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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
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
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
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
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
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
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
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
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
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
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
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.
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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