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ANTI-TERRORISM'S LENGTHY HISTORY AND CURRENT ABUSES:
A Review of Terrorism and the Constitution

By ELAINE CASSEL
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Friday, Oct. 11, 2002

David Cole and James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New Press 2002)

In 1999, Georgetown University Law professor David Cole and the Center for Democracy and Technology's James Dempsey published the first edition of their work Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. It detailed the enactment of the 1996 Antiterrorism and Effective Death Penalty Act - which, at the time, was famous not so much for its terrorism provision, but rather for its draconian pro-death penalty and anti-habeas corpus provisions.

This year brings the book's second edition - updated to account for recent developments in the "war on terrorism." The authors detail the Clinton administration's use of the Antiterrorism Act and examine the enactment and scope of the USA PATRIOT Act - a hastily enacted, post-9/11 law that gives the government wide-sweeping surveillance powers over American citizens.

Throughout Terrorism and the Constitution, Cole and Dempsey diverge from popular opinion by insisting that civil liberties, far from being a threat to national security, are the essence of America. What are we "fighting" for in this war on terrorism, they ask, if not to protect our way of life--which has personal liberty at its very core?

The FBI and Civil Liberties, Including Free Speech Rights: A Dismal Record

The first section of the book chronicles the abuses that have happened in the past when law enforcement arrogated too much power to itself. Over the past 75 years, the authors explain, we have see FBI power-grabbing, overreaching, illegality, and denial. Attempted reforms have only led to retrenchment. Even Americans involved in human rights groups such as Amnesty International have been surveillance targets. And the trend of the expansion of power has been capped off by recent, unprecedented secret activities targeting both American citizens and immigrants.

As the authors discuss, even before there was an "antiterrorism" statute, in the 1980's, the FBI conducted surveillance of Americans involved with activists who supported rebel groups in El Salvador, and who were opposed to American aid to the El Salvadoran military. These were people whose only crimes were to have attended rallies, signed petitions, and possessed reading materials associated with the Committee in Solidarity with People of El Salvador (CISPES), whose activities were variously described by the FBI as "terrorist" or "leftist."

The authors see these investigations as laying the foundation for the Antiterrorism and PATRIOT acts. Congress essentially denounced the scope of the anti-CISPES investigations and in 1994 enacted a law protecting First Amendment activities from FBI investigations. However, that law was repealed in the Antiterrorism Act of 1996 - practically inviting history to repeat itself.

The 1996 Antiterrorism Act

The Antiterrorism Act of 1996 was a response to the 1993 bombing of the World Trade Center and the 1995 bombing of the federal building in Oklahoma City. Cole and Dempsey describe the Act as a massive assault on First Amendment rights of speech, assembly, and petition, and a deeper entrenchment of the "guilt by association" tradition active in the FBI.

As noted above, the Act removed barriers to FBI investigation of activities protected under the First Amendment. It also removed some restrictions on the famous FISA (Foreign Intelligence Surveillance Act) Court - where federal judges sit in secret to consider, and mostly approve, Justice Department requests for widespread surveillance of "terrorists," including pen registers and "trap-and-trace" surveillance, methods that can capture income and outgoing telephone calls. The law also opened the door for the Immigration and Naturalization Service to deport mostly Muslim citizens. The deportations were based on largely secret evidence, and no overt acts needed to be alleged.

The authors tell the stories of several individuals who were targeted under the law, as a result of racial and ethnic profiling. More than two dozen Muslim immigrants were detained and then deported, typically for visa or immigration regulation violations. Most were never charged with any crime. They were, in the government's eyes, "guilty" of being associated with people or organizations labeled as "terrorist."

In 1999, the Supreme Court denied judicial review of the deportations - remember, the 1996 Act also curtailed judicial review - in Reno v. American-Arab Anti-Discrimination Committee. Its decision is an ominous precedent for those who hope the Court will intervene in our current civil liberties crisis. Remember, this all occurred before 9/11.

The Post-9/11 USA PATRIOT Act

Then came 9/11 - and the USA PATRIOT Act. The Act expanded "guilt by association" to the point that the most tenuous connection to an organization labeled by the Secretary of State as a "terrorist" organization can now lead to the charge of conspiring, or taking action to, give "material support" to "aid and abet" terrorism.

Was the expansion necessary? Sheik Abdel Rahman and others implicated in the 1993 World Trade Center attack and acts of violence on American embassies, as well as Timothy McVeigh and Terry Nichols, were tried and convicted before the 1996 and 2001 laws were enacted.

The First Amendment consequences are dire, as Cole and Dempsey point out - given that there is no specific definition of "material support," no apparent intent requirement, and no ability on the part of defendants to question an organization's appearance on the list.

In light of this vagueness, most Muslim citizens and immigrants may reasonably believe that the course safest for their families is simply to avoid Muslim associations and organizations, period. And that is the tragedy: legitimate First Amendment activities have been criminalized, and even worse, criminalized so vaguely that the safest course would be to avoid exercising free speech rights at all. Muslims should be able to attend their mosques without fear that they may be jailed because they happen to pray next to someone under government suspicion.

No Safe Harbor in the Courts

Terrorism and the Constitution cautions against counting on the courts to protect our civil liberties and recounts the judiciary's dismal record in protecting civil liberties since the 1996 Antiterrorism Act.

Since September 11, 2001, hundreds of immigrants have been detained and, perhaps deported, but in secret. We don't know their names or where they are held. The Sixth Circuit Court of Appeals upheld a district court order requiring an open trial for a detained immigrant, but it is the only Appeals court so far that has rejected the government's insistence on secret trials.

In a blow to civil libertarians, this week the Third Circuit overruled the New Jersey district court's ruling that the Justice Department had to disclose the names of individuals detained in its jurisdiction.

Although we know the names of several detained U.S. citizens, such as Jose Padilla and Yaser Hamdi, they are being held incommunicado and denied access to an attorney. Any day now, the Fourth Circuit (which has the dubious distinction of being more conservative in its politics than the Supreme Court) will decide whether to overturn U.S. District Judge Robert Doumar's ruling that Hamdi, charged as an unlawful combatant and held in a Norfolk, Virginia U.S. Navy brig, has the right to be visited by the Federal Public Defender.

It would be blind optimism to expect the appeals court to agree with the feisty Judge Doumar, who expressed outrage that an American could be held forever, without being charged, without representation, and dealt with as the government pleased with no judicial review whatsoever, based solely upon the affidavit of a Pentagon bureaucrat.

And there is surely no reason to think that the Supreme Court will rule against the government. Justice Sandra Day O'Connor said shortly after the attacks of September 11 that Americans would have to learn to do with less civil liberties; Chief Justice William Rehnquist has written a book about the importance of judicial deference to the executive branch in wartime.

But liberties are to be exercised, not locked away or shelved only to be brought out of storage when the political climate changes. Terrorism and the Constitution is a call to Americans to fight for civil liberties now, or prepare to lose them forever.


Elaine Cassel practices law in Virginia and teaches law and psychology. Her textbook, Criminal Behavior (Allyn & Bacon, 2001), explores crime and violence from a developmental perspective. She writes and lectures for continuing legal education courses in election law, Internet law, surveillance and civil liberties, genetics, and health law. She is Chair of the Behavioral Science Committee of the ABA Science and Technology Law Section and a member of the Criminal Justice and Litigation Sections.

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