terrorist Removal Provisions of the Omnibus Counterterrorism Act of 1995, the Administration's terrorism bill, introduced on February 10 as S.390 ("Administration Bill") and the Comprehensive Terrorism Prevention Act of 1995 introduced late last week as S.735 by Senator Dole ("Dole Bill"). In their efforts to battle terrorism, these bills would eviscerate provisions of the Constitution and the Bill of Rights to an extraordinary extent.

In the wake of the bombing of the Alfred P. Murrah Federal Building in Oklahoma, nobody can deny the terrorist threat. We join with the rest of the country in mourning the terrible loss we all suffered on April 19. We hope that the perpetrators of that terrible crime will be apprehended quickly, and brought to justice. In a climate like this, it is difficult to legislate with care, and with an eye toward history. However, we urge strongly that you do just that. Terrorism legislation can be enacted without adding the Bill of Rights to the list of casualties in Oklahoma City.

We have a number of concerns about the pending bills. However, at the request of the Subcommittee, I will focus on the language of the bills allowing for deportation based on secret evidence.

DEPORTATION BASED ON SECRET EVIDENCE

The Fifth Amendment to the U.S. Constitution guarantees that a person shall not be deprived of life, liberty or property without due process of law. Section 201 of the Administration Bill and Section 301 of the Dole Bill would establish a new court that could deport aliens as "terrorists" without allowing them an opportunity to see the evidence against them. This would be an unprecedented violation of the due process rights of aliens.

Each bill provides for a new court that would receive classified information about the alien out of the presence of the alien and the alien's attorney. It would commence a special removal hearing. During the proceedings, the accused alien who is not a permanent resident would be held in custody. An alien who is a permanent resident would bear the burden of proving, at a release hearing at which classified information could be submitted ex parte and in camera, that the alien should be released because he or she is not likely to flee, and would not endanger national security or the safety of any person. For the actual hearing, the government would summarize any classified information to be used against the alien, and the summary might be provided to the alien.

At this point, the bills part company. Under the Administration Bill, if the court found either that the presence of the alien in the U.S., or the provision of the summary, would likely cause serious and irreparable harm to the national security, or serious bodily injury to a person, the alien could be deported based on the secret evidence, examined by the court in camera and ex parte.

In contrast, under the Dole Bill, the government would provide the court with either a statement admitting facts the secret evidence would tend to prove, or a summary of the evidence that does not pose a risk to national security. The court would approve the summary if the judge found it sufficient to: (i) inform the alien of the general nature of the evidence that the alien is deportable and (ii) permit the alien to prepare a defense. If the court determined that the summary would provide the alien with "substantially the same ability to make his defense as would disclosure of the specific evidence" the alien could be deported based on the summary, and on the basis of the secret evidence, viewed by the court in camera and ex parte.

Thus, ultimately under either bill, the alien can be deported based on secret evidence. The Dole bill offers the alien the slight advantage of receiving a summary of the classified information, but nonetheless, provides for deportation based on secret evidence. Under the Administration Bill, the alien would not, in many circumstances, even see a summary of the evidence, particularly where the government wanted to conceal from the alien the source of its information.

These sections are similar to legislation Congress declined to adopt in each of its two previous sessions. They are unconstitutional. The government has never before used secret information to deport an alien living in the United States. The most fundamental requisite of due process is that any evidence the government relies upon must be disclosed so that it can be responded to and defended against.

The Supreme Court and the lower courts have consistently held that aliens who have entered the United States gain the full protections of the due process clause, and therefore cannot be deported on the basis of information not disclosed to them. Kwong Hai Chew v. Colding, 344 U.S. 590, 597 (1953) (interpreting secret trial provision not to apply to resident alien because to do so would raise due process concerns); Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989) (affirming preliminary injunction against INS attempt to use secret information to exclude permanent resident alien); Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992) (declaring unconstitutional government's attempt to use secret information to exclude permanent resident alien). In Matthews v. Dias, 426 U.S. 67, 77 (1976) the Court stated:

There are literally millions of aliens 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.

As recently as January, 1995, the District Court of the Central District of California held that to deny nondiscretionary relief to plaintiff aliens based on classified information kept secret from them would deny them due process rights. American-Arab Anti-Discrimination Committee v. Reno, CV 87 2107 (January 24, 1995), Slip. Op. Judge Wilson stated:

One would be hard pressed to design a procedure more likely to result in erroneous deprivations. As Justice Frankfurter observed: 'Secrecy is not congenial to truth-seeking . . . No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.' citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J., concurring).

The courts have permitted the government to use classified information only to exclude aliens who have not yet entered the United States (U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)) or to deny an alien a discretionary immigration benefit (Jay v. Boyd, 351 U.S. 345, 357-59 (1956), reasoning that because an alien's application for discretionary relief can be denied for any reason whatsoever, it may be denied on the basis of secret information) -- never to deport an alien already present.

The danger presented by withholding from aliens the evidence upon which they would be deported is real and significant. In one case that went to the Supreme Court, U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) secret evidence was allowed to be used to exclude from the United States the alien wife of a U.S. citizen. Mrs. Knauff was in exclusion proceedings and had not yet entered the United States. As a result of public pressure, a hearing was granted notwithstanding the Court's ruling that because Mrs. Knauff had not entered the U.S., she did not have the right to see the secret evidence. In the course of the hearing, the secret evidence was found to be worthless because the "confidential source" offering the evidence was determined to be a jilted lover. Mrs. Knauff was allowed to enter the United States. The case provides a graphic illustration of the danger of allowing secret evidence to be used against aliens in deportation proceedings.

These provisions contrast sharply with the Classified Information Procedures Act (CIPA). While we believe that CIPA itself raises constitutional concerns because it can operate to require a defendant to mount a defense with only a summary of the classified evidence, courts have upheld the CIPA procedures.

CIPA establishes a procedure by which a defendant in a criminal case may seek to use classified information in his or her defense. If the government objects to the use of classified information, it can submit to the court a summary of the classified information which must provide the defendant with substantially the same ability to make a defense as would disclosure of the classified information. The judge holds a hearing, in camera if necessary, at which the defendant is given an opportunity to question the adequacy of the summary. Under CIPA, if no fair summary protecting the classified information can be provided, the summary is rejected, the information cannot be used, and the court sanctions the government for refusing to consent to public disclosure, by dismissing the entire indictment or counts of the indictment, by entering findings against the government, or by striking the testimony of witnesses.

Thus under CIPA, when a fair summary protecting disclosure of classified information cannot be provided the defendant, the government cannot use the classified information. The two proposed bills would turn CIPA on its ear: under the Administration Bill, if provision of a fair summary of the classified information would, for example, disclose the name of an informant the government claims could be injured if identified, no summary would be required, the classified information would be used as evidence to deport the alien, and the government would suffer no sanctions. Under the Dole Bill, though a summary would be required, the alien could be deported based on the secret evidence, and the government would suffer no sanctions.

The proposed legislation would allow the use of classified information against the alien, whereas CIPA prohibits the use of classified information in such a circumstance. This use of classified information, kept secret from an alien, would violate the due process rights of aliens.

These provisions could be altered to closely track CIPA. Taking the Dole Bill as an example:

(i) proposed section 242C(c) would be deleted and the normal, pre- hearing custody rules in a deportation case could be substituted therefore, to preserve access to pre-hearing release for aliens who are not a danger to the community;

(ii) proposed section 242C(e) would be altered, consistent with CIPA, Section 6(c), to allow for a hearing at which the alien would have an opportunity to challenge the adequacy of the summary of evidence offered by the government;

(iii) proposed section 242G(g) would be altered, consistent with CIPA, to provide that secret evidence cannot be considered by the court as it makes the determination of deportability, by making it clear that the record as a whole that will be considered is limited to the evidence to which the alien has been given access; and

(iv) a new section 242(G)(h) would be added to make it clear that if the judge cannot determine that the summary of the secret evidence would provide the alien with substantially same opportunity to make his defense as would disclosure of the secret evidence, the special removal hearing would be terminated and the alien released, if in custody. In such a circumstance, the government could still seek to deport the alien consistent with normal deportation proceedings.

I will now touch briefly on other portions of the bill that raise other civil liberties concerns.

CONCERNS ABOUT FREEDOM TO ASSOCIATE

The First Amendment to the Constitution guarantees to people in the United States the right to freely associate. This right extends both to citizens and to non-citizens. Courts have interpreted the First Amendment to mean that people are to be held accountable for their own actions, not for the actions of others. The courts have consistently held that raising and contributing money, and recruiting members, are activities protected by the First Amendment. Only support intended to further the unlawful activities of a group can be prohibited.

To be consistent with the Constitution, effective terrorism legislation must prohibit unlawful activity, not merely associations, because to do otherwise would be to operate on nothing less than guilt by association. Sections 301 and 202 of the Administration Bill and Sections 303 and 401 the Dole Bill both do violence to this notion in the case of both citizens and non-citizens.

The legislation would turn into a criminal act the giving of a pencil to a school operated by a group designated a terrorist organization by the President, unless the donor first obtained a license pursuant to licensing provisions so onerous as to be illusory. An alien -- including a permanent resident alien -- could be deported for providing material support to a group the alien should have known had conducted terrorism activity, even if the alien provided the support for non-violent, charitable activity and had no intention of furthering any other activity. Under these provisions, an alien who paid for the plane ticket for Yasser Arafat to come to the United States and make peace with Israel on the White House lawn would be deportable, even though the government has given material support to the PLO, and encouraged others to do the same.

Because Professor Cole is addressing these matters in some detail, I have touched upon them very quickly. However, the First Amendment concerns raised by the two bills are among the most serious concerns we have with the legislation, and we believe they are likely to be struck down in court if enacted.

RESURRECTION OF MCCARRAN-WALTER ACT

Tied to our concerns about these provisions is the extremely troubling Section 601(c) of the Dole Bill. This provision would, in principle, resurrect the McCarran-Walter Act, repealed by Congress just a few years ago after being ruled unconstitutional. It would render associations or speech, without more, grounds for exclusion under the Immigration and Nationality Act because it would render excludable every member of a "terrorist organization," and every person who advocates "terrorist activity," defined to include, for example, the giving of medicine to a hospital that is affiliated with a "terrorist organization."

This Section 601(c) would roll back nearly two decades of movement by Congress to bar people from the United States on account of their illegal activities, instead of on account of their associations and political beliefs. Just last year, the Administration testified in Congress against legislation that would bar from the United States aliens based on their political beliefs and affiliations. On February 23, 1994, Mary A. Ryan, Assistant Secretary for Consular Affairs of the Department of State testified that one could not presume that a member of a group that engages in widespread social welfare programs was a "terrorist" just because other members of the group engage in objectionable violent activity.

This change to the Immigration and Nationality Act is unnecessary. Under current law, an alien who has engaged in terrorist activity, or who the Attorney General or a consular officer abroad has reasonable grounds to believe is likely to engage in terrorist activity after entry, is excludable. 8 U.S.C. Section 1182(a)(3)(B).

SELECTIVE PROSECUTION FOR POLITICAL REASONS

Both the Administration and the Dole bills would turn into federal "terrorism" crimes certain violations of state law and certain conspiracies. These portions of the proposed legislation are so broad that they invite selective prosecution of unpopular groups for their political beliefs.

Section 101 of the Administration Bill and Section 102 of the Dole Bill would allow federal prosecution of acts that violate state laws prohibiting killing, kidnapping, or assault, and the vast category of damage to buildings or personal property, if: (i) a jurisdictional base could be met; and (ii) the Attorney General certifies that any activity preparatory to the act crossed national boundaries, and that the act "appears to have been intended to coerce, intimidate, or retaliate against a government or a civilian population, including any segment thereof."

All of the activity described in these sections is already a crime under the laws of the states. However, the bills would turn these state law crimes into federal crimes when the Attorney General makes a non- reviewable certification that the crime was politically motivated. Having the government presume the political opinion and motivation of an actor, in an unreviewable determination, is fraught with risk to the First Amendment.

There is a risk that the Attorney General will make this certification only when it is politically expedient to do so because so many violent crimes would otherwise be federalized. Under the bill, a Canadian who during the Gulf War painted, "Nuke Saddam" on the store-front of a grocery store owned by an Iraqi-American could be prosecuted federally for committing an act of terrorism. The Attorney General would be put in the position of picking and choosing, based on an unreviewable determination about the political motivation of the actor, whether to prosecute such crimes as terrorist acts.

Section 102 of the Administration Bill and Section 103 of the Dole Bill would create a new federal crime for conspiring in the United States to (a) murder, kidnap, or maim outside of the U.S.; or (b) damage property abroad that either belongs to a government with which the U.S. is "at peace," or is a railroad, canal, bridge, airport, airfield other public structure or "religious, educational, or cultural property" abroad. In either case, a predicate act to effect an object of the conspiracy would have to occur in the U.S. These sections, like the sections above, are overbroad and fraught with the risk that they would be enforced only against politically unpopular individuals and groups.

Under this legislation, the government could prosecute as terrorists a group of veterans that planned to rescue a comrade in post-war Vietnam if the rescue involved blowing the lock off of a prison door. This is the kind of activity swept up within the legislation, but unlikely to be prosecuted for political reasons. Instead, this section would be enforced only against unpopular groups and individuals.

INVOLVEMENT OF THE MILITARY IN LAW ENFORCEMENT

Under the Posse Comitatus Act, 18 U.S.C. Section 1385, the military is precluded from engaging in civilian law enforcement activities, except in carefully prescribed circumstances regarding nuclear materials. Separation of the military from civilian law enforcement is one of the pillars of our freedom. Military involvement in law enforcement is one of the trademarks of repressive regimes. The White House proposed expanding the role of the military in law enforcement to areas including biological and chemical weapons, and ACLU understands that there is widespread opposition to such an idea, and for that reason, such a provision was omitted from the Dole Bill.

However, both the Dole Bill and the Administration Bill would substantially expand the role of the military in law enforcement activities -- far more than in the limited areas of biological and chemical weapons. Section 102(f) of the Dole Bill, and Section 101(f) of the Administration Bill, contemplate that, notwithstanding any law to the contrary, the Army, Navy, or Air Force could assist in the investigation of any violation of Section 102 of the Dole Bill and Section 101 of the Administration Bill. As mentioned above, these sections are extremely broad, and would federalize a whole range of violent activities that are already crimes under the laws of the states, upon the required certification of the Attorney General. We urge that the Subcommittee focus attention on these provisions, and keep the military out of civilian law enforcement.

Review of State Court Decisions for Constitutional Infirmities

The Dole Bill would bring the controversial question of habeas corpus reform into the already unwieldy debate around the civil liberties implications of terrorism legislation. In the name of responding to terrorism, Subtitle A of Title VII of the Dole Bill would effectively strip federal courts of their traditional power to assure that state criminal convictions and sentences are constitutional. Title VII is identical word for word to S.623, recently introduced by Senators Specter and Hatch. The key component provides that a federal court has no jurisdiction to issue a writ of habeas corpus to a state prisoner unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court..." or "resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Under this standard, federal courts would be forbidden from granting relief to a state habeas petitioner on any federal constitutional claim that was wrongly denied by a state court as long as the state court acted in a reasonable manner. Essentially, a state court decision that is wrong with respect to a constitutional claim would be unreviewable as long as it was not unreasonably wrong.

Habeas corpus has been an especially important remedy for prisoners who have been sentenced to death because an alarmingly high number of capital trials have been plagued with constitutional violations. Reliable studies in recent years, including a 1991 study by the American Bar Association, have found that more than 40% of the death sentences reviewed by federal appellate courts since the reinstatement of capital punishment in 1976 contained constitutional error requiring reversal.

These reversals have included cases where prisoners were victims of blatant racism at trial, received outrageously ineffective assistance of counsel at trial, were found guilty because the prosecution illegally withheld evidence proving their innocence, and were sentenced to death though probably innocent. However, if the Dole Bill becomes law, similarly egregious violations of constitutional rights would go unchecked because the erroneous decisions of politically-vulnerable state court judges would not be subject to traditional federal court review.

Title VII of the Dole Bill also sets unreasonably short time limits for filing federal habeas petitions and limits almost all petitioners to one round of federal review. A prisoner sentenced to death must typically file a habeas corpus petition within one year after state proceedings end. There has never been a time limit when a constitutional right is involved, especially when an innocent person has been sentenced to death. Title VII of S.735 also repeals the absolute right to counsel that indigent state death row inmates pursuing federal habeas relief have enjoyed since 1988. Since the proposal makes no provision for competent counsel at trial, it leaves prisoners sentenced to death without effective representation at any stage in their proceedings. Given the one-year time limit and the lack of legal assistance, death row prisoners, many of whom suffer from mental disturbances, will be unlikely to file meritorious petitions in time.

Prisoners who uncover strong evidence of their innocence after original habeas proceeding would be barred from relief unless they can demonstrate their innocence by "clear and convincing" evidence. This extremely high standard constitutes a significant departure from current law and only increases the risk that innocent people will be executed. For instance, the habeas petitions of Lloyd Schlup, a Missouri death row prisoner, were rejected by all lower federal courts because he could not satisfy the "clear and convincing" standard. However, in Schlup v. Delo, 513 U.S. ___, 115 S.Ct. 851 (1995) the Supreme Court held that when a person claims that evidence of innocence was not presented because of constitutional error, the person need prove only that it is "more likely than not" that he or she is innocent. If the Court had not rejected the "clear and convincing" standard as being too burdensome, Mr. Schlup would likely have been executed even though Mr. Schlup has amassed overwhelming evidence of his innocence.

It is not uncommon that 10 years passes between conviction of a capital offense, and release. Two innocent men spent 24 years on death row before their release. More specifically, some of these people were released only because of the availability of habeas corpus relief. These people were freed on average 9 1/2 years after original convictions and sentences. That they are alive and free today is testament to the utter importance of an unfettered writ of habeas corpus.

A highly charged atmosphere, such as that accompanying the bombing in Oklahoma City, poses a great risk of mistake as public fear and outrage produces demand for a quick conviction. The habeas corpus provisions of the Dole Bill should be opposed on their merits. At a minimum, Title VII should not be included in any anti-terrorism legislation.

EXPANSION OF FBI INVESTIGATIVE AUTHORITY AT THE EXPENSE OF CIVIL LIBERTIES

A number of provisions in the Dole Bill would expand FBI investigatory authority in counterintelligence investigations as opposed to in criminal investigations. These provisions include Section 502 (which would require consumer reporting agencies to disclose personal information to the FBI for counterintelligence purposes) and Section 503 (which would require common carriers and innkeepers to disclose personal information to the FBI for counterintelligence purposes). The ACLU has grave reservations about intrusive government investigation of U.S. persons without a criminal predicate.

In any event, we believe it would be inappropriate to reconsider the scope of FBI authority to conduct counterintelligence investigations in the context of a response to the Oklahoma City tragedy. FBI investigations into that crime, and any FBI investigation intended to prevent such criminal activity, are carried out under the FBI's criminal investigatory authority. We urge Congress to limit its lawmaking in response to the Oklahoma City bombing to the context of investigations of criminality.

In addition, the ACLU has concerns about Sections 512 and 515 of the Dole Bill, which would substantially expand the list of predicates for an electronic surveillance order. Given the intrusive invasion of privacy associated with governmental eavesdropping, any expansion cannot be undertaken lightly.

We are also very troubled by Section 513 of the Dole Bill, which would authorize personnel of foreign governments to conduct wiretaps authorized by a U.S. court, apparently within the United States and apparently without supervision by federal law enforcement officials. In fact, perfectly innocent, personal conversations would inevitably be intercepted. Once the information is intercepted by a foreign government, there would be no control whatsoever over use of the information by such government. It could use the information for improper purposes, against U.S. citizens or its own citizenry, and could even share the eavesdropped information with other governments, or with the media for mass broadcast.

Both the Dole Bill in Section 102(f) and the Administration Bill in Section 101(e) threaten the Fourth Amendment, which protects people in the United States from unreasonable searches. The Fourth Amendment requires that the government "particularly describe" in its request for a search warrant the premises to be searched. In the case of wiretaps, the government is required by statute to specify the location of the telephone to be tapped, unless the government can show that the suspects were attempting to evade the wiretap by changing the phones they used. The proposed legislation would do away with the specificity requirement in the case of wiretaps employed in investigations of alleged terrorists. The government could tap any phone in a terrorism investigation without specifying which phone, and without showing that such a "roving" wiretap was made necessary by attempts to evade a tap on a specific telephone.

Finally, the ACLU is strongly opposed to spending a half billion dollars of taxpayers' money to implement a scheme to retrofit the digital telephone system with equipment that would make wiretapping easier. Forcing private industry to change how it functions so that Federal agents can better spy on telephone users is extraordinary. This half billion dollars could be better spent elsewhere. This is especially true since the FBI in fact rarely uses this technique.

We encourage this Subcommittee to hold additional hearings at which the civil liberties implications of such increased law enforcement access to electronic communications and personal information about people in the United States can be more fully addressed.

CONCLUSION

Both the Administration Bill and the Dole bill would do substantial damage to civil liberties. We have not even attempted to lay out all of the civil liberties concerns raised by the bills because they are so numerous. The ACLU intends to supplement this testimony with additional analysis to more fully lay out our concerns.

This legislation, and other legislation drafted to respond to perceived terrorist threats, must be carefully and fully re-drafted, with fidelity to the following civil liberties concepts:

(i) People, whether citizens or aliens, have the right to support the legal activities of the organizations and groups they choose to support. This right is fundamental to the right of free association.

(ii) People have the right to see evidence offered against them, whether the evidence is offered in a criminal trial or in a deportation proceeding, regardless of the nature of the charges against the person.

(iii) Any terrorism statute should not be so broadly drawn as to give the government the power to selectively prosecute persons for conduct the government judges is calculated to serve an undesirable political end.

Terrorism legislation that is consistent with the Constitution can be promulgated. Aspects of such legislation, including tighter controls on plastic explosives and nuclear materials, already appear in both the Administration Bill and the Dole Bill. However, Congress need not maltreat the Bill of Rights to protect the population.

I will be happy to entertain any questions you might have.

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