Via NY Transfer News Service 718-448-2358, 718-448-2683 US to Deport +quot;Alien Terrorist
Via NY Transfer News Service 718-448-2358, 718-448-2683
US to Deport "Alien Terrorists," CCR Warns
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
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.
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
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
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
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
For this reason, the government is generally forbidden from relying on
secret information when taking action that harms a person.
//missing text// 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.
Source: PeaceNet cdp:pn.alerts
E-Mail Fredric L. Rice / The Skeptic Tank